    [Senate Hearing 107-664]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-664

                         CHEMICAL SECURITY ACT, S. 1602

    =======================================================================

                                    HEARING

                                   BEFORE THE

         SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK, AND WASTE MANAGEMENT

                                     OF THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                 FIRST SESSION

                                       ON

       A BILL TO HELP PROTECT THE PUBLIC AGAINST THE THREAT OF CHEMICAL
                                    ATTACKS

                                   __________

                               NOVEMBER 14, 2001

                                   __________

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

                                     ______

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                                WASHINGTON : 2003
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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                          one hundred seventh congress
                                 first session
                      JAMES M. JEFFORDS, Vermont, Chairman
    MAX BAUCUS, Montana                  BOB SMITH, New Hampshire
    HARRY REID, Nevada                   JOHN W. WARNER, Virginia
    BOB GRAHAM, Florida                  JAMES M. INHOFE, Oklahoma
    JOSEPH I. LIEBERMAN, Connecticut     CHRISTOPHER S. BOND, Missouri
    BARBARA BOXER, California            GEORGE V. VOINOVICH, Ohio
    RON WYDEN, Oregon                    MICHAEL D. CRAPO, Idaho
    THOMAS R. CARPER, Delaware           LINCOLN CHAFEE, Rhode Island
    HILLARY RODHAM CLINTON, New York     ARLEN SPECTER, Pennsylvania
    JON S. CORZINE, New Jersey           BEN NIGHTHORSE CAMPBELL, Colorado

                    Ken Connolly, Democratic Staff Director
                    Dave Conover, Republican Staff Director
                                     ------

         Subcommittee on Superfund, Toxics, Risk, and Waste Management

                       BARBARA BOXER, California Chairman

    MAX BAUCUS, Montana
    RON WYDEN, Oregon                    LINCOLN CHAFEE, Rhode Island
    THOMAS R. CARPER, Delaware           JOHN W. WARNER, Virginia
    HILLARY RODHAM CLINTON, New York     JAMES M. INHOFE, Oklahoma
    JON S. CORZINE, New Jersey           MICHAEL D. CRAPO, Idaho
                                         ARLEN SPECTER, Pennsylvania

                                C O N T E N T S

                                  ----------
                                                                       Page

                               NOVEMBER 14, 2001
                               OPENING STATEMENTS

    Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
    Carper, Hon. Thomas, R., U.S. Senator from the State of Delaware.    15
    Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
      York...........................................................     9
    Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey..     3
    Inhofe, Hon. Jim, U.S. Senator from the State of Oklahoma........     8
    Jeffords, Hon. James M., U.S. Senator from the State of Vermont..    40
    Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....    11
    Voinovich, Hon. George V., U.S. Senator from the State of Ohio...     8

                                   WITNESSES

    Orum, Paul, director, Working Group on Community Right-to-Know...    21
        Prepared statement...........................................    54
        Letter, to Attorney General Ashcroft.........................    68
        Responses to additional questions from Senator Corzine.......    59
    Shinn, Robert C. Jr., commissioner, New Jersey Department of
      Environmental Protection.......................................    17
        Prepared statement...........................................    40
    Stanley, William, sourcing-regulatory manager, Deepwater
      Chemicals; on
      behalf of the Synthetic Organic Chemical Manufacturers
      Association....................................................    23
        Prepared statement...........................................    69
    Steinzor, Rena, academic fellow, National Resources Defense
      Council........................................................    25
        Prepared statement...........................................    76
        Responses to additional questions from Senator Corzine.......   153
    Webber, Frederick L., president and chief executive officer, The
      American Chemistry Council.....................................    19
        Prepared statement...........................................    43

                              ADDITIONAL MATERIAL

    Articles:
        Baltimore Sun, October 17, 2001, When Chemical Safety is a
          Matter of Security.........................................    91
        Energy Insight Today, September 14, 2001, A Vulnerable System
          Looks for Security.........................................   120
        Environmental Science & Technology News, June 1, 2000,
          Anatomy of a Successful Project............................   122
        Houston Chronicle, July 23, 2001, Tunnel Damage Assessed
          After Derailment, Blaze....................................    95
        Los Angeles Times, January 6, 1985, Flaws Found in Emergency
          Plans Near Toxic Plants....................................    89
        New York Times, January 28, 1985, The Bhopal Disaster: How it
          Happened...................................................    81
        Scientific American, July 1995, Toxins Abounding Despite the
          Lessons of Bhopal, Chemical Accidents are on the Rise......   118
        Washington Post, November 12, 2001, Toxic Chemicals' Security
          Worries Officials: Widespread Use of Industrial Materials
          Makes Them Potential Target of Terrorists..................    79
    Design for Prevention, Minimum Safety and Security Standards for
      EHS Facilities.................................................    66
    Letters:
        Design for Prevention........................................ 64-68
        Greenpeace..................................................165-167
    Reports:
        Assessment of the Incentives Created by Public Disclosure of
          Off-Site Consequence Analysis Information for Reduction in
          the Risk of Accidental Releases, Department of Justice....103-117
        Assessment of the Increased Risk of Terrorist or Other
          Criminal Activity Associated With Posting Off-site
          Consequence Analysis Information on the Internet,
          Department of Justice......................................96-102
        Industrial Chemicals and Terrorism: Human Health Threat
          Analysis, ATSDR, Department of Health and Human Services..130-137
    Statements:
        American Petroleum Institute.................................   153
        Canary, William, president and chief executive officer,
          American Trucking Association, Inc. (ATA)..................   155
        Hind, Rick, legislative director, Greenpeace Toxic Campaign..   164
        National Association of Chemical Distributors................   168
        National Propane Gas Association.............................   170
        Zillinger, Everett, director, Government Relations, The
          Fertilizer Institute.......................................   159
    Summary, S. 1602, Chemical Security Act..........................   161
    Text of S. 1602, Chemical Security Act..........................138-152

                         CHEMICAL SECURITY ACT, S. 1602

                                  ----------

                          WEDNESDAY, NOVEMBER 14, 2001

                                   U.S. Senate,
             Committee on Environment and Public Works,
                            Subcommittee on Superfund, Toxics,
                                     Risk and Waste Management,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 2:08 p.m. in
    room 406, Senate Dirksen Building, Hon. Barbara Boxer (chairman
    of the subcommittee) presiding.
        Present: Senators Boxer, Inhofe, Specter, Corzine, Clinton,

    Carper, and Smith, ex officio.
        Senator Boxer. The hearing will come to order.
        I'm going to ask the people on the second panel to please
    come up and sit at the table since we really only have one
    person speaking on the first. Then the staff person can move
    directly behind the person who is speaking. If all the people
    on the second panel can come forth and take seats, I think it's
    better because we want to hear from all of you.

               OPENING STATEMENT OF HON. BARBARA BOXER,
               U.S. SENATOR FROM THE STATE OF CALIFORNIA

        Today, the Superfund, Toxics, Risk and Waste Subcommittee
    will hear about the threat proposed by toxic chemicals and the
    need to assure the security of those chemicals. Specifically,
    we will hear testimony on the Chemical Security Act introduced
    and written by Senator Corzine and co-sponsored by Senators
    Jeffords, Clinton and myself. We have had to reorder our
    priorities on a number of issues, and this has taken on a new
    urgency since September 11. The security of toxic chemicals
    throughout the United States is very high on that list of
    priorities.
        Whether there is a serious threat posed by toxic chemicals
    in communities throughout the country, to my mind, is not in
    question. One of our witnesses today, Frederick Webber,
    president of the Chemistry Council, is representing 180 major
    companies including Dow and Dupont. He said it well in an
    article on toxic chemical security in the Washington Post just
    this week. He said, ``No one needed to convince us that we
    could be and indeed would be a target at some future date. If
    they are looking for a big bang, obviously you don't have to go
    far in your imagination. Just think about what the
    possibilities are.''
        Others have taken note of the terrible threat and taken
    rapid steps to address it. Since September 11, the District of
    Columbia's Blue Plains Wastewater Treatment Plant quietly at
    night, and under guard, removed 900 tons of liquid chlorine and
    sulfur dioxide. Practically overnight they accelerated a
    program to use fewer toxic chemicals like bleach, instead of
    chlorine gas, for wastewater treatment. Chlorine and sulfur
    dioxide are so volatile that a rupture of just one 90-ton
    tanker could release a lethal cloud that could spread over a
    10-mile radius, killing thousands in just a few minutes.
        My State of California is near the top of the list of
    States with facilities with extremely hazardous chemicals
    onsite. In fact, California has over 150 facilities with over
    100,000 pounds of extremely hazardous substances near 34
    million people who live in California. The threat is real and
    it requires immediate attention.
        Senator Corzine has introduced S. 1602, the Chemical
    Security Act. I believe this is just the kind of thing we need
    to do. We need to get ahead of the problem and not just react
    to a tragedy. The Chemical Security Act provides the
    Environmental Protection Agency and the Department of Justice
    with the authority to intervene and issue an order when there
    is a serious threat posed by problems with chemical security.
    It also requires that those agencies develop regulations that
    define priority sites and assure that basic security
    precautions are taken which can include limiting the chemicals
    stored onsite.
        Let me just say that I understand the value of chemicals in
    our society. We are not here today to question whether we need
    chemicals. We do. May be not quite so much of them, but we do
    need chemicals. What we need to do is to protect those
    chemicals, especially the hazardous ones, from terrorist
    threats. Let's be careful not to mix up those two issues.
        I want to hear from Senator Corzine, since he authored the
    Act; and then we will go to Senator Inhofe and Senator Clinton
    for opening statements.
        I want to sadly note the absence of the Environmental
    Protection Agency and the Department of Justice. They were both
    invited to come here. They declined to come, and I have these
    nameplates in case they show up. They are right here and I will
    put them out if they change their minds.
        Frankly, I am at a loss as to why they wouldn't choose to
    comment on these issues, whether they agree with Senator
    Corzine's bill or not. We really wanted to hear from them. I
    don't know whether we will have to have another hearing where
    we require their presence but I hope they will, of their own
    accord, choose to engage with us.
        We don't have the luxury of time. We need to get ahead of
    these threats. We need to act. Industry frequently resists
    additional regulation but I hope we can keep our eye on this
    ball. All of us have a responsibility to make sure we do
    everything we can to keep our country safe. Let us rise to the
    challenge.
        Now, I will turn it over to the author of this very
    important bill, Senator Corzine. Thank you for your leadership.
        [The prepared statement of Senator Boxer follows:]

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

        Today, the Superfund, Toxics, Risk Subcommittee will hear about the
    threat posed by toxic chemicals and the need to assure the security of
    those chemicals. Specifically, we will hear testimony on the Chemical
    Security Act, introduced by Senator Corzine and co-sponsored by myself,
    Senator Jeffords and Senator Clinton.
        We have had to reorder our priorities since a number of issues have
    taken on a new urgency since September 11. The security of toxic
    chemicals throughout the United States is very high on the list.
        Whether there is a serious threat posed by toxic chemicals in
    communities throughout the country is not in question. In fact, one of
    our witnesses today, Frederick Weber, president of the American
    Chemistry Council, representing 180 major companies, including Dow and
    DuPont, said it well in an article on toxic chemical security in the
    Washington Post just this week.
        He said, ``No one needed to convince us that we could be--and
    indeed would be--a target at some future date. If they're looking for a
    big bang, obviously you don't have to go far in your imagination to
    think about what the possibilities are.''
        Others have taken note of the terrible threat and taken rapid steps
    to address it. Since September 11, the District of Columbia's Blue
    Plains Waste Water Treatment Plant, quietly at night and under guard,
    removed 900 tons of liquid chlorine and sulfur dioxide. Practically
    overnight, they accelerated a program to use fewer toxic chemicals like
    bleach instead of chlorine gas for wastewater treatment.
        Chlorine and sulfur dioxide are so volatile that a rupture of just
    one 90-ton tanker could release a lethal cloud that could spread over a
    10-mile radius, killing thousands in just a few minutes.
        My State of California is near the top of the list of States with
    facilities with extremely hazardous chemicals onsite. In fact,
    California has more than 150 facilities with over 100,000 pounds of
    extremely hazardous substances.
        The threat is real, and it requires immediate attention.
        Senator Corzine has introduced S. 1602, ``the Chemical Security
    Act.'' This is just the kind of thing we need to do--we need to get
    ahead of the problem and not just react.
        The Chemical Security Act provides the Environmental Protection
    Agency and the Department of Justice with the authority to intervene
    and issue an order when there is a serious threat posed by problems
    with chemical security.
        It also requires that those agencies develop regulations that
    define priority sites and assure that basic security precautions are
    taken, which can include limiting the chemicals stored onsite.
        Let me just say that I understand the value of chemicals in our
    society. We are not here today to question whether we need chemicals.
    We do, maybe not quite so much of them, but we do need them.
        What we need to do is protect those chemicals, especially the very
    hazardous ones, from terrorist threats. Let's be careful not to mix up
    these issues.
        I also want to note the absence of EPA and DOJ. They were invited,
    but declined to come. I am disappointed that they have chosen not to
    comment on this issue or this legislation. We need to address this
    head-on and work out our differences quickly. I certainly hope they
    quickly join us in this process.
        We do not have the luxury of time. We need to get ahead of these
    threats. We need to act. Industry frequently resists additional
    regulation, but I hope we can keep our eye on the ball. All of us have
    a responsibility to make sure we do all we can to keep our country
    safe. Let's rise to the challenge.

               OPENING STATEMENT OF HON. JON S. CORZINE,
               U.S. SENATOR FROM THE STATE OF NEW JERSEY

        Senator Corzine. Thank you, Madam Chairman. It's great to
    work with you, Senator Jeffords and Senator Clinton on S. 1602,
    the Chemical Security Act. Your longstanding leadership in
    environmental and public health issues is a great asset to the
    Senate. I certainly, like many of my colleagues, we look to you
    for leadership in this area. I truly support your efforts and
    appreciate your help here.
        We also want to thank Senator Chafee for joining in holding
    this hearing.
        I think one of the fundamental facts you brought out so
    clearly, is that chemical facilities are an obvious
    vulnerability. As opposed to waiting until after the fact, it
    occurs to many of us, including some of the witnesses today,
    that we ought to be working on these obvious vulnerabilities
    and get ahead of the curve. This area with regard to chemical
    production processing, transportation and disposal is an
    obvious area where terrorists could work.
        The Justice Department called the terrorist threat to
    chemical facilities real and credible. An April 18, 2000 report
    goes in detail to describe where some of those vulnerabilities
    might exist. It really laid down the marker for us to act with
    regard to these areas, not only with stationary facilities, but
    ones that are on our rail and mobile systems as well.
        So I think there is a lot for us to do. Unfortunately, the
    Justice Department, which was asked to bring forward a
    vulnerability assessment of the nation's chemical industry, was
    required in 1999 law, has not issued the assessment. We are
    still waiting for it. I know Mr. Webber has spoken about this
    as an important study. I think all of us should expect to have
    it completed, brought forward and presented in a way so that we
    can use the results.
        My own view, and I think it is shared by a number of
    people, is that additional regulations are necessary. We didn't
    really need the Justice Department study to tell us that there
    have been serious accident problems. These findings could be
    translated into discoveries of more serious vulnerabilities
    with regard to terrorists attacks if they had been brought on a
    basis other than only accidents. We don't have to go back to
    Bhopal or to recent events in France to see that there is quite
    a bit of uncertainty about what causes of accidents, Lodi Dye
    Company in New Jersey, where we lost life, and the Baltimore
    rail tunnels.
        I'm going to mention a circumstance on which I won't give
    all the details, but one of the investigative reporters at one
    of the New York television stations, either tonight or in the
    next 2 days, will document literally walking into two chemical
    and refining facilities in New Jersey along the New Jersey
    Turnpike with a camera unchecked for over a hour. I think
    reveals that some of the concerns one has with regard to the
    security of these plants is real.
        I personally think regulatory response is necessary. A
    voluntary approach, in my view, while desirable, may be one
    that I think the American public would not take great comfort
    from. It's not unlike the kind of conversations and debate we
    are having with regard to aviation security. Sometimes bottom
    lines get in the way of people doing the right thing,
    particularly with respect to the lowest common denominator of
    some of the participants in the industry.
        So I think self regulatory standards are a good concept,
    but not always ones that work. I came from an industry where we
    had a mixture of self-regulation and external regulation. I
    think they are workable together. That is what we are trying to
    do with this bill. This is a common-sense approach. We need to
    prioritize chemical threats, take measures to reduce them.
        We don't have to do all things, but we do need to reduce
    comprehensive threats. This bill directs the EPA Administrator
    to consult with the Attorney General, States and localities to
    identify high-priority categories within our chemical
    production, processing, transportation and disposal
    infrastructure; designates those categories; allows the
    Administrator to set factors, including severity of the harm
    from a potential release or proximity to population centers,
    threats to critical infrastructure that may surround these
    issues, national security; and other things that the
    Administrator may think are appropriate.
        The bill directs the Administrator to consider threshold
    quantities of chemicals. I think this is one thing we will hear
    from one of the witnesses. We can protect small business where
    there is little broad-based risk. On the other hand, it doesn't
    leave out the fact that we need to act with regard to the
    serious potential risks associated with explosions, non-
    accidental, criminal and terrorist acts.
        It gives the Administrator the ability to act quickly in
    cases of severe risk that is identifiable now, but does allow
    for a process to unfold over the next 2 years both in
    identifying high priorities and developing the regulations over
    a 2-year period. So it's not a crash program other than for
    those places that, on a case-by-case basis, are particularly
    threatening.
        I hope people will look at my home State of New Jersey
    which does have a regulatory approach, not to find an absolute
    match; but one I hope Commissioner Shinn will describe that I
    think has worked reasonably well. I think regulation can play a
    positive role if applied properly. Again, this is not overly
    proscriptive. We want to work with the EPA, the Attorney
    General's Office, industry, State and localities to come up
    with it.
        I hope the Administration gets to work on this and we can
    come up with a relatively rapid response. We should not be
    acting after the fact when many times our responses might have
    to be more draconian, more severe and more difficult. I think
    we have before us a more pragmatic approach.
        Like Chairman Boxer, I too am somewhat frustrated that we
    have not had the kind of participation from EPA and the
    Attorney General's Office with regard to this. It seems like we
    can talk about it on CNN but not necessarily in a hearing room
    of the Congress. I hope we can get to those areas quickly.
        Thank you, Madam Chairman, for holding the hearing, and I
    appreciate all the participants and their insights.
        [The prepared statement of Senator Corzine follows:]

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

        Thank you, Madame Chairman. I want to start by thanking you,
    Senator Jeffords and Senator Clinton for working with me on S. 1602.
    Madame Chairman, your long-standing leadership in environmental and
    public health protection is a great asset to the Senate, and I am proud
    to have you as an original co-sponsor of this bill. I also want to
    thank you and Senator Chafee for holding this hearing today. I think we
    need to get moving on this issue, and today's hearing gives us an
    opportunity to gather information about how best to proceed.
        Madame Chairman, in the wake of the attacks in New York and
    Washington, it is clear that we need to look at all of our nation's
    assets and people as potential terrorist targets. We need to shore up
    vulnerabilities that have already been exploited, such as airline
    security. But just as importantly, we need to identify other
    vulnerabilities and address them proactively, before the fact.
        I believe that one of our most obvious vulnerabilities is our
    nation's chemical production, processing, transportation and disposal
    infrastructure. Like the chairman's home State, my State of New Jersey
    is the site of numerous industrial chemical facilities. These
    businesses have helped to build New Jersey's economic strength, and
    they produce valuable products that are essential to the nation's
    economy. But the chemicals found at these businesses also pose
    potentially grave risks to their workers and the communities that
    surround them. Some of these chemicals are highly toxic, such as
    chlorine, ammonia or hydrogen sulfide; others are highly flammable.
    They can all have major impacts on our communities.
        In 1995, an explosion at a facility in Lodi, New Jersey killed five
    people. In June 1998, a release of cresol from a facility in Paterson,
    New Jersey forced the evacuation of a nearby school, and caused nausea
    and headaches in more than 50 kids, two of whom were hospitalized
    overnight. These incidents are troubling, but they pale in comparison
    to the most catastrophic chemical accidents that have occurred. The
    release of methyl isocyanate gas from a chemical plant in Bhopal, India
    in 1984 caused more than 2,000 deaths and many thousands of injuries.
    And in September of this year, an explosion in a fertilizer plant in
    France caused 29 deaths, thousands of injuries, and damaged thousands
    of buildings.
        Fortunately, we have not had such catastrophic accidents here in
    the United States. But there is no question that the potential for
    severe harm exists at some facilities. Some of the most compelling
    evidence in this regard are the worst-case release scenarios that have
    been developed by approximately 18,800 chemical facilities as part of
    EPA's Risk Management Plan. One component of the worst-case scenarios
    is an estimate of the number of people that could be adversely affected
    by a ``worst-case'' release. An EPA analysis of the data shows that the
    median number of people affected by a toxic worst-case release is
    1,500. That means that the worst-case scenario at thousands of plants
    has the potential to impact thousands of people. In the case of some
    plants that are close to large population centers, the number of people
    potentially impacted by a worst-case scenario is more than a million. I
    certainly don't want to name any of those facilities in this forum, but
    suffice it to say that New Jersey, with its dense population, has its
    share.
        Because of the potential to harm so many people by causing a
    chemical release, chemical plants are attractive targets to terrorists.
        This is not just my opinion, Madame Chairman. The Department of
    Justice studied this matter last year and concluded in an April 18,
    2000 report that there is a ``real and credible threat'' that
    terrorists would try to cause an industrial chemical release in the
    foreseeable future. The Department noted that attacking an existing
    chemical facility, for example, presents an easier and more attractive
    alternative for terrorists than constructing a weapon of mass
    destruction. In addition, the Department concluded that many plants
    that contain hazardous chemicals would be attractive targets for
    terrorists because of the plants' proximity to densely populated areas.
        Apart from this Justice Department threat assessment, the Agency
    for Toxic Substances and Disease Registry, conducted a study of more
    than 60 chemical plants in West Virginia, Georgia and Nevada. The
    Agency found that security at those plants ranged from fair to very
    poor.
        Unfortunately, the Justice Department has not yet completed a
    related vulnerability assessment of the nation's chemical industry that
    is required by law. I want to join with the American Chemistry Council
    in urging the Justice Department to complete this important study. It
    is more necessary than ever.
        I know that the chemical industry takes safety seriously, and has
    been working hard to address security issues since September 11. The
    American Chemistry Council has issued security and transportation
    guidelines, and has scheduled meetings with its members to promote
    them. I applaud these actions, but I don't think that they are a
    substitute for regulations. I believe that most companies will do the
    right thing, but I'm worried about the least common denominator. A
    company that wants to cut corners is not likely to implement voluntary
    guidelines. The American Chemistry Council or any other industry
    association cannot and should not be put in the position of having to
    self-regulate security standards. This is clearly a government role,
    and one that requires new tools at the Federal level. Having said that,
    I want to add that I want to work with industry on this bill, and fully
    expect industry to play a key role in developing the regulations that
    the bill would require, as they typically do. But I believe there
    should be no dispute that new regulations are needed.
        The primary reason is that there are currently no mandatory Federal
    security standards for any chemical facilities. Even those in densely
    populated areas. Even those with large quantities of extremely
    hazardous chemicals. We do require owners and operators of such
    facilities to prepare risk management plans that analyze the potential
    offsite consequences of an accidental release of regulated substances.
    These reports must include plans to prevent an unintended release, and
    to mitigate the effects of such a release, should it occur. However, no
    Federal requirements are currently in place that require specific steps
    to prevent releases caused by criminal or terrorist activity.
        Madame Chairman, S. 1602, the Chemical Security Act of 2001, would
    give the Administration the mandate and the tools to take common sense
    steps to address the highest priority threats from accidents and
    attacks involving hazardous chemicals.
        To enable the Federal Government to take action upon enactment to
    address the most serious risks on a case-by-case basis, the bill
    provides EPA and the Attorney General the authority to issue
    administrative orders and secure relief through the courts to abate an
    imminent and substantial endangerment from a potential accidental or
    criminal release.
        To reduce threats in a more comprehensive way, the bill directs the
    EPA Administrator to consult with the Attorney General, States and
    localities to identify ``high priority'' categories within our chemical
    production, processing, transportation and disposal infrastructure. In
    designating these ``high priority'' categories, the Administrator is to
    consider a set of factors, including the severity of potential harm
    from a release, proximity to population centers, threats to critical
    infrastructure and national security, and other factors the
    Administrator considers appropriate. The bill also directs the
    Administrator to consider threshold quantities of chemicals in
    establishing high priority categories. This is to ensure that small
    businesses that pose little risk are not subject to the regulations.
        The bill then directs EPA to work with the Justice Department to
    develop regulations for the high priority categories that will require
    them to take adequate actions to prevent, control and minimize the
    potential consequences of an accident or attack.
        The bill includes other provisions to enable the EPA and the
    Attorney General to carry out and enforce the act, such as the
    authority to obtain information that may be needed, while providing for
    protection of trades secrets and national security information.
        Madame Chairman, the legislation is not overly prescriptive, and
    this is intentional. I believe that in the wake of September 11, it is
    self-evident that the possibility of chemical attacks is something we
    need to examine. So the heart of the bill is a requirement that EPA and
    DOJ work with State and local agencies to ensure that the highest
    priority threats from chemical
        facilities are being addressed. But I don't want to tie the hands
    of the Administration. I think that they should have wide latitude in
    determining what types of chemicals and facilities need to implement
    better security measures and take other measures to reduce risks. But I
    do think they need identify the biggest risks and go after them.
        Madame Chairman, strengthening security at high priority chemical
    sources is an immediate and necessary step to safeguard our
    communities. Over the longer term, however, I believe that our desire
    to protect our communities and our environment will be best served by
    reducing the use of hazardous chemicals. That's why this bill includes
    provisions to require high priority chemical sources to reduce risks
    where practicable by using inherently safer technology, well-maintained
    secondary control equipment, robust security measures, and buffer
    zones.
        We have seen this type of approach work in New Jersey, where the
    legislature enacted a law requiring facilities to implement alternate
    processes that would reduce the risk of a release of extremely
    hazardous substances. After the enactment of this law, the number of
    water treatment plants using levels of chlorine at a level considered
    extremely hazardous decreased from 575 in 1988 to 22 in September of
    2001. Chlorine, which can cause a number of problems include burning of
    the skin and eyes, nosebleeds, chest pain, and death, was replaced by
    sodium hypochlorite or other much less hazardous chemicals or
    processes.
        Finally, Madame Chairman, I want to say that like you, I am very
    disappointed that the Administration chose not to send witnesses to the
    hearing today. Congress and the Administration need to work together on
    chemical security, as we do on all of the post-September 11 challenges
    and vulnerabilities that we face. I know that EPA has been working on
    this issue, because I saw Administrator Whitman talking about it on CNN
    last Friday. Even if the Administration was not prepared to provide
    detailed testimony on the bill, they could have sent someone to answer
    whatever questions they are prepared to answer at this point. So I want
    to reiterate my call to the Administration to work with this committee
    and this Congress on chemical security. If you believe, as I do, that
    new Federal authorities and regulations are needed, then help us craft
    a proposal. If you're opposed to new security regulations, you need to
    explain that view to Congress and the American people.
        Thank you Madame Chairman.

        Senator Boxer. Thank you, Senator Corzine, for authoring
    this bill.
        Senator Inhofe, we will hear from you.
        Senator Inhofe. Thank you, Madam Chairwoman.
        First, I'd like to ask unanimous consent that Senator
    Voinovich's statement be placed in the record at this point.
        Senator Boxer. Without objection, so ordered.
        [The prepared statement of Senator Voinovich follows:]
         Statement of Hon. George V. Voinovich, U.S. Senator from Ohio
        Thank you, Madam Chairman for calling this hearing on the Chemical
    Site Security Act. While I agree with the goals of this legislation, to
    safeguard our nation's chemical facilities and reduce the vulnerability
    of our nation to the release of hazardous chemicals. I believe we need
    to be very careful in how we go about this.
        First, I believe the appropriate subcommittee to consider this Bill
    is the Clean Air Subcommittee. This issue is an outgrowth of the Risk
    Management Plan program under the Clean Air Act. Last Congress, the Air
    Subcommittee considered S. 880, Chemical Safety Information Site
    Security Act, which was enacted into law. In addition, the Chemical
    Safety Board, the board this committee created to investigate chemical
    accidents is also within the Clean Air Act. I will be asking Senator
    Lieberman, the Chairman of the Clean Air Subcommittee to hold a hearing
    on this Bill before it is considered by the full committee.
        Second, I hope we don't use the urgency of September 11 to justify
    fast tracking this Bill because the legislation does not address the
    immediate issue of site security. Like most members of this
    subcommittee, I would like to see our hazardous chemical sites better
    protected, however, categorization is only required within 1 year of
    passage of this legislation. Moreover, it will take 1 year to establish
    all the rules to address high priority chemicals and it will take even
    more time to implement those rules. Overall, we may not even see the
    full effect of this bill for some 4 or 5 years, therefore there is no
    urgency to rush this legislation through the process.
        Third, the regulatory process is not conducive to this issue since
    everything, including proprietary information, would need to be made
    public. The comment period alone would likely address how to
    prioritize, give locations and quantities of high priority chemicals
    and in general provide great amounts of sensitive data publicly
    available through the rulemaking process. Such a dissemination of
    information could be a tremendous public safety risk and possibly an
    even greater threat to national security. Last Congress the FBI told
    this committee that the publication of the ``worst-case scenario''
    plans under the Risk Management Program could be used by terrorists for
    targeting of facilities.
        We must be certain that the information called for by this
    legislation will not create a similar risk.
        Finally, the bill places a significant burden on small businesses,
    even those just trying to determine whether the bill or subsequent
    regulations would apply to their particular company. Because of the
    unique dynamic of batch and specialty chemical production, these
    businesses need operational flexibility. This bill would take away that
    flexibility by mandating specific processes, hampering small companies
    from reacting quickly to the marketplace. This could restrict a small
    company's ability to compete globally. We must ensure that any
    legislation considered by the committee will not result in releasing
    trade secret information or cause a national security risk by
    disclosing information which could be used by potential terrorists.

              OPENING STATEMENT OF HON. JAMES M. INHOFE,
                U.S. SENATOR FROM THE STATE OF OKLAHOMA

        Senator Inhofe. I, first, want to welcome Mr. Bill Stanley,
    the sourcing-regulatory manager of Deepwater Chemicals from
    Woodward, OK. As everyone knows, Oklahomans are no strangers to
    terrorism. It will be very interesting to hear Mr. Stanley's
    testimony not only from the perspective of a small chemical
    company, but also as a citizen and father.
        Security must be our top priority, and we need to figure
    out what are the potential problems and what is the best way to
    address those problems. I know everyone is ready to do their
    part to fight and respond to terrorism, but that is why
    Congress needs to work with the President to develop a well-
    thought-out strategy. As a matter of process, I am concerned
    about us getting ahead of the President and Homeland Security
    Director Ridge on this issue. Governor Ridge is working hard to
    assess the threats and corresponding security measures to the
    chemical industry as well as other potential terrorist targets.
    I know Governor Ridge is working with all the agencies to
    assess needs and coordinate responses. Additionally, Governor
    Ridge should be working with the various sections of industry
    to assess their security needs. I'm still waiting for the
    Office of Homeland Security to develop proposals in order to
    see what security issues we as a nation need to address.
        I have some real problems S. 1602. In particular, I feel
    many of the titles of this bill would do nothing to address the
    terrorism threats. I hope this hearing is the beginning of a
    well-thought-out process. FEMA, the EPA and other agencies have
    been working hard to coordinate response efforts. When
    addressing relevant legislative issues, Congress should follow
    FEMA's and EPA's example so we, as lawmakers, can make our
    nation proud.
        Thank you, Madam Chairman.
        [The prepared statement of Senator Inhofe follows:]

            Statement of Hon. Jim Inhofe, U.S. Senator from Oklahoma

        Thank you, Mrs. Chairwoman. I first want to welcome Mr. Bill
    Stanley, the sourcing-regulatory manager of Deepwater Chemicals, from
    Woodward, OK. As everyone knows, Oklahomans are no strangers to
    terrorism, and it will be very interesting to hear Mr. Stanley's
    testimony not only from the perspective of a small chemical company,
    but also that of a citizen and father.
        Security must be our top priority, but we need to figure out: what
    are the potential problems; and what is the best way to address those
    problems? I know everyone is ready to do their part to fight and
    respond to terrorism, but, by firing before we have aimed, all Congress
    could end up doing is wasting precious resources on non-existent
    problems while neglecting real problems.
        That is why Congress needs to work with the President to develop a
    well thought out strategy. As a matter of process, I am very concerned
    about us getting out ahead of the President and Homeland Security
    Director Ridge on this issue--among others. Governor Ridge is working
    hard to assess the threats and corresponding security measures of the
    chemical industry as well as other potential terrorist targets. I know
    that Governor Ridge is working with all the agencies to assess needs
    and coordinate responses. Additionally, Governor Ridge should be
    working with the various sects of industry to assess what their
    security needs are.
        While I am still waiting for the Office of Homeland Security to
    develop proposals in order to see what security issues we as a nation
    need to address, I have some real problems with S. 1602. In particular,
    I feel like many of the titles of this bill would do nothing to address
    terrorism threats.
        I hope that this hearing is the beginning of a well thought-out
    process. FEMA, EPA, and other agencies have been working hard to
    coordinate response efforts. When addressing relevant legislative
    issues, Congress should follow FEMA's and EPA's example, so we, as
    lawmakers, can also make our nation proud.

        Senator Boxer. Thank you so much.
        I recognize Senator Clinton, who is an original co-sponsor
    of this bill.

           OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON,
                U.S. SENATOR FROM THE STATE OF NEW YORK

        Senator Clinton. Thank you very much, Madam Chairman, and
    thank you for holding this hearing.
        Thank you also, Senator Corzine, for bringing attention to
    this important issue. I think it is one that all of us on this
    committee know needs to be addressed. We may have some
    differences of opinion about timing or content, but I think
    it's clear that the challenges that confront us since September
    11 require a new level of alertness and preparedness and
    certainly increased security has become a major focus for the
    Federal Government as well as for State and local governments
    and private industry.
        We are taking hard looks at our nation's airports, at our
    water treatment plants, at our nuclear power plants, at all of
    our critical infrastructure and certainly our chemical plants
    which do provide so many of the products that are important to
    our quality of life and the functioning of our economy fall
    into the category of important infrastructure and security
    challenges.
        I think it's our job to try to find out the best ways to
    help provide State and local governments, as well as private
    industry with the tools and resources they need to address any
    challenges we confront. I'm concerned that the Justice
    Department assessment has not yet been completed as required by
    law. An April 2000 DOJ assessment concluded that, ``The risk of
    terrorists attempting in the foreseeable future to cause an
    industrial chemical release is both real and credible.''
    Terrorists are likely to view the potential of a chemical
    release from an industrial facility as a relatively attractive
    means of achieving their goals.
        Because we don't have a comprehensive assessment of this
    problem and I hope we will soon, we have gone on the basis of
    the information available to date including this preliminary
    assessment from the Department of Justice. A number of States
    as well as the chemical industry have engaged in their own
    assessment and certainly the underlying need that Senator
    Corzine's legislation addresses I think is without
    contradiction. It is a question of how we proceed from here to
    provide the maximum security that we possibly can.
        Tomorrow, I will be introducing legislation, the Homeland
    Security Block Grant Act of 2001, which will provide relief to
    local and State governments to support them because clearly if
    there is a chemical problem, either accidental or deliberate,
    those who are on the front lines of emergency response are
    going to be the soldiers in that battle to try to contain
    whatever has occurred. Under this legislation, cities, counties
    and towns across America would be able to access Federal funds
    to better prepare themselves to provide additional law
    enforcement, fire and emergency resources. I've been meeting
    with emergency readiness experts and they tell me there is a
    tremendous gap between what we require in terms of the
    equipment, the uniforms, the spacesuits that are required to
    encounter a lot of these dangers and what is available at the
    local level.
        We also have to continue to provide help to local agencies
    to design, review and improve their disaster response systems,
    to train our personnel and to better coordinate among all
    levels of government as well as with the private sector. I
    applaud our Ranking Member, Senator Smith of New Hampshire, for
    his attention to the needs that FEMA under the Stafford Act has
    in order to be totally up to date and well prepared.
        I look forward to the witnesses testimony and to the work
    we can do in this committee along with the Administration and
    the chemical industry to try to make sure we are prepared and
    despite the failure of the Justice Department to meet its
    legally mandated, statutory deadline of August 5, 2000 for this
    interim study, we will be paying close attention to the
    challenges that we now know are not just imagined but real but
    potential terrorist attacks.
        I thank Senator Corzine for his leadership on this issue.
        Senator Boxer. Thank you, Senator.
        Senator Smith.

                 OPENING STATEMENT OF HON. BOB SMITH,
              U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE

        Senator Smith. Thank you, Senator Boxer, for holding this
    hearing today on a topic that is very important to all of us.
    Thanks to each of the witnesses for coming today to discuss
    security.
        Also, let me express my apologies for having to leave after
    I do a brief statement because of other conflicting
    obligations. I will try to come back but if I don't, it doesn't
    mean I'm not interested.
        The attacks that we saw on September 11 have left us all
    with a certain sense of vulnerability. All of us have been
    reevaluating security measures, what could be potential targets
    all over the nation ever since that day. In New Hampshire, I
    visited airports, water facilities, nuclear powerplants,
    transportation infrastructure, manufacturing, an old air base
    which is now a National Guard facility as well as a shipyard.
    Like it or not, September 11 has changed us all forever. We are
    now caught in the ongoing process of adjusting to the new
    normal, if you will. What was normal yesterday is not normal
    today.
        We certainly want to get the most effective security
    possible. We've all been involved in that. I've authored
    legislation to deal with security matters for water
    infrastructure and have joined Senator Inhofe in a bill to
    address nuclear powerplant security and am pleased to be
    working with Chairman Jeffords to address many other security
    and terrorism response issues. Of course I would work with any
    member of the committee to try to address needs we might have.
        Protection of our country is not a partisan issue and I
    think we all recognize that. When we talk about security, we
    must realize there comes a responsibility to legislate in an
    effective and efficient manner, as much as possible. We have to
    base our decisions on the accurate assessment of the situation,
    what the needs are and understanding of the role of the private
    sector and the role and responsibility of government. We try as
    best we can to base our response on facts as opposed to what
    might be fear tactics or even in some cases, sensationalism.
        I commend Senator Corzine for bringing this matter to the
    front. I do not believe, however, that his legislation is the
    right answer, respectfully, and I just want to briefly point
    out why. I share his desire for our chemical infrastructure to
    be safe and prepared but I would advocate a different approach,
    especially as it comes to achieving security.
        Security, in my view, should be a cooperative effort
    between the facility we are talking about, whatever it might
    be, and the local, State and Federal law enforcement. It
    shouldn't be confrontational. It should be a partnership with
    an open line of communication. It's only through working
    together and building trust that we're ever going to be able to
    deal with these issues. We can't anticipate what's going to
    happen or the extent of it. Usually we can't. Sometimes we get
    a heads up but unfortunately, not often enough. Cooperation,
    partnership, team work, coordination are the hallmarks of
    successful security, not confrontation.
        With respect, I would say to the Senator from New Jersey
    this bill takes a different approach. It seems to me to make an
    assumption that somehow the chemical industry doesn't seem to
    share the concern and must be mandated to take responsibility
    to see that the protection would occur. There is a new
    regulatory punitive regime that creates frankly an adversarial
    relationship under S. 1602. That might not be the intent of the
    author, but I think that is the result.
        A strained relationship between the private sector and
    government is not going to lead to increased security; it's got
    to be cooperative. We've seen tremendous cooperation since the
    horrible events of the past few weeks between all levels of
    government and the private sector. I don't want to weaken that.
    That's not how we are going to protect the public. I know it's
    not the goal of the author to do that and I respect that.
        There is another fundamental question the bill brings to
    the forefront and that is what is the proper role of the
    private sector. I think it's good you brought that forward.
    What is the role of the private sector in protecting itself
    against potential criminal acts or an act of war? Clearly the
    acts of terrorism that we have seen are acts of war but it's a
    question, not being here, that I would pose to the witnesses.
    Where do you believe the line of responsibility is for
    protection against criminal acts? Where does the private
    sector's responsibility end and law enforcement begin? I'm not
    sure how we would ever assess that. We all pay taxes that
    support the military and local law enforcement. The
    Constitution mandates a primary responsibility of the
    government to ``provide for the common defense.'' In this bill,
    that law enforcement responsibility is that of the facility, in
    my view. It actually makes it a crime for not being able to
    prevent and act of terrorism. I think we have to think very
    carefully about this. It would be a crime under this bill to be
    the victim of a criminal act that caused a release. That's a
    disconcerting proposition for many small businesses around the
    nation who would fall under this legislation.
        I want to support measures that improve our industrial
    security. I believe it is the responsibility of these private
    facilities to make all reasonable measures in providing
    security. You do it to protect your assets, you do it to
    protect the population, you do it to protect your workers.
    Certainly you don't want to provide releases into the
    environment. A post-September 11 security assessment of all the
    nation's infrastructure is something we need to do. I think we
    all have a responsibility to do that and I think this
    legislation gets that debate started but security measures by
    individual facilities should not be expected to take the place
    of law enforcement. I think it is very important to make that
    distinction. They need to be done in concert with law
    enforcement, not replacing.
        I'm also very concerned that the bill might give the
    Federal Government the power to determine manufacturing
    processes and even changes in the physical structure of the
    plant, again, maybe not the intention but certainly it could
    happen. It puts the Government in the position of making
    business decisions.
        Finally, let me say S. 1602's role, if you really look at
    it, is basically one of role reversal here. The bill would put
    the Government in charge of chemical manufacturing and chemical
    manufacturers in charge of fighting terrorists. It should be
    the opposite. That's not what we want to happen here. That's
    not the responsibility. We need to work together but it
    shouldn't be one or the other.
        I hope, Madam Chairman, as we move through the discussion
    that we can address some of these concerns and I, in all
    sincerity, commend Senator Corzine for bringing the matter to
    the forefront and we will have a good debate.
        [The prepared statement of Senator Smith follows:]

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

        Thank you, Senator, for holding this hearing today on a topic that
    is important to all of us. I want to thank our witnesses for coming
    here to discuss chemical security.
        The attacks of September 11 have left us all with a sense of
    vulnerability. Since that day, we have been reevaluating security
    measures at what are potential targets across this nation, whether it
    is our airports, water facilities, nuclear power plants, transportation
    infrastructure, or our manufacturing facilities. Sadly, September 11
    changed us forever--we are now caught in an on-going process of
    adjusting to a new ``normal.''
        I continue to be a strong supporter of ensuring the most effective
    security possible. I have authored legislation to deal with security
    measures for our water infrastructure facilities and I have joined
    Senator Inhofe in introducing a bill to address security measures at
    nuclear power plants. I am pleased to be working with the chairman of
    the full committee to address many other security and terrorism
    response related issues. I will work with any member of this committee
    to ensure that any potential security gaps are identified and properly
    addressed.
        The protection of our country is not a partisan issue--and I will
    never treat it as such. When we talk about security, we must realize
    that there comes a responsibility to legislate in the most effective
    and efficient manner possible.
        We must base our decisions on an accurate assessment of the
    situation, needs, and clear understanding of the role of the private
    sector--and the role and responsibility of the government. We cannot
    base our decisions on sensationalism or in response to fear tactics B,
    we must rely on the facts.
        I want to commend Senator Corzine for his interest and efforts with
    regard to chemical site security--but, unfortunately, I do not believe
    his legislation is the right answer. I certainly share with him a
    desire for our chemical infrastructure to be safe and prepared, but I
    would advocate a different approach for achieving security.
        Security should be a cooperative effort between the facilities and
    local, State and Federal law enforcement. It should be a partnership
    with a constant line of open communication. It is only through working
    together and building trust that will provide for the highest level of
    security against any potential attack. Cooperation, partnership,
    teamwork and coordination are the hallmarks of a successful security
    apparatus.
        Unfortunately, this bill takes a different approach. S. 1602
    establishes a new regulatory, punitive regime that will create an
    adversarial relationship between industry and government. A strained
    relationship between the private sector and government will not lead to
    increased security, but will only serve to weaken our ability to
    protect the public. And I know that is not the goal of the author of
    this bill, and it is certainly not the outcome I desire.
        Another fundamental question that this bill brings to the fore is:
    What is the proper role of a private sector entity in protecting itself
    against potential criminal acts or acts of war?
        Clearly the acts of terrorism that we have seen are acts of war. It
    is a question that I wish to pose to each of our witnesses: Where do
    you believe the line of responsibility is for protection against
    criminal acts? Where does the private sector's responsibility end and
    law enforcement's begin?
        We all pay taxes that support a military and local law enforcement.
    The Constitution mandates a primary responsibility of the government to
    ``provide for the common defense.'' In this bill that law enforcement
    responsibility is that of the facility.
        This bill actually makes it a crime for not being able to prevent
    an act of terrorism. In fact, it would be a crime to be the victim of a
    criminal act that caused a release. That is a disconcerting proposition
    for the many small businesses around this nation who would fall under
    this legislation.
        I do support measures that will improve our industrial security,
    and I do believe that it is the responsibility of these private
    facilities to take all reasonable measures in providing security,
    preventing releases and responding if one occurs. And a post-September
    11 security assessment of all this nation's infrastructure is an
    absolute must.
        I am disappointed that the previous Administration did not do
    this--as the law did require. But any security measures by individual
    facilities should not be expected to take the place of law enforcement.
    They should be done in concert with law enforcement.
        I am also very concerned with provisions in this bill that gives
    the Federal Government the power to determine manufacturing processes
    and changes in a facility's physical structure. It puts the government
    in a position of making business decisions.
        S. 1602 is basically one of role reversal--the bill would put the
    government in charge of chemical manufacturing and chemical
    manufacturers in charge of fighting terrorism. I do have a number of
    other concerns with the bill--such as the redundancies with other laws,
    including transportation laws, that could cause problems. But given
    that I am short on time, I will stop here.
        I would like to ask unanimous consent that a letter from the
    Association of American Railroads expressing opposition to S. 1602 be
    placed into the record. I do, again, want to commend Senator Corzine on
    his efforts, and I hope to work with him to address these concerns and
    the mutual desire we all share with protecting this nation from
    terrorists' attacks.
        Thank you.

        Senator Boxer. Thank you, Senator.
        I think the debate has started. I'm going to make a couple
    of responses. That's what we are fighting for, isn't it--the
    ability to debate these matters. I want to respond very briefly
    to the comments made by my colleagues and my Republican
    friends.
        First, the comment that we shouldn't get in front of the
    Bush Administration in taking on this issue; we should wait for
    Secretary Ridge and so on. I don't agree that it's the role of
    the Senate to do nothing on important issues, whether we have a
    Democrat in the White House or a Republican. I have a theory
    that not all wisdom resides at the White House, regardless of
    who the President is. I think we have a role to play and that's
    why I think this is so important.
        I think more to the point is the terrorists might not wait
    for Secretary Ridge to have his plan in place. That's another
    reason why I think it's important to act and important to push
    to do what the right thing eventually we decide will be. I
    think this bill is certainly on track.
        The other question Senator Smith points out, that we should
    have cooperation, we shouldn't mandate, is an important issue
    and I would like him to think about this. If we didn't mandate
    that there were hand baggage checks at airports, would the
    airlines do it? If we didn't mandate checking for bombs in the
    cargo hold, would the airlines do it?
        Senator Smith. Frankly, I think they would, with all due
    respect, if they wanted anyone to fly.
        Senator Boxer. If we didn't mandate background checks on
    employees with access to planes, would the airlines do it? The
    answer is, they haven't, they still aren't and today, Secretary
    Mineta had to demand they do the background checks on the new
    employees. So let's get real. The fact is we do work with the
    business community but the other fact is there are times when
    you have to pass laws and you work with the industry in passing
    the laws, but there may be some good apples and some bad apples
    out there, some people who do the right thing, some companies
    who do the right thing and some who are so concerned about the
    bottom line that they don't. That's why we need fair laws.
        I think the debate we've seen so far has been a good one,
    but I think it goes to the heart and soul of some deeper
    issues.
        I see that Senator Carper has arrived. Do you have an
    opening statement before I ask Senator Corzine to respond to
    the attacks on his bill and to introduce Mr. Shinn?

              OPENING STATEMENT OF HON. THOMAS R. CARPER,
                U.S. SENATOR FROM THE STATE OF DELAWARE

        Senator Carper. The frontal attacks? He's got broad
    shoulders, I'm sure he's up to it.
        Let me just say the chemical industry, probably no surprise
    to the folks in this room, is clearly important to our country,
    and is important to Delaware as well. I think Senator Corzine
    is asking a lot of the right questions. I want to make sure
    with the help of the folks at the table and a lot of others
    that aren't at the table, we end up with the right answers.
        Senator Boxer. That's the point of this hearing really to
    listen to all the comments and try to help move this process
    forward. Senator Corzine, will you take some time to respond
    and also to introduce Mr. Shinn. Then I'll introduce the other
    four panelists we have and we will get started.
        Senator Corzine. I'll be brief but I do think some response
    might be in order.
        First of all, I couldn't agree more that I think we were
    elected by the constituents of our various States to respond to
    their needs and be attentive to the kinds of risks they
    associated with. So I think it would be kind of hard for
    Senators to ignore the kinds of problems that potentially put
    their lives at risk. I will repeat, we have an immediate
    example in New Jersey where the security associated with one of
    the local plants broke down. We'll find more about the
    specifics of that over the next 48 hours, but a very clear
    situation of a breakdown in security.
        I believe this is a cooperative effort. I've tried to sit
    down with some of the folks in industry, and I don't think
    these regulations should be written in a vacuum. They should
    take into account the kinds of perspectives that individual
    businesses might bring. As a matter of fact, I think
    proscriptive legislation and detail is something we've tried to
    stay away from in this bill. It is giving time for the
    evolution of the specific regulatory structure and prescribes
    only that industry be involved in that process. I think
    cooperation is the fundamental element of it. I believe that to
    be the case in regulation in general.
        As regards victims as criminals, which I think we will hear
    more about, this bill was specifically written that people
    would only have criminal liability when there was negligence
    that had been identified through a regulatory process and
    discussed and then criminal liability could occur if there were
    an event that was concurrent or followed after there had been
    an identification of an issue. It's not the first order of
    penalties or incentives, but for the life of me, I don't
    understand how we would be able to justify that we have a
    regulatory investigation or supervision and identification of a
    problem, and a recommendation of a solution, but it is ignored
    and becomes a problem that threatens the public or actually
    involves the public. Why wouldn't that be subject to criminal
    responsibility? I think that's different than going straight to
    criminal responsibility.
        As far as government making decisions about the chemical
    industry and turning things around and indicating the
    government is running the chemical business, I think that would
    fly in the face of almost every regulatory regime that we have
    in the country. I came from a very strongly regulated industry
    and the securities business for the SEC is very much involved
    in supervising certain aspects of how the securities business
    works. We are having enormous national debate with regard to
    the aviation security. I think that is on its surface an
    argument that has failed in the context of seeking to reach out
    and work with the industry to come to these points of view.
        We should have those discussions. We should have them with
    all the people at the table and all the others to try to bring
    an effective, cooperative program that gives the public a sense
    of security as well as just only looking at the bottom line of
    the industry.
        It is my pleasure to introduce the commissioner of the
    Department of Environmental Protection of New Jersey. He is one
    of my favorites because he's bald and has a beard. That
    obviously means he has great insights to these kinds of issues.
        He has served under the current Director of the
    Environmental Protection Agency, Governor Whitman; was
    appointed in 1994 as commissioner for New Jersey's
    Environmental Protection; has a very strong reputation in our
    State; spent many, many years as an elected official at local,
    county and State levels; a very strong record and devotion to
    open space, the Pinelands, which is a special natural risk of
    New Jersey, farm preservation, water supply and solid waste
    management, very skilled.
        It's my pleasure to welcome Commissioner Shinn to our
    hearing.
        Senator Boxer. Thank you, Senator, and we will hear from
    him. Following Mr. Shinn, we are going to hear, in the
    following order, from Mr. Webber, president and chief executive
    officer, American Chemistry Council, an industry group
    representing major chemical companies. The chemical industry is
    certainly an important partner in chemical security and we all
    hope we can work together with you as we move forward on this
    bill.
        Next will be Mr. Paul Orum, director, Working Group on
    Community Right-to-Know, which serves among other things, as a
    clearinghouse on environmental risk information. Mr. Orum has
    worked for more than a decade on issues related to the
    reduction of chemical hazards and on efforts to reduce toxic
    pollution.
        Then we will hear from Mr. Bill Stanley, the sourcing-
    regulatory manager of Deepwater Chemicals in Woodward, OK. We
    heard you praised by our good colleague from Oklahoma. Mr.
    Stanley is here today on behalf of the Synthetic Organic
    Chemical Manufacturers Association. Mr. Stanley brings a little
    different perspective in that his focus is more on small
    business. Assuring the security of toxic chemicals at small as
    well as large facilities is important if communities are to be
    adequately protected.
        Our last witness is Ms. Rena Steinzor, academic fellow,
    National Resources Defense Council. Ms. Steinzor is a fellow
    with the Council. The Council is a national nonprofit
    organization of scientists, lawyers, economists and other
    environmental specialists focused on protecting the public
    health and the environment. NRDC has more than half a million
    members nationwide.
        We will start with Mr. Shinn. We will use the clock for 5
    minutes but after that, you can go for another minute or so and
    when it gets really over time, I will remind you. Please
    proceed.

      STATEMENT OF ROBERT C. SHINN, JR., COMMISSIONER, NEW JERSEY
                 DEPARTMENT OF ENVIRONMENTAL PROTECTION

        Mr. Shinn. Thank you for inviting me to testify today.
        I am Bob Shinn, commissioner of the New Jersey Department
    of Environmental Protection. I sincerely appreciate this
    opportunity to talk about chemical plants, not only containment
    but security as well.
        I want to take this opportunity to also commend Senator
    Corzine for the leadership in addressing this issue. It is
    certainly a controversial one as we've seen already. In light
    of September 11, discussion on the need to ensure adequate
    safeguards to protect the public from any accidental or
    intentional releases of hazardous chemicals, is especially
    pertinent and timely. Due to security concerns and our
    nervousness in New Jersey about the sites and chemicals, my
    testimony will be general and not specific. I'm sure everyone
    understands that.
        There are two major themes I'd like to touch upon today.
    First, I'd like to give the committee the benefit of New
    Jersey's experience and successes in the area of chemical
    safety preparedness and response. The second point I'd like to
    make is that even in a State such as New Jersey with a
    successful and comprehensive chemical safety program, there are
    certain areas in which augmented Federal authority would
    enhance our efforts.
        While New Jersey's program is focused on prevention of
    accidental releases of extraordinary hazardous substances and
    not those releases caused by terrorist actions, we feel the
    system we have set up and the preparedness we have instituted
    positions us in a good way. We are not only on guard against
    such an unfortunate occurrence but we must better be able to
    respond if it did occur.
        In the course of nearly two decades, we have built a
    coordinated, effective program that not only works to prevent
    releases of hazardous chemicals but also provides us with the
    information and infrastructure so that we can respond on very
    short notification. The release of hazardous substances does
    happen. In this way, any releases that do occur, whether
    accidental or intentional, can be contained and the impact
    minimized. While our program in its entirety may not be
    transferable to the Federal level, I hope this committee will
    be able to take components of what New Jersey has done and use
    pieces of it for the national benefit.
        New Jersey is the nation's most densely populated State and
    there are also a large number of facilities that produce or use
    highly toxic chemicals. This has compelled us to be especially
    diligent in ensuring there is little possibility that the
    public will be exposed to the releases of these substances. I'm
    not here to imply there our level of regulation would be
    appropriate for or should necessarily be imposed upon other
    States that do not have New Jersey's population dynamics or the
    proximity of a number of facilities to the public.
        In 1986, shortly after the tragic accident in Bhopal,
    India, the New Jersey Legislature passed the centerpiece of the
    effort I'm discussing, the Toxic Catastrophe Prevention Act,
    commonly known as TCPA. It enabled our State to develop what is
    the most comprehensive program in the country to prevent
    accidental releases. Before I describe some of the more salient
    points regarding our regulatory process, there is one feature
    of the program I would like to highlight. While it's a
    regulatory program, it was designed in cooperation with the
    regulated community. Cooperation has been in place since the
    very beginning of the program when we created the initial rules
    in the 1986-87 timeframe with a very heavy industrial
    population and very heavy industrial involvement.
        Professional chemical safety experts from the chemical
    industry and the insurance industry helped us write the rules
    in the first place. A lot of time was spent with these
    professionals to make sure that the technical requirements were
    valid and appropriate. A few years ago when we readopted our
    TCPA, we readopt regulations on a 5-year cycle, we incorporated
    the Federal Accidental Release Prevention Requirements and to
    make other improvements we had again intense interaction and
    discussion with the regulated community over a period of
    months. We asked for and received up front input from the
    regulated community. We feel this hand in hand approach has
    made for a more effective regulatory concept. This cooperative
    spirit has also been reflected in the implementation of our
    program.
        In the past an environmental inspection could often an
    adversarial encounter resulting in fines, penalties and orders.
    We found it very effective to use these inspections to
    emphasize compliance assistance rather than solely as a
    violation spotting visit. When we perform an inspection of the
    TCPA regulated facility, a typical inspection will be performed
    over the course of an entire week during which we will work
    with the facility managers to examine alternatives and in many
    cases, involving the use of pollution prevention, innovative
    technologies and some process change to bring facilities into
    compliance. Many facilities realize efficiencies and enhance
    their profitability and reduce liability once they implement
    changes to their process.
        We would strongly recommend that any Federal legislation in
    this regard promote a compliance assistance approach to
    regulation, without sacrificing appropriate enforcement
    response when necessary. I realize this is a fine line and has
    to be considered what it is well worth the effort to achieve
    the optimal goal.
        There are several key features in New Jersey's TCPA Program
    that have contributed to the success of the program which you
    may wish to consider in working through the Federal program.
    The main thing I would suggest is that the overall philosophy
    is expressed in Section 112(r) of the Clean Air Act place a
    greater emphasis on prevention and preparedness. In New Jersey
    we emphasize identification of risks and the steps that should
    be taken to reduce those risks. At this time, we need to be
    cognizant not only of accidental releases but those that may be
    intentional as well with a renewed emphasis on front end
    pollution prevention and quantitative risk analysis.
        In New Jersey our law requires regulated facilities to
    perform comprehensive reviews and risk assessments of all
    possible release scenarios that may be caused by offsite
    impacts. Presently Federal regulation only requires facilities
    to perform analysis of worse case scenarios and one alternative
    case scenario. Furthermore, in New Jersey we realize these
    facilities quantitatively assess and characterize risk going a
    step beyond any other process safety management and risk
    management programs in the United States. This means that
    potential releases and resultant offsite impacts that may occur
    after each scenario must be quantified. To date, Federal
    regulation does not require that process. We'd recommend
    quantification be required where it is appropriate.
        Senator Boxer. Thank you very much, Mr. Shinn.
        We have been joined by Senator Specter who has said he will
    forego an opening statement. He is here to listen. We are very
    honored he has joined us.
        We will next hear from Mr. Fred Webber, president and chief
    executive officer of the American Chemistry Council. Welcome.
        As you see, we have the 5-minute clock and I allowed an
    extra 2 minutes, so please avail yourself of that time.

    STATEMENT OF FREDERICK L. WEBBER, PRESIDENT AND CHIEF EXECUTIVE
                  OFFICER, AMERICAN CHEMISTRY COUNCIL

        Mr. Webber. Thank you, Chairman Boxer, and good afternoon.
    My name is Fred Webber; I am president and CEO of the American
    Chemistry Council's 180 members here today to share their views
    on the important subject of security in the chemical industry.
        I believe it is very important for members of this
    subcommittee and for all of the Congress to understand three
    basic facts about our industry. First, as you mentioned,
    Chairman Boxer, our industry is a critical and indispensable
    part of the nation's infrastructure. We make significant and
    sustained contributions to America's economic and national
    security. We make thousands of products that make peoples'
    lives better, healthier and safer products that go into making
    medicines and medical equipment, the space age materials used
    by the military in stealth aircraft, aviation fuel and night
    vision equipment, satellite communications systems and products
    that make the water we drink safe and clean. What's more, every
    manufacturing industry in the United States depends on the
    products of chemicals for their survival and indeed their
    growth.
        Second, we have a culture of safety going back many years.
    The nature of our operations requires it. This culture of
    safety has created what the Department of Labor data shows is
    one of the safest industries in the United States and indeed
    the world. Our longstanding safety culture has in the last
    decade has all been a culture of security that extends beyond
    our industry to those with whom we do business, with whom we
    work, with whom we supply. This commitment to both safety and
    security is expressed through our industry's own voluntary
    safety and security initiatives and our adherence to and
    support for governmental standards and research and our
    longstanding and effective partnerships with local, State and
    Federal Government agencies including the all important first
    responders.
        Third, we have an important role to play in strengthening
    our national security. We are working with EPA, the Department
    of Justice and other law enforcement agencies to review and
    strengthen security at our manufacturing facilities and to
    protect against the diversion and misuse of our products. This
    work was going on long before September 11. It has been
    accelerated since then. For example, we have urged President
    Bush to proceed with plans to conduct a comprehensive security
    assessment of the chemical industry that Congress requested a
    year ago to enhance our industry's security, programs and
    practices. Our industry will benefit from a comprehensive
    assessment conducted by appropriate Federal law enforcement,
    national security and safety experts. We are working with the
    Department and its contractor to improve its methodology. Lots
    of things have changed since September 11, but one thing
    hasn't. Security at our nation's industrial facilities
    continues to be the result of a collaborative effort between
    industries and government at all levels. I know I don't need to
    remind you that the first line of defense in terms of security
    is law enforcement.
        As the Congress begins to consider proposals that might
    further strengthen safety and security at industrial
    facilities, we believe it should do so by building on this
    basic framework. For example, we believe Congress should
    develop legislation to require the development of a formal
    information sharing system between law enforcement and national
    security agencies and U.S. industries. That's because planning
    and actions by industries must be based in large measure on
    what law enforcement and national security agencies say is the
    threat of a terrorist attack. Security also requires that the
    right information get to the right people at the right time.
        We also believe Congress should take advantage of and build
    on existing mandatory and voluntary safety and security
    programs and avoid reinventing any wheels. The legislation--and
    I say this, Senator Corzine, very respectfully--introduced by
    you we believe should be debated and examined. Overall, we
    think the goal you've sent forth is easy to support, however,
    we don't believe it is the right vehicle, at least in its
    current design, to take us where we think we ought to go.
        I'm not saying that more can't be done to strengthen
    security and safety at our industrial facilities; rather, I'm
    suggesting that there are alternatives that Congress might
    consider. The GAO recommended one. In recent testimony before
    the Senate, the GAO recommended that any programs designed to
    combat terrorism must be based on sound risk management
    principles that systematically analyze threats, vulnerabilities
    and the critical nature or relative importance of our national
    assets. We agreed with the GAO.
        Senator Corzine's bill takes a different approach than the
    one recommended by the GAO. It attempts to remedy theoretical
    vulnerabilities before we've assessed what and where the actual
    vulnerabilities exist. In a very real sense, it seems to
    prescribe a cure before any diagnosis has been made.
        We believe the Environment and Public Works Committee and
    this subcommittee have important roles to play in this issue.
    For example, we believe there needs to be a program that
    provided financial assistance and tools to local emergency
    planning committees. I think this is what Senator Clinton was
    referring to earlier. In addition to the partnerships I
    mentioned earlier in my testimony, we believe the Department of
    Justice vulnerability study must be completed. I mentioned that
    earlier, that an efficient and timely intelligence and
    information sharing mechanism should be established and
    significant Federal funding be made available to increase
    security of the entire national transportation network.
        In closing, our nation and its peaceful people face a new
    threat. This new threat demands that we throw off old ways of
    doing things and in their place, embrace new and more creative
    approaches.
        Thank you.
        Senator Boxer. Thank you very much.
        We will next hear from Mr. Paul Orum, director, Working
    Group on Community Right-to-Know.

     STATEMENT OF PAUL ORUM, DIRECTOR, WORKING GROUP ON COMMUNITY
                             RIGHT-TO-KNOW

        Mr. Orum. I'm Paul Orum, director, Working Group on
    Community Right-to-Know. Thank you for the opportunity to
    testify and especially for your leadership introducing S. 1602,
    the Chemical Security Act.
        We are here about one fundamental question: will there be a
    Federal program to reduce chemical industry hazards that
    endanger nearby communities, whether from criminal activity or
    accidents, or not?
        The terrorist attacks of September 11 show plainly how
    chemical plants and refineries could suffer a worst-case fire
    or toxic-gas release. No longer can the chemical industry claim
    that a worst-case release is too improbable to occur as we have
    heard for years. No longer can the USEPA claim that hazard
    reduction is strictly a local matter with no need for a
    national program as we've also heard for years.
        No longer can the Department of Justice neglect its duty to
    review chemical security practices and recommend ways of
    reducing vulnerabilities which unfortunately we have also seen
    for years.
        I hope that no one would now seriously propose that a
    voluntary program would be enough to fix the problem and its
    source. Congress has both an opportunity and a duty to fill a
    big hole in our laws by requiring chemical producing facilities
    to evaluate safer alternatives and use them wherever feasible.
    The Chemical Security Act truly proposes constructive steps
    toward a national prevention and security program and gives
    government the tools it needs to protect communities in the new
    era of terrorism.
        People might think the right programs are already in place
    but they are not. Currently no Federal law actively regulates
    the vulnerability zones that hazardous chemical industries
    impose on surrounding communities, nor does any Federal law
    require firms to even examine safer alternatives. As a result,
    thousands of communities across the country have chemical
    hazards that may be wholly unnecessary.
        Current laws generally speaking are limited to clean up,
    planning, response and risk management. The Chemical Security
    Act would also address eliminating and reducing chemical
    hazards wherever practicable as the option of first resort.
    Both government reports and other incidents show serious
    security problems. You've mentioned several of them. I mention
    more in my testimony, so I don't need to go back over them.
        We've also been trying for some time to communicate with
    the Department of Justice about its security study which you
    also mentioned has not been concluded. I guess I will mention
    one of those vulnerabilities. I was struck by an article in
    which a professor since September demonstrated that he was able
    to buy all the ingredients for nerve gas. Also, there are
    chemical industry websites that assure buyers they will remain
    anonymous after simply registering when buying chemicals.
    Chemical fires and spills occur frequently and I provide
    figures in my written testimony for the record.
        I want to stress that the mostly volunteer local emergency
    planning committees are no substitute for urgent national
    efforts to reduce chemical hazards. A recent study of 32 active
    LEPCs found that most of these committees believe they do not
    have the time, resources or expertise to encourage hazard
    reduction. There is a role for local volunteer efforts but
    those efforts are no substitute for a national program. Again,
    if site security at airports were voluntary, it would not make
    me feel very safe.
        I believe that only major policy changes will create a
    successful national effort. For example, few chemical companies
    have set measurable goals and timelines to reduce the inherent
    hazards they bring to communities. In fact, only four out of
    more than 350 facilities and companies we contacted in two
    surveys had done so. The USEPA has also not taken obvious steps
    to encourage inherent safety despite hearings on this topic in
    1994 and 1995.
        The Chemical Security Act proposes constructive steps to
    fix the problem. Among the most important, it makes it a duty
    of high priority industries to identify their chemical hazards,
    take steps to reduce the possibility of releases wherever
    feasible and minimize the consequences of any releases that do
    occur. Second, it puts prevention first, truly a new stage in
    U.S. chemical safety laws. Third, it encourages technological
    innovation before static add-on security measures. It provides
    a consistent definition of what inherently safer technology is.
    It should encourage healthy competition to produce and market
    new safer technologies and it gives Government the tools to act
    and ensures the Government will act to protect communities.
        I'll conclude by citing a relevant poll that suggests
    people support a Federal role. It's the very last thing in my
    testimony. Between 81 and 88 percent of people living within
    one mile of a chemical plant say they would feel safer knowing
    that EPA or OSHA were providing prevention assistance to that
    facility. That poll took place prior to the September attacks.
        Thank you for the opportunity to come here today and I'd be
    happy to answer any questions.
        Senator Boxer. Thank you very much. We will put your entire
    statement in the record. That goes for all of our witnesses.
        Mr. Stanley, you're next. You are representing the
    Synthetic Organic Chemical Manufacturers Association. We
    welcome you.

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

        Mr. Stanley. Chairwoman Boxer, members of the subcommittee,
    my name is Bill Stanley. I am the sourcing-regulatory manager,
    Deepwater Chemicals in Woodward, OK. I am appearing today on
    behalf of the Synthetic Organic Chemical Manufacturers
    Association. I appreciate the opportunity to speak with you on
    the issue of chemical industry site security.
        My company, Deepwater Chemicals, is small. It has 30
    employees. We produce fine chemicals, specializing in organic
    and inorganic iodine derivatives. Deepwater Chemicals uses
    batch manufacturing processes, a manufacturing method typical
    of many smaller chemical companies. SOCMA represents the batch
    and specialty chemical manufacturing segments of the chemical
    industry, a segment mainly comprised of small businesses. With
    this prospective SOCMA has been actively addressing process
    safety and site security issues well before the tragic events
    of September 11.
        I will focus my remarks today on three specific areas.
    First, I will describe batch manufacturing and its role in the
    chemical industry. Second, I will explain how Deepwater
    Chemicals and SOCMA are addressing site security. Third, I will
    provide SOCMA's perspective of how industry and government can
    most effectively collaborate to address security within the
    industry.
        The batch and specialty sector of the U.S. chemical
    industry has played an integral though less visible role in the
    success of the industry. These companies make the ingredients
    used in both commercial and consumer goods. In this sector,
    chemicals are produced in batches one at a time using the same
    equipment to meet specific needs and customer demands. By
    innovatively and efficiently fluctuating chemical processes,
    batch producers are able to make different products within a
    short period of time. As a result, a one-size-fits-all
    regulatory approach does not work for these innovative
    companies. This approach holds true in addressing site
    security. Ensuring the safety of our facilities, employees,
    neighbors and the environment is embedded in our industry
    culture.
        In February, SOCMA collaborated with others in the industry
    to co-author a guidance manual onsite security. In October,
    this manual was made available to SOCMA members and the public
    at large on our website, SOCMA.com. To reach both association
    members and nonmembers, SOCMA is also co-sponsoring a series of
    regional site security workshops. At the company level, SOCMA
    members like Deepwater have taken proactive measures to augment
    existing environmental health and safety practices. These
    include conducting vulnerability and security assessments at
    the facilities and/or processes; communicating with law
    enforcement or emergency responders; tightening access by
    contract personnel; further controlling vehicle access and
    security awareness training.
        In addition, Deepwater Chemicals must also comply with
    nearly 30 different regulations that have a cumulative effect
    on security at the facility. Furthermore, we participate in
    various community level programs such as our local emergency
    planning committee or LEPC. In this capacity, we provide
    technical expertise in the planning process, assist with the
    training of local responders in handling hazardous chemicals
    and provide information about chemicals and transportation
    routes. As you can tell, handling chemicals to develop
    extensive plans to address potential incidents covering both
    onsite and offsite consequences.
        SOCMA applauds this subcommittee for recognizing the
    importance of chemical industry site security in S. 1602.
    However, SOCMA has a number of concerns about the proposed
    approach and its likely consequences. Under the bill, any small
    batch company that produces or even handles a high priority
    substance may be required to adopt and use new processing
    techniques. Such requirements would hinder a company's ability
    to innovate and grow by removing operational flexibility. In
    our industry, the ability to innovate drives the ability to
    compete globally. The chemical industry is already facing
    increasing competition from abroad. Our industry currently
    employs over 1 million workers. Neither our industry nor our
    economy can afford to have these jobs move overseas.
        SOCMA is also concerned with the bill's general duty
    clause. Even the most extreme criminal actions by a third party
    could subject a chemical producer to sanctions. This bill makes
    it a crime to be a victim. These provisions also place the
    entire burden of preventing criminal and terrorist activity on
    the company. SOCMA is also concerned with the bill's
    presumption that security will be enhanced by mandating safer
    technology. S. 1602 assumes that processes can be redesigned
    and inputs substituted based on a single perspective, potential
    impacts on national security. This simplistic analysis
    overlooks the realities of chemical processing. Process changes
    must be preceded by a comprehensive assessment of the
    consequences. For examples, will emissions increase, will
    emissions be more toxic, will product quality and effectiveness
    suffer? S. 1602 authorizes EPA to require changes without
    considering realistic factors.
        In moving forward, I urge the members of this subcommittee
    to keep in mind that not all chemicals and facilities are
    likely targets for terrorist attacks. A small company would be
    better equipped to prioritize resources for those areas that
    are most vulnerable by utilizing a tiered, risk-based approach.
    SOCMA envisions a six step approach that begins with
    determining which chemicals, processes and facilities are
    likely targets. Once these six steps are complete, it will be
    easier to assess whether or not the security measures in place
    are appropriate for the potential threat.
        I would like to conclude by confirming that there are
    plenty of incentives to ensure safety and security in all of
    our processes. We do not want accidents, nor do we want to be
    the victim of an attack. I work in my facility, my friends work
    in the facility. My friends and neighbors are important to me.
    My failure to address these issues would impact me directly. We
    are all in this together, our businesses, our communities, our
    government leaders. We want to continue to work together on a
    cooperative basis to evaluate and to respond to potential risks
    in an effective manner.
        I would be glad to answer any questions at this time.
        Senator Boxer. Thank you very much.
        Ms. Steinzor, you are next and our final witness today. You
    are representing the Natural Resources Defense Council as a
    fellow with that organization. We welcome you.

    STATEMENT OF RENA STEINZOR, ACADEMIC FELLOW, NATIONAL RESOURCES
                            DEFENSE COUNCIL

        Ms. Steinzor. Thank you. I appreciate the opportunity to
    appear today to testify in support of S. 1602. In the wake of
    the tragedies that began on September 11, this legislation is
    one of the most important, proactive steps the Federal
    Government can take in response to the threat of sabotage
    involving toxic chemicals which belongs on anyone's top-10 list
    of national priorities.
        Existing law does not address this problem effectively.
    Waiting for States to erect a patchwork of inconsistent
    requirements could take years and would cost excessive amounts.
    The American people clearly want their government to protect
    them from the risk threats and they want those activities begun
    yesterday. Not incidentally, the proposal you have before you
    today, like the one Congress passed in 1986 in the wake of the
    Bhopal tragedy will enable our nation's brave police,
    firefighters and emergency personnel to combat accidental
    releases of hazardous materials with the knowledge that the
    Federal Government and private industry have done everything
    possible to avoid placing them in harms way. For the sake of
    these brave men and women and the public at large, NRDC urges
    you to move this legislation toward enactment as quickly as
    possible.
        As you may remember, the Bhopal tragedy occurred when
    equipment at a pesticide manufacturing plant malfunctioned
    causing the release of a cloud of lethal methylisocyanate gas.
    People in the crowded neighborhoods around the plant saw the
    plume, assumed it was a fire and ran toward the factory to help
    extinguish the blaze or simply to watch the excitement. As the
    plume drifted over the plant gates toward the crowd, some 3,000
    people dropped dead in their tracks.
        Overcoming the temptation to view Bhopal as an example of
    Third World ineptitude, a congressional panel traveled to a
    twin Union Carbide facility in Institute, West Virginia only to
    discover that although the county had prepared an emergency
    plan, the plant manager did not realize it existed. Today,
    there is still a tank of methylisocyanate at that Institute
    plant even though other companies have converted to a closed
    loop system that avoids the need to store such large quantities
    of the deadly gas. This fact speaks volumes about the potential
    of volunteerism to solve this problem.
        Congress responded to Bhopal and its aftermath by passing
    the 1986 Emergency Response and Community Right-to-Know Act,
    which was refined and expanded by the 1990 Clean Air Act
    amendments. Neither law addresses the all important task of
    preventing such incidents, by reducing hazards and ensuring
    plant transportation system security.
        Human error in operating complex machinery killed several
    thousand people in Bhopal. What price will we pay for
    deliberate sabotage at such a facility? Indeed, it is commonly
    understood by everyone involved at the grassroots level from
    firefighters, police and other municipal officials to the
    companies that own and operate the factories, railroads,
    pipeline and truck fleets that local emergency response
    capacity, even in large cities, falls far short of either legal
    requirements or safe practice. Despite the valiant efforts of
    fire departments nationwide, local governments under pressure
    to fund other services simply have not given firefighters,
    police and emergency medical personnel what they need to do a
    very difficult job.
        To date there have only been two confirmed attempts to
    perpetrate terrorist attacks on facilities handling toxic
    chemicals both of which fortunately were prevented. However,
    there have been numerous accidents involving such materials.
    Fifteen accidental gas releases of greater amount and toxicity
    than Bhopal occurred in the United States between 1980 and
    1990. Press accounts of these incidents indicates that luck
    rather than preparation is the reason we have not yet seen
    widespread fatalities. These realities demonstrate beyond any
    reasonable doubt the importance of the legislation before you.
        Although devolution of traditional Federal functions
    through the States is a popular approach to government at the
    moment, the events of September 11 have reminded us why we
    operate under a system of Federal environmental laws. First and
    foremost, the terrorist threat is an international threat and
    we traditionally rely on the Federal Government to protect our
    national security. Second, we must address hazards that cross
    State boundaries. Many plants that experience an accident would
    affect populations living in more than one State. Third, asking
    50 States and thousands of local governments to assess the
    threat of sabotage to chemical plant and transportation systems
    would consume enormous resources and might well result in
    failure in far too many places.
        As for the question of whether industry volunteerism is
    enough to meet this challenge, the information released thus
    far suggests that industry is focusing on physical security
    with prevention by hazard reduction a distant and far lower
    priority. The instinct of most companies will be to post
    security guards, strengthen fences and make alarms louder all
    of which may well be appropriate but are an incomplete answer
    in the face of the kind of coordination and determination
    displayed by the terrorists who attacked us on September 11.
        We appreciate your interest in moving this legislation
    quickly and we plan to do anything we can to assist you in that
    effort.
        Senator Boxer. Thank you very much, Ms. Steinzor, and thank
    you all. I thought you all made very important points for us to
    consider in our deliberations.
        We are going to have 7-minute rounds by each Senator and
    we'll go as long as it takes. I'll start it and then pass it to
    my Republican friend and we'll go as long as people have
    questions.
        Mr. Webber, when I opened, I made the point I was
    disappointed that EPA wasn't here. You had nothing to do with
    that but I wanted to ask you this. At a White House briefing
    with Tom Ridge last Friday, Administrator Whitman specifically
    addressed the issue of chemical security. She indicated at that
    time that chemical security is just an extension of what EPA
    already does. Administrator Whitman also indicated EPA is
    dealing with this issue primarily through discussions with the
    American Chemistry Council, which is your organization. Have
    you been involved in such discussions with her?
        Mr. Webber. Yes, I have, Chairman Boxer. I've met several
    times with Governor Whitman and her top staff, specifically on
    the issue of security, not only to exchange information but to
    try to figure out really what her expectations of the industry
    were or are and they were clear.
        For example, she did expect us to issue site-security
    guidelines not only for our own members but for the chemical
    industry at large. Mr. Stanley and I both know that there are a
    lot of chemical companies not represented at this table. We are
    all concerned about them. We promised Governor Whitman and the
    EPA that we would work to reach out to all of them. Indeed, we
    have published site security guidelines as well as distribution
    guidelines.
        Senator Boxer. I don't mean to cut you short except I want
    to make sure I understand. You have had several meetings with
    Administrator Whitman on the subject of chemical security?
        Mr. Webber. Absolutely.
        Senator Boxer. Mr. Stanley were you involved in any of
    those meetings?
        Mr. Stanley. No, I was not.
        Senator Boxer. Was your organization invited and attended
    some of those meetings?
        Mr. Stanley. Yes, SOCMA was.
        Senator Boxer. Mr. Orum, was your organization invited,
    your Community Right-to-Know organization?
        Mr. Orum. No.
        Senator Boxer. Ms. Steinzor, was your organization
    included?
        Ms. Steinzor. No.
        Senator Boxer. Mr. Shinn, were you invited as someone who
    has an active involvement in this issue?
        Mr. Shinn. No.
        Senator Boxer. Is anyone here from the EPA in the audience
    today? Did they send anybody at all? We were hoping they would
    have sent someone. I'm not going to ask you anything. I just
    want to know if you're here. I would like to say as far as the
    EPA is concerned, if you're meeting with the chemical
    companies, it would be really nice to meet with the people of
    the country who are frightened about this and who speak up for
    safety. If no one is here then I intend to write a letter to
    Administrator Whitman and hope to get some signatures from my
    colleagues.
        [Audience member stands.]
        Senator Boxer. Did you say you were from the EPA? There is
    someone from the EPA.
        Mr. Heimlich. I am Doug Heimlich from the EPA. I'm just
    starting my job today.
        [Laughter.]
        Senator Boxer. Well, if I might, first of all, welcome you,
    and second of all, tell you I have heard of a baptism by fire
    and this is it. If you could just take a message back to the
    Administrator that we're very glad she's speaking with the
    chemical companies but speaking for myself as chair of the
    subcommittee, I hope she would include or meet separately with
    the people who advocate for public's right to know and public
    safety because we have to be balanced. That's why this
    committee chose to have people from all sides. We don't just
    meet with one group, we meet with everyone and I think that's
    something she ought to do if she hasn't done it. It's just a
    friendly suggestion.
        Let me say further, Mr. Stanley you made an interesting
    comment. You said, we don't want to have an accident. Our
    people work in these plants. You said, I work in these plants.
    Do you think the airlines want to have accidents, want to have
    terrorism?
        Mr. Stanley. Absolutely not.
        Senator Boxer. Of course not. They have beloved employees.
    I'm wearing on my wrist a bracelet dedicated to one of the
    pilots who was in the plane that crashed into the Pentagon. So
    of course our industry are good people and none wants to have
    an accident to themselves, to their employees they put so much
    into. You, yourself, are working in the plant. That's
    understood.
        The point I hope you'll think about today--I'm not asking
    you to comment on it unless you want to--is that you may take
    every precaution and go far beyond even a reasonable response
    to the threat that Mr. Webber described in the newspaper as
    being a very real threat but your neighbor who produces a
    chemical may not have that same set of values you have or even
    your intelligence or expertise and may do lesser precautions.
    That's one of the reasons I think Senator Corzine is onto
    something here. That's why we don't let the airlines--I'm
    hoping we won't--decide their own security, because if it isn't
    uniform, you'll have some airlines doing a whole lot being the
    greatest citizens and the best workers, best employers and
    working with their employees and doing everything right, and
    you may have another that is more of a risk-taking operation
    that puts the bottom line ahead of public safety. You don't
    know that and to have some national law in place that says
    we're all going to march down together as good citizens and
    work together. I hope you will consider the fact that Senator
    Corzine in writing this bill and my going on as a co-sponsor,
    we know everyone means the best. That's not the question, but
    how can we do something together where we have some uniform
    standards and can make sure as Ms. Steinzor said that we are
    protecting everyone, including the heroes who came in to mop up
    after an accident happened.
        I have 14 seconds left so rather than continue, I'm going
    to ask my good friend from Oklahoma to take his 7 minutes at
    this time.
        Senator Inhofe. Thank you.
        Since Senator Smith was criticized for some of the
    statements or perhaps questioned the accuracy in his
    statements, let me bring out a couple of these that I found to
    be of interest to me. One of them was this bill actually makes
    it a crime for not being able to prevent an act of terrorism.
    In fact it would be a crime to be the victim of a criminal act
    that caused a release. That's precisely, Mr. Stanley, what you
    said in your opening remarks, isn't it?
        Mr. Stanley. That is correct.
        Mr. Inhofe. Mr. Webber, do you believe that would be the
    position you might be in, not being able to prevent an act of
    terrorism, that you could in fact be committing a crime for
    being a victim?
        Mr. Webber. Yes, sir. The way I think we would put it is
    that it would appear in reading this bill carefully that it
    would be a crime to be a victim of a crime.
        Mr. Inhofe. Have either of you talked to some of your legal
    advisers and so forth when you assessed this bill in
    preparation for coming here?
        Mr. Webber. Very carefully. I'm not an attorney but I
    certainly rely on their expertise and that is their
    interpretation.
        Mr. Inhofe. Mr. Stanley, did you do the same thing?
        Mr. Stanley. I was not directly involved with those
    conversations but with SOCMA, my organization, yes.
        Mr. Inhofe. Another thing Senator Smith said, reading from
    his statement, ``I'm also very concerned with provisions in
    this bill that gives the Federal Government the power to
    determine manufacturing processes and changing in a facility's
    physical structure.'' I've read a bit and am reading directly
    from the bill under Inclusions it says ``reduce or eliminate
    storage, transportation, handling, disposal, discharge of
    substance of concern.'' I think that's probably what Senator
    Smith was referring to when he's concerned about the provisions
    of the bill giving the Federal Government that power. Do you
    share that concern? Do you feel you are as concerned as Senator
    Smith, Mr. Stanley, about the powers that seem to be given the
    Federal Government in the affairs of your business?
        Mr. Stanley. Yes, I do.
        Mr. Inhofe. Let me ask you this. Let's say you had to
    change. I think it one of you who said you might have to change
    your facility as a result of this, making a change. In the
    event that happened and there was an increase in emissions,
    could it be that would trigger a new source review? What do you
    think? Have you thought about that, Mr. Webber?
        Mr. Webber. Not really. I agree with the general
    proposition that Mr. Stanley described.
        Mr. Inhofe. I know this is mostly in refineries. We had
    several hearings back when Republicans were important and I
    chaired the Clean Air Committee, we held quite a number of
    hearings on this. We went to Illinois where we saw the minor
    changes, even if it did not affect emissions in refineries
    could trigger a new source review which is a very elaborate
    process whereby you have to back with an old facility and bring
    everything up to the newest standards. This has application to
    my understanding with you except before it would trigger that,
    it would have to show that perhaps emissions were increased.
        Mr. Webber.
        Mr. Webber. You raise a very interesting point, Senator.
    With your permission, I brought two colleagues with me, one of
    whom could address this question. He is an expert in process
    safety management. His name is Arthur Burke from DuPont. Would
    you be willing to have him answer Senator Inhofe's statement?
        Senator Boxer. Within the timeframe, if Senator Inhofe
    would like, I'm delighted.
        Mr. Burke. I'd like to start by acknowledging some common
    ground between the Government, the American Chemical Council
    and regulatory agencies, the Environmental Protection Agency in
    dealing with the subject of inherently safer technology which
    is the main thrust of Senator Corzine's bill. That common
    ground is that we all promote and encourage the application of
    inherently safer technology. Where we differ perhaps is how we
    do that.
        Both OSHA's safety management rule and EPA's Risk
    Management Program rule require multidiscipline teams to
    conduct process hazards analyses. PHA teams in conducting these
    studies work to identify hazards, examine lines of defense and
    make recommendations to reduce risk and strengthen those lines
    of defense.
        Typically, American Chemistry Council member companies
    apply inherently safer technology through the conduct of these
    process hazards analyses. ACC believes this is the proper
    approach to applying and implementing inherently safer
    technology. We believe that the Government could contribute in
    a positive way to the application of ISP by giving
    consideration to tax incentives to companies that implement
    inherently safer technology. It's a way to go back to building
    partnership relationship with the Government, industry, the
    communities, working to implement inherently safer technology.
        Senator Inhofe. But the specific question I'd ask is do you
    think this could have the effect in the event that emissions
    increased of triggering a new source review?
        Mr. Burke. I'm not sure.
        Senator Inhofe. I'm going to ask that you try to get me the
    answer to that for the record.
        Some criticized the Administration for not working with
    each of these organizations. I'd like to ask both Mr. Stanley
    and Mr. Webber did your organization work with Senator Corzine
    in the drafting of this legislation?
        Mr. Stanley. No, sir.
        Mr. Webber. No, sir.
        Senator Inhofe. It was contended in the opening statement
    by Mr. Orum that there is not enough dialog between the
    industry and the community. I'd like to ask Mr. Stanley, could
    you please tell us what your company does with the local
    community?
        Mr. Stanley. Deepwater came to northwest Oklahoma after
    being approached by the Woodward Industrial Foundation. The
    town wanted to bring in more industry to develop the community
    from that standpoint, so they knew up front what we did. That
    began a relationship with the local community and exactly what
    Deepwater does as a business. That continued on not only with
    Deepwater Chemicals but several other local industries and
    companies. We deal directly with the local emergency planning
    commission and also with the SEPC. It's an open line of
    communication and we just have developed that even further
    since September 11 and we plan to keep on pursuing that also.
        Senator Inhofe. I asked that question because I was doing a
    talk show up Inwood when somebody came on talking about what
    kind of citizen you are, who you work with, your concern for
    the safety of the public and I appreciate that very much.
        My time has expired but Madam Chairman, unfortunately we
    have an amendment on the stimulus bill that started 5 minutes
    ago.
        Senator Boxer. Was it drilling in ANWR?
        Senator Inhofe. No.
        Senator Boxer. Because I was going to go over there.
        Senator Inhofe. I would remind everyone out of 3,000 pages
    in H.R. 4 dedicated to energy, only two of those pages
    addressed ANWR, so the answer is no.
        Senator Boxer. That's two pages too much for me.
        Senator Corzine. Senator Inhofe, since you addressed a
    question to Mr. Webber with regard to whether I had met with
    the chemical industry, staff did actually sit down with a
    number of folks if I have information correct. We didn't agree
    on the direction that we were taking and there have been
    several meetings from time to time in my own State with people
    in the industry, specific individual companies.
        Senator Inhofe. I appreciate that, Senator Corzine. I was
    just asking since they are the witnesses here, if they had been
    consulted.
        Senator Boxer. We're going to stop the clock here. We're
    going back to 7 minutes but go ahead.
        Mr. Webber. I saw you frown when I gave my answer. I've
    just been told by staff that indeed there had been staff
    meetings and those staff meetings can best be characterized as
    your staff presenting the outline of the legislation. Whether
    there was room for input or not is anybody's guess but there
    were those meetings and I paid a courtesy call on you
    yesterday.
        Senator Corzine. I wasn't speaking about the courtesy call.
        Mr. Webber. I also want to acknowledge that you did meet
    with representatives of our industry in New Jersey I think last
    month.
        Senator Corzine. I hope that once and for all, we will put
    aside the view that this is a confrontational element. It is a
    cooperative one. I think anyone that looks at a bill that's
    going to take 2 years to make an assessment and then to write
    regulations is leaving plenty of time for the evolution of this
    in a cooperative sense. In a very technical area, I think it's
    absolutely necessary that they be done and there is no intent.
        I also find it hard to understand, I can't remember who
    said there were no threat assessment facts that were underlying
    this. The Department of Justice is in the midst of that. They
    were supposed to have presented the threat assessment I think
    it was in April 2000, if I'm not mistaken. I think a lot of us
    are frustrated that hasn't been completed. The only thing we do
    have from the Department of Justice says there is a clear and
    present danger from these kinds of activities, terrorist
    attacks applied to chemical plants. I'd like to have that
    threat assessment too. I think that's a proper quantitative,
    qualitative analysis that should be a part of this legislation
    as we put that together. So I hope no one thinks that.
        With regard to the sense that there may be differences in a
    rural located plant in Oklahoma versus one on the New Jersey
    Turnpike, we have been very specific, very specific that EPA
    should identify high priority projects and then make different
    assessments for different risk threats associated with it. I
    hope when we talk about this bill we talk about it in the
    context of how it is actually written.
        With regard to victims as criminals, I think different
    lawyers may be reading this differently because at least my
    lawyers would tell me it is written that you have to have not
    dealt with the substance of understanding what high priority
    risk would be, followed by identified hazards and not dealing
    with actions that were recommended by the EPA in the context
    the regulations are written.
        I am in no way trying to say that somebody that has an
    airplane flying into their chemical plant is criminally liable
    but if people haven't taken precautionary steps like having
    security guards and high fences and other kinds of things or
    high alarms even, where people can walk on plants and plant
    bombs and create problems, I think there may be reason to
    presume that there is some liability for those individuals that
    go beyond civil. At least that is the intent of the
    legislation.
        I would ask Mr. Shinn that in your testimony you suggested
    that sometimes when regulators work with industry, you may find
    savings in new operations and new activities. I think you were
    very specific about that if there is a cooperative element
    about how one works together with processes and equipment.
    Would you comment?
        Mr. Shinn. I think we're finding more and more across our
    program lines we just can't get to where we need to go alone.
    We can't do it in the traditional regulatory fashion. A good
    example is in this program, talking about the TCPA. In our
    water treatment facilities, we had 500 pound or greater
    threshold for chlorine. In less than 3 years, 375 of these
    facilities had reduced the amount of chlorine on hand or below
    the threshold, essentially removing them from the program. The
    incentive was to have your storage below a certain threshold to
    be out of the program altogether.
        Senator Corzine. Was this a case where regulatory agents
    were actually working with industry in a cooperative way?
        Mr. Shinn. The other really valid benefit that came out of
    it, 100 facilities, water treatment facilities, eliminated the
    use of chlorine altogether and used other technologies,
    ozonation and the list goes on but we really dramatically
    reduced the storage of chemicals onsite for water treatment
    facilities.
        Senator Corzine. I'd ask any of the witnesses to respond to
    a question I have about risk management plans that are part of
    the Clean Air Act of 1990. EPA states there are 15,040 risk
    management plans in place. Unfortunately, that only represents
    80 percent of the facilities that are subject to them. There
    are currently 18,800 facilities. That is a requirement by law.
        Do we have some perspective on why these other facilities
    are not meeting these risk management plans that I presume deal
    with just accidental and mechanical issues? Any of the
    witnesses want to comment?
        Ms. Steinzor. There is virtually no enforcement of those
    requirements by the agency and you point out that a large
    number of the plants have not even prepared them. There is an
    additional concern of their content and what they do say, and
    whether they are adequate.
        If things keep going the way they have, we may never get
    access to them because there is even talk of pulling them out
    of local reading rooms, much less off the Internet. I think
    that would be the answer I'd offer, that there is not enough
    enforcement.
        Mr. Orum. I hope you will ask EPA that question about
    enforcement. What I wanted to add is the risk management plans
    were developed before the present era and do not include a
    protocol or annex that would address specifically terrorism.
    Likewise, the thresholds under that law were established
    without terrorism in mind. So you have examples such as a one
    ton tank of chlorine that can cause serious harm two miles
    offsite not being included by itself in the program.
        Senator Corzine. I asked that question because I have some
    concerns about voluntary efforts in meeting guidelines if we
    are not actually meeting the risk management plans that are now
    in place with regard to the Clean Air Act.
        Ms. Steinzor. It also is worth noting that it's my
    understanding that DuPont was one of the companies that did a
    closed loop system for methylisocyanate but the facility in
    Institute, West Virginia did not take similar steps. Certainly
    there are many members of the chemical industry, as Senator
    Boxer said, who are very responsible and have really broken new
    ground on preventing new hazards but something as simple as
    that in the wake of Bhopal with all the notoriety of that
    particular chemical, it's discouraging.
        Senator Corzine. I think one of the reasons we feel that
    legislation may be appropriate at this time is not for the
    highest standards that are being executed by companies and
    participants in the chemical industry, but we are fearful of
    what the lowest common denominator may be doing with regard to
    this.
        I think the reality that not even today over a decade later
    these risk management plans are in place should give people
    some cause for concern.
        Senator Boxer. I think that point is well taken because as
    I said before, the same with any industry, there are good
    actors and bad. It's refreshing if we could find some of the
    good actors come out and say, we want our industry to reach the
    highest standards. It's hard to find that happening. I'm not
    critical here. It's just hard to find that.
        I want to get to the industry mantra about this bill makes
    it a crime to be a victim of a crime. Mr. Stanley, if a
    terrorist blows up a chemical plant and there are lots of
    casualties and the terrorist dies, he's a victim. Is he also a
    criminal?
        Mr. Stanley. Yes, he is.
        Senator Boxer. I wanted to make sure we got that clear and
    got that out of the way. We're not talking about that.
        If a company knowingly fails to conduct a background check
    on employees and hires a criminal and that criminal blows up a
    plant or causes great damage, do you think there should be any
    culpability there?
        Mr. Stanley. Yes, I think there should be but I think our
    industry as a whole has that viewpoint to make sure that we
    have the assessments or security measures in place already. I
    feel we are a safe industry. A small batch plant I think has a
    little more flexibility. As far as Deepwater's own hiring
    policy, we do a full background check because we are aware of
    that, because of the chemicals already onsite.
        Senator Boxer. The point I'm making is when you read
    Senator Corzine's bill what you realize is what he's done is
    allow the EPA which you are meeting with on a regular basis,
    chemical companies are, to determine the regulations, and also
    the Justice Department to come up with what penalty should be.
    He doesn't even put any penalties in this bill. This mantra
    about you're making victims criminals makes no sense at all
    since this is going through the Justice Department and the EPA.
        The fact is I think if a company knowingly avoids doing
    criminal background checks, if this law were to pass, ignores
    safety rules such as putting a dangerous chemical in the back
    of a plant without a fence or a guard, you're darned right I
    want to hold people responsible for that kind of irresponsible
    behavior, just as I would an airline that doesn't do an engine
    check and an engine blows up. Yes, you've got to make sure
    people are responsible for their actions. I thought that was
    what being a good citizen was about.
        You have nothing to fear because you're doing the right
    thing. Ninety percent of the companies, maybe more, maybe 99
    have nothing to fear.
        I want to ask Ms. Steinzor because she said something which
    I wanted to probe a little bit. You said there were a couple
    other near accidents. Could you elaborate a bit on that, in
    America?
        Ms. Steinzor. I think Paul has the precise number of near
    misses which is a very important thing to take into
    consideration.
        Mr. Orum. Yes and no. No one has the total number of near
    misses and no one actually has the big picture of chemical
    accidents, however, 25,000 fires, spills and explosions each
    year, small, medium and large is what we hear from the National
    Response Center. About 1,000 of those have death, injury or
    evacuation.
        The point about near misses is that some analysts suggest
    each time you have a catastrophic failure, you have 30 loss
    time incidents, 300 recordable incidents and 30,000 near
    misses. So the pattern of these many, many incidents suggests
    we will have big incidents. If you count everything, even the
    smallest spills, you get as many as 50,000 incidents a year.
        Mr. Webber. I'd like to respond to that and get back to
    background checks because we need your help on this.
        First, on the National Response Center, it's important to
    note that data is very limited in several important ways.
    First, the data base NRC maintains includes non-chemical
    related events, such as railroad crossing events. Second, the
    NRC records that report incidents it is common for the Senate
    to receive multiple reports of the same incident and they don't
    distinguish.
        Senator Boxer. What do you think the number is?
        Mr. Webber. A fraction of what is reported.
        Senator Boxer. Give me a number.
        Mr. Webber. I can't give you a number.
        Senator Boxer. A fraction of it is what?
        Mr. Webber. A fraction of that which is reported.
        Senator Boxer. You've got to give me a number.
        Mr. Webber. I don't have it. I could do it for the record.
        Senator Boxer. Would you do it for the record? Does your
    assistant know?
        Mr. Webber. I can find out. Case after case has
    demonstrated to us there are multiple reports. We've gone to
    the NRC and said, let's find out what the true rate of
    incidents is involving chemicals specifically and we know it's
    a fraction.
        Senator Boxer. Is it more than 100?
        Mr. Webber. I dare not speculate.
        Senator Boxer. Nobody here from the chemical industry knows
    how many incidents there are today, for the record?
        Mr. Webber. We'd be pleased to respond in writing.
        Ms. Steinzor. If I could add to that, first of all, there
    is an opportunity if an incident is not what people thought it
    was to begin with to correct the record with the National
    Response Center and perhaps companies should start doing that
    rather than questioning the figures the Center has.
        Second, it certainly is true that railroad crossings would
    be reported. Senator Corzine's bill and your bill, Senator
    Boxer, cover transportation concerns.
        Senator Boxer. It's a big issue.
        Mr. Webber. I can give you an example and I hope this is
    accurate. Last year, 170 deaths were reported in our industry,
    158 were traffic accidents including railroad crossings
    including the overturning of a milk truck. You have to put this
    in perspective.
        Senator Boxer. We're talking about incidents. What I'm
    trying to get at here are the number of incidents. We were told
    one number, you said it's a fraction. We'll hold open the
    record. How long do you think it will take you to get me that
    number?
        Mr. Webber. Hopefully in a few days. We'll do it as quickly
    as we can.
        Senator Boxer. We will check our mail.
        I'm going to have to leave. I'm proud to introduce the
    President's choice for the head of the Peace Corps. That
    hearing is down the hall, and I need to do that. I'm going to
    give the gavel to my colleague.
        Mr. Webber, if you need our help in terms of background
    checks, I think that's a very legitimate point and maybe when I
    leave, you can let the good Senator from New Jersey know that.
    We want to be helpful and maybe he can put that in his bill if
    you need that.
        In closing, let me thank Senator Corzine so much. I had the
    privilege of serving on this committee with Senator Lautenberg
    and you have come right in. He was just unrelenting in his
    desire to protect the public from toxic materials and you've
    come right in and have that same fervor. I could not appreciate
    it more than I do.
        I want to say to the EPA individual who I believe is under
    CPR in the back of the room if he could make the point to
    Administrator Whitman one more time that this committee has
    both sides at the table and they are distinguished people,
    different perspectives, different points of view, that's what
    America is. We debate things. It's important that she include
    the environmentalists and the advocates for ordinary men and
    women who may well be a victim of this kind of terror to the
    table.
        Senator Corzine did it and it isn't easy, I know, when
    you're writing a bill that's going to say to an industry you've
    got to do more. It isn't easy. He met with people in his State
    his staff met with people here. I think that's good and I would
    hope she would do the same. If you would let me know if that's
    going to happen because I believe Ms. Steinzor you are ready,
    willing and able to meet with Administrator Whitman, correct,
    Mr. Orum?
        Mr. Orum. Yes.
        Senator Boxer. Then I think the Administration will come
    out with a more credible proposal that we can support. If it
    comes from a narrow industry that clearly has a particular
    interest in terms of economics, it's not going to have the kind
    of reception here that it deserves.
        With that controversial statement, I will go off to the
    Foreign Relations Committee. Thank you, Senator, and carry on,
    please.
        Senator Corzine [assuming the chair]. I appreciate it.
        We have tried to put in the bill encouragement to have
    safer equipment. I think we talked about how it would be easier
    to accomplish if we had tax credits that made that attractive.
    That in itself has embedded in it the question are there
    processes we know are safer that are not being done because tax
    credits aren't available with regard to either accidental or
    criminal or terrorist releases of chemical processes? I
    understand it as an old business hack myself, I wouldn't mind
    having tax credits for investment purposes, it's a good thing,
    but are there generally recognizable initiatives that because
    tax credits aren't available we are not taking those steps?
        Mr. Shinn. To generalize, I think going in the direction of
    incentives and indicators to track the progress, I think you're
    right on the money because we've tried to do a certain amount
    of that. One of the things we recognize is the smaller batch
    plants are harder to keep track of from a process, from a right
    to know perspective, from a facility emergency response
    perspective because their processes change all the time. They
    may be making this batch today but next week they'll bid on a
    different process.
        You mentioned the lodi situation which will be embedded in
    my memory a long time, a real tragic situation. Part of that
    problem was the proper expertise for the batch they were
    producing was not available when that batch ran away in the
    chemical process.
        I haven't figured out how to do it but you mentioned
    credits and incentives. We think an area that has a lot of
    promise is having the larger chemical companies mentor. I know
    there is a lot going on through chemical organizations to do
    this. We applaud that but some more incentivized way for larger
    chemical companies to work with batch plants when they are in
    complex issues because I think there is an expertise demand
    that may not be satisfied.
        Senator Corzine. You found that in some situations where
    you've been able to work through a constructive and cooperative
    relationship with some of the chemical processors, you've
    actually saved money, people have come back after the fact and
    said this was a good thing on a business basis as well as from
    a regulatory perspective.
        Mr. Shinn. I think when you look at the different laws we
    have both Federal and State, discharge prevention, containment,
    the Worker and Community Right-to-Know Act, the Emergency
    Response and our TCPA Program, when you look at all those in
    context, there's a lot of coordination that is needed between
    those programs, and pollution prevention. If you put all those
    together with a pollution prevention concept, you really get to
    the ultimate goals I think everyone in this room is trying to
    achieve.
        When you jump to programs and have different guidelines
    it's hard to get an overall concept together. I think we could
    improve that process up to and including the Department of
    Transportation commerce clause issues, when you get to know
    what's in a box car that's unloading in your community. That is
    another issue that weaves into this whole topic you engaged.
    They are all part of a need for a coordinated approached that
    involves many Federal agencies.
        Senator Corzine. I would ask if anyone has anything they'd
    like to comment on for a minute before we end.
        Mr. Stanley.
        Mr. Stanley. Especially batch plants, I'm not sure what Mr.
    Shinn meant by mentoring some of the companies similar to
    Deepwater Chemicals. We have an extensive staff as far as
    technical and educated people from the standpoint of process
    chemistry, chemistry and engineers. It's part of our education
    when we design a process and the equipment to make sure it can
    be done financially and from a safety standpoint, and the
    environment.
        I'm not sure where the thought goes with that. We don't
    look at things like that. It's ingrained in our industry from
    that standpoint. We are product specific. If we run a
    chemistry, we realize there are certain routes that can work.
    If you're meeting a specification of a customer, sometimes
    there's very limited ways to go down there. You make the
    business decision to produce that product.
        It's difficult when you face a regulatory hurdle. That is
    what kills the project. As a small company, we get few chances
    to succeed and it becomes more difficult to compete when we
    have more burden.
        Mr. Orum. I want to again commend your interest in inherent
    safety as the option of first resort. In my testimony, one of
    the reports I cite was the recent study in Europe of four
    firms, two in the Netherlands and two in Greece. They quickly
    identified more than two dozen feasible, inherent safety
    alternatives, the majority of which had a payback period of
    less than 2 years.
        To answer your previous question, I'd be very happy to put
    you in touch with the authors of that and maybe in future
    hearings, you can have them lay out specifics.
        Tax incentives, it seems to me it runs the risk of having
    to then do what this bill does not which is to designate
    specific technologies you are rewarding. There can be problems
    with that if you take that approach. For example water
    treatment plants from chlorine gas that can drift offsite to
    sodium hypochlorite, they don't have that particular risk
    anymore but they still have a process that does not necessarily
    have the capacity to take care of all the things a terrorist
    might want to put into the water what you might have if you
    went to a different process, say ultraviolet light. So it seems
    if you do tax incentives, you have to set a standard rather
    than pick technologies.
        Mr. Shinn. As a response, I am sure the Deepwater plant is
    well staffed from an expertise standpoint. I know our Deepwater
    plant in New Jersey is, a different corporate person but the
    plant I was talking about from our experience was the lodi
    situation. I can't give you the specific chemical details but
    that was a batch that was mixed and the temperature control of
    the batch ran away and the chain of command to get to the
    person that knew how to rectify that run away situation was not
    immediately available and a whole lot of miscommunications
    resulted in the explosion that ensued shortly thereafter.
        I can tell you with the number of processes that go on in
    New Jersey, there is a strong expertise that's present in 99
    percent of the processes that go on. You only need an
    underfunded, struggling company that takes a low bid to get
    into a situation where it has trouble controlling its
    processes. Quite frankly, I don't know the answer to that, I
    don't know there is a good one but I know plants that go out
    for subcontractors for low bids need to take an extra look at
    the expertise in providing completion of that contract.
        We have good experience with mentoring in other industries
    and the chemical industry association we've had has done an
    outstanding job in policing its entities. I think we have to go
    further in this because we're in an atmosphere where we need to
    go further.
        Mr. Webber. A cornerstone of your bill calls on companies
    to implement inherently safer technologies. I want to say for
    the record my industry supports the use of inherently safer
    technologies. It's an admirable objective and goal.
        In Texas, one of our members replaced a bulk storage of raw
    materials with a process that produces the same raw material at
    the rate it is used. That means the company was able to
    eliminate the need to store the material onsite. That's a good
    example, shows initiative that Mr. Stanley doesn't want to see
    diminished.
        The real issue is should government mandate the use of
    inherently safer technology? The Clinton Administration looked
    at that hard and said, no and we think they made the right
    decision. What do you do? You base it on performance. We think
    the focus should be on performance. Then you would say are we
    continually improving the safety and security of our
    operations? Absolutely. It's not only good business, but we all
    know it means better security, safer technologies, a safer
    workplace.
        The answer is a very, very strong yes. We follow procedures
    outlined in OSHA's process safety management rule. They are
    rigorous and tough. We adhere to them. Every chemical company
    ought to be adhering to them and also EPA's risk management
    plan rule. They are in place. That's why we worry about
    redundancies, why we feel we are making progress and have safer
    and more secure facilities.
        I could go through the process of how we form teams and
    work on all these issues, but I have to say that our approach
    we think is making good use of inherently safer technology.
        In terms of tax incentives, if the smaller company has a
    financial barrier, our position still would be let's examine
    ways to provide tax incentives so they can get there.
        Ms. Steinzor. In 1999 there was a three alarm fire in
    Baltimore and the reason for it was just as Commissioner Shinn
    said, the day crew knew not to use steam in cleaning out a
    plugged pipe, they forgot to tell the night crew and there was
    an explosion. We are all human beings and we make mistakes.
    That's why you are emphasizing pollution prevention.
        NRDC has had a lot of experience with that. Attached to my
    testimony is an article by Linda Greer, ``Anatomy of a
    Successful Project,'' which talks about her work with Dow on
    preventing pollution.
        We have found is that when projects come to a company and
    are all lined up, evaluating on the basis on the return on the
    investment, very often, too often pollution prevention for
    reasons that are frustrating to us do not make the cut because
    we do not yet see the return on the investment will be very
    much worth it in the same timeframe compared to other uses of
    the money. Until we change that dynamic, we may well have a
    situation where hazard reduction just doesn't take hold the way
    we would like. That's one of the reasons we support your
    legislation because it is a very good time to start looking at
    those things again.
        There was an economic analysis of airline security done a
    few years ago where there was a calculation that if people had
    to wait half a hour for a plane, it would cost billions of
    dollars because of the price of their time. Looking at it now,
    the conclusion was the benefits didn't equal the cost for
    airline security. With the benefit of 20/20 hindsight, the
    airline industry at stake, we would say it would have been
    worth it. We always must be careful how we quantify benefits.
        Senator Corzine. Thank you all for your participation and
    lively discussion. I hope we can continue some of these out of
    the hearing room. If there are ways we can make the victim is a
    criminal language match with lawyers, I am more than happy to
    work on that as long as there are real incentives to make sure
    people move to correct problems. I'm not married to a
    particular language if that is the sole objection.
        On the other hand, I feel as strongly as I ever did that we
    need to protect against lowest common denominator risk. I am
    troubled by the fact that we have now laws that ask for risk
    management plans that are not fully attended to, and we have a
    different environment today than we had previous to September
    11. I think there are enough examples in our society that would
    lead one to believe there is room for improvement in this area.
    There is a question basically of whether that can be done
    voluntarily or whether it should be done through a regulatory
    mode.
        I would say in New Jersey, we don't have a perfect record
    but I do think our regulatory structure has moved us down the
    ball field in providing greater safety and assurance to our
    public in a very densely populated State. I don't think anybody
    is suffering the worse for the wear for it. Maybe we should be
    a little stronger even.
        I feel we have had a great discussion here. I appreciate
    everyone coming and participating.
        The hearing is adjourned.
        [Whereupon, at 4:11 p.m., the hearing was adjourned, to
    reconvene at the call of the chair.]
        [Additional statements submitted for the record follow:]
                     Statement of Hon. James M. Jeffords,
                     U.S. Senator from the State of Vermont
        I would like to thank Senator Boxer for her diligent work on
    today's hearing. I also would like to commend Senator Corzine on his
    fastidious efforts to promote chemical site security.
        In the wake of September 11 and the ensuing war in Afghanistan, it
    behooves us to think about the heightened threat of terrorist attacks
    on our soil. No one ever imagined using a commercial airliner as a
    weapon of mass destruction. No one ever thought that anthrax could seep
    out of a sealed envelope and spread through the mail. No one ever
    predicted that our very infrastructure, such as our water systems and
    agricultural centers, would be vulnerable to terrorist threat. In fact,
    such speculation seemed unlikely, almost ludicrous. Today is different.
    Some say that the next level of potential targets is major chemical and
    oil facilities. We can argue about whether that is the case, but it
    does not hurt to be prepared. We must evaluate all potential domestic
    threats now, and respond accordingly.
        Two-and-a-half weeks ago, 400 pounds of methyl bromide was stolen
    from a chemical storage facility in Florida. The thieves cut a hole in
    the fence unnoticed by security personnel. Last week, 1,000 gallons of
    ethylene diamine were spilled at a Texas chemical facility. The toxic
    gas incident sent 15 to the hospital and, although believed to be an
    accident, the cause of the spill is under investigation. Also last week
    in Texas, a fire at a city sewage plant caused a chlorine leak. Between
    100 and 200 residents were evacuated from their homes. The cause of the
    fire has not been determined. These stories are chilling under any
    circumstances. These days, they are particularly alarming.
        It is important to note that small rural States are just as much at
    risk of terrorist threat as traditional chemical producing States.
    While my own State of Vermont is not a center for chemical
    manufacturing, we do deal with large quantities of agricultural
    chemicals as well as chlorine dioxide used to disinfect our water
    supply and wastewater systems.
        The Federal Government has the legislative tools it needs to clean
    up, prepare for, and manage the accidental risks of chemicals. However,
    we lack a mechanism to eliminate and reduce criminal behavior
    associated with chemicals. While I appreciate the efforts of the
    chemical industry in issuing draft security guidelines and educating
    its members, the Federal Government can and should do more. The
    Environmental Protection Agency and the Department of Justice must work
    with our State and local governments, as well as industry, to develop
    regulations addressing the most serious threats. And we need to do so
    immediately.
        The Environmental Protection Agency (EPA) and the Department of
    Justice (DOJ) were invited to attend today's hearing. Both agencies
    declined to send a representative. This concerns me. Last week, EPA
    Administrator Christine Todd Whitman said that the chemical industry is
    ``doing as good a job as they can do right now, and [that] they're very
    aware of where their vulnerabilities might be.'' I appreciate knowing
    that but have not heard from EPA directly despite repeated briefing
    requests. As chairman of the Senate Environment and Public Works (EPW)
    Committee, it is my job to understand and oversee EPA's actions. My
    goal is to work with EPA to mitigate potential threats; their role in
    this extremely important and timely effort is critical.
        Again, I thank my colleagues for their efforts on behalf of
    chemical site security; and I look forward to moving S. 1602, the
    Chemical Safety Act, through the EPW Committee.

                                   __________
               Statement of Robert C. Shinn, Jr., Commissioner,
               New Jersey Department of Environmental Protection

        Good afternoon. My name is Robert C. Shinn, Jr. I am commissioner
    of the New Jersey Department of Environmental Protection. With me is
    Allan Edwards, assistant administrator for the Office of Release
    Prevention. We appreciate the opportunity to come before you today to
    discuss the important topic of chemical plant safety and security. I
    especially want to take this opportunity to acknowledge and thank
    Senator Corzine for the leadership he is showing in this area.
        In light of September 11th, a discussion on the need to ensure that
    there are adequate safeguards to protect the public from any accidental
    or intentional releases of hazardous chemicals is especially pertinent
    and timely. I trust that you will understand that, due to security
    concerns, my testimony will be general and not refer to specific
    facilities or specific security measures we have implemented in New
    Jersey.
        There are two major themes that I would like to touch upon today.
    First, I would like to give the committee the benefit of New Jersey's
    experience and success in the area of chemical safety preparedness and
    response. The second point I will make is that, even in a State such as
    New Jersey with a successful an comprehensive chemical safety program,
    there are certain areas in which augmented Federal authority would
    support our effort.
        While New Jersey's program has focused on prevention of accidental
    releases of extraordinarily hazardous substances and not those releases
    caused by terrorist actions, we feel that the system we have set up and
    the preparedness we have instituted positions us in good stead. We are
    not only on guard against such an unfortunate occurrence, but we must
    be better able to respond if it did occur.
        Over the course of nearly two decades, we have built a coordinated,
    effective program that no only works to prevent releases of hazardous
    chemicals but also provides us with the information and infrastructure
    so that we can be ready at a moment's notice to respond if a release of
    a hazardous substance does happen. In this way, any releases that
    occur, whether they are accidental or intentional, can be contained and
    the impacts minimized.
        While our program in its entirety may not be transferable to the
    Federal level, I hope that this committee will be able to take what New
    Jersey has done and use it, or components of it, as a model for Federal
    action where appropriate.
        New Jersey is the nation's most densely populated State. It also
    has a large number of facilities that produce or use highly hazardous
    chemicals. This has forced us to be especially diligent in ensuring
    that there is little to no possibility that the public will be exposed
    to the release of these substances. I am not here to imply that our
    level of regulation would be appropriate for or should necessarily be
    imposed upon other States that do not have New Jersey's population or
    number of facilities.
        In 1986, shortly after the tragic accident in Bhopal, India, the
    New Jersey State Legislature passed the centerpiece of our effort, the
    Toxic Catastrophe Prevention Act, commonly known as TCPA. It has
    enabled our State to develop what is still the most comprehensive
    program in the country to prevent accidental releases. I may be biased,
    but we think it is also the most effective.
        Before I describe some of the more salient points regarding our
    regulatory process, there is one feature of our program that I would
    like to highlight. While it is a regulatory program, it was designed in
    cooperation with the regulated community. Cooperation has been in place
    since the very beginning of the program. When we created the initial
    rules in 1986-87, we had very heavy industry involvement. Professional
    chemical safety experts from the chemical industry and the insurance
    industry helped us write the rules in the first place. A lot of time
    was spent with these professionals to make sure that the technical
    requirements were valid.
        Then, a few years ago when we readopted our TCPA regulations to
    incorporate the Federal Accidental Release Prevention requirements and
    to make other improvements, we again had intense interaction and
    discussions with the regulated community over a period of months. We
    asked for and received up-front input from the regulated community. We
    feel that this hand-in-hand approach has made for a more effective
    regulatory scheme.
        This cooperative spirit has also been reflected in the
    implementation of our program. In the past, an environmental inspection
    could often be an adversarial encounter resulting in fines, penalties
    and orders. We have found it very effective to use these inspections to
    emphasize compliance assistance rather than solely as violation
    spotting visits. When we perform an inspection of a TCPA-regulated
    facility, a typical inspection will be performed over the course of an
    entire week where we work with the facility to examine alternatives--in
    many cases involving the use of innovative technologies--to get the
    facility into compliance.
        To their surprise, many facilities realize efficiencies and
    increased profits once they implement the changes to their processes
    that were decided upon in this cooperative manner.
        We would strongly recommend that any Federal legislation in this
    regard promote a compliance assistance approach to regulation, without
    sacrificing appropriate enforcement response, when necessary. I realize
    that it is a fine line that has to be considered, but it is well worth
    the effort.
        There are several key features of New Jersey's TCPA program that
    have contributed to the success of this program and which you may wish
    to consider for incorporation into the Federal scheme. The main thing I
    would suggest is that the overall philosophy, as expressed in section
    112(r) of the Clean Air Act, place a greater emphasis on prevention and
    preparedness. In New Jersey, we emphasize identification of risks and
    the steps that should be taken to reduce those risks. At this time,
    where we need to be cognizant not only of accidental releases but those
    that may be intentional as well, an emphasis on up-front prevention and
    quantitative risk analysis is called for.
        In New Jersey, our law requires regulated facilities to perform
    comprehensive reviews and risk assessments of all possible release
    scenarios that may cause offsite impacts. Presently, Federal regulation
    only requires facilities to perform analysis of worst-case scenarios
    and one alternate case scenario. Furthermore, in New Jersey, we require
    that facilities quantitatively assess and characterize risk, going a
    step beyond any other process safety management and risk management
    program regulations in the U.S. This means that the potential releases
    and resultant offsite impacts that may occur under each scenario must
    be quantified. To date, Federal regulation does not require
    quantitative analysis of risk. We would recommend that such
    quantification be required.
        Our requirement that any and all release scenarios that may
    possibly result in offsite impacts be analyzed and planned for has had
    positive benefits not only for the public but also, in many cases, for
    the facilities themselves. Because of the intense review and planning
    efforts, State and local emergency response officials, as well as the
    response officials for the plants themselves, have comprehensive plans
    that cover a whole range of situations.
        This review process has also benefited businesses, which invariably
    improve their processes as they have gone through the scenario review.
    Many improvements that otherwise would not have been considered come to
    light. Some of the process improvements performed by the facility were
    not specifically required by our regulations, but instead were inspired
    by the facility itself. These are processes that make good economic
    sense but would never have been done had the analysis not been
    performed.
        For example, the use of remote control shut off valves on chlorine
    rail cars has become pretty common practice. However, this was not
    always the case. It was not until facilities began to analyze scenarios
    that it became obvious that in certain situations, emergency workers
    would have to endanger themselves by going into what could be the
    thickest part of the plume, find the switch and shut down the release.
    There would also be the danger that the switch could not be reached and
    the release would continue unabated. Remote switches make good business
    safety and health decision sense.
        As a practical matter, we would recommend the incorporation of
    threshold amounts into any legislation that is considered. TCPA only
    kicks in if a facility handles, uses, manufactures, stores or has the
    capability to generate an extraordinarily hazardous substance at
    specified threshold quantities. These thresholds have been developed
    for each individual substance through scientific analysis of the
    respective potential offsite impacts. The fact that there are
    thresholds, and also the fact that there are fees applied based on the
    amounts maintained over that threshold, provide real financial and
    regulatory incentives to convince facilities that it would be in their
    best interest to reduce inventories of extraordinarily hazardous
    substances.
        Over the life of this program, we have seen numerous facilities
    either reduce the amount of the substances they keep on hand or change
    their processes altogether so that they use more benign substances to
    accomplish the same ends. For example, when our program first got up
    and going in the fall of 1988, New Jersey had 575 TCPA-regulated water
    treatment facilities meeting the then 500-pound or greater threshold
    quantity of chlorine. In less than 3 years, 375 of these facilities had
    reduced the amount of chlorine on hand to levels below the threshold,
    removing them from the program. Another 100 facilities changed their
    processes and ceased the use of chlorine altogether; instead using
    alternatives that have the potential for only very limited offsite
    impacts.
        As I have emphasized, we are very proud of the program we have
    developed in New Jersey to minimize the risk of catastrophic releases.
    The TCPA program, working in conjunction with other programs such as
    Discharge Prevention Containment and Countermeasures, Worker and
    Community Right-to-Know and Emergency Response has established a
    prevention and response system that is second to none. The DPCC
    Program, for example, covers the universe of facilities whose releases
    would not have the dire consequences of a TCPA release, but would still
    cause adverse impact to the public and the environment. This program
    has some requirements that mirror the TCPA requirements regarding
    secondary containment and preparedness and prevention.
        Still, however, there are areas where additional Federal regulation
    would improve our efforts. Let me briefly describe those areas.
        One thing that we would support is Federal promotion of the use of
    inherently safer technology. It goes beyond what we feel we could
    require at the State level in New Jersey, but we do believe that it
    would be proper policy to promote safer technology at the Federal
    level. Installation of inherently safer equipment would help to ensure
    that facilities and emergency responders would have the most up-to-date
    technology at their disposal in the event of a release.
        It would also be helpful to New Jersey if a Federal statute allowed
    for State regulation of the transportation of extraordinarily hazardous
    materials. DOT regulations have historically been unclear as to when
    freight is in transit and when it is not. Our TCPA program generally
    regulates material once it enters onto a plant site. However, the
    longer freight is in transit, the less opportunity we have to impose
    regulations as a State. For example, there are some who are pushing for
    railcars to be exempt from State regulation until they are completely
    unloaded. Due to interstate commerce concerns, a State's jurisdiction
    over the railcar and its contents is unclear while in transit.
        DOT is currently taking comments on a proposal to define when a
    commodity is to be considered ``in transit.'' This might be an
    appropriate time for Congress to weigh in on this issue.
        I thank you for this opportunity to come before you and discuss
    this vital topic. We are available to answer any questions that you may
    have.

                                   __________
        Statement of Frederick L. Webber, President and Chief Executive
                    Officer, The American Chemistry Council

        Good afternoon. My name is Fred Webber. I am president and CEO of
    the American Chemistry Council. I am pleased to speak today on behalf
    of the Council's members on the important subject of security in the
    chemical industry, a critical component of America's infrastructure.
        I believe it is very important for members of this subcommittee,
    and Congress as a whole, to understand three basic facts about our
    industry.
        First, our industry is a critical and indispensable part of the
    nation's infrastructure. We make significant--and sustained--
    contributions to America's economic and national security. We make
    thousands of products that make people's lives better, healthier, and
    safer--from medicines to medical equipment, from the space-age
    materials used by the military in stealth aircraft to aviation fuel and
    night vision equipment, from satellite communications systems to
    ensuring that the water we drink is safe and clean. What's more, every
    other manufacturing industry in the United States depends in some way
    on the products of chemistry for their survival and growth.
        Second, we have a culture of safety going back many years. The
    nature of our operations requires it. This culture of safety has
    created what Labor Department data reveals is one of the safest
    industries in the United States--and the world. Our longstanding safety
    culture has, in the last decade, evolved into a culture of security
    that extends beyond our industry into those with whom we work. This
    commitment-to both safety and security--is expressed through our
    industry's own voluntary initiatives such as Responsible Care, our
    adherence to and support for governmental standards and research, and
    our longstanding-and effective-partnerships with local, State and
    Federal Government agencies.
        Third, we have an important role to play strengthening our national
    security. We are working with the Department of Justice and other law
    enforcement agencies to review and strengthen security at our
    manufacturing facilities and to protect against the diversion and
    misuse of our products. This work was going on before September 11. It
    has been accelerated since then. For example, in addition to the things
    we were doing either voluntarily or with others before September 11, we
    have urged President Bush to proceed with plans to conduct a
    comprehensive security assessment of the chemical industry that
    Congress requested a year ago. We plan on conducting our own assessment
    of industry security. Our industry will benefit from a comprehensive
    assessment conducted by appropriate Federal law enforcement, national
    security, and safety experts.
        I intend to address these issues today within the structure of the
    following outline. First, I will describe briefly some of the ways our
    industry contributes to making our lives better, healthier, and safer--
    in short, why the products of chemistry are so vital to our nation, its
    people, our economy and our collective security. In doing so, I will
    also describe some of the important industry programs and practices
    that illustrate our industry's culture of safety--and the effect of
    this in establishing and strengthening our culture of security. I will
    describe the types of actions our industry has taken to enhance the
    security of its facilities since the unspeakable events of September
    11.
        Second, I will identify many of the comprehensive and effective
    laws and regulations that currently address chemical safety and
    security.
        Third, I will identify specific actions that we believe Congress
    and the Executive Branch should take that would help our industry and
    many other industries--improve security. And I will suggest some
    creative ways in which the chemical industry can help Congress in
    further improving our nation's overall security.
        Finally, I will detail our views of the legislation currently under
    consideration by this subcommittee--which has been introduced by
    Senator Corzine and others--and ways in which we believe it can--and
    should--be improved.
       i. the chemical industry makes our lives better, healthier & safer
        The chemical industry is a critical asset of our economy and our
    nation's infrastructure. The science of chemistry and its benefits are
    interwoven into our daily lives. The business of chemistry is essential
    to the nutrients in our food, the purification of our water, the
    military that defends us, the vests our police officers wear, the suits
    our firefighters and pilots wear, the antibiotics so many people
    recently have been forced to take, and the products that we rely upon
    to heal and save lives. Chemistry not only makes life possible, it
    helps make all our lives healthier, safer, and more enjoyable.
        The chemical industry is committed to the highest standards to
    safeguard our employees, our customers, our processes, our products,
    and our communities. During the last decade, the chemical industry has
    devoted significant attention and resources to improving security. Our
    industry concentrated more heavily on security issues as cyber and
    computer security issues began to arise. As our industry developed Risk
    Management Plans under the Clean Air Act and began analyzing in greater
    detail the possible offsite consequences of an accidental release, we
    devoted even greater effort and attention to security.
        The events of September 11 very starkly demonstrate how differently
    the government and private industry must now think in order to protect
    our critical assets and national infrastructure.

    A. Knowledge Is Security
        The cornerstone of effective security is knowledge--intelligence
    about potential threats that allows the threat to be intercepted and
    allows the target of the threat to be properly prepared. In fact,
    knowledge is our best defense. Our industry believes it is critically
    important to establish formal procedures for circulating information
    about potential and, importantly, credible and specific threats to the
    nation's critical infrastructure. At the same time, such a system can
    provide government decisionmakers with the full range of information on
    which to make their decisions.
        After September 11, everyone began to revisit potential threat
    scenarios. Our estimations of the probability of a worst-case scenario
    have changed, and we are moving rapidly to prepare for these potential
    new threats. Our preparations are most effective when we have high
    quality and timely intelligence regarding threats. Our industry is
    moving aggressively to establish better information-sharing mechanisms
    with Federal, State, and local officials--especially with the FBI's
    National Infrastructure Protection Center, the main body of government
    responsible for communicating threats to the private sector. More can
    be done in this area, especially with the Office of Homeland Security,
    and we intend to do our part in this regard.
        Security in the face of these threats is derived from planning and
    executing security strategies. Our industry has an advantage in this
    area because of our longstanding expertise in risk management. We have
    spent many years instituting progressively more sophisticated safety
    and security programs. We applaud the recent GAO testimony before
    Congress calling for a more thorough risk analysis of the nation's
    critical infrastructure, and the mechanisms to manage those risks.
        Response is another area in which we have demonstrated expertise.
    The chemical industry is one of the best-trained and equipped private
    sector emergency responders in the world. We coordinate closely with
    local responders and participate in joint training programs where
    multiple plants are clustered.
        After September 11, chemical companies across the country went on
    higher alert. Many existing security procedures have been enhanced and
    contacts with law enforcement officials intensified. The security
    efforts at each facility vary depending upon its particular needs and
    those of the local community. However, some examples of the security
    measures taken by many of our companies include:
         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 a risk-based
    transportation security assessment, as well as examples of preventive
    measures and alternatives that could be implemented to address
    potential security concerns. The American Chemistry Council, The
    National Association of Chemical Distributors, and The Chlorine
    Institute developed the guidelines with the assistance of a number of
    other associations and Responsible Care partners. These guidelines are
    available on our website at www.americanchemistry.com. We intend to
    disseminate them as broadly as has been done with our Site Security
    Guidelines.

    C. Regional Security Briefings
        My staff is working with EPA, DOT, FBI and others to organize
    regional security briefings around the country. Five have been
    scheduled between Thanksgiving and Christmas. A similar conference held
    earlier this month in New Jersey drew 225 attendees, twice the number
    expected. We intend to encourage additional face-to-face discussions
    between government security officials and companies throughout the
    chemical supply chain. We have pledged our full support and cooperation
    to work with government agencies to continuously improve the safety and
    security of the chemical industry.

    D. Emergency Preparedness Programs
        Our 180 member companies continually evaluate their security
    measures, and have increased efforts since September 11. When they
    evaluate their security practices, they work closely with their Local
    Emergency Planning Committees, called LEPCs. Members of LEPCs include
    fire fighters, health officials, representatives from government and
    the media, community groups as well as representatives from industrial
    facilities. LEPCs engage in a collaborative effort with respect to
    planning and responding to chemical emergencies. The member companies
    of the American Chemistry Council have a long history of working as
    part of the LEPC network to ensure the safety and health of plant
    communities.
        Our member companies work with LEPCs in many ways. They help
    communities prepare for transportation related incidents, and help
    LEPCs develop and test emergency plans and systems, train emergency
    responders, and raise community awareness of the potential emergencies
    related to our production sites. Our companies hold public meetings to
    communicate worst case and worst probable scenarios to our communities
    and the plans to minimize the risk.
        While local emergency responders, chemical facilities and the
    surrounding communities can do many things to prepare for and mitigate
    the potential impact of a terrorist attack; we are not in a position by
    ourselves to prevent such an attack. We must have advance intelligence
    and clear communications to assist our military in its response to such
    an event.

    E. Chemical Industry Vulnerability Assessment
        For the past year, the Council has been involved in a
    congressionally established study with the Department of Justice
    designed to assess the vulnerabilities of plant sites and to recommend
    ways to deal with those vulnerabilities. We have consistently supported
    this study and have cooperated fully with the Department of Justice and
    its contractor, Sandia Laboratories. In fact, we recently wrote to
    President Bush urging him to ask Congress to provide adequate
    additional funding to ensure that it will be the most comprehensive
    study possible.
        At this stage in my remarks, I would like to briefly comment on a
    report Senator Corzine referred to in his floor speech when he
    introduced his legislation. The report, issued in 1999 by Agency for
    Toxic Substances and Disease Registry (ATSDR), was incomplete because
    it was based on a sampling of only two plant communities. It therefore
    led to an inaccurate portrayal of the State of the industry's security
    when it was published more than 2 years ago. It remained an inaccurate
    portrayal on September 11. It continues to be an inaccurate portrayal
    of the industry's security actions and efforts. We have produced an
    analysis of the report and will furnish it to you and your staff.
        Despite our concerns with the ASTDR report, we have already begun a
    dialog with ATSDR on how we can work together to improve the security
    of our industry.
        I also would like to direct the subcommittee to testimony delivered
    to the Senate recently by the General Accounting Office (GAO). In that
    testimony, the GAO recommended to the Senate that any programs designed
    to combat terrorism must be based on sound risk management principles
    that systematically analyze threats, vulnerabilities and the critical
    nature (or relative) importance of our national assets, such as the
    chemical industry. As the GAO testified, threat assessments are an
    important first step in this process--but only the first step. The
    second is a vulnerability assessment--which is a way to identify
    weaknesses. Finally, the third step in this process is what the GAO
    calls a ``criticality assessment-which are necessary to prioritize
    assets for protection.'' We agree with the GAO. We also agree that the
    government's use of these risk management principles has been
    inconclusive. This subcommittee could do much to further this approach.

    F. Responsible Care And Other Industry Initiatives
        The business of chemistry has many voluntary programs that support
    efforts to improve the safe distribution of our products. The most
    comprehensive is the American Chemistry Council's Responsible Care Code
    of Management Practices. This Program emphasizes performance. When
    first adopted in 1988, the Codes of Management Practices were designed
    to help our member companies develop systems to continuously improve
    the industry's responsible management of chemicals. Today, members
    still must adhere to the Codes. But they also report to the American
    Chemistry Council their progress toward the vision of no accidents, no
    injuries, and no harm to the environment.
        Under this program, chemical companies implement additional
    measures to achieve safer operations. Responsible Care has received
    considerable recognition by independent external organizations because
    of the progress our member companies have achieved. For example, in
    2000, the American Chemistry Council was awarded the Keystone Center
    Leadership in Industry Award for its commitment to making a better,
    healthier and safer world through chemistry.
        There are 6 Codes of Management Practices in Responsible Care.
        (1) The Community Awareness And Emergency Preparedness Code. The
    goal of the CAER Code is to assure emergency preparedness and to foster
    communities' right-to-know. It demands a commitment to openness and
    community dialog. The Code has two major components. First, member
    facilities that manufacture, process, use, distribute, or store
    hazardous materials initiate and maintain a community outreach program
    to communicate relevant, useful information responsive to the public's
    questions and concerns about safety, health, and the environment.
    Second, members help protect employees and communities by assuring them
    that each facility has an emergency response program to respond rapidly
    and effectively to emergencies. Many companies have established
    community advisory panels as forums to share issues between plant sites
    and their surrounding communities. More than 300 community advisory
    panels are in operation around the country.
        (2) The Pollution Prevention Code. This Code is designed to achieve
    ongoing reductions in the amount of all contaminants and pollutants
    released to the air, water, and land from member company facilities.
    These reductions are intended to respond to public concerns with the
    existence of such releases, and to further increase the margin of
    safety for public health and the environment.
        (3) The Employee Health and Safety Code. The goal of this Code is
    to protect and promote the health and safety of people working at or
    visiting member company work sites. To achieve this goal, the Code
    provides Management Practices designed to improve work site health and
    safety. These practices provide a multidisciplinary means to identify
    and assess hazards, prevent unsafe acts and conditions, maintain and
    improve employee health, and foster communication on health and safety
    issues.
        (4) The Process Safety Code. This Code is designed to improve
    operations and performance to reduce the potential for fires,
    explosions, and accidental chemical releases. The principal foundation
    of the Practices is that facilities will be safe if they are designed
    according to sound engineering practices; built, operated and
    maintained properly; and periodically reviewed for conformance. The
    Practices encompass process safety from the design stage through
    training, operation, and maintenance, and are applicable to existing
    operations as well as new facilities. The Code also requires that our
    members share relevant safety knowledge and lessons learned from
    incidents with industry, government and the community. Additionally,
    the Code mandates programs to assure that employees in safety critical
    jobs are fit for duty.
        (5) The Distribution Code. The purpose of the Distribution Code is
    to reduce the harm posed by the distribution of chemicals to the
    general public, carriers, distributors, contractors, chemical industry
    employees, and the environment. The Distribution Code of Management
    Practices applies to all modes of transportation and to the shipment of
    all chemicals, including chemical waste.
        (6) The Product Stewardship Code. The purpose of the Product
    Stewardship Code of Management Practices is to make health, safety, and
    environmental protection an integral part of designing, manufacturing,
    marketing, distributing, using, recycling, and disposing of our
    products. The Code provides guidance, as well as a means of measuring
    continuous improvement in the practice of product stewardship. The
    scope of the Code covers all stages of a product's life. Successful
    implementation is a shared responsibility. Everyone involved with the
    product has responsibilities to address society's interest in a healthy
    environment and in products that can be used safely. All employers are
    responsible for providing a safe workplace, and all who use and handle
    products must follow safe and environmentally sound practices.
        The Council is also developing an accredited, third party audit
    process that will result in ISO 14001 and Responsible Care
    certificates.
        Our companies are committed to improving our safety record. We are
    continually working to improve our processes and eliminate accidents.
    One single injury or death is too many. Each year every member of the
    American Chemistry Council receives data relating to its process safety
    reportable incidents and distribution incidents for the previous year.
    Each company evaluates that information and takes steps to prevent
    those incidents in the future.

    G. CHEMTREC
        Since 1971, the Council has operated, as a public service, the 24-
    hour-a-day/7-day-a-week emergency communication center known as
    CHEMTREC, which stands for CHEMical Transportation Emergency Center.
    When an incident occurs, CHEMTREC provides emergency responders with
    technical assistance from industry product safety specialists,
    emergency response coordinators, toxicologists, physicians and other
    industry experts to safely mitigate the incident. All calls are free of
    charge to emergency responders. Additionally, CHEMTREC has agreements
    in force with the U.S. Department of Transportation, the U.S. Army, and
    the Department of Defense to provide information and assistance to
    those organizations whenever and wherever it is needed. Shortly after
    September 11, CHEMTREC and the FBI's Hazardous Materials Response Team
    augmented and improved their information-sharing and coordination
    activities.
        Several organizations have joined together to form networks of
    private sector emergency responders and response contractors to further
    enhance the timely and efficient response to chemical transportation
    incidents. Other programs similar to Responsible Care include the
    National Association of Chemical Distributors Responsible Distribution
    Program, and the American Waterways Operators Responsible Carrier
    Program.
        Joint initiatives between the Council, the Association of American
    Railroads, and the Railway Progress Institute led to the publication of
    recommendations for the safe transport of hazardous materials by rail,
    addressing a range of issues from train speed and training to loading,
    unloading and preparation of tank cars.
        A partnership between the Council and the National Tank Truck
    Carriers, Inc. led to the publication of a manual of recommendations
    addressing issues including: motor carrier selection, equipment and
    product handling, training, route selection, incident reporting,
    shipment documentation, risk management and others.

    H. TRANSCAER
        A major initiative sponsored by 10 trade associations and known as
    TRANSCAER, for Transportation Community Awareness and Emergency
    Response, is designed to provide information directly to communities
    through which hazardous materials are transported. This program
    educates the community on the products that flow through the community,
    provides guidance and expertise on how to develop contingency plans in
    the unlikely event that an incident does occur, provides guidance on
    how to test the plan, and provides training to local emergency
    responders on how to deal with incidents and where to obtain
    information to assist in planning and preparedness.

    I. Chemical And Biological Weapons
        After the September 11 attacks, interest turned toward a potential
    ``second wave'' of terrorist attacks. Many in the law enforcement
    community have said this next wave may consist of attacks using
    biological or chemical weapons.
        The chemical industry has been a strong and steadfast supporter of
    the Chemical Weapons Convention. In fact, President Clinton cited the
    American Chemistry Council for its ``extraordinary, sustained
    commitment to eliminating the threat of chemical weapons'' after the
    convention became effective in 1997.
        The goal of the convention is praiseworthy and it is one-of-a-kind
    in its approach. Members of the CWC commit to exclude completely the
    possibility of the use of chemical weapons worldwide through the
    combined efforts of their respective militaries and private industry.
        In practice, the convention prohibits the manufacture of any
    chemical and certain specifically listed chemicals for use as a weapon,
    and mandates the destruction of all chemical weapons stockpiles. It
    also bans trade in certain chemical weapons agents and direct chemical
    weapons precursors between members and non-members. Private industry
    submits regular and detailed reports to the U.S. Government on
    operations that involve chemicals that can be precursors to chemical
    weapons. The convention is the first of its kind in permitting onsite
    inspections of commercial facilities to verify compliance with the
    spirit and letter of the convention.
        Since the CWC became effective in 1997, 143 countries have
    committed to the global cause of chemical weapons elimination under
    these terms. In the United States, there is an additional incentive to
    comply with the convention. The U.S. criminalized the failure to submit
    required reports and to host onsite inspections. Failure to comply
    comes at an exceedingly high price.
        At the same time, the CWC is just one among a number of chemical
    controls applied by American chemical companies. Chemical companies
    maintain comprehensive and current systems to ``red-flag'' potential
    sales of chemicals with potential for diversion and misuse in making
    chemical weapons. The systems are based on a company's product line,
    customer markets, and regulatory obligations, and also incorporate
    extensive and informative guidance on effectively screening and
    identifying your customer. Combined with the company's knowledge of
    chemistry and the business of chemistry, these systems protect the
    legitimate and intended use of chemicals in the vital and varied
    downstream industries we supply including, electronics,
    pharmaceuticals, computers and healthcare.
        The CWC essentially requires government licenses on international
    sales of dual-use chemicals (chemicals manufactured for commercial use,
    but capable of being converted into a chemical weapon). The Convention
    imposes strict government reporting requirements on manufacturers of
    listed chemicals. They are required to keep records, provide access by
    appropriate officials to those records, and to submit appropriate
    periodic reports to the government. The treaty is also the first of its
    kind to permit onsite inspection of commercial facilities.

    II. A COMPREHENSIVE NETWORK OF EXISTING LAWS AND RULES ALREADY PROMOTE
                                    SECURITY

        The safety and security of America's chemical manufacturing sites
    is the subject of many existing laws and regulations. These laws and
    regulations complement--and in some cases were inspired by--the
    Responsible Care Management Practices that I discussed previously.

    A. Toxic Substances Control Act (TSCA)
        TSCA gives EPA comprehensive authority to regulate any chemical
    substance whose manufacture; processing, distribution in commerce; use
    or disposal may present an unreasonable risk of injury to health or the
    environment. Among other requirements, it mandates that chemical
    companies submit premanufacture notices that provide information on
    health and environmental effects for each new product and to test
    existing products for these effects. It also gives EPA authority to
    prohibit, limit or ban the manufacture, process, and use of chemicals.

    B. Comprehensive Environmental Response Compensation and Liability Act
            (CERCLA) and the Superfund Amendments Reauthorization Act
            (SARA)
        CERCLA and SARA provide the basic legal framework for the Federal
    ``Superfund'' program to clean up abandoned hazardous waste sites.
    CERCLA imposes specific taxes on chemicals and petroleum to fund the
    cleanup program. Title III of SARA, the Emergency Planning and
    Community Right-to-Know Act, established the ``right-to-know''
    standards. Since 1986, the chemical industry has been among the
    thousands of manufacturing sites regulated by EPCRA. The basic
    requirement of EPCRA is information sharing among manufacturers, State
    and local emergency planning and response agencies, and the public.
    Another important aspect of SARA is Section 313, Toxic Chemical Release
    Inventory (TRI) reporting. According to 1999 figures, since 1988,
    emissions have declined 65 percent.
        EPCRA requires manufacturers to prepare and submit hazardous
    chemical inventory form to the appropriate local emergency planning
    committee, the State emergency response commission and the local fire
    department. Companies are required to report the amount of chemicals
    present at the facility, their location and manner of storage. The
    information is automatically made public through local emergency
    planning committees, and the law requires fire department access for
    onsite inspections. Companies must supply more detailed information
    upon request by local authorities.
        EPCRA was derived largely from CAER, the Community Awareness and
    Emergency Response (CAER) program developed by the American Chemistry
    Council in 1985 in the immediate aftermath of Bhopal. As I discussed
    earlier, CAER is the Code of Management Practices that requires
    participating facilities to develop emergency response plans, and to
    conduct live drills to rehearse those plans on at least an annual
    basis.

    C. Clean Air Act (CAA)
        The CAA provides EPA the authority to regulate air pollutants from
    automobiles, electric power plants, chemical plants and other
    industrial sources. Its 1990 amendments set control standards for
    industrial sources of 189 toxic air pollutants. Key provisions include:
         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 chemical explosions or accidental releases. The
    standard also requires written operating procedures, including steps
    for each operating phase and safety system, and that these and other
    process safety information be made readily available to employees. The
    PSM standard is designed to protect worker safety, but many of the
    procedures implemented as a result of the PHAs also offer security
    benefits. The PSM Standard is a complement to the RMP rule under the
    Clean Air Act that I discussed previously. The RMP rule adds the
    offsite consequence component to the PSM Standard that focuses on
    employee safety.

    K. Hazardous Material Transportation Act (HMTA)
        The HMTA provides the U.S. Department of Transportation (DOT) with
    the authority and responsibility to regulate the movement of hazardous
    materials. DOT's comprehensive ``hazmat'' regulations cover the
    packaging, labeling and movement of hazardous materials by railroad,
    truck, aircraft, and ships. (DOT also regulates hazmat pipeline safety
    under a separate statute, the Pipeline Safety Act.) Additional DOT
    hazmat regulations require training for employees, reports of
    transportation-related releases, and the provision on emergency
    response information, including a 24-hour telephone number on each
    hazmat shipment. Through this regulatory process, DOT provides the
    American public, the chemical industry, and our transportation partners
    with consistent national regulations governing the transportation of
    hazardous materials to customers across the country and around the
    world. In conjunction with representatives of other nations, DOT also
    participates in the development of international standards for the
    movement of hazardous materials. This further enhances safety and
    promotes commerce by harmonizing transport standards among nations.

    L. Chemical Diversion and Trafficking Act (CDTA)
        The CDTA is designed to prevent the diversion of chemicals to
    illegal drug producers. It gives the Drug Enforcement Agency the
    authority to control exports of chemicals to designated drug source
    countries.

    M. Pollution Prevention Act (PPA)
        The PPA makes it the national policy of the United States to reduce
    or eliminate the generation of waste at the source whenever feasible
    and directs EPA to undertake a multimedia program of information
    collection, technology transfer, and financial assistance to the States
    to implement this policy and to promote the use of source reduction
    techniques.

    N. Flammable Fabrics Act (FFA)
        The FFA gives the Consumer Product Safety Commission (CPSC) the
    authority to set flammability standards for fabrics that protect
    against an unreasonable risk of the occurrence of fire.

    O. Poison Packaging Prevention Act (PPPA)
        The PPPA provides the CPSC the authority to set standards for the
    special packaging of any household product to protect children from a
    hazard.

    P. State Regulations
        Many State governments are increasingly active in the environmental
    and safety areas. In addition to implementing Federal programs like
    those described above, the States themselves are active in a range of
    issues that impact the chemical industry. These include hazardous waste
    and State right-to-know statutes.
        In sum, thousands of pages of rules and regulations regulate the
    chemical industry.

                    III. GOVERNMENT SECURITY ACTIONS NEEDED

        Let me now identify for you the things that our industry and others
    need in order to enhance our ability to secure our facilities and the
    safety of this country.
        1. We need to have the DOJ chemical industry vulnerability study
    completed in a comprehensive manner. Currently, the only phase of the
    study that has been funded by Congress is the development of a
    methodology for use in the assessment. This is insufficient. In
    addition to our own actions to improve security, our industry would
    benefit from a comprehensive assessment conducted by law enforcement,
    security and safety experts. We have asked that funding be dedicated to
    complete the entire DOJ project so that the study will be completed in
    the most comprehensive manner possible.
        We need to work together to devise performance-based and flexible
    approaches that address what needs to be accomplished, not how it is
    accomplished. This type of outreach program has a far better chance of
    actually reaching the broadest segment of chemical companies.
        2. We need an efficient and timely intelligence and information
    sharing mechanism established at the highest level and in the timeliest
    manner possible. One method of facilitating this need would be for
    Congress to act quickly to pass a bill that would enable critical
    infrastructures and government to share information relating to
    physical and cyber security. A hybrid version of H.R. 2435, sponsored
    by Representatives Davis (R-VA) and Moran (D-VA), and S. 1456,
    sponsored by Senators Bennett (R-UT) and Kyl (R-AZ), provides the
    critical protections--such as exemptions from antitrust and freedom of
    information laws--that would allow industries to share this critical
    and sensitive information with one another and with government. I would
    be pleased to share a copy of this hybrid bill with you if requested.
        3. Significant Federal funding is necessary to increase the
    security of the entire rail transportation network; the security of our
    nation's critical communications, computer, and train control systems;
    investment in the physical hardening of critical railroad
    infrastructures; research and development of improved technology for
    sealing rail cars.
        4. Another action that would assist industries and communities
    throughout the country would be a program that provides financial
    assistance and tools to Local Emergency Planning Committees (LEPCs)
    that are struggling.
        LEPCs are critical to planning for emergency response and
    preparedness. We need to do all we can to enhance these critically
    important organizations.

                       IV. CHEMICAL SECURITY ACT OF 2001

        As I turn now to address the Chemical Security Act of 2001, let me
    first say that the American Chemistry Council supports this
    subcommittee's desire to improve the security of the chemical industry
    from a terrorist attack. We would like to cooperate with Senator
    Corzine and this subcommittee to improve that security. However, we are
    concerned about several important aspects of this bill.
         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.
         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.

              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\
    ---------------------------------------------------------------------------
        \1\ For example, a one-ton cylinder of chlorine falls below the
    Risk Management Planning thresholds set by EPA, but can create levels
    of chlorine gas 2 miles offsite that are considered ``immediately
    dangerous to life and health.'' Department of Energy, ``Example Process
    Hazard Analysis of a Department of Energy Water Chlorination Process,''
    DOE/EH-0340.
    ---------------------------------------------------------------------------
        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 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).
    ---------------------------------------------------------------------------
        \2\ Letter to the Attorney General from Senator Harry Reid of June
    14, 2001; letter to the Attorney General from Senators Frank Lautenberg
    and Max Baucus of February 11, 2000; and, letter to the National
    Institute of Justice from Senator James Jeffords of August 24, 2001.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \3\ Agency for Toxic Substances and Disease Registry, Industrial
    Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
    Prevention.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \4\ ``Much Work Remains at Blue Plains, Officials Say,'' Washington
    Post, November 8, 1999.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \5\ ``Chemical Industry Rallies to Security Needs, But Perhaps Too
    Late, Experts Say,'' Newhouse News Service, 2001.
    ---------------------------------------------------------------------------
         The Pacific Northwest National Laboratory found inadequate
    security at several Department of Energy military facilities that store
    hazardous chemicals.\6\
    ---------------------------------------------------------------------------
        \6\ Judith Bradbury, Environmental Technology Division, Pacific
    Northwest National Laboratory, U.S. Department of Energy, 1999.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \7\ Testimony of Joan Claybrook, Advocates for Highway and Auto
    Safety and Public Citizen, before the Senate Subcommittee on Surface
    Transportation and Merchant Marine, Senate Committee on Commerce,
    Science, and Transportation, October 10, 2001.
    ---------------------------------------------------------------------------
    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\
    ---------------------------------------------------------------------------
        \8\ National Response Center. The NRC is the central Federal agency
    to which chemical companies and transporters report oil and chemical
    spills. Reports to the NRC cover incidents small and large. Reports are
    initial and subject to verification and change (www.nrc.uscg.mil/
    foia.htm).
        \9\ Sam Mannan, Michela Gentile, and Mike O'Connor, ``Chemical
    Incident Data Mining and Application to Chemical Safety Trend
    Analysis,'' Mary Kay O'Connor Process Safety Center, Texas A&M
    University, 2001.
        \10\ Mannan, et. al, adapted from Richard H. Squire, ``Zero Period
    Process--A Description Of a Process to Zero Injuries,'' Process Safety
    Progress, March 2001.
        \11\ Larry Collins, Carmen D'Angelo, Craig Mattheissen, and Michael
    Perron, Estimating Chemical Accident Costs in the United States: A New
    Analytical Approach.
    ---------------------------------------------------------------------------
    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.
    ---------------------------------------------------------------------------
        \12\ National Institute for Chemical Studies (Charleston, W.V.),
    ``Local Emergency Planning Committees and Risk Management Plans:
    Encouraging Hazard Reduction,'' prepared for U.S. EPA, Chemical
    Emergency Preparedness and Prevention Office (#CX 824095), June 2001.
        \13\ George Washington University, Department of Public
    Administration, Nationwide LEPC Survey, 1994.
        \14\ Resources for the Future, The Future of Local Emergency
    Planning Committees, 1993.
    ---------------------------------------------------------------------------
    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\
    ---------------------------------------------------------------------------
        \15\ U.S. Public Interest Research Group and Working Group on
    Community Right-to-Know, At Risk and In the Dark: Will Companies in Our
    Communities Reduce Their Chemical Disaster Zones?, June 1999.
        \16\ Environmental Defense, National Environmental Trust, OMB
    Watch, Sierra Club, Unison Institute, U.S. Public Interest Research
    Group, and Working Group on Community Right-to-Know, Hazard Reduction
    Challenge, June 1999.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
         Several chemical industry trade associations recently
    published voluntary site security guidelines for chemical
    companies.\19\ However, these guidelines are voluntary and lack
    standards, timelines, or measurable hazard reduction goals. They
    contain no third party verification and are not enforceable. They still
    dismiss worst-case scenarios and assume that mitigation will not be
    disabled (e.g., by an airplane crash). They don't address the added
    security risks of contract workers. They don't apply margins of safety.
    They don't weigh security costs against safer design. They don't
    include accounting methods to help identify theft. They don't address
    Internet sales and needed knowledge of customers. In general, they are
    not designed to protect public health and safety.
    ---------------------------------------------------------------------------
        \19\ American Chemistry Council, Chlorine Institute Inc., and
    Synthetic Organic Chemical Manufacturers Association, Site Security
    Guidelines for the U.S. Chemical Industry, October 2001.
    ---------------------------------------------------------------------------
    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\
    ---------------------------------------------------------------------------
        \20\ The Pollution Prevention Act, 42 U.S.C.A. 13101(b), made it
    ``the national policy of the United States that pollution should be
    prevented or reduced at the source whenever feasible'' followed by a
    hierarchy of waste management options.
    ---------------------------------------------------------------------------
         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:
    ---------------------------------------------------------------------------
        \21\ General sources on inherently safer design include: Health and
    Safety Executive (of the United Kingdom), Technology Division,
    Designing and operating safe chemical reaction processes
    (www.hse.gov.uk); and, Trevor Kletz, Process Plants: A Handbook for
    Inherently Safer Design, 1998.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \22\ The Directive on the Major Accident Hazards of Certain
    Industrial Activities (the ``Seveso Directive'') requires member
    countries to ensure that manufacturers prove a ``competent authority''
    to identify major hazards, adopt appropriate safety measures, and
    inform, train, and equip employees. Directive guidance adopted in 1997
    addresses inherent safety.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \23\ U.S. Environmental Protection Agency, Chemical Accident
    Prevention: Site Security (EPA-K-550-F00-002), February 2000.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \24\ Gerard I.J.M. Zwetsloot and Nicholas A. Ashford, ``The
    Feasibility of Encouraging Inherently Safer Production in Industrial
    Firms,'' to be published in Safety Science. Zwetsloot is a professor at
    Erasmus University Rotterdam, Netherlands. Ashford is a professor at
    Massachusetts Institute of Technology.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \25\ New Jersey Department of Environmental Protection,
    Communication from Reggie Baldini, September 19, 2001.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \26\ American Electric Power, Press Release, December 18, 2000.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \27\ Information provided by Stuart Greenberg, member, Cuyahoga
    County (Ohio) Local Emergency Planning Committee, 1998.
    ---------------------------------------------------------------------------
         A recent study of Local Emergency Planning Committees
    identified successful examples of hazard reduction in eight
    communities, involving ammonia, chlorine, toluene diisocyanate, and
    cyanide.\28\
    ---------------------------------------------------------------------------
        \28\ National Institute for Chemical Studies, Ibid.
    ---------------------------------------------------------------------------
    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\
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \30\ U.S. Environmental Protection Agency, Priority Risk Areas for
    CEPP Activities, June 1995.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \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
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
                                     ______

      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.
    ---------------------------------------------------------------------------
        \1\ American Chemistry Council (FKA Chemical Manufacturers
    Association), The Terrorist Threat in America, April 1998.
        \2\ Coalition for Effective Environmental Information, Government
    Accountability for Environmental Information Policy, 1999.
        \3\ American Chemistry Council, Part Two, p. 9.
        \4\ Statement of Robert M Burnham, Federal Bureau of Investigation,
    before the Senate Committee on Environment and Public Works, March 16,
    1999; and, U.S., Department of Justice, Assessment of the Increased
    Risk of Terrorist or Other Criminal Activity Associated With Posting
    Off-Site Consequence Analysis Information on the Internet, April 18,
    2000.
        \5\ U.S. House of Representatives, Committee on Commerce, February
    10, 1999.
        \6\ Chemical Safety Information, Site Security and Fuels Regulatory
    Relief Act (Public Law 106-40).
    ---------------------------------------------------------------------------
        In setting priorities, EPA and DOJ should read the blueprint and
    follow the roadmap. According to one industry analysis, the roadmap
    consists of bringing together three elements: chemical inventory,
    worst-case assessment, and population at risk.\7\ These three elements
    present EPA and DOJ a means to identify high-priority facilities for
    chemical terror prevention. Indeed, the DOJ is already working with
    EPA's complete data base of Risk Management Plans (RMP*Info). Congress
    should ask EPA and DOJ to provide the appropriate committee(s) with the
    RMP roadmap, including populations at risk. Congress needs the roadmap
    from EPA and DOJ to make informed decisions. Reducing these
    vulnerabilities will provide a basic measure of progress on homeland
    security.
    ---------------------------------------------------------------------------
        \7\ Arthur F. Burke, DuPont Corporation, Communication of Risk
    Management Plan Information: Some ``Principles & Concerns,'' March 4,
    1997.
    ---------------------------------------------------------------------------
        At the same time, to ensure that the Administration effectively
    identifies high priorities, Congress should define minimum standards in
    the Chemical Security Act. Without such a default ``backstop,'' the
    Administration may not set priorities that protect public safety. The
    Chemical Security Act should therefore require EPA and DOJ to consider
    by default as high-priority those facilities that put any person
    offsite at risk of death or serious injury. Alternatively, the Act
    could define as high-priority any facility that puts more than a
    specified number of persons at risk. The Act could then require those
    facilities to either drop below a threshold number of persons at risk
    or justify why they cannot do so and apply mandatory site security
    standards. Using an objective standard, such as population at risk,
    would ensure that inherent safety changes (involving production) are
    selected by the company and not, as industry charges, by the
    government. Facilities that are unable to meet the objective population
    standard, however, should meet rigorous, mandatory site security
    standards established by the government to prevent chemical terrorism.
    In addition, S. 1602 currently directs EPA and DOJ to address threats
    to national security, critical infrastructure, and threshold quantities
    of substances of concern (to which could be added worker safety, in
    consultation with the Department of Labor, and environmental
    protection.) This authority enables the EPA and DOJ to select
    particular industry sectors and substances of concern for additional
    scrutiny.
        As noted in my testimony, EPA identified in 1995 some 2,000 ``high
    priority/high risk facilities and areas'' for attention to prevent
    chemical releases.\8\ In this analysis, EPA used a number of criteria
    for selecting priority risk areas, including industrial concentration,
    population density, accident history, transportation density,
    environmental justice, sensitive environments, and natural disasters.
    The agency also selected 19 high priority substances based on chemical
    toxicity, volatility, production volume, accident history, and
    vulnerability zones. To my knowledge, however, the agency has not
    targeted any hazard reduction assistance to the high priority
    facilities and has no plans to do so.
    ---------------------------------------------------------------------------
        \8\ U.S. Environmental Protection Agency, Priority Risk Areas for
    CEPP Activities, June 1995.
    ---------------------------------------------------------------------------
        Unfortunately, DOJ has not produced as required a site security
    review that could help identify high priority sectors and
    substances.\9\ Neither has EPA promulgated required rules that would
    enable an independent ``qualified researcher'' to identify
    priorities.\10\ Nor has the chemical industry suggested which industry
    sectors or substances may require attention for improved security
    (other than the three factors noted above: chemical inventory, worst-
    case assessment, and population at risk). Identifying priorities is not
    the problem; getting government and industry to act is the problem.
    ---------------------------------------------------------------------------
        \9\ 42 U.S.C. 7412(r)(7)(H)(xi).
        \10\ 42 U.S.C. 7412(r)(7)(H)(vii)

        Question 2. In your testimony, you state that 125 facilities
    project vulnerability zones in which more than one million people live.
    It seems there are really two basic elements to such worst-case
    analyses--the probability of the event, and the consequences of such an
    event. It seems to me that the probability of such an event is up
    sharply since September 11. Would you agree, and how do you think this
    affects the way in which we should view the worst-case scenario
    analyses?
        Response. The tragedy of September 11 made clear not only the
    vulnerability of major buildings and symbolic sites, but also the
    vulnerability of the nation's chemical facilities. However, there is
    little reason to believe that the security agencies can accurately
    assess the probability (i.e., ``risk'') of all potential terrorist
    attacks on chemical facilities. Indeed, on September 11 the security
    agencies once again were unable to effectively anticipate major
    developments, despite major resource expenditures for security
    programs. Any program to protect the public against chemical terrorism
    must acknowledge that security agencies: a) cannot foresee all
    potential attacks among all potential chemical targets, b) cannot warn
    facilities in advance of all specific attacks, and c) cannot anticipate
    the nature of all such attacks. In the new era of terrorism, it is
    decidedly inappropriate to base security decisions on the ability to
    predict probability (risk); to do so is to base public protection on
    false assurances. Chemical security programs must therefore address the
    potential consequences of industrial releases, including the potential
    worst-case release in which all safety controls and active mitigation
    measures fail or are disabled.

        Question 3. The testimony of Fred Webber points out that there are
    many existing safety requirements that apply to chemical facilities. In
    your view, do the authorities and security and hazard reduction
    measures contained in S. 1602 exist elsewhere in current law?
        Response. Existing Federal regulations do not address terrorism
    prevention to the extent envisioned in S. 1602. Existing regulations
    are from a different, pre-terrorism era. These regulations did not, as
    a rule, address terrorism in selecting covered substances, thresholds,
    and industrial sectors. Those few security measures that are contained
    in current regulations are not equivalent to those contained in S. 1602
    and are plainly insufficient to prevent chemical terrorism. To be sure,
    no existing Federal law regulates the scope and extent of the
    vulnerability zones that chemical facilities present to surrounding
    communities in terms of distance, chemical intensity, or populations at
    risk. Further, current laws do not require companies to assess safer
    alternatives to practices that can send toxic fumes into nearby schools
    or neighborhoods. In addition, many existing chemical safety laws do
    not address terrorism involving industrial chemicals (such as programs
    that regulate food quality, flammable fabrics, pesticide registration,
    pollution permits, and drugs and cosmetics).
        The Clean Air Act (CAA) contains certain authorities that EPA could
    use to address chemical terror prevention. Section 112(r) established
    the Risk Management Planning (RMP) program to prevent accidents
    involving extremely hazardous substances.\11\ However, EPA did not
    consider chemical terror prevention when selecting the chemicals,
    thresholds, and processes regulated under the RMP program. Nor did EPA
    include any requirement for firms to identify safer technologies in the
    RMP program, despite vigorous prompting from environmental and labor
    organizations.\12\ In addition, the CAA section 112(r)(7)(a) provides
    EPA authority to compel dangerous chemical facilities to reduce worst-
    case chemical vulnerabilities imposed on surrounding communities.
    However, the agency has never used this authority and has no plans to
    do so.\13\ Congress should ask EPA to explain if the CAA 112(r)(7)(a)
    is for some reason insufficient to reduce the chemical terror
    vulnerabilities that hang over many communities. Alternatively, if this
    authority is sufficient, Congress should ask the agency to explain when
    it intends to use it. If the CAA 112(r)(7)(a) is to contribute to
    chemical terror prevention, Congress will apparently have to make this
    provision mandatory, not optional, and direct EPA to use it and to
    include inherent safety solutions.
    ---------------------------------------------------------------------------
        \11\ 42 U.S.C. 7412(r)
        \12\ U.S. Environmental Protection Agency, Supplemental Notice of
    Proposed Rulemaking, ``Accidental Release Prevention Requirements: Risk
    Management Programs Under Clean Air Act Section 112(r)(7); Proposed
    Rule,'' 60 Federal Register 13525, March 13, 1995; and EPA public
    hearings, March 31, 1995.
        \13\ Personal communication of Jim Makris, Director, Chemical
    Emergency Preparedness and Prevention Office, U.S. Environmental
    Protection Agency, December 17, 2001.
    ---------------------------------------------------------------------------
        The Clean Air Act's general duty clause, Section 112(r)(1), enables
    EPA to bring enforcement cases if a firm fails to identify and use
    available inherently safer technologies that reduce the possibility of
    chemical terrorism.\14\ However, EPA has never used the general duty
    clause where a firm has failed to reduce unnecessary chemical hazards.
    Further, EPA's implementation of the general duty clause does not
    adequately address terrorism prevention in several ways. First, EPA's
    guidance does not clearly identify a structured process by which firms
    should identify, document, and select inherently safer options. Second,
    EPA's guidance necessarily follows ``generally accepted'' or
    ``recognized'' industry practices--which routinely subject communities
    to extremely hazardous substances stored in large, dangerous amounts.
    Third, EPA's guidance does not set forth the agency's expectations for
    firms to prevent criminal releases, which may dissuade EPA from
    enforcing the general duty if a firm fails to take sufficient security
    precautions. These shortcomings, together with the agency's pervasive
    inactivity on inherent safety, illustrate the need for much more direct
    and vigorous Congressional intervention to ensure that the agency
    incorporates and uses design for inherent safety and terrorism
    prevention in general duty enforcement.
    ---------------------------------------------------------------------------
        \14\ 42 U.S.C. 7412(r)(1)
    ---------------------------------------------------------------------------
        Aside from these unused Clean Air Act authorities, Federal
    environmental laws and regulations are plainly insufficient to prevent
    terrorism involving extremely hazardous chemicals:
         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\
    ---------------------------------------------------------------------------
        \15\ 42 U.S.C. 6901 et seq.
        \16\ 40 CFR 264.14, 265.14.
        \17\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe,
    Accident Epidemiology in the U.S. Chemical Industry: Preliminary
    Results from RMP*Info, Center for Risk Management and Decision
    Processes, The Wharton School, University of Pennsylvania, March 6,
    2000.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \18\ 40 CFR 766, 790-799
        \19\ 42 U.S.C. 7403(f)
    ---------------------------------------------------------------------------
         The Process Safety Management (PSM) standard of the
    Occupational Safety and Health Administration (OSHA) is intended to
    protect workers onsite from chemical accidents.\20\ The PSM standard
    requires firms to identify hazards, but not to address how terrorists
    could defeat add-on safety controls, and not how safer alternative
    processes or chemicals could reduce the firm's vulnerability to
    terrorism. Many serious chemical accidents involve chemicals that are
    not covered by the PSM standard. For example, the U.S. Chemical Safety
    Board recently examined 167 deadly reactive chemical accidents that
    together killed more than 100 Americans: over half of the chemicals
    involved in these deadly incidents are not currently covered by PSM or
    RMP.\21\ Further, more than half of the facilities covered by the RMP
    program are not covered by PSM requirements.\22\
    ---------------------------------------------------------------------------
        \20\ OSH Act, Section 6; 29 CFR 1910.119
        \21\ Presentation of John Murphy, U.S. Chemical Safety and Hazard
    Investigation Board, Reactive Chemicals Hazard Investigation, Draft
    Work Product, November 9, 2001.
        \22\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe,
    Accident Epidemiology and the U.S. Chemical Industry: Preliminary
    Results from RMP*Info, Center for Risk Management and Decision
    Processes, The Wharton School, University of Pennsylvania, March 6,
    2000.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \23\ OSH Act, Section 6; 29 CFR 1910.1200
        \24\ Occupational Safety and Health Administration, Process Safety
    Management of Highly Hazardous Chemicals.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \25\ 42 U.S.C., Chapter 103
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \28\ 42 U.S.C. 7401 (Public Law 106-40)
        \29\ Working Group on Community Right-to-Know et al, letters to the
    Attorney General of August 14, 2000; April 23, 2001; June 15, 2001;
    and, September 27, 2001 (www.rtknet.org/wcs).
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \30\ 42 U.S.C. 13101 et seq. (Public Law 101-508)
    ---------------------------------------------------------------------------
         The Hazardous Materials Transportation Act (HMTA) governs
    transportation of hazardous materials.\31\ The Department of
    Transportation's (DOT) hazardous materials regulations under HMTA have
    significant gaps. Railcars held on leased track (on sidings or under
    ``rolling'' leases), often in populated areas, pose major chemical
    release hazards but may not be covered by either DOT regulations or
    EPA's RMP program.\32\ Railcars may in some cases sit just outside the
    fence at an RMP facility without being included in hazard assessments,
    public disclosure, and risk management planning. DOT has recently noted
    that the threat of continuing terrorism makes it more important to
    address such regulatory gaps.\33\ Ubiquitous graffiti scrawled on
    railcars also suggests weak or non-existent security.
    ---------------------------------------------------------------------------
        \31\ 42 U.S.C. 5101 et seq.
        \32\ 66 Federal Register 32420
        \33\ 66 Federal Register 59220

        Question 4. The American Chemistry Council and SOCMA testified
    about the security and transportation guidelines that they have
    developed and are working to implement. What do you think of the
    adequacy of the guidelines? Do you think that a voluntary approach to
    implementing such guidelines would be more effective than the
    regulatory approach in S. 1602?
        Response. The American Chemistry Council's voluntary ``Site
    Security Guidelines for the U.S. Chemical Industry,'' recently released
    with SOCMA and the Chlorine Institute, are neither intended nor suited
    to protect public health and safety. Voluntary chemical site security
    is no more appropriate than voluntary airport security, and is no more
    likely to succeed. Voluntary efforts can economically penalize industry
    leaders who do a thorough job and reward laggards who don't. The ACC's
    voluntary industry guidelines also suffer major deficiencies. The
    guidelines:
         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\
    ---------------------------------------------------------------------------
        \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).
    ---------------------------------------------------------------------------
        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 reduce the size and danger to the community of
    their vulnerability zones. Two more asked for more time, but then
    didn't set any later goals.\37\
    ---------------------------------------------------------------------------
        \37\ Environmental Defense, National Environmental Trust, OMB
    Watch, Sierra Club, Unison Institute, U.S. Public Interest Research
    Group, and Working Group on Community Right-to-Know, Hazard Reduction
    Challenge, June 1999.
    ---------------------------------------------------------------------------
         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\
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
        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\
    ---------------------------------------------------------------------------
        \39\ Chemical Marketing Reporter, What's in a Logo, January 6,
    1992.
    ---------------------------------------------------------------------------
                                   __________
                                                       August 14, 2000.
    Hon. Janet Reno,
    Attorney General of the United States,
    Department of Justice,
    950 Pennsylvania Ave., NW, Room 4545,
    Washington, DC.
        Dear Attorney General Reno: The Department of Justice has asserted,
    in response to chemical industry lobbying,\1\ that extremely hazardous
    substances (EHS) at industrial facilities present attractive targets
    for criminal activity.\2\ The Agency for Toxic Substances and Disease
    Registry confirms that site security at chemical-using industries
    ranges from fair to very poor.\3\
    ---------------------------------------------------------------------------
        \1\ Chemical Manufacturers Association, The Terrorist Threat in
    America, 1998; also, Arthur F. Burk, Communication of Risk Management
    Plan Information: Some Principles & Concerns, March 4, 1997; also U.S.
    Environmental Protection Agency, Final Report of the Electronic
    Submission Workgroup (Section 2: Access System), 1997.
        \2\ Federal Register, Volume 65, p. 24833, and supporting
    documents, April 27, 2000.
        \3\ Agency for Toxic Substances and Disease Registry, Industrial
    Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
    Prevention, 1999.
    ---------------------------------------------------------------------------
         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.
    ---------------------------------------------------------------------------
        \4\ Chemical Safety Information, Site Security and Fuels Regulatory
    Relief Act of 1999, Section 3(a)(xi).
    ---------------------------------------------------------------------------
        Environmental, labor, and public health organizations have
    vigorously supported a serious reduction in the potential for onsite
    and offsite consequences of chemical fires and explosions at EHS
    facilities. Our organizations have, in particular, championed the use
    of inherently safer design to reduce and eliminate chemical hazards
    that may be wholly unnecessary.
        We strongly urge the Department not to limit its review and
    recommendations to the reactive control of existing EHS hazards.
    Rather, the Department should include, as the option of first resort,
    the possibility of reducing, eliminating, or removing these hazards.
    This proactive approach is consistent with the Department's new
    emphasis on preventing, rather than simply responding to, terrorism and
    other crimes.
        The advantages of preventive design are widely acknowledged, but
    seldom acted upon. For example, the ``Handbook of Loss Prevention and
    Crime Prevention'' notes that:
        ``All too frequently insufficient consideration is given to
    security factors before and during construction; security protection is
    too often added as an afterthought, if at all.'' The author recommends
    that ``model security codes must be established and built into all new
    construction.'' \5\
    ---------------------------------------------------------------------------
        \5\ Lawrence J. Fennelly, Handbook of Loss Prevention and Crime
    Prevention, Second Edition, 1989, p.35.
    ---------------------------------------------------------------------------
        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\
    ---------------------------------------------------------------------------
        \6\ U.S. Environmental Protection Agency, Chemical Safety Alert,
    Chemical Accident Prevention: Site Security, February 2000 (EPA-K-550-
    002), p.3.
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        \7\ Clean Air Act Amendments of 1990, Section 112(r).
    ---------------------------------------------------------------------------
        Following a prevention hierarchy, EHS facilities first reduce or
    eliminate the hazard where feasible, before using add-on secondary
    containment, control, or mitigation equipment and improving site
    security to address remaining vulnerabilities. As a last resort,
    enhanced buffer zones separate EHS facilities from surrounding areas
    and sensitive populations (such as schools, residences, or
    hospitals).\8\
    ---------------------------------------------------------------------------
        \8\ Senator Frank Lautenberg, U.S. Senate, Chemical Security Act of
    1999 (S. 1470).
    ---------------------------------------------------------------------------
        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\
    ---------------------------------------------------------------------------
        \9\ Trevor Kletz, Process Plants: A Handbook for Inherently Safer
    Design, 1998.
    ---------------------------------------------------------------------------
         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
    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:
    ---------------------------------------------------------------------------
        * 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.
    ---------------------------------------------------------------------------
         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).
         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.
         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.
          Statement of William Stanley, Sourcing-Regulatory Manager,
                              Deepwater Chemicals

                            I. INTRODUCTORY COMMENTS

        Chairwoman Boxer, members of the subcommittee, my name is Bill
    Stanley. I am the sourcing-regulatory manager of Deepwater Chemicals in
    Woodward, OK. I am appearing today on behalf of the Synthetic Organic
    Chemical Manufacturers Association, known as ``SOCMA.''
        I appreciate the opportunity to speak with you on the issue of site
    security for the chemical industry. My goal is to provide you with
    perspective on the activities of SOCMA and its members with respect to
    process safety and site security, while also explaining the unique
    nature of the batch and specialty chemical manufacturing sector of the
    chemical industry.
        Deepwater Chemicals is a small company. It has 30 employees, 16 of
    which are process operators. Deepwater is a manufacturer of fine
    chemicals, specializing in organic and inorganic iodine derivatives.
    Our products are chemical intermediates that are key building blocks
    for important products of the chemical industry, such as
    pharmaceuticals, biocides, disinfectants, and heat stabilizers. I
    should also note that Deepwater Chemicals uses batch-manufacturing
    processes, a manufacturing method typical of many smaller chemical
    companies.
        A primary focus of SOCMA is representation of the batch and
    specialty chemical manufacturing segments of the chemical industry,
    with a particular focus on the interests of small businesses. I,serve
    on SOCMA's Employee and Process Safety Committee.
        This committee, along with other groups within SOCMA, had been
    actively addressing process safety and site security issues well before
    the tragic events of September 11.
        I will focus my remarks today on three specific areas. First, I
    will explain the nature of batch manufacturing, the contributions of
    this industry sector, and the unique challenges that these operations
    present relative to the broader chemical industry. Second, I will
    provide information on how both Deepwater Chemicals and SOCMA more
    generally are addressing site security and process safety. Third, I
    will explain SOCMA's perspective on how industry and Federal, State and
    local agencies can most effectively collaborate to address these
    challenges and why S. 1602 is not an effective vehicle for
    accomplishing the common goal of further improving site security within
    the chemical industry.

      II. THE UNIQUE NATURE AND ROLE OF THE BATCH AND SPECIALTY CHEMICAL
                              MANUFACTURING SECTOR

        The U.S. chemical industry has long been an integral part of the
    growth, development, and stability of the United States. The industry
    has made significant contributions to the well-being, peace and
    prosperity of our country, in areas ranging from national security to
    health and safety, We have all benefited from these efforts.
        When SOCMA was formed 80 years ago, the U.S. chemical industry was
    playing a vital role in supplying the military with products that were
    necessary during the war. Our industry's contributions to the war on
    terrorism are just as essential today: SOCMA members play a key role in
    the production of these materials. This is often a less visible role,
    however, due to the nature of our industry. SOCMA members typically
    produce intermediates, specialty chemicals or ingredients that are used
    as feedstock in the manufacture of a wide range of commercial and
    consumer products.
        The term ``specialty chemicals'' refers to a category of chemicals
    that are specially formulated to meet detailed specifications.
    Specialty chemicals usually have unique, special purposes, such as to
    make nylon fibers stronger, or to make an active ingredient in
    medicine. Specialty chemicals are often essential ingredients in the
    manufacture of another product. Making these products is an ever-
    changing business, often requiring small quantities in a timely manner.
    The specialized nature of SOCMA's members' products thus often calls
    for batch manufacturing operations.
        Batch manufacturing provides an efficient, and frequently the only,
    method to make small quantities of chemicals to meet specific needs and
    customer demands for specialized products. Batch processes are very
    different from continuous chemical manufacturing operations that
    produce commodity chemicals. A continuous chemical operation constantly
    feeds the same raw material into the process. That process consistently
    and constantly manufactures the same product.
        By contrast, production at a batch manufacturing facility is not
    continuous. Both the processes and the raw materials used can change
    frequently. Products are manufactured in separate, distinct
    ``batches,'' by operations that start and finish within relatively
    shorter periods of time. Because the products and the processes change,
    the process operating conditions and even the configuration of the
    equipment can change as well. A single piece of equipment can be put to
    multiple uses and may well contain a range of different materials over
    the course of a year. In fact, a SOCMA study found that one member
    company produced a total of 566 different products over a 7-year period
    at one facility.
        To remain competitive in a tough global market, batch producers
    must be able to respond quickly to new requirements by customers, fill
    small market niches and develop new products. U.S. batch producers are
    at the cutting edge of new technology and provide products often made
    nowhere else in the world.
        Just as batch and specialty chemical manufacturing differs from
    commodity chemical manufacturing, so do the challenges faced by this
    industry sector. SOCMA thus has a role to play in representing this
    industry sector. SOCMA constantly advocates on behalf of its members
    for regulatory flexibility. ``One size fits all programs'' for the
    chemical industry often do not fit SOCMA members. This is especially
    true when one considers that over 75 percent of SOCMA's active members
    are small businesses.
        Over the years, SOCMA and its members have identified and addressed
    many areas in which standard assumptions about chemical operations
    would be detrimental to SOCMA members. This is true with respect to
    chemical site security as well.

    III. HOW SOCMA AND ITS MEMBERS ARE ADDRESSING SITE SECURITY AND PROCESS
                                     SAFETY

        The events of September 11, 2001 have changed our nation and its
    approach to security. The chemical industry is no exception. We are in
    a state of heightened awareness of the risks posed by terrorist and
    criminal activity. Ensuring the safety of our facilities, employees,
    neighbors and the environment is embedded in our industry culture. This
    culture of safe handling, manufacturing, and distribution of chemicals
    has produced results. According to data compiled by the Department of
    Labor, chemical manufacturing is one of the safest manufacturing
    industries in the nation. Preserving and building on this dedication to
    safety will continue to be a priority for our industry sector.
        Since September 11, our industry has taken numerous proactive
    measures to augment existing environmental, health and safety
    practices. Typical security practices modified or implemented at SOCMA
    member companies after September 11 include: conducting vulnerability
    or security assessments of the facilities and/or processes,
    communicating with law enforcement or emergency responders, tightening
    access by contract personnel, further controlling vehicle Access, and
    security awareness training.
        On behalf of its members, SOCMA has actively participated in the
    development of site security guidelines, has met frequently with
    government officials, and is planning and promoting a series of site
    security workshops to be conducted free of charge across the nation.
    SOCMA intends to build upon and expand these efforts to advance site
    security practices across the industry.
        Site security at chemical plants is being, addressed in other ways
    as well. SOCMA members participate in Responsible Care, a management
    system, which is the chemical industry's voluntary initiative for
    continuous improvement in environmental, health, and safety
    performance. Under Responsible Care, there are management practices
    dedicated to site security, employee health and safety, process safety,
    and distribution. Site security is addressed within the Employee Health
    and Safety code.
        In February 2001, SOCMA formed a partnership with the American
    Chemistry Council and The Chlorine Institute to proactively address
    site security. Together, we coauthored a guidance manual onsite
    security for the chemical industry. In October, this manual, ``Site
    Security Guidelines for the U.S. Chemical Industry''', was made
    available to SOCMA members and also to non-members as a public service.
    It is available on our website, www.socma.com. SOCMA has reached out,
    in particular to share the guidelines with other associations that
    represent small business. These guidelines are not intended to provide
    an all-inclusive list of security considerations for chemical
    companies. They are intended to be a resource.
        It was important for SOCMA to bring the unique perspective of the
    specialty batch and custom chemical industry to the development of
    these guidelines. Because of the many differences between these
    facilities and larger operations, it is critical for a plant manager to
    have the flexibility to prioritize resources and implement security
    appropriate measures for that facility which would be most effective.
        SOCMA has also met with the U.S. Department of Justice and its
    contractor, Sandia National Laboratories, on the congressionally
    mandated vulnerability assessment of chemical facilities. To date,
    Sandia's assessment has been based on six, large commodity chemical
    manufacturers. SOCMA members have volunteered to host a site visit by
    DOJ to ``test'' the prototype vulnerability assessment methodology. It
    is critical that specialty batch and custom chemical manufacturers
    participate in this project to ensure that the assessment report is
    balanced and accurately reflects industry diversity in plant size,
    processing techniques, and production lines.
        Since September 11, SOCMA has continually been in contact with
    various Federal agencies including the U.S. Environmental Protection
    Agency (EPA) and the Federal Bureau of Investigation (FBI) to share
    information. We are also engaged in an ongoing dialog to discuss ways
    that industry and government can work cooperatively together to combat
    terrorism. We are planning to co-host regional workshops on security to
    share information between the agencies and industry, present case
    studies and practical information on developing a security plan at a
    facility, and discuss best practices related to transportation security
    and product stewardship. Every effort is being made to ensure that
    workshops will be held in several States by the end of 2001.

    B. Current Activities Underway
        At the facility level at Deepwater Chemicals, safety and security
    is a top priority. Our goal is to produce a quality product in a manner
    that is beneficial to our customers, employees, company, community and
    environment. Security is an essential part of this process. Security
    measures at Deepwater include perimeter fencing, controlled access,
    motion detectors in critical areas, and pre-employment hiring
    screening.
        We already have two-way radio communication that is constantly
    monitored between plant operations and management. We are in the
    process of implementing verbal confirmation for authorized entry of all
    truck traffic into the plant. These measures allow management to make
    informed decisions regarding site access and security.
        Following the tragic events of September 11, Deepwater is in the
    process of evaluating further improvements to our security measures and
    conducting a vulnerability assessment of our facility. We have met with
    State officials, including the Oklahoma Highway Patrol and the Oklahoma
    State Bureau of Investigation, to participate in an assessment survey
    of chemical plants and potential impacts on the surrounding community
    in the event of catastrophic release as a result of a terrorist act.
    This information will assist the State Emergency Planning Committee
    (SEPC) and Local Emergency Planning Committee (LEPC) in further
    developing response plans.
        In addition, the manufacture, handling, and distribution of
    chemicals at Deepwater is highly regulated under a range of programs--
    each intended to prevent and mitigate the release of hazardous
    chemicals. The Clean Air Act already has a General Duty Clause [Section
    112 (r)] that states that facilities have a general duty to prevent and
    mitigate accidental releases of extremely hazardous substances. At
    present, Deepwater Chemicals must comply with nearly 30 different
    regulations. Unless one is out in the field implementing these multiple
    programs, it is easy to lose track of their cumulative effect. I think
    you would be interested to know how comprehensive these programs and
    our voluntary efforts are.
        I would like to share with you some of our activities in this
    regard.
                Process Safety
        For example, the Occupational Safety and Health Administration
    (OSHA) Process Safety Management Standard, or PSM, [29 CFR 1910.119]
    requires facilities that have a highly hazardous substance above a
    certain threshold to implement measures to mitigate hazards, including
    conducting process hazard analysis and maintaining the mechanical
    integrity of equipment. Deepwater already conducts a process hazard
    analysis on all new manufacturing processes. A process hazard analysis
    is a periodic assessment of hazards associated with chemical
    manufacturing operations. It also includes implementation of actions to
    minimize risks.
        In addition, Deepwater reviews processes if decided by management
    review. Manufacturing processes are also reviewed if a new product is
    under development in the R&D facility or is being transferred to plant
    operations. OSHA requires revalidation and review of processes that
    fall under PSM every 5 years. Deepwater has two processes that fall
    under this PSM program, and these will also be reviewed according to
    regulations.
                Worker Training and Safety
        Worked training and safety is another area critical to plant safety
    and security. The OSHA PSM standard requires employers to train
    employees involved in operating a process on the specific health and
    safety standards, emergency operations including shutdown, and safe
    work practices applicable to the employee's job tasks. Additionally,
    OSHA's Hazard Communication standard requires that the hazards of all
    chemicals produced or, imported are evaluated, and that information
    concerning their hazards is transmitted to employers and employees.
        Deepwater Chemicals has developed a comprehensive training program.
    In fact, in June 2001, Deepwater hosted SOCMA's 40-hour Chemical
    Process Operator Training Workshop and invited neighboring chemical
    companies to also participate in the course. This was done in
    collaboration with the Oklahoma Department of Career and Technology
    Education that makes available funding for private industry to develop
    or enhance training that is specific to their industry. This ongoing
    program allows for further advancement in developing communication and
    relationships between other industry and the community.
                Coordination with Emergency Responders
        Another important aspect of our Environmental, Regulatory, Heath
    and Safety Program is involvement with local emergency response teams.
        Under Title III of the Superfund Amendments and Reauthorization Act
    (SARA), States are required to establish LEPCs. Each LEPC is
    responsible for working with industry to develop emergency response
    plans for its community that take potential risks from a chemical
    related accident into account; collecting and storing information
    provided by facilities; and making it available to the public.
    Representatives to the LEPC include individuals from the fire
    department, emergency management agencies, local health agencies and
    hospitals, local officials, community groups, media, and local
    businesses.
        Deepwater Chemicals, in collaboration with other local companies
    and industry, participates in the Woodward County LEPC by providing
    technical expertise in the planning process, assisting with the
    training of local responders in handling hazardous chemicals, providing
    information about chemicals and transportation routes, offering inkind
    assistance in the planning process and hosting regular plant tours and
    emergency response drills for local responders.
        Under the Emergency Planning and Community Right-to-Know Act
    (EPCRA), facilities that have listed chemicals above a certain
    threshold quantity are required to prepare and submit a hazardous
    chemical inventory form to their local emergency planning committee,
    State emergency response commission, and local fire department.
        Responsible Care plays a significant role in site security, as well
    as in Deepwater's interaction with local emergency responders. As part
    of the Community Awareness and Emergency Response Code, or CAER code,
    facilities are encouraged to communicate with plant community residents
    and emergency response personnel, further enhancing safety and
    emergency preparedness. As part of Responsible Care, facilities are to
    implement security procedures and systems to control the entry and exit
    of personnel and materials. SOCMA's guidance for the Responsible Care
    Employee Health & Safety Code and the recently released industry site
    security manual provides guidelines for company practices regarding
    site security. The CAER Code encourages facilities to take a leadership
    role in the LEPC and initiate activities that go beyond the
    requirements of SARA. For example, the CAER Code provides guidelines on
    participation in the community emergency response planning process to
    develop and periodically test the comprehensive community emergency
    response plan developed by the LEPC.
        As you can tell, handling chemicals has led the industry to develop
    extensive plans to address potential incidents covering both onsite and
    offsite consequences. Industry is already coordinating with emergency
    responders and local communities regarding these issues. This effort
    has already been expanded to consider further steps in light of the
    events of September 11. We are committed to continuing these efforts
    for the sake of our employees and our communities.

                  IV. SOCMA'S PERSPECTIVE ON THE PATH FORWARD

        SOCMA believes that these cooperative, government/industry efforts,
    at both the national level and the facility level, are the right way to
    address further improvements. to site security in the chemical
    industry. SOCMA applauds Senator Corzine and this subcommittee for
    recognizing the importance of this issue in S. 1602. However, SOCMA has
    a number of significant concerns about the proposed approach and its
    likely consequences.

    A. Burdens Placed on Small Companies
        One of the greatest concerns that SOCMA has with S. 1602 is its
    potential impact on small batch and specialty chemical producers. As a
    small business specialty chemical producer, I know first hand the
    regulatory challenges already imposed on this industry sector. Due to
    the broad scope of the bill, any small company that produces, mixes,
    blends, modifies, or even handles a high priority substance may be
    subject to the new regulatory obligations. In fact, due to the nature
    of our operations, it would be burdensome even to ascertain whether and
    when subsequent regulations apply.
        As I discussed previously, batch manufacturing has many unique
    characteristics that distinguish it from continuous commodity
    production. Due to these characteristics, regulations developed in
    accordance with S. 1602 would impose disparate impacts on the
    industry's small businesses. Because batch and specialty producers are
    customer driven, their product lines fluctuate regularly. They may be
    producing one chemical for a pharmaceutical company one week, and then
    making a pesticide intermediate the next.
        As a result, a batch producer could handle a variety of high
    priority chemicals--each requiring different regulatory standards and
    mandated processes. Such requirements would eliminate a company's
    operational flexibility. The ability to produce niche chemicals
    efficiently is of paramount importance to compete in the batch and
    specialty chemical sector. These companies spend extensive resources to
    develop new ways to meet customer demands. By promulgating prescriptive
    production standards under S. 1602, the government would adversely
    affect a company's ability to innovate and compete.
        It is no secret that the chemical industry has been facing
    challenging times. With the economy in its current State and the
    overvalued dollar overseas, the batch and specialty chemical industry
    is facing increasing competition from abroad. The effects of this
    competition are reflected in the industry's decreasing trade surplus.
    Though the industry remains the largest exporting sector in the United
    States, with trade surpluses for over 75 years, Department of Commerce
    data show that the industry's trade surpluses have decreased from $19.1
    billion in 1997 to $6.3 billion in 2000.
        Limiting a U.S. company's ability to innovate and produce chemicals
    impairs its ability to compete globally. Developing countries are
    already increasing their production capacity to undercut and replace
    U.S. specialty chemical producers. Neither our industry, nor our
    economy, can afford to have jobs move overseas. The U.S. chemical
    industry employs over one million workers, with 96,000 jobs in New
    Jersey, 83,000 jobs in Texas, 82,000 jobs in California, and 57,000
    jobs in New York. Competition in the batch and specialty chemical
    sector is already high. Imposing additional constraints on this
    industry section could hurt domestic competitiveness, to the benefit of
    our global competitors.

    B. Concerns With General Duty Clause
        Under S. 1602, a general duty clause is imposed on each owner and
    operator of a chemical source that is within the high priority
    category. As a result, it would be the duty of every owner or operator
    of a chemical source to, among other things, ensure safer design and
    maintenance of a facility by taking such actions as are necessary to
    prevent accidental releases and criminal releases.
        The general duty clause thus potentially subjects companies to both
    civil and criminal penalties if an accidental or criminal release were
    to occur. As I have previously stated, the industry has a culture of
    safety with numerous measures taken daily to prevent such incidents.
    However, under the language of the bill, any such incident could
    subject a company to penalties. Furthermore, even the most extreme
    criminal actions by a third party could result in civil and criminal
    sanctions being imposed on the site owner or operator. Under this
    approach, the criminal act of a terrorist would serve as the basis for
    imposing civil or criminal liability on the actual victim, the site
    owner or operator.
        Furthermore, this approach unfairly places the entire burden of
    anticipating and preventing criminal and terrorist activity on the
    company. For a small business, this challenge is all the more
    difficult. I think that a better approach is for the government to
    maintain its lead role in criminal enforcement and the war on
    terrorism, while sharing critical intelligence information and working
    cooperatively with a, company when a clear and present danger is
    discovered. SOCMA's work with the FBI and other Federal agencies is
    already based on the premise that more can be accomplished when
    industry and government collaborate to work together constructively.
        I am also concerned that the approach in S. 1602 seems likely to
    put EPA in a command-and-control, adversarial posture with industry.
    This would greatly hamper the emerging paradigm of industry partnership
    and collaboration with EPA and other government agencies. It would
    certainly be difficult for a site owner or operator to work
    cooperatively with the FBI after a terrorist attack, when the critical
    information supplied to the FBI and other Federal entities might later
    be used for criminal enforcement against the site owner or operator.

    C. S. 1602 Blurs Current Regulatory Jurisdiction
        SOCMA also has concerns with the broad delegation of authority to
    EPA to regulate chemical sources--including motor vehicle and rolling
    stock. The bill is silent on whether it trumps or even preempts
    existing regulatory jurisdiction. Currently, the shipment of chemical
    goods is regulated by the Department of Transportation (DOT). If
    enacted, EPA and the DOT would both be responsible for such regulation,
    potentially leading to jurisdictional conflicts.
        S. 1602 would also give EPA broad authority to ban the production
    of high priority chemicals. This role would potentially conflict with
    other agencies such as the Food and Drug Administration (FDA). For
    example, if a pharmaceutical intermediate, or a fine chemical were
    categorized as high priority, it would apparently be the EPA, not the
    FDA, regulating its production.
        Furthermore, the authority to ban chemical production based on
    quantifiable hazards exists in other statutes. Provisions in these laws
    take numerous factors in account--factors that are missing from S.
    1602. For example, section 6 of the Toxic Substances Control Act
    authorizes EPA to take regulatory action to protect against
    unreasonable risk of injury to human health or the environment due to
    the manufacture, import, processing, distribution in commerce, use or
    disposal of a chemical substance or mixture. Regulatory decisions are
    to be based on risk assessments, and EPA is required to regulate risks
    by using the ``least burdensome'' means. Judicial interpretation of
    these provisions has confirmed that, when banning a chemical, EPA must
    consider and rule out other alternatives to ensure that the method
    chosen is in fact the least burdensome. It is impossible to reconcile
    these provisions with S. 1602.
        S. 1602 also gives me pause insofar as it casts EPA in the role of
    an expert with respect to both threats to national security and threats
    to critical infrastructure. Not only would EPA be the purported expert,
    S. 1602 would endow EPA with final decisionmaking and rulemaking
    authority. The FBI, the CIA and the Homeland Defense Office need not be
    consulted and need not be in agreement with EPA's assessment of these
    factors.
        Yet, today's world underscores the need for sophisticated, current
    expertise as a critical weapon in the war on terrorism. Our nation's
    management and assessment of terrorist threats must be streamlined,
    focused and effective. The question is how to most effectively
    coordinate the expertise within our various Federal, State and local
    agencies. Creating a new dominant national security bureaucracy within
    EPA is not the right response.

    D. Provisions Regarding Safer Technology
        The language in this bill is explicit regarding the promulgation of
    rules, leading to ``safer designs'' and processes for manufacturing.
    Developing and proposing such measures would require extensive
    knowledge of chemical processes and formulations--many of which vary
    from facility to facility. And, as we have discussed, with the batch
    manufacturing sector, chemical processes, formulations and raw
    materials can vary almost from week to week.
        Yet, S. 1602 assumes that processes can and should be redesigned,
    inputs substituted, and carriers and catalysts substituted based on a
    single perspective--potential impacts on national security due to
    potential releases. This simplistic analysis overlooks the real world
    of chemical processing, and batch manufacturing in particular.
        Any responsible chemical manufacturer will confirm that process
    changes of any sort must be preceded by a comprehensive assessment of
    the likely consequences of the change. A multitude of impacts must be
    considered. Will emissions increase? Will emissions be more toxic?
    Would the change affect the surrounding operations and areas? Will the
    facility be able to get permits for changes in air, water and waste
    emissions? Will product quality and effectiveness suffer? Will the
    process pose more immediate hazards to workers? Will the process be
    less stable or more difficult to control? Will the changes promote or
    hinder waste minimization and recycling? Are the new substitutes
    consistently and reliably available? What is the overall impact on
    costs? Will the resulting product still be able to be manufactured to
    customer specifications? A comprehensive assessment must be made of the
    feasibility, benefits, costs and risks attendant upon any process
    change. We absolutely agree that site security is an essential and
    increasingly important part of this assessment. But it still must be a
    multi-faceted assessment.
        The batch manufacturing industry has substantial expertise in
    evaluating the potential ramifications of process changes. We
    continually strive to find innovative approaches to making certain
    chemical compounds. However, it is important that this subcommittee
    also understand that we are limited by the natural laws and bounds of
    chemistry and physics as to how much we can do to change our processes.
    For instance, when making an intermediate that will eventually be
    turned into an ingredient for medicine, we may have to go through
    several steps to get groups of atoms in exactly the right place to make
    the product useful. To do that, we may have to use a specific type of
    chemical or process, because there are no substitutes that allow us to
    achieve the same result. In this case, forcing process change or input
    substitution should not be considered a feasible alternative. Yet, S.
    1602 seemingly would authorize EPA to require such a change.

    E. Timing
        As a final point, SOCMA questions the timeliness of the regulatory
    program proposed in S. 1602. On its face, the regulatory program
    envisioned in S. 1602 would not be fully implemented for at least 4 to
    5 years. The legislation first requires EPA to designate from the
    universe of regulated chemicals, certain substances and sources as
    ``high priorities.'' Even if completed on time, this provision is to be
    conducted within 1 year. However, due to the enormity of the task,
    subjecting the hazard ranking of every regulated chemical and source
    through the administrative process would take significantly longer than
    1 year to be done accurately.
        The bill would then require EPA to promulgate rules to take
    adequate actions to prevent, control, and minimize the potential
    consequences of a release by one of the aforementioned high priority
    combinations. Again, EPA is to complete this process within 1 year. The
    bill recommends that regulations should require development and use of
    safer design and maintenance of the chemical source. Like the
    categorization provisions, this in and of itself would be a Herculean
    task for EPA to undertake--let alone to complete in 1 year. Even if
    completed on time, final rules addressing high priority chemical risks
    would not be completed for 2 years.
        After the rules are promulgated, additional time would be needed
    for the regulated community to come into compliance with such extensive
    measures. The type of process changes suggested by the language of S.
    1602 could be further delayed by the need for facilities to assess the
    feasibility of compliance through comprehensive assessments of the
    potential ramifications of any changes. In addition, environmental
    permits would have to be obtained before changes could be implemented,
    or construction even begun in some cases.
        As I have already stated, the industry has already been working on
    the specific issue of site security. Our work, which began before
    September 11, is addressing the immediate need to prevent accidental
    and criminal releases. These measures are comprehensive and designed to
    help companies to customize their security measures on a facility-by-
    facility basis.

                             V. RISK-BASED APPROACH

        I urge members of this subcommittee to keep in mind that not all
    chemicals and facilities are likely targets for terrorist attacks. In
    fact, most are not. How then, do we work together in a partnership with
    government and determine the likelihood that a facility will be an
    attractive target for a terrorist? And when we determine the degree to
    which certain facilities can be potential targets, how do we ensure the
    appropriate level of security? These are the two fundamental questions
    that prompted our industry to begin developing a tiered, risk-based
    approach to chemical site security. A tiered approach is nothing more
    than starting with simple evaluation techniques, usually qualitative in
    nature, and identifying areas in which more information would be useful
    to reach a riskbased conclusion.
        We envision a six-step process, which is detailed in our site
    security guidance, that begins with determining which chemicals,
    processes and facilities would be likely targets. Our guidance further
    outlines areas that companies can consider when assessing
    vulnerability, such as chemical hazards, physical and reactivity
    properties, engineering, containers, physical appearance, release
    mitigation, potentials for exposure, and other important factors.
        Once these six steps are complete, it will be easier to assessment
    whether or not the security measures in place are appropriate for the
    potential threat. Companies have already begun this process because we
    share a sense of immediacy about ensuring the safety of the communities
    in which we live.
        Interestingly, our security measures often exceed what would be
    appropriate for potential terrorist threats because we also consider
    other factors, such as vandalism, trespassing and theft. In fact, batch
    and specialty facilities are hard to discern from other types of
    businesses because most of their production processes take place
    indoors. The physical appearance of our facilities very much decreases
    the likelihood that they would be targets. In addition, our products
    are made according to the needs of our customers, so a terrorist would
    have to know the details of our production schedules to know what we
    are making, and, more importantly, when.
        Considering all the factors that make certain chemicals and
    processes likely candidates for terrorist attacks, I think it is
    reasonable to State that batch and specialty facilities require a
    flexible approach to vulnerability assessment and security
    countermeasures to meet potential terrorist threats. We think we have
    the right approach and have already begun implementation.

                                 IV. CONCLUSION

        I would like to conclude by confirming that there are plenty of
    incentives to ensure safety and security in all of our processes. We do
    not want accidents, nor do we want to be the victim of an attack. I
    work in my facility. My failure to address these issues would impact me
    directly. We are all in this together, our businesses, our communities
    and our government leaders. We want to continue to work together on a
    cooperative basis, to evaluate and respond to potential risks in an
    effective manner.
        I would be glad to entertain any questions at this time.

                                   __________
                 Statement of Rena Steinzor, Academic Fellow,
                       Natural Resources Defense Council

        Madame Chairman, and members of the subcommittee: Thank you for the
    opportunity to appear here today to testify in support of S. 1602, the
    Chemical Security Act of 2001, on behalf of the Natural Resources
    Defense Council (NRDC). NRDC is a national, non-profit organization of
    scientists, lawyers, economists, and other environmental specialists
    dedicated to protecting public health and the environment. Founded in
    1970, NRDC has more than 500,000 members nationwide, and four national
    offices in New York, Washington, Los Angeles, and San Francisco.
        In the wake of the tragedies that began on September 11, 2001, this
    legislation is one of the most important, proactive steps that the
    Federal Government can take in response to this particular threat,
    which belongs on the ``top ten'' of anyone's list.\1\ No reasonable
    observer could dispute that the events covered by this legislation must
    be a national priority: namely, terrorist attacks that result in
    releases of acutely toxic chemicals at factories, petroleum storage
    facilities, and hazardous materials transportation locations, as well
    as the possibility that terrorists could steal chemicals from such
    facilities to make their own weapons of mass destruction.
    ---------------------------------------------------------------------------
        \1\ See, for example, Eric Pianin, Toxic Chemicals' Security
    Worries Officials; Widespread Use of Industrial Materials Makes Them
    Potential Target of Terrorists, Washington Post, November 12, 2001, at
    A14, attached as Appendix A-1.
    ---------------------------------------------------------------------------
        Existing law does not address this problem. Waiting for States to
    erect a patchwork of inconsistent requirements could take years, and
    would cost excessive amounts. To its credit, the American Chemistry
    Council recognizes that these hazards must be an immediate priority and
    has already put in motion special programs to help its members upgrade
    plant security. However, the notion that we would leave industry to
    implement these efforts voluntarily, without government oversight,
    makes as much sense as leaving airport security to the exclusive
    discretion of the world's air carriers.
        The American people clearly want their government to protect them
    from the worst threats, and they want those activities begun yesterday.
    Not incidentally, the proposal you have before you today, like the one
    that Congress passed in 1986 in the wake of the Bhopal tragedy, will
    enable our nation's brave police and firefighters to combat accidental
    releases of hazardous materials with the knowledge that the Federal
    Government, and the chemical, petroleum, and transportation industries,
    have done everything possible to avoid placing them in harm's way.
        For the sake of these brave men and women, and the public at large,
    NRDC urges you to move this legislation toward enactment as quickly as
    possible. The remainder of my testimony will address (1) the need for
    the legislation; (2) why a Federal law is necessary, as opposed to
    consigning responsibility for this issue to the States or industry
    volunteerism; and (3) possible ways to strengthen the legislation.

                            NEED FOR THE LEGISLATION

        As you may remember, the Bhopal tragedy occurred when equipment at
    a pesticide manufacturing plant malfunctioned, causing the release of a
    cloud of lethal methyl isocyanate gas.\2\ People in the crowded
    neighborhoods around the plant saw the plume, assumed it was a fire,
    and ran toward the factory to help extinguish the blaze or to watch in
    excitement. As the plume drifted over the plant gates toward the
    crowds, some 3,000 people dropped dead in their tracks. Overcoming the
    temptation to view Bhopal as an example of Third World ineptitude, a
    congressional panel traveled to a twin Union Carbide facility in
    Institute, West Virginia, only to discover that although the county had
    prepared an emergency plan, the plant manager did not realize that it
    existed.\3\
    ---------------------------------------------------------------------------
        \2\ Diamond, Stuart, The Bhopal Disaster: How It Happened, New York
    Times, January 28, 1985, at A1, attached as Appendix A-2.
        \3\ Pienciak, Richard T., Flaws found in emergency plans near toxic
    plants, Los Angeles Times, January 6, 1985, at 2, attached as Appendix
    A-3.
    ---------------------------------------------------------------------------
        Congress responded to Bhopal and its aftermath by passing the 1986
    Emergency Response and Community Right-to-Know Act (EPCRA), which was
    refined and expanded by the 1990 Clean Air Act (CAA) amendments. Under
    both statutes, State and local governments are responsible for dealing
    with such incidents, with the Federal Government playing a very small
    role in providing technical support for their efforts. Emergency
    response has two distinct components in this context: first, the
    containment of the explosion, fires, and toxic releases that typically
    accompany such incidents and, second, the successful protection of the
    affected populations near the facilities. But neither law addresses the
    all-important tasks of preventing such incidents by reducing hazards
    and ensuring plant and transportation system security. Human error in
    operating complex machinery killed several thousand people in Bhopal.
    What price would we pay for deliberate sabotage at such a facility?
        In the decade-and-a-half since EPCRA went on the books, funding
    shortfalls have undermined local efforts to make progress on either
    containing accidents or protecting the public and, until recently, very
    few cities and towns had even thought about reducing the use of toxic
    chemicals or improving the technology of storage equipment. Indeed, it
    is commonly understood by everyone involved at the grassroots level--
    from firefighters, police, and other municipal officials to the
    companies that own and operate the factories, railroads, pipelines, and
    truck fleets--that local emergency response capacity, even in large
    cities, falls far short of either these legal requirements or safe
    practice. Despite the valiant efforts of fire departments nationwide,
    local governments under pressure to fund other services simply have not
    given firefighters, police, and emergency medical personnel what they
    need to do a very difficult job.
        As a classic example of this problem, I refer you to press accounts
    of a fire caused by a train derailment in a tunnel running through the
    center of Baltimore City last summer; I have attached one comprehensive
    analysis of the implications of the incident to my testimony.\4\ The
    short story is that it took several days to put out the fire, and
    everyone involved with the response was enormously relieved that no
    acutely toxic chemicals were involved because the City was
    fundamentally unprepared to deal with such a catastrophe.
    ---------------------------------------------------------------------------
        \4\ Heather Dewar, When Chemical Safety is a Matter of Security,
    Baltimore Sun, October 17, 2001, at 1A, attached as Appendix A-4.
    ---------------------------------------------------------------------------
        To understand the gravity of the situation in Baltimore and
    elsewhere, consider the following realities of any emergency that
    involves the release of an acutely toxic chemical. Experts agree that
    there are only two possible alternatives when a toxic plume is released
    near a population center: (1) shelter-in-place or (2) evacuation. They
    further agree that the first of these is only as effective as the
    shelter itself. In the absence of measures to seal off ventilation
    systems, and plug other leaks in a building, shelter-in-place can serve
    to compound chemical exposures. Evacuation therefore remains an
    essential component of any emergency response plans. EPCRA recognized
    this reality, explicitly requiring that ``local emergency response
    committees'' include detailed evacuation scenarios in their plans.
        Many cities have made little, if any, progress on these critical
    tasks, again as indicated by the Baltimore incident.\5\ They have not
    deployed effective warning systems; they have no contingency plan for
    dealing with vulnerable populations; they have made no effort to train
    the public on shelter in place techniques, and they have no idea how
    they would conduct an evacuation if one was necessary. Even worse, most
    cities have not yet mastered the important challenge of integrating
    fire department efforts to contain fires, explosions, and releases with
    police efforts to evacuate or otherwise aid the public. Police lack
    equipment to protect themselves in the event of an acutely toxic
    release, do not routinely train with firefighters to develop effective
    coordination procedures, and have no concrete plan for controlling
    traffic, much less organizing a large-scale evacuation of affected
    neighborhoods.
    ---------------------------------------------------------------------------
        \5\ Tunnel Damage Assessed After Derailment Blaze, Houston
    Chronicle, July 23, 2001, at 8. See also Editorial, There When You Need
    Them, Baltimore Sun, July 20, 2001, at 20A, attached as Appendix A-5.
    ---------------------------------------------------------------------------
        To date, there have been only two confirmed attempts to perpetrate
    terrorist attacks on facilities handling toxic chemicals, both of which
    were prevented by the authorities.\6\ However, there have been numerous
    accidents involving such materials, with several involving severe
    injuries or even fatalities, primarily among the workers at such
    facilities but under circumstances that could easily have posed a
    threat to the public.\7\ Fifteen accidental gas releases of greater
    amount and toxicity than Bhopal occurred in the United States between
    1980 and 1990.\8\ A careful review of press accounts of these incidents
    indicates that luck rather than preparation is the reason such
    incidents have not resulted in widespread fatalities.
    ---------------------------------------------------------------------------
        \6\ U.S. Department of Justice, 2000. Assessment of the Increased
    Risk of Terrorist or Other Criminal Activity Associated with Posting
    Off-Site Consequence Analysis Information on the Internet, at 27,
    attached as Appendix B.
        \7\ U.S. Environmental Protection Agency, Chemical Emergency
    Preparedness and Prevention Office, 2000. Assessment of the Incentives
    Created by Public Disclosure of Off-Site Consequence Analysis
    Information for Reduction In the Risk of Accidental Releases, at 2, 11-
    12, attached as Appendix C.
        \8\ Mukerjee, Madhusree, Toxins Abounding, Scientific American,
    July 1995, at 22, attached as Appendix D.
    ---------------------------------------------------------------------------
        The vast majority of hazardous chemicals are stored in tanks or
    other containers that require electricity to maintain the correct
    temperature and pressure. Power outages of any significant duration
    could have the same disastrous effects as a direct attack on such
    facilities. Consequently, the facilities covered by S. 1602 are in
    jeopardy from the indirect effects on attacks on the power grid, as
    well as direct assaults. For further information on this too-often
    overlooked aspect of the problem, I have attached a recent paper
    regarding the vulnerability of the nation's power grid to terrorist
    attack.\9\
    ---------------------------------------------------------------------------
        \9\ David Wagman, A Vulnerable System Looks for Security, Energy
    Insight Today (September 14, 2001).
    ---------------------------------------------------------------------------
        These realities, partnered with the lessons of September 11,
    demonstrate beyond any reasonable doubt the importance of increased
    prevention of hazards and physical security, as required by the
    legislation before you. Some enlightened local governments have begun
    such initiatives, demonstrating that they are indeed possible. As
    reported in this Monday's Washington Post, the Blue Plains sewage
    treatment plant has accelerated its efforts to replace lethal chlorine
    gas with a far less hazardous chemical, demonstrating the feasibility
    of the requirements contained in S. 1602.\10\
    ---------------------------------------------------------------------------
        \10\ See Eric Pianin, Toxic Chemicals' Security Worries Officials;
    Widespread Use of Industrial Materials Makes Them Potential Target of
    Terrorists, Washington Post, November 12, 2001, at A14, attached as
    Appendix A-1.
    ---------------------------------------------------------------------------
                               WHY A FEDERAL LAW

        Although devolution of traditional Federal functions to the States
    is a popular approach to government at the moment, the events of
    September 11 have reminded us why we operate under a system of national
    environmental laws. Three major reasons were articulated by
    congressional sponsors of the legislation that created the Federal
    regulatory system, and by commentators on federalism ever since:
        1. The need to address transboundary pollution. For example, there
    are a large, albeit uncounted, number of plants that use, store, or
    produce toxic chemicals in this country located in a place where an
    emergency release would affect populations living in two States. Of
    course, trucks and trains carrying toxic chemicals routinely cross
    state lines.
        2. The superior performance and economic efficiency achieved by
    regulation at the national level. Asking 50 state and thousands of
    local governments to assess the threat of chemical plant and
    transportation system sabotage and regulate accordingly would not only
    consume enormous resources but would inevitably result in failure in
    far too many places. Federal expertise is needed desperately in this
    endeavor, and is far more efficient economically. It is also worth
    noting that a patchwork of state and local requirements would only
    drive industry into your offices to beg for a uniform Federal system.
    Indeed, this is exactly the scenario that occurred when states tried to
    regulate hazardous materials transportation.
        3. Establishing a Federal regulatory framework leaves a role for
    first responders at the state and local levels. States and local
    governments must be indispensable partners in this effort, as the
    legislation recognizes when it directs EPA and the Department of
    Justice to consult closely with their sister agencies and elected
    officials.
        As for the question of whether industry volunteerism is enough to
    meet this challenge, the information released thus far suggests that
    industry is focusing on physical security, with prevention by hazard
    reduction a distant and far lower priority. NRDC's experiences over the
    last decade in working with industry to encourage hazard reduction (aka
    ``pollution prevention'') illustrate just how very difficult it is
    going to be to change corporate culture to accomplish this crucial
    component of any reasonable response to the terrorist threat.\11\
    Rather, the instinct of most companies will be to post security guards,
    strengthen fences, and make alarms louder, all of which may well be
    appropriate but are an incomplete answer in the face of the kind of
    coordination and determination displayed by the terrorists who attacked
    us on September 11.
    ---------------------------------------------------------------------------
        \11\ Greer, Linda, Anatomy of a Successful Pollution Reduction
    Project, 34 Environmental Science and Technology 254A (2001), attached
    as Appendix E.
    ---------------------------------------------------------------------------
        Even if increased security was an adequate agenda for the moment,
    every past experience with volunteerism indicates that compliance with
    such programs is spotty at best. With an economic downturn ahead of us,
    we simply cannot afford to leave decisions whether to invest in complex
    new systems up to senior management, no matter how well-meaning they
    may be. Indeed, it is likely that the economically weakest companies
    with the most neglected and therefore more vulnerable physical
    infrastructures, will be the ones that never quite get around to doing
    their share to satisfy their civic responsibilities.
        Of course, there are other incentives to make plants, trucks, and
    trains more secure, and we would be foolish to ignore them. The most
    important is liability for damages if a company ignores this crucial
    imperative, and we trust that the subcommittee will leave these
    incentives in place no matter what the outcome of this valuable
    legislative debate.

                             STREAMLINING THE BILL

        The legislation, as drafted, is comprehensive, covering all
    conceivable manifestations of the terrorist threat. It anticipates that
    EPA, in consultation with the Justice Department and the states, will
    prioritize facilities and chemicals in order to develop a workable list
    of high priority targets for the final regulatory regime.
        While we appreciate your interest in moving this legislation
    quickly, and we plan to do anything we can to assist you in that
    effort, we are also aware that the history of the Agency's regulatory
    performance over the last decade and a half suggests that the more
    broad its mandate, and the more endless the regulatory possibilities,
    the more attenuated the rulemaking process becomes. Accordingly, we
    offer to continue to work on developing information that will help you
    target the worst threats. Of some 22,000 facilities now reporting to
    the Toxics Release Inventory, approximately 200 account for over 50
    percent of reported releases. (This calculation is based on Toxic
    Release Inventory data, and excludes acids and bases, focusing instead
    on other toxic chemicals that are not readily neutralized.) We are
    confident that with some additional research, it will be possible to
    focus on a significantly smaller subset of facilities posing the
    greatest risk.
        For example, I have attached to this testimony a report by the
    Agency for Toxic Substances and Disease Registry entitled Industrial
    Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and
    Prevention.\12\ This extraordinarily useful document suggests several
    steps that could be taken to prioritize the risks in this arena, and
    also proposes a 10-step procedure for upgrading emergency response
    plans. The experts who produced this document, and others like them at
    EPA, the Federal Emergency Management Administration, and the Federal
    Bureau of Investigation, should make themselves available right now to
    assist you in the effort to isolate the top priorities and get the
    regulatory process moving at a fast clip.
    ---------------------------------------------------------------------------
        \12\ U.S. Public Health Service, Agency for Toxic Substances and
    Disease Registry, Industrial Chemicals and Terrorism: Human Health
    Threat Analysis, Mitigation, and Prevention (1999), attached as
    Appendix F.
    ---------------------------------------------------------------------------
        Thank you for the opportunity to appear before you today. I would
    be pleased to answer any questions you may have.
                                     ______

                   [From the Washington Post, Nov. 12, 2001]

        Toxic Chemicals' Security Worries Officials; Widespread Use of
         Industrial Materials Makes Them Potential Target of Terrorists

                                (By Eric Pianin)

        Last February, environmentalists concerned about security problems
    in the chemical industry made their point by scaling the fence of a
    large Dow Chemical plant near Baton Rouge, La., and gaining access to
    the control panel that regulates potentially dangerous discharges into
    the Mississippi River.
        The plant manufactures and stores large quantities of chlorine, a
    highly toxic chemical that could kill many if released as a gas through
    an explosion or fire. The Greenpeace activists who organized the foray
    said it was a snap because there were no guards or security cameras
    along the plant's lengthy perimeter and because the door to the
    wastewater discharge control room was unlocked. Though some industry
    officials played down the raid's significance, experts say it
    underscores another serious homeland security vulnerability after the
    September 11 terrorist attacks. Industry and government officials alike
    are looking for ways to make. sure that, like commercial airliners,
    another component of U.S. technology isn't turned into a horrific
    weapon against Americans.
        ``No one needed to convince us that we could be--and indeed would
    be--a target at some future date,'' said Frederick L. Webber, president
    of the American Chemistry Council, an industry group representing 180
    major companies including DuPont, Dow, and BP Chemical. ``If they're
    looking for the big bang, obviously you don't have to go far in your
    imagination to think about what the possibilities are.''
        Industrial chemicals such as chlorine, sulfuric acid and
    hydrochloric acid potentially provide terrorists with ``effective and
    readily accessible materials to develop improvised explosives,
    incendiaries and poisons,'' according to a 1999 study by the Federal
    Agency for Toxic Substances and Disease Registry. Yet the report, which
    focused on West Virginia and Nevada as a way to sample the situation
    nationwide, found that security at chemical plants ``ranged from fair
    to very poor.''
        ``Most of the security gaps were the result of complacency and lack
    of awareness of the threat,'' the report stated. ``Chemical plant
    security managers were very pessimistic about their ability to deter
    sabotage by employees.''
        Some of the chemicals used or produced in plants throughout the
    country--and transported by rail through densely populated areas
    including Baltimore and Washington--have the potential to match or
    exceed the 1984 disaster in Bhopal, India, in which a methyl isocyanate
    gas leak at a Union Carbide Corp. pesticide plant killed at least 2,000
    people and injured tens of thousands.
        ``I think that if one had to think about what is the next level of
    potential targets, you would have to think about major chemical and oil
    facilities,'' said Fred Millar, a consultant on chemical accident
    prevention.
        Immediately after the United States began bombing Afghanistan on
    October 7, the railroad industry took the precaution of imposing a 72-
    hour moratorium on carrying toxic or dangerous chemicals. But the
    shipments were resumed after the chemical industry argued that chlorine
    was essential to the continued operations of sewage treatment plants
    and that there was no evidence the shipments were being targeted by
    terrorists.
        Chemical industry officials say that, long before September 11,
    plants had begun to tighten security and put in place safeguards
    including well trained and equipped hazardous materials response crews,
    vapor suppression equipment and barriers around chemical storage tanks.
    Since the attacks, the industry has issued tough new site security
    guidelines, and officials say they are in daily contact with the FBI
    and other Federal authorities to prepare for a direct threat against a
    chemical plant. So far, there hasn't been one.
        Environmental Protection Agency Administrator Christine Todd
    Whitman, who has met several times with industry leaders, said Friday,
    ``I don't know that you could get any higher awareness than we have
    today on the importance of directing resources to those efforts of
    securing chemicals onsite.''
        ``So they are doing as good a job as they can do right now, and
    they're very aware of where their vulnerabilities might be,'' she
    added.
        But Paul Orum, director of the Working Group on Community Right-to-
    Know, a national clearinghouse on hazardous risk information, said the
    chemical industry ``continues to maintain excessive volumes of
    extremely hazardous substances in heavily populated areas, materials
    that if they get loose can cover schools, hospitals and residential
    areas with toxic fumes at dangerous levels.''
        ``The industry has been in denial about the need to reduce those
    hazards and set measurable goals and time lines,'' Orum added.
        Chlorine is a telling example of the complexity of the problem.
    While potentially a lethal weapon, it is also a safeguard: Among other
    uses, it is a key ingredient in Cipro, an antibiotic used to treat
    anthrax exposure. ``Chlorine is the first line of defense against
    bioterrorism,'' said C.T. ``Kip'' Howlett Jr. of the Chlorine Chemistry
    Council, as he strongly defended the widespread use and storage of the
    gas.
        Last year, U.S. chemical companies and related industries reported
    32,435 fires, spills or explosions involving hazardous chemicals to the
    National Response Center, an extensive but incomplete Federal record of
    mishaps involving oil or chemicals. At least 1,000 of these events each
    year involve death, injury or evacuation. Combined data from additional
    Federal sources suggest that in 1998--the last year for which full data
    were available--there were more than 100 deaths and nearly 5,000
    injuries, according to Orum's group.
        A single accident at any of the nearly 50 chemical plants operating
    between Baton Rouge and New Orleans potentially could put at risk
    10,000 to 1 million people, according to ``worst-case'' scenarios that
    companies are required by law to file with the EPA.
        Those scenarios provide an estimate of the radius of a dangerous
    cloud of escaping gas and how many people it could affect. The Dow
    Chemical plant targeted by Greenpeace reported as its potential ``worst
    case'' the release of 800,000 pounds of hydrogen chloride, a
    suffocating gas that would threaten 370,000 people. Rick Hind,
    legislative director of the Greenpeace toxics campaign, said that the
    ease with which his group infiltrated that plant ``shows the absolute
    porous nature of these facilities'' and their vulnerability to
    terrorist attacks.
        Environmental and hazardous chemical experts say that serious
    security problems also persist to varying degrees at chemical
    manufacturing centers in Texas, New Jersey, Delaware, Philadelphia and
    Baltimore.
        Last July, a CSX train derailment and fire in a Baltimore tunnel
    paralyzed the city for 5 days while hydrochloric acid and other toxic
    chemicals contained in the tanker cars burned off or seeped into storm
    drains that flowed into the Inner Harbor.
        Around Washington, the D.C. Water and Sewer Authority's Blue Plains
    Waste Water Treatment Plant houses one of the region's largest supplies
    of toxic chemicals, including liquid chlorine and sulfur dioxide. Since
    September 11, Blue Plains plant operators have stepped up security and
    considered ways to disperse, shelter or eliminate the need to maintain
    a stockpile of chemicals.
        Sen. Jon S. Corzine (D-N.J.) and Senate Environment and Public
    Works Committee Chairman James M. Jeffords (I-VT.) introduced a bill
    last week that would order the EPA and the Justice Department to impose
    tough new regulations to guard against the threat of a terrorist attack
    at high-risk chemical facilities.
                                     ______

                  [From the New York Times, January 28, 1985]

                      The Bhopal Disaster: How It Happened

                              (By Stuart Diamond)

        The Bhopal gas leak that killed at least 2,000 people resulted from
    operating errors, design flaws, maintenance failures, training
    deficiencies and economy measures that endangered safety, according to
    present and former employees, company technical documents and the
    Indian Government's chief scientist.
        Those are among the findings of a 7-week inquiry begun by reporters
    of The New York Times after the December 3 leak of toxic methyl
    isocyanate gas at a Union Carbide plant in the central Indian city of
    Bhopal produced history's worst industrial disaster, stunning India and
    the world. Among the questions the tragedy raised were how it could
    have happened and who was responsible.
        The inquiry involved more than 100 interviews in Bhopal, New Delhi,
    Bombay, New York, Washington, Danbury, Conn., and Institute, West
    Virginia. It unearthed information not available even to the Union
    Carbide Corporation, the majority owner of the plant where the leak
    occurred, because the Indian authorities have denied corporate
    representatives access to some documents, equipment and personnel.

                             EVIDENCE OF VIOLATIONS

        The Times investigation produced evidence of at least 10 violations
    of the standard procedures of both the parent corporation and its
    Indian-run subsidiary.
        Executives of Union Carbide India Ltd., which operated the plant,
    are reluctant to address the question of responsibility for the
    tragedy, in which about 200,000 people were injured. The plant's
    manager has declined to discuss the irregularities. The managing
    director of the Indian company refused to talk about details of the
    accident or the conditions that produced it, although he did say that
    the enforcement of safety regulations was the responsibility of
    executives at the Bhopal plant.
        When questioned in recent days about the shortcomings disclosed in
    the inquiry by The Times, a spokesman at Union Carbide corporate
    headquarters in Danbury characterized any suggestion of the accident's
    causes as speculation and emphasized that Union Carbide would not
    ``contribute'' to that speculation.

                           SUMMARY OF IRREGULARITIES

        A review by The Times of some company documents and interviews with
    chemical experts, plant workers, company officials and former officials
    disclosed these and other irregularities at Bhopal:
         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.''
        Over the weekend, in response to questions from The Times, a
    corporate spokesman described the managers of the Indian affiliate as
    ``well qualified'' and cited their ``excellent record,'' adding that
    because of the possibility of litigation in India ``judicial and
    ethical rules and practices inhibit them from answering questions.''
        However, the spokesman said: ``Responsibility for plant
    maintenance, hiring and training of employees, establishing levels of
    training and determining proper staffing levels rests with plant
    management.''
        V.P. Gokhale, the chief operating officer of Union Carbide India
    Ltd., in his first detailed interview since Dec. 3, would not comment
    on specific violations or the causes of the accident, but he said the
    Bhopal plant was responsible for its own safety, with little scrutiny
    from outside experts.
        The Indian company has one safety officer at its headquarters in
    Bombay, Mr. Gokhale said, but that officer is chiefly responsible for
    keeping up to date the safety manuals used at the company's plants.
        Despite the Bhopal plant's autonomy on matters of safety, it was
    inspected in 1982 by experts from the parent company in the United
    States, and they filed a critical report.
        In the interview, however, Mr. Gokhale contended that the many
    problems cited in the 1982 report had been corrected. ``There were no
    indications of problems,'' he said. ``We had no reason to believe there
    were any grounds for such an accident.''
        Mr. Gokhale, who become managing director of Union Carbide India in
    December 1983 and has been with the company 25 years, added: ``There is
    no way with 14 factories and 28 sales branches all over the country and
    9,000 employees that I could personally supervise any plant on a week-
    to-week basis.''
        At perhaps a dozen points during a two-hour interview, he read his
    answers into a tape recorder, saying he would inform the parent
    corporation's Danbury headquarters of what he had said. He also made
    notes of some of his comments and said he would send them to Danbury
    for approval by Union Carbide lawyers.

                         RELATIONSHIP OF THE COMPANIES

        The precise relationship between Union Carbide's American
    headquarters and its Indian affiliate is a subject that Mr. Gokhale and
    other company officials have refused to discuss in detail. But an
    understanding of that relationship is a key element in pinpointing
    responsibility for the disaster at Bhopal. Lawyers from both the United
    States and India say it is also central to the lawsuits brought by
    Bhopal residents damaged by the accident.
        Although the situation remains unclear, some evidence of the
    relationship between the Indian and American companies has begun to
    emerge. The United States corporation has direct representation on the
    Indian company's board. J.M. Rehfield, an executive vice president in
    Danbury, sits on that board, Mr. Gokhale acknowledged, as do four
    representatives of Union Carbide Eastern Inc., a division based in Hong
    Kong. Mr. Gokhale said the board of directors reviews reports on the
    Indian affiliate's operations.
        Moreover, some key safety decisions affecting Bhopal were
    reportedly made or reviewed at the corporate headquarters in Danbury.
        Srinivasan Varadarajan, the Indian Government's chief scientist,
    said his staff had been told by managers of the Bhopal plant that the
    refrigeration unit designed to chill the methyl isocyanate, which he
    said was very small and had never worked satisfactorily, had been
    disconnected because the managers had concluded after discussions with
    American headquarters that the device was not necessary.
        A spokesman at corporate headquarters in Danbury, Thomas Failla,
    said: ``As far as we have been able to establish, the question of
    turning off the refrigeration unit was not discussed with anyone at
    Union Carbide Corporation.''
        The methyl isocyanate operating manual in use at Bhopal, which was
    adapted by five Indian engineers from a similar document written for
    the West Virginia plant, according to a former senior official at
    Bhopal, says: ``Keep circulation of storage tank contents continuously
    `ON' through the refrigeration unit.''
        And a senior official of Union Carbide India said few if any people
    would have died Dec. 3 had the unit been running because it would have
    slowed the chemical reaction that took place during the accident and
    increased the warning time from 2 hours to perhaps 2 days.
        Workers said that when the 30-ton refrigeration unit was shut down,
    electricity was saved and the Freon in the coils of the cooling unit
    was pumped out to be used elsewhere in the plant.
        Mr. Gokhale specifically declined to answer questions about the
    refrigeration unit.

                           EMPLOYEES CRITICIZE MORALE

        Many employees at the Bhopal plant described a factory that was
    once a showpiece but that, in the face of persistent sales deficits
    since 1982, had lost much of its highly trained staff, its morale and
    its attention to the details that insure safe operation.
        ``The whole industrial culture of Union Carbide at Bhopal went down
    the drain,'' said Mr. Pareek, the former project engineer. ``The plant
    was losing money, and top management decided that saving money was more
    important than safety. Maintenance practices became poor, and things
    generally got sloppy. The plant didn't seem to have a future, and a lot
    of skilled people became depressed and left as a result.''
        Mr. Pareek said he resigned in December 1983 because he was
    disheartened about developments at the plant and because he was offered
    a better job with Goodyear India Ltd. as a divisional production
    manager.
        Mr. Gokhale termed the company's cost-cutting campaign simply an
    effort to reduce ``avoidable and wasteful expenditures.''
        The corporate spokesman in Danbury said Union Carbide has ``an
    ongoing operations improvement program which involves, among other
    things, a regular review of ways to reduce costs.'' He said Union
    Carbide India was involved in such programs, ``but the details of those
    programs at the Bhopal plant are not known to us.''
        The spokesman added: ``Financial information supplied to us
    indicated that the Bhopal plant was not profitable.''
        In the absence of official company accounts, details of the
    accident and its causes have been provided by technical experts such as
    Dr. Varadarajan and Mr. Pareek and by three dozen plant workers, past
    and present company officials and other people with direct knowledge of
    the factory's operations. Many of them agreed to be interviewed only on
    condition that they not be identified. Most of the workers knew little
    English and spoke in Hindi through an interpreter.
        They provided some documents but often relied upon their
    recollections because many plant files and even public records have
    been impounded by the Indian authorities investigating the accident.

                         POTENTIAL FOR SERIOUS ACCIDENT

        Nearly all those interviewed contended that the company had been
    neither technically nor managerially prepared for the accident. The
    1982 inspection report seemed to support that view, saying the Bhopal
    plant's safety problems represented ``a higher potential for a serious
    accident or more serious consequences if an accident should occur.''
        That report ``strongly'' recommended, among other things, the
    installation of a larger system that would supplement or replace one of
    the plant's main safety devices, a water spray designed to contain a
    chemical leak. That change was never made, plant employees said, and on
    Dec. 3 the spray was not high enough to reach the escaping gas.
        The spokesman in Danbury said the corporation had been informed
    that Union Carbide India had taken ``all the action it considered
    necessary to respond effectively'' to the 1982 report.
        Another of the safety devices, a gas scrubber or neutralizer, one
    of the systems said to have been built according to the specifications
    used at the West Virginia plant, was unable to cope with the accident
    because it had a maximum design pressure one-quarter that of the
    leaking gas, according to plant documents and employees.
        The third safety system, a flare tower that is supposed to burn off
    escaping gases, would theoretically have been capable of handling about
    a quarter of the volume of the leaking gas were it not under such
    pressure, according to Mr. Pareek. The pressure, he said, was high
    enough to burst a tank through which gases must flow before being
    channeled up the flare tower. The tower was the second system described
    by technical experts as conforming to the specifications used in West
    Virginia.
        In any case, the pressure limitations of the flare tower were
    immaterial because it was not operating at the time of the accident.

                             GUIDELINES FOR DESIGN

        A former executive at the Bhopal plant said the parent corporation
    had provided guidelines for the design of the scrubber, the flare tower
    and the spray system. But detailed design work for those systems and
    the entire plant, he said, was performed by Humphreys & Glasgow
    Consultants Pvt. Ltd. of Bombay, a subsidiary of Humphreys & Glasgow
    Ltd., a consulting company based in London. The London company in turn
    is owned by the Enserch Corporation of Dallas.
        The spokesman in Danbury said the Union Carbide Corporation had
    provided its Indian affiliate with ``a process design package
    containing information necessary and sufficient'' for the affiliate to
    arrange the design and construction of the plant and its equipment.
        The spokesman said the corporation had only incomplete information
    on the scrubber, flare tower and other pieces of equipment, and he
    declined to comment on their possible relationship to the accident.
        It was unclear whether the limitations of the safety systems
    resulted from the guidelines provided by the Union Carbide Corporation
    or from the detailed designs.
        Employees at the plant recalled after the accident that during the
    evening of Dec. 2 they did not realize how high the pressures were in
    the system. Suman Dey, the senior operator on duty, said he was in the
    control room at about 1 P.M. and noticed that the pressure gauge in one
    tank read 10 pounds a square inch, about five times normal. He said he
    had thought nothing of it.
        Mr. Qureshi, an organic chemist who had been a methyl isocyanate
    supervisor at the plant for 2 years, had the same reaction half an hour
    later. The readings were probably inaccurate, he thought. ``There was a
    continual problem with instruments,'' he said later. ``Instruments
    often didn't work.''

                          LEAK FOUND, BUT TEA IS FIRST

        About 11:30 P.M., workers in the methyl isocyanate structure, about
    100 feet from the control room, detected a leak. Their eyes started to
    water.
        V.N. Singh, an operator, spotted a drip of liquid about 50 feet off
    the ground, and some yellowish-white gas in the same area. He said he
    went to the control room about 11:45 and told Mr. Qureshi of a methyl
    isocyanate leak. He quoted Mr. Qureshi as responding that he would see
    to the leak after tea.
        Mr. Qureshi contended in an interview that he had been told of a
    water leak, not an escape of methyl isocyanate.
        No one investigated the leak until after tea ended, about 12:40
    A.M., according to the employees on duty.
        Such inattention merely compounded an already dangerous situation,
    according to Dr. Varadarajan, the Government scientist.
        He is a 56-year-old organic and biological chemist who holds
    doctoral degrees from Cambridge and Delhi universities and was a
    visiting lecturer in biological chemistry at the Massachusetts
    Institute of Technology. He heads the Council of Scientific and
    Industrial Research, the Government's central research organization,
    which operates 42 national laboratories.
        In the 2 weeks after the accident, Dr. Varadarajan said, he and a
    staff gathered from the research council questioned factory managers at
    Bhopal, directed experiments conducted by the plant's research staff
    and analyzed the results of those tests. Some of the experiments were
    conducted on methyl isocyanate that remained at the Bhopal plant after
    the accident, he said, and some were designed to measure the
    reliability of testing procedures used at the factory.
        Dr. Varadarajan said in a long interview that routine tests
    conducted at the Bhopal factory used a faulty method, so the substance
    may have been more reactive than the company believed.
        For example, he said, the Bhopal staff did not adequately measure
    the incidence in methyl isocyanate or the possible effects of chloride
    ions, which are highly reactive in the presence of small amounts of
    water. Chlorine, of which chloride is an ion, is used in the
    manufacture of methyl isocyanate.
        Dr. Varadarajan argued that the testing procedure used at Bhopal
    assumed that all of the chloride ions present resulted from the
    breakdown of phosgene and therefore the tests measured phosgene, not
    chloride ions. Phosgene is used in the manufacture of methyl
    isocyanate, and some of it is left in the compound to inhibit certain
    chemical reactions.
        When his staff secretly added chloride ions to methyl isocyanate to
    be tested by the factory staff, Dr. Varadarajan said, the tests
    concluded that 23 percent of the chloride was phosgene.
        ``As yet,'' the scientist said, ``Union Carbide has been unable to
    provide an unequivocal method of distinguishing between phosgene and
    chloride'' in methyl isocyanate.

                            TESTS ``MADE ROUTINELY''

        The Union Carbide spokesman in Danbury said: ``Tests for chloride-
    containing materials, including chloride ions in the tank are made
    routinely.''
        Dr. Varadarajan said his staff had produced its own hypotheses of
    the accident's causes after Union Carbide failed to provide any, even
    on request.
        The spokesman in Danbury said that a team of ``exceptionally well
    qualified'' chemists and engineers from Union Carbide had been studying
    the accident for 7 weeks ``and still has not been able to determine the
    cause.'' He added: ``Anyone who attempts to state what caused the
    accident would be only speculating unless he has more facts than we
    have and has done more analysis, tests and experiments than we have.
    Anyone who speculates about the cause of the accident should
    conspicuously label it as speculation.''
        Dr. Varadarajan's analysis, along with internal Union Carbide
    documents and conversations with workers, offers circumstantial
    evidence for at least one explanation of what triggered the accident.
        There were 45 metric tons, or about 13,000 gallons, of methyl
    isocyanate in the tank that leaked, according to plant workers. That
    would mean the tank was 87 percent full.
        Union Carbide's spokesman in Danbury said the tank contained only
    11,000 gallons of the chemical, ``hich was well below the recommended
    maximum working capacity of the 15,000-gallon tank.''
        However, even that lower level--73 percent of capacity--exceeds the
    limit set in the Bhopal operating manual, which says: ``Do not fill MIC
    storage tanks beyond 60 percent level.'' MIC is the abbreviation for
    methyl isocyanate.
        And the parent corporation's technical manual suggests an even
    lower limit, 50 percent.
        The reason for the restrictions, according to technical experts
    formerly employed at the plant, was that in case of a large reaction
    pressure in the storage tank would rise less quickly, allowing more
    time for corrective action before a possible escape of toxic gas.
        For 13,000 gallons of the chemical, the amount reported by the
    plant staff, to have reacted with water, at least 1.5 tons or 420
    gallons of water would have been required, according to Union Carbide
    technical experts.
        But those experts said that an analysis of the tank's contents had
    not disclosed water-soluble urea, or biuret, the normal product of a
    reaction between water and methyl isocyanate.
        Furthermore, all of those interviewed agreed that it was highly
    unlikely that 420 gallons of water could have entered the storage tank.

                            HYPOTHESIS ON THE CAUSE

        Those observations led Dr. Varadarajan and his staff to suggest
    that there may have been another reaction: water and phosgene.
    Phosgene, which was used as a chemical weapon during World War I,
    inhibits reactions between water and methyl isocyanate because water
    selectively reacts first with phosgene.
        But Dr. Varadarajan said his study had found that the water-
    phosgene reaction produced something not suggested in the Union Carbide
    technical manual: highly corrosive chloride ions, which can react with
    the stainless steel walls of a tank, liberating metal corrosion
    products--chiefly iron--and a great deal of heat.
        The heat, the action of the chloride ions on methyl isocyanate,
    which releases more heat, and the chloride ions' liberation of the
    metals could combine to start a runaway reaction, he said.
        ``Only a very small amount of water would be needed to start a
    chain reaction,'' he said, estimating the amount at between one pint
    and one quart.
        Beyond its routine checks for the presence of chloride, the
    corporate spokesman said in Danbury, Union Carbide specifies that tanks
    be built of certain types of stainless steel that do not react with
    methyl isocyanate. He did not say whether the specified types of
    stainless steel react with chloride ions.
        Dr. Varadarajan said his hypothesis had been confirmed by
    laboratory experiments in which the methyl isocyanate polymerized, or
    turned into a kind of plastic, about 15 tons of which was found in the
    tank that leaked.

                          OTHER CONTAMINANTS POSSIBLE

        But that is not the only possible explanation of the disaster at
    Bhopal. Although water breaks down methyl isocyanate in the open air,
    it can react explosively with the liquid chemical in a closed tank. Lye
    can also react with it in a closed tank, but in the gas neutralizer, or
    scrubber, a solution of water and lye neutralizes escaping gas. Beyond
    water and lye, methyl isocyanate reacts strongly, often violently, with
    a variety of contaminants, including acids, bases and metals such as
    iron.
        Most of those contaminants are present at the plant under certain
    conditions. Water is used for washing and condenses on pipes, tanks and
    other equipment colder than the surrounding air. Lye, or sodium
    hydroxide, a base, is sometimes used to clean equipment. Metals are the
    corrosion products of the stainless steel tanks used to store methyl
    isocyanate.
        Union Carbide Corporation's technical manual on methyl isocyanate,
    published in 1976, recognizes the dangers. It says that metals in
    contact with methyl isocyanate can cause a ``dangerously rapid''
    reaction. ``The heat evolved,'' it adds, ``can generate a reaction of
    explosive violence.'' When the chemical is not refrigerated, the manual
    says, its reaction with water ``rapidly increases to the point of
    violent boiling.'' The presence of acids or bases, it adds, ``greatly
    increases the rate of the reaction.''

                            SOURCES OF CONTAMINANTS

        Investigators from both Union Carbide India and its parent
    corporation have found evidence of at least five contaminants in the
    tank that leaked, according to nuclear magnetic resonance spectrographs
    that were obtained by The New York Times and analyzed by two Indian
    technical experts at the request of The Times. Among the contaminants,
    a senior official of the Indian company said, were water, iron and lye.
        The water came from the improperly sealed pipe that had been
    washed, workers speculated, or perhaps was carried into the system
    after it had condensed in nitrogen that is used to replace air in tanks
    and pipes to reduce the chance of fire.
        In the days before the accident, workers said, they used nitrogen
    in an unsuccessful attempt to pressurize the tank that leaked on Dec.
    3. The nitrogen is supposed to be sampled for traces of moisture, but
    ``we didn't check the moisture all the time,'' said Mr. Qureshi, the
    supervisor.
        During the same period, the workers said, they added lye to the
    scrubber, which is connected to the storage tanks by an intricate set
    of pipes and valves that are supposed to be closed in normal conditions
    but that workers said were sometimes open or leaking.
        Dr. Varadarajan said he was particularly troubled that, in the
    absence of what he considered sufficient basic research on the
    stability of commercial methyl isocyanate, it was stored in such large
    quantities. ``I might keep a small amount of kerosene in my room for my
    stove,'' he said, ``but I don't keep a large tank in the room.''
        The Union Carbide Corporation decided that it would be more
    efficient to store the chemical in large quantities, former officials
    of the Indian affiliate said, so that a delay in the production of
    methyl isocyanate would not disrupt production of the pesticides of
    which it is a component.
        Many plants store methyl isocyanate in 52-gallon drums, which are
    considered safer than large tanks because the quantity in each storage
    vessel is smaller. The chemical was stored in drums at Bhopal when it
    was imported from the United States. Tank storage began in 1980, when
    Bhopal started producing its own methyl isocyanate.
        The Union Carbide technical manual for methyl isocyanate suggests
    that drum storage is safer. With large tank storage, it says,
    contamination--and, therefore, accidents--are more likely. The drums do
    not typically require refrigeration, the manual says. But it cautions
    that refrigeration is necessary for bulk storage.

                              TRAINING WAS LIMITED

        Although the storage system increased the risk of trouble at
    Bhopal, the plant's operating manual for methyl isocyanate offered
    little guidance in the event of a large leak.
        After telling operators to dump the gas into a spare tank if a leak
    in a storage tank cannot be stopped or isolated, the manual says:
    ``There may be other situations not covered above. The situation will
    determine the appropriate action. We will learn more and more as we
    gain actual experience.''
        Some of the operators at the plant expressed disatisfaction with
    their own understanding of the equipment for which they were
    responsible.
        M.K. Jain, an operator on duty on the night of the accident, said
    he did not understand large parts of the plant. His 3 months of
    instrument training and 2 weeks of theoretical work taught him to
    operate only one of several methyl isocyanate systems, he said. ``If
    there was a problem in another MIC system, I don't know how to deal
    with it,'' said Mr. Jain, a high school graduate.
        Rahaman Khan, the operator who washed the improperly sealed pipe a
    few hours before the accident, said: ``I was trained for one particular
    area and one particular job. I don't know about other jobs. During
    training they just said, `These are the valves you are supposed to
    turn, this is the system in which you work, here are the instruments
    and what they indicate. That's it.' ''

                               IT WAS NOT MY JOB

        As to the incident on the day of the accident, Mr. Khan said he
    knew the pipe was unsealed but ``it was not my job'' to do anything
    about it.
        Previously, operators say, they were trained to handle all five
    systems involved in the manufacture and storage of methyl isocyanate.
    But at the time of the accident, they said, only a few of about 20
    operators at Bhopal knew the whole methyl isocyanate plant.
        The first page of the Bhopal operating manual says: ``To operate a
    plant one should have an adequate knowledge of the process and the
    necessary skill to carry out the different operations under any
    circumstances.''
        Part of the preparatory process was ``what if'' training, which is
    designed to help technicians react to emergencies. C.S. Tyson, a Union
    Carbide inspector from the United States who studied the Bhopal plant
    in 1982, said recently that inadequate ``what if'' training was one of
    the major shortcomings of that facility.
        Beyond training, workers raised questions about lower employment
    qualifications. Methyl isocyanate operators' jobs, which once required
    college science degrees, were filled by high school graduates, they
    said, and managers experienced in dealing with methyl isocyanate were
    often replaced by less qualified personnel, sometimes transfers from
    Union Carbide battery factories, which are less complex and potentially
    dangerous than methyl isocyanate operations.

                            MAINTENANCE TEAM REDUCED

        The workers also complained about the maintenance of the Bhopal
    plant. Starting in 1984, they said, nearly all major maintenance was
    performed on the day shift, and there was a backlog of jobs. This
    situation was compounded, the methyl isocyanate operators said, because
    since 1983 there had been 6 rather than 12 operators on a shift, so
    there were fewer people to prepare equipment for maintenance.
        As a result of the backlog, the flare tower, one of the plant's
    major safety systems, had been out of operation for 6 days at the time
    of the accident, workers said. It was awaiting the replacement of a 4-
    foot pipe section, they said, a job they estimated would take 4 hours.
        The vent gas scrubber, the employees said, had been down for
    maintenance since October 22, although the plant procedures specify
    that it be ``continously operated'' until the plant is ``free of toxic
    chemicals.''
        The plant procedures specify that the chiller must be operating
    whenever there is methyl isocyanate in the system. The Bhopal operating
    manual says the chemical must be maintained at a temperature no higher
    than 5 degrees centigrade or 41 degrees Fahrenheit. It specifies that a
    high temperature alarm is to sound if the methyl isocyanate reaches i 1
    degrees centigrade or 52 degrees Fahrenheit.
        But the chiller had been turned off, the workers said, and the
    chemical was usually kept at nearly 20 degrees centigrade, or 68
    degrees Fahrenheit. They said plant officials had adjusted the
    temperature alarms to sound not at 11 degrees but at 20 degrees
    centigrade.
        That temperature, they maintained, is well on the way to methyl
    isocyanate's boiling point, 39.1 degrees centigrade, or 102.4 degrees
    Fahrenheit. Moreover, Union Carbide's 1976 technical manual warns
    specifically that if methyl isocyanate is kept at 20 degrees centigrade
    a contaminant can spur a runaway reaction. The manual says the
    preferred temperature is 0 degrees centigrade, or 32 degrees
    Fahrenheit.
        If the refrigeration unit had been operating, a senior official of
    the Indian company said, it would have taken as long as 2 days, rather
    than 2 hours, for the methyl isocyanate reaction to produce the
    conditions that caused the leak. This would have given plant personnel
    sufficient time to deal with the mishap and prevent most, if not all,
    loss of life, he said.
        The methyl isocyanate operating manual directs workers unable to
    contain a leak in a storage tank to dump some of the escaping gas into
    a 13,000-gallon tank that was to remain empty for that purpose. But the
    workers on duty said that during the accident they never opened the
    valve to the spare tank, and their supervisors never ordered them to do
    so. The workers said they had not tried to use the spare tank because
    its level indicator said it was 22 percent full and they feared that
    hot gas from the leaking tank might spark another reaction in the spare
    vessel.
        The level indicator, according to the operators on duty that night,
    was wrong. The spare tank contained only 437 gallons of methyl
    isocyanate, not the 3,300 gallons indicated by the gauge.
        Nonetheless, standard procedures had been violated. The operating
    manual says, ``Always keep one of the storage tanks empty. This is to
    be used as dump tank during emergency.'' It provides that any tank less
    than 20 percent full be emptied completely.
        The spokesman in Danbury said, ``Our investigators did find some
    MIC in a spare tank,'' adding: ``We do not know when and how the MIC
    got into the spare tank.''
                                     ______

                 [From the Los Angeles Times, January 6, 1985]

                Flaws Found in Emergency Plans Near Toxic Plants

                            (By Richard T. Pienciak)
        It is known as Chemical Valley, a 20-mile stretch of poison makers
    squeezed into a narrow chasm plagued by a slow breeze and frequent fog.
        The region is filled with chemical giants such as Monsanto, Allied
    Chemical, E.I. duPont de Nemours, Exxon, FMC and Union Carbide--members
    of an industrial club that claims the world's best safety record but is
    also burdened with the world's worst industrial accident.
        Until a Dec. 3 leak of methyl isocyanate from a Union Carbide
    facility in India killed more than 2,000 persons and left 60,000
    injured, MIC also had been produced at a Carbide plant here.
        Since then, many of the valley's 250,000 residents, and no doubt
    millions more clustered around other U.S. chemical centers, have been
    wondering how they would fare in such a crisis.
        An Associated Press study of several regions with large
    concentrations of chemical plants indicates that emergency plans in
    those areas often lack the coordination and resources needed to make
    them workable.
        Emergency plans often lack the coordination and resources to make
    them workable.
        While emergency preparedness around nuclear plants is required and
    supervised by the Federal Emergency Management Agency, no Federal
    regulations require plans for areas near chemical facilities.
        Frequently, there are lengthy, elaborate plans, but they do not
    tell the general public where to go and what to do if an evacuation is
    necessary. In West Virginia, for example, there are no provisions for
    evacuating the elderly, schoolchildren, prisoners or persons without
    autos.
        So-called transportation plans are more like traffic plans,
    detailing where police would stand to direct fleeing residents and to
    block roads approaching the disaster.
        The Associated Press found that participation of chemical and oil
    refining companies in local emergency planning is usually voluntary,
    with State and county officials rarely having the statutory ability, or
    expertise, to oversee existing industry plans.
        Plans for the public are not specific about possible emergency
    sites or kinds of incidents. Local officials generally do not know what
    kinds of chemicals are in the plants or what damage they are capable of
    inflicting.
        In a crisis, the decisions of if and when the public should be
    informed about an explosion or leak are generally left to the
    discretion of industry.
        For the most part, chemical companies face no fines or other
    disciplinary measures for inadequate emergency planning or for failing
    to inform the public when events dictate they should.
        In all, many of the communities seem to have an attitude of ``it
    can't happen here.'' Nowhere are the problems with emergency
    preparedness more apparent than in Chemical Valley, a region filled
    with phosgene, chlorine and a variety of phenols.
        Chemical Valley runs eastward through Kanawha County from Nitro, a
    town named for its nitroglycerin production in World War I, past
    Institute and the State capital of Charleston and on to Belle.

                              ``POOR VENTILATION''

        The wind usually runs slow and to the east, from the largest plants
    toward the major population centers. The valley's ``ventilation is
    historically poor,'' said Carl G. Beard III, director of the State Air
    Pollution Control Commission. ``Air stagnation is frequent.'' The
    valley has four general emergency plans--one each for the State police,
    State emergency services, the county and the industrial emergency
    council--and one for each major plant as well.
        The county plan emphasizes protection from nuclear fallout after an
    enemy attack. The State plan says ``the primary responsibility for
    evacuation lies with local government.'' At times, the plans contradict
    each other, especially on the length and type of warning sirens.
        The few evacuation drills held are only for plant employees. The
    general public doesn't participate.

                              ``DIFFERENT SOUNDS''

        ``To refer to it as an evacuation plan is a misnomer. It's
    pathetic,'' said Donald Wilson, a schoolteacher from Institute.
    ``You're supposed to listen to a number of different sounds, go outside
    and sense the wind, and then get involved in a lot of traffic.'' Under
    the plans, many emergency duties would fall on local fire departments,
    the overwhelming majority of which are volunteer squads lacking the
    specialized equipment needed to cope with a major chemical explosion or
    fire.
        One volunteer team has four gas masks for 12 men.
        ``You can't ask people who fund themselves on bake sales and
    community suppers to finance the purchase of this type of equipment.
    We're talking about very sophisticated, expensive equipment,'' Rep.
    Barbara Mikulski (D-Md.) said.
        In some other parts of the country, things are little better.
        Two years ago officials near Taft, La.--situated along a 120-mile
    stretch of the Mississippi River dubbed Chemical Row--were able to
    evacuate about 17,000 persons in 2\1/2\ hours after a Union Carbide
    plant exploded.

                                DANGER AT PLANT

        But a reconstruction of the accident compiled for the owners of a
    nearby nuclear plant showed that Union Carbide knew for hours that its
    tank was in danger of blowing up but delayed before informing local
    emergency preparedness officials.
        In addition, the reconstruction showed, local Union Carbide workers
    were calling home to order their families to evacuate more than 2 hours
    before the first call to emergency officials.
        In Texas' Golden Triangle, a dense complex of oil refineries and
    petrochemical plants east of Houston, the role of coordinating agency
    seems to change from crisis to crisis.
        ``There still is no clear delineation of who does what. It still
    has not been, in my mind, ultimately resolved,'' said Michael Peters, a
    regional director with the Texas Air Control Board. ``There is no real
    coordinating agency in that sense. There's nothing really written down,
    no formalized plan.''
        Several Members of Congress got a glimpse of Chemical Valley's
    emergency preparedness at a hearing last month at West Virginia State
    College, which is adjacent to the Union Carbide facility.
        Mikulski asked plant manager Hank J. Karawan to explain the county
    plan, which she held up in her hand. ``I'm unaware of that plan. I know
    about the KVIEPC plan,'' Karawan said, referring to the Kanawha Valley
    Industrial Emergency Planning Council plan.
        ``One group thinks that this is the plan, and the other group
    thinks the other one is the plan,'' Mikulski said.
        In September, Union Carbide, the region's largest employer with
    7,000 jobs, sent a letter telling residents near its Institute plant to
    go outside and ``check wind direction'' if they hear continuing blasts
    from the plant steam whistle.
        ``If wind is blowing from plant toward you, immediately evacuate by
    going crosswind. In the case of a gas release you should be easily able
    to walk far enough crosswind to get away from the fumes,'' the letter
    said.

                                 SWIMMING RIVER

        But citizens point out that, if the wind is blowing in its usual
    eastward direction, crosswind would mean swimming the Kanawha River or
    scrambling up a mountain ridge.
        At a public meeting attended by about 100 residents a week after
    the leak in India, State health director Dr. L. Clark Hansbarger
    suggested that residents, before going outside, put wet cloths over
    their mouths. He also said: ``This area's emergency plan is a model for
    the State and indeed the nation.'' The Charleston Gazette expressed its
    pique in an editorial, comparing the plan to that of some
    underdeveloped country that ``prepared its aspiring astronauts for the
    rigors of space by requiring them to occupy metal drums and old
    automobile tires and rolling them down hillsides.'' It is no surprise
    that, with so many emergency plans, there is confusion over the meaning
    of each plan's warning signals.
        Union Carbide, for example, tells residents that in the event of an
    emergency with possible offsite consequences it will sound its steam
    whistle for 2 seconds every 3 seconds for a 2-minute period, followed
    by 2-second blasts every 30 seconds until the emergency ends.

                              OTHER POSSIBILITIES

        There are three other alarm possibilities, according to a copy of
    the county emergency plan provided by William H. White, director of
    Kanawha County Emergency Services.
        First comes the nuclear attack warning signal, ``a 3-to-5 minute
    wavering tone on sirens, or a series of short blasts on horns or other
    devices signifying that an actual attack against the county has been
    detected. This signal shall be used for no other purpose or meaning.''
    However, a penned addition says the attack warning signal will also be
    used for ``disaster evacuation.'' Another penned addition says the
    attack-evacuation signal will be ``3 off--3 on--3 off.'' The third
    possibility mentioned in the county plan is a 3-to-5 minute steady tone
    signal ``to gain public attention in the event of a peacetime
    emergency.'' In the midst of the congressional hearing, a loud siren
    started to blow. ``What do we do now?'' Rep. Gerry Sikorski (D-Minn.)
    asked.
        ``I think that's the campus whistle, but I'm not sure,'' said Paul
    Nuchims, an art professor who was testifying at the time.
        No one was timing the length of the alarm.
        ``Do you have sirens often?'' Rep. Henry A. Waxman (D-Los Angeles),
    the subcommittee chairman asked.
        ``That's the point,'' said Nuchims, who lives 300 yards from the
    Carbide plant. ``We hear all sorts of sirens all the time. We don't
    understand which ones are which, so what happens is we do nothing.''
        Fifteen minutes later, enough time for any leaking gas to have
    reached the campus, it was announced that the alarm had sounded to call
    members of the Institute Volunteer Fire Department to a house fire.
                                     ______

                   [From the Baltimore Sun, October 17, 2001]

                  When Chemical Safety is a Matter of Security

                               (By Heather Dewar)

        Precautions: Steps are being taken to prevent accidents--or
    attacks--at Baltimore industrial plants, which could affect the area's
    residents.
        When a train loaded with dangerous chemicals derailed and caught
    fire in a downtown tunnel this summer, Baltimoreans were aghast at the
    hellish spectacle of black smoke pouring out of sewer grates and
    manhole covers. But chemical accident experts looked at the train's
    chemical manifest and breathed a sigh of relief.
        Thank heaven, they agreed, the accident didn't involve something
    really dangerous--like a 90-ton tank car filled with potentially deadly
    chlorine gas.
        Since September 11, emergency planners here and across the country
    face a far more unsettling concern: that factories and municipal water
    and sewage plants could become targets for terrorists. Their chemical
    stockpiles can be turned into weapons--and are sometimes lightly
    guarded. In Baltimore, as in practically every other American city,
    it's a real concern--one that counter-terrorism planners have been
    dealing with ``every day since September 11,'' said Mayor Martin
    O'Malley.
        Five Baltimore industrial and municipal plants have 90 tons or more
    of chlorine on their property at any time, according to reports the
    facilities provided to the Environmental Protection Agency that were
    made public last year.
        Chlorine, widely used in water and wastewater treatment and in
    manufacturing, was the first modern chemical weapon, used by German and
    British forces to poison enemy troops en masse during World War I. It
    is also often released in industrial accidents, according to the
    National Response Center, which tracks oil and chemical spills.
        Up to 1.7 million people--nearly two-thirds of those living in the
    Baltimore metropolitan area--are theoretically within range of the
    poisonous plume that could result if one of the 90-ton tanks failed,
    the Baltimore companies' reports to the EPA show.
        The tanks are double-walled and equipped with safety valves;
    catastrophic failures are rare--but the consequences would be grave.
        In the most-recent such accident, a 90-ton rail car carrying
    chlorine derailed and ruptured in the small town of Alberton, Mont., in
    1996. One man was killed, 350 people were treated for chlorine
    inhalation and about 1,000 people were evacuated. Interstate 90 through
    the town was closed for 17 days.
        Public records on file at EPA headquarters in Washington show that
    31 Baltimore-area plants report keeping large amounts of dangerous
    chemicals. Almost half are city-owned water and wastewater treatment
    facilities, which, as in almost every other community in the country,
    rely on chlorine for disinfection.
        Managers of 14 of the Baltimore-area facilities said a catastrophic
    leak at one of their sites has the potential to injure 100,000 or more
    people who live within the plants' danger zones. The Baltimore-area
    companies estimated that in smaller accidents, considered more likely,
    anywhere from two to 2,300 residents would be endangered.
        An attack on a U.S. chemical plant probably would not cause
    enormous numbers of casualties, said Eric Croddy, a senior researcher
    at the Monterey Institute of International Studies. Nonetheless, he
    said, such an attack could accomplish a terrorist's goal.
        ``It would cause a lot of terror and consternation. It wouldn't
    necessarily cause a lot of deaths,'' said Croddy, who has written a
    book on chemical and biological warfare that is scheduled to be
    published next month.
        ``A terrorist could fail miserably to cause many deaths, but he
    still could succeed,'' Croddy said.
        Responsible officials have known that chemicals stockpiled in
    American communities pose a threat to the public at least since 1984,
    when a leak at a Union Carbide Corp. insecticide plant in Bhopal,
    India, killed more than 2,000 people. In the wake of that accident,
    Congress passed laws requiring companies to tell the public about their
    chemical stockpiles and help communities reduce the risk from
    accidents.
        But in most places, chemical accident prevention and preparedness
    was a low priority, and progress was slow.
        ``We haven't had our Bhopal yet in the United States,'' said Fred
    Millar, an independent chemical safety consultant.
        But last month, the nation experienced something even more
    traumatic: Terrorists ``turned our infrastructure against us as a
    weapon,'' in Millar's words. Suddenly, protecting the public from
    dangerous chemicals became an urgent matter.
        In the weeks since the jetliner attacks on the World Trade Center
    and Pentagon, government and industry have scrambled to improve
    security around hazardous chemical stockpiles. Uniformed police
    officers now help guard factory entrances, and gates that previously
    had been left open are padlocked.
        O'Malley, who has vowed to make Baltimore a national model for
    counter-terrorism, said he believes the odds of an attack on a chemical
    plant are slim.
        ``More people are going to be killed by car accidents, cancer or
    heart disease than by a chemical plume,'' he said.
        Environmental lawyer Rena Steinzor, who has been pushing the city
    to improve emergency preparedness, contends that until now, local
    officials have been complacent about the risk of a large chemical
    incident, whether accidental or deliberate.
        ``The city has had a series of wake-up calls over the years,''
    Steinzor said, ``and lately the alarms have gotten louder. This is
    major unfinished business.'' For years, Federal anti-terrorism studies
    acknowledged that industrial plants are potential ``soft targets'' for
    attackers.
        A study in 1999 by the General Accounting Office called such an
    assault somewhere in the United States ``likely''--though it noted that
    uncontrollable factors like weather would probably limit the damage.
        ``Toxic industrial chemicals can cause mass casualties and require
    little if any expertise or sophisticated methods,'' the GAO study said.
    The office said the FBI should assess the likelihood of terrorist
    attacks using industrial chemicals.
        In 1999, Congress ordered the Justice Department to find out how
    vulnerable U.S. chemical companies are to terrorist attack. They were
    to report back by last August.
        But despite repeated prodding from senators, the Justice Department
    had not begun gathering the information before September 11, blaming a
    lack of funds and confusion about the deadline. Lawmakers are still
    waiting to hear from the Justice Department, said a spokesman for Sen.
    James M. Jeffords, the Vermont Independent who is chairman of the
    Environment and Public Works Committee.
        The only existing Federal study of chemical plants' vulnerability
    to terrorism was conducted in 1999 by the Department of Health & Human
    Services' Agency for Toxic Substances and Disease Registry, which
    specializes in the health effects of hazardous substances.
        Agency staffers surveyed two unnamed communities where chemicals
    are made and reported that antiterrorism measures in government
    buildings were ``excellent,'' but ``security at chemical plants ranged
    from fair to very poor'' and at chemical-shipping sites was ``poor to
    non-existent.'' ``Most security gaps were the result of complacency and
    lack of awareness of the threat,'' the agency reported.
        The study found that many plants failed to take simple
    precautions--for example, they were not fenced or did not do criminal
    background checks of would-be workers.
        Long before the prospect of terrorists turning factories into
    chemical weapons surfaced, Congress required companies to go public
    with ``worst-case'' accident scenarios describing what would happen if
    a large amount of their most dangerous chemical escaped. Local
    companies' reports, filed with the EPA and made public last year, show
    that most people in the Baltimore area live within more than one
    chemical plant's danger zone.
        The EPA classifies 245 chemicals as ``extremely hazardous''--that
    is, capable of causing injury or death. The most common threats to
    Baltimore-area residents are two chemicals that practically everyone
    has at home in much-diluted form: chlorine and ammonia.
        Undiluted chlorine and ammonia are gases that can be stored safely
    only under pressure, as liquids. When exposed to air, they vaporize and
    form thick clouds that cling to the ground. Moderate doses can burn the
    eyes, skin, eyes, throat and lungs. Large doses can cause permanent
    lung damage or death.
        In the reports, 18 of the 31 Baltimore-area facilities said the
    worst accident that could occur at their plants involved chlorine.
    Eight companies said their most dangerous chemical was ammonia, widely
    used in industrial refrigeration.
        ``Chlorine and ammonia account for at least 75 percent of the
    safety concerns in this region and any other region around the
    country,'' said William McHale, head of chemical accident prevention
    for the EPA's MidAtlantic office.
        Troubling as they are, the reports don't provide a full picture of
    the risks. At least 40 more plants have dangerous chemicals onsite m
    large amounts--but not enough to require Federal reporting. And many
    classes of chemicals, like gasoline and propane, are exempt from
    reporting.
        The worst-case reports were meant to teach residents about the
    risks in their back yards, help emergency workers plan for the greatest
    dangers and encourage companies to reduce hazards.
        Safety experts say the law was beginning to accomplish those goals.
        ``Every company that has submitted an (accident scenario)--all of
    them have changed their process in some way,'' McHale said. For
    example, South Baltimore's Condea Vista Co., which makes ingredients
    used in household detergents, is phasing out chlorine.
        The company filed a worst-case report that said 1,560,000 people
    are in the danger zone of the most lethal accident possible at the
    plant. Four other companies reported a similar number of people living
    in their danger zones.
        Within the next few weeks, Condea Vista's process is ``going to be
    a different reaction that does not use chlorine or any other hazardous
    chemical,'' said Dave Mahler, the plant's environmental officer.
        Another large manufacturer, Grace Davison, a Baltimore plant that
    is part of chemical giant W.R. Grace & Co., has eliminated chlorine and
    reduced amounts of several other chemicals, plant managers said.
        Chemical executives dislike the worst-case scenarios, which they
    say are unrealistic and alarmist.
        The guidelines require the companies to assume a rapid, complete
    spill of their most dangerous chemical, figure out how far its toxic
    plume might travel, and draw a circle that includes everything in that
    range.
        Such an incident ``is physically impossible,'' Mahler said. Most
    toxic chemicals don't vaporize that quickly, he said, and the wind
    would limit the spread of a poisonous vapor cloud.
        ``A plume is going to go in one direction in a rather narrow path,
    and you're talking about a small fraction of people in the path of the
    plume,'' he said.
        City firefighters agreed.
        ``When you look at worst-case scenarios, you're looking at a
    situation that is not very credible,'' said Battalion Chief Hector L.
    Torres, spokesman for the Baltimore Fire Department. In a cash-strapped
    city, planning for a worst-case accident ``will have us devoting
    resources in a way that just is not feasible, just not effective.''
    Chemical manufacturers responded to the law by trying to limit public
    access to information about plants' accident scenarios. In 1999, an
    industry association urged the EPA not to post companies' worst-case
    scenarios or accident histories on the Internet, citing concerns about
    terrorism.
        With the FBI sharing the industry's worry, the EPA compromised:
    Though most of the information was available online until recently, the
    public can see the worst-case scenarios only at EPA or Justice
    Department reading rooms, where they are kept under tight security.
        Within days of the attacks of September 11, the EPA removed
    companies' chemical accident scenarios from its Web site. The American
    Chemistry Association, representing 200 manufacturers, has urged the
    EPA to close the reading rooms as well.
        Amy Smithson, a chemical and biological weapons expert at the Henry
    L. Stimson Institute, a Washington think tank, called the decision to
    drop the information from the Internet ``a no-brainer.'' ``Slapping
    information about these facilities up on the World Wide Web so they
    could be searched by chemical and by geographic location was a very bad
    idea,'' Smithson said.
        But chemical-safety advocates take a different view.
        ``This is real head-in-the-sand-type stuff,'' Millar said. ``If we
    continue to keep citizens in the dark, we're just going to add to their
    anxiety. We really need to have very measurable, visible improvements
    in security.'' Before September 11, neither the Federal Government nor
    the chemical industry association offered chemical companies and public
    utilities much guidance on counter-terrorism measures.
        The industry association, which has voiced terrorism concerns since
    the mid-1990s, is working on a counterterrorism manual. On the day of
    the attacks, the group forwarded to its members an EPA bulletin urging
    stepped-up security.
        Association spokesman Jeff Van said most U.S. chemical plants added
    guards and patrols, restricted visitors, and began searching packages
    and shipments.
        Some began running background checks on their own workers and
    required their shippers to do checks on their employees as well. Others
    limited cleaning crews' access. Many are in regular contact with local
    FBI offices, Van said.
        ``We've tried to, as one security professional put it, `screw the
    lid down,' '' Van said.
        The EPA is 2 years behind schedule in preparing counter-terrorism
    recommendations for water utilities, which could face attacks on
    chemical supplies or on wells and reservoirs. The report should be
    finished this winter, EPA's McHale said.
        In the meantime, utility managers in the Middle Atlantic States are
    calling for advice. ``And I'm saying, `monitor your reservoirs and dams
    and make sure the chlorine supplies are locked up.' '' McHale said.
        The Agency for Toxic Substances and Disease Registry, in its 1999
    report, recommended a laundry list of security measures. They include
    routine searches of people, vehicles and bags, video surveillance,
    chemical leak alarms and earthen barriers around chemical tanks to
    protect them and absorb an explosion or spill.
        The report also recommended design changes like moving chemical
    tanks away from roads and reducing or eliminating the use of hazardous
    chemicals.
        Some Baltimore facilities have taken those steps, though others
    lack basic precautions like fences, city officials said.
        ``You have to recognize these plants were built in a different time
    in America when these concerns didn't exist,'' said Louis R. Anemone,
    the former New York police official who is the city's counter-terrorism
    adviser.
        Anemone, hired in the wake of the attacks, said he has recommended
    security improvements to local plant managers.
        ``I've met with absolutely no resistance,'' he said. ``They are all
    aware of the issues, and they've all been extremely cooperative.'' Some
    city-owned facilities that use large amounts of chlorine, like the Back
    River Wastewater Treatment Plant, have sophisticated security systems.
        The plant's chlorine tank and valves are monitored by television
    cameras, tested at the start of every eighthour shift and surrounded by
    ultra-sensitive sensors that sound alarms if they pick up traces of
    chlorine in the air, plant manager Nick Frankos said.
        Similar measures are in place at drinking-water treatment plants,
    city Department of Public Works officials said.
        O'Malley said police officers are posted at all treatment
    facilities but that more needs to be done.
        ``There's places where tanks may need to be moved,'' the mayor
    said. ``There's other places where buildings may need to be built to
    enclose some equipment. We're going to have to invest in perimeter
    security, smart fences'' and other measures.
        It's too soon to say how long the changes might take, how much they
    might cost and where the money would come from, the mayor said.
        Ralph Cullison, who is in charge of environmental services for the
    department's water and wastewater plants, said the utility is
    considering replacing gaseous chlorine with a less-dangerous, watered-
    down version.
        Many utilities are getting rid of gaseous chlorine for safety
    reasons even though the substitutes are more expensive, Cullison said.
        ``We all feel that now that we are in a different world, it will be
    easier to get the support for spending the money to convert than it
    would have been'' before September 11, he said. ``We were going that
    way anyway.'' To the extent that the past is a guide to the future,
    accidents are far more common than assaults on chemical plants.
        During the 1990s there were two publicly disclosed plots to attack
    U.S. chemical plants, the General Accounting Office reported. Both
    involved homegrown criminals, not international terrorists, and the FBI
    foiled both before anyone was harmed.
        Meanwhile, a Federal survey of 13 states reported that 36 people
    died and 537 communities were evacuated because of chemical accidents
    in 1998, the most recent year for which data are available.
        Smithson, the chemical terrorism expert, estimated there are 60,000
    chemical accidents a year in the United States. In the past few months
    in Baltimore, three chemical accidents, including the train derailment,
    have forced residents from their homes, closed main streets, filled
    downtown with smoke and sent manhole coveflying.
        ``I am hoping that in our concern about terrorism we address a far
    more ubiquitous threat of accidents,'' said Steinzor, the environmental
    lawyer.
        ``From a public health point of view it doesn't matter what the
    cause is,'' she said. ``It only matters what you do to protect
    people.''
                                   __________
                  [From the Houston Chronicle, July 23, 2001]

                 Tunnel Damage Assessed After Derailment, Blaze

        Baltimore--Crews worked to pull the last smoldering boxcars from a
    downtown tunnel Sunday, days after a train derailment and fire shut
    down parts of the city and disrupted Internet service across the
    country.
        Above the 1\1/2\-mile tunnel, a broken 40-inch water main continued
    gushing onto downtown streets and public works officials said damage to
    the street and tunnel may be significant.
        City crews said the leak--which has spewed at least 60,000 gallons
    of water--cannot be stopped until the fire is extinguished and the
    tunnel walls are declared safe. The water main break was just feet
    above the 106-year-old tunnel, said public works director George
    Winfield.

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      Responses of Rena I. Steinzor to Additional Questions from Senator
                                    Corzine
        Question 1. The testimony of Fred Webber points out that there are
    many existing safety requirements that apply to chemical facilities. In
    your view, do the authorities and security and hazard reduction
    measures contained in S. 1602 exist elsewhere in current law?
        Response. No, they do not. S. 1602 imposes a deadline for the
    issuance of comprehensive regulations by EPA that would require
    chemical facilities to reduce hazards by eliminating the use of acutely
    toxic chemicals as a remedy of first--not last--resort. There is no
    other provision in Federal law that requires facilities to eliminate
    the hazard if at all possible, as opposed to making plans to contain it
    in the event of a terrorist attack, or, for that matter, a routine
    accident.

        Question 2. The American Chemistry Council and SOCMA testified
    about the security and transportation guidelines that they have
    developed and are working to implement. What do you think of the
    adequacy of the guidelines? Do you think that a voluntary approach to
    implementing such guidelines would be more effective than the
    regulatory approach embodied in S. 1602?
        Response: I have reviewed the ACC/SOCMA guidelines with great care
    and was unable to find a single allusion to the possibility that the
    best way to prevent grave injury in the event of a terrorist attack is
    to remove the hazardous targets from a facility. It is intuitively
    obvious that no amount of site security will prove as effective as
    substituting chemicals that will not prove acutely toxic when released,
    no matter what the cause. This obvious solution should be the primary
    focus of any reevaluation of a facility's vulnerability in the wake of
    the tragedies that began on September 11, 2001. The guidelines' refusal
    to even mention the possibility of eliminating the hazard as an
    alternative would be laughable if the underlying subject was not so
    very serious.
        Because the chemical industry exhibits such a blind spot with
    respect to the absolutely crucial option of hazard reduction, we can
    have no faith in the effectiveness of voluntary measures. It is
    extraordinarily unlikely that even a majority of the hundreds of
    thousands of chemical facilities will strengthen site security
    voluntarily, especially given the downturn in the economy and the
    relative expense of such measures. Even if the majority did implement
    the guidelines, however, the omission of hazard reduction as the remedy
    of first resort would squander our opportunity to act to avert another
    disaster.
        It is worth noting that most of the terrorist attacks launched on
    American targets in the last decade or two have involved driving trucks
    full of explosives up to a facility's gates and detonating these mobile
    bombs. No amount of barbed wire, security guards, expensive lighting,
    or warning systems can prevent such attacks. The only way to safeguard
    public health is to ensure that if they do occur, the substances
    targeted by the explosion are the least toxic that can be used to carry
    out the facility's production needs.

                                   __________
                 Statement of the American Petroleum Institute

                                  INTRODUCTION

        API is pleased to provide a statement for the record on S. 1602,
    the Chemical Security Act of 2001. The American Petroleum Institute
    (API) is the leading national association for the domestic U.S.
    petroleum industry. API's membership includes over 400 companies
    involved in all aspects of petroleum operations including exploration
    and production, refining, pipeline, marine and on-road transportation
    activities.
        API opposes S. 1602. It will have an adverse impact on the
    petroleum industry and on the American economy. It will misdirect
    critical resources that should be applied to real security-risk
    reduction activities and it would not improve the safety or the
    security of our nation's energy supply or the welfare of our citizens.
        The bill covers all petroleum facilities in the U.S. Oil and gas
    production facilities, pipelines, refineries, bulk terminals and
    storage facilities, service stations and all other installations that
    produce, refine, process, transport, store or handle crude oil and
    petroleum products or chemicals will be covered by this bill. In
    addition to stationary sources, the bill covers containers, vessels,
    tanks trucks, rail tank cars, and marine vessels. This overly broad
    bill adds yet another unnecessary and overlapping layer of regulations
    on the energy infrastructure at a time when our industry is doing all
    it can to address short and long term adequacy of fuel supplies and
    other petroleum products for this nation.

                                   BACKGROUND

        The petroleum industry is a critical part of our nation's energy
    infrastructure and continues to make a significant contribution to
    America's economic growth and national security. In addition to
    manufacturing consumer fuel products such as natural gas, gasoline and
    home heating fuel, our industry provides the feedstocks used to make
    everything from the clothes we wear, to the military equipment that
    helps protect our American way of life. We do this in a safe and
    environmentally compatible manner. Over the past 10 years, the demand
    for energy products has pushed capacity to record levels, while
    providing the consumer with affordable products at near record low
    prices. During this same time, the safety record in the industry has
    improved by over 50 percent. In fact, Bureau of Labor Statistics data
    show that the petroleum industry is one of the safest industries in
    America.
        The petroleum industry has a long history of developing effective
    security practices to protect its critical infrastructure. The recent
    events of September 11th have further increased the industry's
    awareness of the importance of security. Along with many private
    initiatives, the industry has developed a trusted partnership with
    Federal, state and local safety and law enforcement authorities. The
    industry has recently engaged in an increased level of cooperation with
    the Federal Government to evaluate and develop effective security
    practices. However, in this environment of heightened sensitivity, we
    must all avoid overreacting. Any new laws or regulations should address
    the right issues, focus resources, and provide real security benefit.
    This statement discusses the current security initiatives our industry
    is implementing and the shortcomings of S. 1602.
        Since September 11th, API member companies have tightened security
    practices in the United States. API members include petroleum companies
    and service and supply companies with international operations. These
    companies have expertise in operating in high-risk parts of the world.
    U.S. facilities have benefited from that experience by incorporating
    these security practices into their own operations. Some examples
    include: increased perimeter security at fixed-facilities through
    additional security guards and surveillance equipment; restricted
    vehicle access to and from facilities; and more extensive background
    checks.
        API is also working with several Federal agencies to establish a
    security network to streamline communications. Individual companies
    have established an Energy Information Sharing and Analysis Center
    (ISAC) that will enable our industry and members of the intelligence
    community to share information on incidents, security practices and
    near real-time credible threat information in a secure environment.

           SHORTCOMINGS OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001

        When addressing security in the petroleum industry, security
    experts from the Department of Energy, Department of Transportation,
    Department of Justice and the Office of Homeland Security should be
    assembled to consult with members of the petroleum industry. Following
    are some of the specific shortcomings of S. 1602:
         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
    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 involved in
    transporting hazardous materials may have been, or may be, targeted for
    hijackings or theft for use in potential acts of terrorism. Obviously,
    this is a major concern to our industry, and I commend you for holding
    this hearing today to identify ways to address these threats.
        In my testimony today, I will communicate ATA's longstanding
    involvement in trucking security issues, including issues associated
    with the transportation of hazardous materials and sensitive military
    freight. I also will recommend several potential legislative
    improvements to S. 1602, as introduced, to enhance security in the
    trucking industry without compromising the efficiencies realized
    through the uniform hazardous materials regulations.

      II. ATA'S INVOLVEMENT IN HAZARDOUS MATERIALS TRANSPORTATION SECURITY

        ATA and its members are actively involved in providing safe and
    secure transportation of goods on behalf of customers and their
    consumers. Since 1982, ATA has maintained a Council of members
    dedicated to advancing security and loss prevention issues. The name of
    this organization has undergone numerous changes since its inception,
    and today is known as the Safety & Loss Prevention Management Council
    (Safety Council). The Safety Council has two committees, the Security
    Committee and the Claims and Loss Prevention Committee, that have
    addressed many trucking security issues, including driver and vehicle
    security, cargo security, and facility security. The committees consist
    of security directors, many of whom are former law enforcement
    personnel, from a broad array of America's leading motor carriers. The
    committees publish guidelines and educational materials to assist motor
    carriers to enhance the security of their operations.
        Presently, the transportation of hazardous materials must comply
    with the comprehensive Federal hazardous materials regulations, which
    are adopted and enforced by the states. Therefore, motor carriers
    involved with transportation of hazardous materials do work with the
    states, and their respective permit and registration programs if
    applicable, to increase transportation safety and prepare for emergency
    response activities.
        Certain classes of hazardous materials are more regulated than
    others. For instance, high-level nuclear wastes from power plants are
    closely monitored by several Federal agencies, including the Department
    of Energy (DOE) and Department of Transportation (DOT). Motor carriers
    involved in moving this material are pre-screened and approved by DOE.
    In fact, the trucking industry played an integral role in the
    development of the Commercial Vehicle Safety Alliance's (CVSA) Level VI
    enhanced radioactive transporter inspection criteria, which is
    specifically designed to afford a high level of driver, vehicle, and
    load scrutiny prior to the truck leaving the shipper's facility.
        Military shipments are another category of specific concern.
    Military shipments of Security Risk Category I and II, Arms, Ammunition
    and Explosives (SRC I & II, AAE), are highly regulated, as are lesser
    Class I explosive shipments of the Department of Defense (DOD). Prior
    to transporting these materials, motor carriers must be approved by the
    DOD, and after approval, they are closely monitored. Drivers are
    carefully selected and must successfully complete security background
    checks. Motor carrier terminals must meet certain levels of security as
    prescribed by the Military Traffic Management Command (MTMC). And,
    shipments of SRC I & II AAE must be transported directly from point of
    origin to destination with minimal delay.
        Since October 2000, ATA has worked closely with MTMC through ATA's
    Government Traffic Policy Committee (prior to October 2000, the now-
    defunct Explosive Carriers Conference of the ATA performed that task)
    on a number of issues regarding safety and security of DOD shipments.
    Deliberations continue on MTMC's newest policies and procedures for
    transportation of SRC I & II AAE, including the recently proposed
    standards for motor carrier terminals. ATA has provided MTMC with
    valuable information on possible security concerns and related
    solutions. The trucking industry views these measures as paramount to
    the safe and efficient transportation of these materials, and will
    continue to work with MTMC to see that AAE shipments arrive securely at
    their proper destination.
        ATA also worked with Sandia Laboratories to gather information for
    its Department of Justice (DOJ) study entitled the ``Chemical Plant
    Vulnerability Assessment Project.'' This study, which examined the
    vulnerability of chemical plants that produce chemicals of mass
    destruction to terrorist attack and included the transportation chain,
    was presented to the ATA Safety Council's Hazardous Materials Committee
    in September 2001. ATA's Committee members provided information to
    Sandia Laboratories earlier in the year concerning transportation
    security issues of these types of hazardous materials and will continue
    to support this important project.
        The safe, efficient and secure movement of hazardous materials is
    of great importance to the trucking industry. Through work with DOT,
    CVSA, MTMC, Sandia Labs, and a multitude of associations whose members
    produce chemicals and hazardous materials, ATA and its members have
    demonstrated that secure transportation of hazardous materials is a
    primary concern. ATA will continue to work with interested parties to
    ensure that the transportation of hazardous materials remains one of
    the safest transportation activities in the world.

    III. THE TRUCKING INDUSTRY'S SUPPORT IN THE AFTERMATH OF SEPTEMBER 11TH

    Assistance in Relief Efforts
        In the aftermath of September 11, the trucking industry worked
    around the clock to support the relief efforts in New York and
    Washington by delivering critical cargo to the rescue workers. For
    example, the Federal Emergency Management Agency worked closely with
    the New Jersey Motor Transport Association to coordinate truck efforts
    in and around New York City. Emergency responders and trucking
    executives coordinating the recovery applauded trucking for its rapid
    response after the attacks.
        As part of their support efforts, trucking companies delivered all
    types of supplies and equipment to the attack sites including medical
    supplies, earth moving equipment, communications equipment, emergency
    generators, mobile lighting trucks for nighttime rescue work,
    respirators, coveralls, protective gloves, blankets, and thousands of
    pounds of food and drinks. In addition, many dump truck drivers showed
    up to volunteer their services and worked 12-hour shifts.

    Additional Security Measures Taken by the Trucking Industry
        Motor carriers throughout the trucking industry voluntarily took a
    number of measures to increase the security of their operations
    immediately following the attacks. Many motor carriers re-evaluated
    their overall security procedures for pick-up and delivery, for their
    service locations, terminals and loading-dock facilities, and for
    dispatch operations to vehicles in cities and on the road. In addition
    to requesting their personnel to report any suspicious activity to law
    enforcement personnel, other examples of actions taken include:
         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 website, that it continues to update as additional
    information becomes available. ATA continues to stand ready to assist
    DOT, the FBI, and any other government agency that needs assistance in
    these unprecedented times.

               IV. THE TRUCKING INDUSTRY'S CONCERNS WITH S. 1602

        ATA supports the laudable goal of minimizing the risk of criminal
    and accidental releases of hazardous materials; however, S. 1602
    imposes a new regulatory regime that likely will frustrate the safe and
    efficient movement of these materials. The proposed legislation does
    not adequately distinguish the risks presented by stationary chemical
    storage and production facilities from the risks inherent in the
    transportation of hazardous materials.

    Managing the Risks from Mobile Sources
        The proposed legislation does not adequately distinguish the risks
    from hazardous materials storage and production from the risks of
    transporting such materials. For example, while the creation of buffer
    zones around chemical storage and production facilities may be an
    acceptable way to reduce ancillary damage that flows from the
    accidental or criminal release of substances of concern, such a
    requirement is completely unworkable as applied to the transportation
    of hazardous materials. It is virtually impossible to transport
    hazardous materials over the road while maintaining a buffer zone
    around those materials. S. 1602 should be rewritten to make clear that
    the buffer zone requirement, if implemented, applies only to stationary
    sources. We also note that buffer zones may be problematic for a large
    number of trucking terminals that are storing petroleum products. Many
    of these terminals are located in developed areas, where the additional
    real estate required to create a buffer zone simply is not available.
    RSPA Must be Part of the Regulatory Process
        The Research and Special Programs Administration (RSPA) is the
    agency within the Department of Transportation that has jurisdiction
    over the transportation of hazardous materials. RSPA's regulations
    already address the risks of accidental releases from the
    transportation of hazardous materials, establishing among other things,
    driver training requirements, container requirements, labeling
    requirements, and incident reporting procedures. Rather than assigning
    primary responsibility to RSPA for mandating regulations to address the
    perceived additional risks from criminal releases of hazardous
    materials, S. 1602, excludes RSPA from the process and instead vests
    the Environmental Protection Agency with the responsibility for
    controlling these risks. The EPA, however, does not have the expertise
    to address the risks inherent in the transportation of hazardous
    materials and may promulgate regulations that frustrate the efficient
    movement of such materials in commerce. On the other hand, RSPA has
    expertise in the environmental risks associated with accidental
    releases, and also has the expertise in regulating the transportation
    of hazardous materials. Accordingly, ATA believes that RSPA should
    assume the lead role in promulgating regulations applicable to
    preventing the criminal release of substances of concern while in
    transportation.
        The proposed legislation also requires the lead regulatory agency
    to consult with local regulators responsible for responding to
    accidental releases. While this requirement is appropriate for
    addressing the risks from stationary sources located within the local
    jurisdiction it is inappropriate for mobile sources and likely will
    lead to a patchwork quilt of regulations that frustrate the efficient
    transportation of hazardous materials.

    Global Harmonization
        Congress has repeatedly recognized that the harmonization of
    regulations relating to the transportation of hazardous materials is
    necessary to ensure the safe and efficient transportation of such
    materials. S. 1602 has the potential to compromise the global
    harmonization of the hazardous materials transportation requirements,
    resulting in increased costs, increased transfer of such materials and
    the increased potential for accidental releases. Each time hazardous
    materials are transferred, loaded or unloaded, there is an increased
    potential for an accidental release. Harmonization of the hazardous
    materials transportation regulations reduces the number of transfers
    between facilities, resulting in a corresponding reduction in the risk
    of an accidental release.

    Cost-Benefit Analysis
        The proposed legislation has the potential to significantly
    increase the costs of storing and transporting certain hazardous
    materials. While additional regulatory requirements and the
    corresponding increase in the costs of transporting hazardous materials
    may be an acceptable tradeoff for increased assurance that these
    materials will not be the subject of a criminal release, the proposed
    legislation contains no limitation on EPA's authority to require
    expensive regulatory controls, even in the face of only a marginal
    decrease in the risk of a release. For this reason, we believe that the
    legislation should be modified to require the implementing agency to
    perform a cost-benefit analysis to ensure that the costs of additional
    regulatory requirements will produce a tangible benefit, namely the
    elimination or substantial reduction in the likelihood of a release to
    the environment.

    Recordkeeping
        S. 1602 authorizes the Administrator to require any person that may
    have information relating to a potential accidental or criminal release
    to maintain records and potentially report such information. This
    requirement as applied to the transportation of hazardous materials is
    superfluous, as the hazardous materials regulations already require
    incident reporting. The requirement also is potentially duplicative of
    EPA's regulations issued under the Emergency Planning and Community
    Right-to-Know Act. Moreover, there is no guidance provided as to the
    meaning of a ``potential accidental release.''

    Establishment of a General Duty Clause
        One of the most troubling aspects of the proposed legislation is
    its creation of a general duty clause similar to that contained in the
    Occupational Safety and Health Act. This provision could make trucking
    companies liable for an accidental or criminal release, even if they
    have complied with all of the applicable regulations. This type of
    provision is unfair as applied to trucking companies. Trucking
    companies are not security experts. They should be permitted to rely on
    compliance with the comprehensive set of hazardous materials
    regulations to reduce the risk of a release of such materials to the
    environment and not have potential liability in the event of an
    accidental or criminal release.

                                 V. CONCLUSION

        Mr. Chairman, ATA members understand they are entrusted with the
    secure transportation of goods that keep America moving forward. Law
    enforcement has frequently been a strong ally in ATA's longstanding
    efforts to ensure the security of cargo on America's highways and
    across our international borders. We look forward to continued
    cooperation with those authorities charged with securing our nation
    against future terrorist threats. ATA understands the role trucking
    must play to ensure our national security in this newly changed
    landscape. The trucking industry asks that Congress ensure that new
    legislative initiatives distinguish between the risks of accidental or
    criminal releases from stationary sources and the risks from potential
    releases from mobile sources. Legislation that is properly tailored to
    address risks from mobile sources will allow the trucking industry to
    better fulfill its role to safely and securely transport our nation's
    freight. Broad legislation that does not distinguish between the
    inherent risks from mobile and stationary sources likely will
    complicate the safe and efficient movement of hazardous materials. I am
    pleased that this subcommittee and the full Commerce Committee have
    expressed strong interest in advancing our industry's security
    proposals. As we have in the past, ATA will continue to work to enhance
    security in the trucking industry.
        Thank you for the opportunity to share our views with you.

                                   __________
        Statement of Everett Zillinger, Director, Government Relations,
                            The Fertilizer Institute

        On behalf of its membership, The Fertilizer Institute submits this
    statement and comments of concern regarding S. 1602, the Chemical
    Security Act of 2001, which is pending before the Senate Environment
    and Public Works Committee.

                         ABOUT THE FERTILIZER INSTITUTE

        The Fertilizer Institute (TFI) represents by voluntary membership
    more than 90 percent of the U.S. fertilizer industry. Producers,
    manufacturers, retailers, trading firms and equipment manufacturers,
    which comprise its membership, are served by a full time Washington,
    DC. staff in various legislative, educational and technical areas as
    well as with information and public relations programs. Together, TFI
    members produce and distribute approximately 22.0 million tons per year
    of commercial fertilizers to farmers. The North American fertilizer
    industry has developed the production facilities and infrastructure
    necessary to deliver the types and quantities of fertilizer products to
    farmers within the narrow timeframes of the crop planting and growing
    seasons.

                              WHAT IS FERTILIZER?

        Fertilizer is simply, food for plants. Just like the human body
    needs vitamins and minerals, plants need nutrients in order to grow.
    Also like humans and animals, plants need adequate water, sufficient
    food, and protection from diseases and pests to be healthy. To grow and
    reproduce, plants need large amounts of three basic nutrients-nitrogen,
    phosphorous, and potassium.
        Nitrogen, for example, is part of every plant's proteins and is a
    component of DNA and RNA, the genetic ``blueprints'' of life itself.
    Taken up in larger amounts than other nutrients, nitrogen makes plants
    green and is usually most responsible for increasing yields. Phosphate
    helps plants use water efficiently, promotes root growth, and improves
    the quality of grains. Potassium, commonly called potash, is important
    because it is necessary for photosynthesis, which is the production,
    transportation and accumulation of sugars in the plant. Potash makes
    plants hardy and helps them to withstand the stress of drought and
    helps the plant fight of disease.
        Today's commercial fertilizer industry was founded on the
    revolutionary scientific discovery in the last part of the 18th century
    that chemical elements play a direct role in plant nutrition. This
    initial concept opened the way for industrial scale manufacturing of
    fertilizers of all types in the 19th century. Following World War II,
    new technologies allowed for the rapid expansion of fertilizer
    production. Coupled with growing food demand and the development of
    higher-yielding crop varieties, fertilizer helped fuel the Green
    Revolution.

                      FERTILIZERS PROTECT THE ENVIRONMENT

        The efficient use of fertilizer also helps to conserve our natural
    environment. With fertilizers and modern high-yield farming practices,
    more food is produced per acre each year so land may be conserved.
    Fertilizers used properly, works to maximize yields on farmland already
    in production while helping to prevent the widespread loss of forests,
    rainforests, and environmentally important habitat. Use of marginal
    land, and habitat for ``slash and burn'' low-yield farming represents a
    major global environmental threat.

                      FERTILIZERS IMPROVE OUR WAY OF LIFE

        Fertilizers enhance many consumer products. For example, thanks to
    fertilizers, fruits and vegetables are available in affordable
    abundance year around in every state of the nation. Nitrogen is used to
    make nitric acid, a major component in batteries, tires, lacquers and
    paints. Many soda drinks contain phosphoric acid, derived from
    phosphate, and many bath soaps and detergents contain potash.
        Fertilizers are also at work in industry. Aside from their benefits
    to agriculture, fertilizer components are central to such industrial
    processes as semiconductor chip making, resin manufacture, cattle feed
    production, metal finishing, the manufacture of detergents, fiberglass
    insulation and even rocket fuel needed for our space, satellite and
    communications industries.

                           FERTILIZERS FEED THE WORLD

        Finally, and most importantly, fertilizers are critically necessary
    in order to feed our world's growing population. As the world's
    population continues to climb toward an estimated 8.5 billion in the
    year 2040, experts estimate that food production must increase more
    than 2 percent annually just to maintain current diets. For example,
    commercial fertilizer nitrogen (N) accounts for approximately half of
    all N reaching global croplands today and supplies food needs for at
    least 40 percent of the population. Due to global population increase
    and the expansion of global prosperity and diet quality, it is
    estimated that at least 60 percent of humanity will eventually owe its
    nutritional survival to N fertilizer. (Smil, V. 2001. Enriching the
    Earth. MIT Press, Cambridge Mass.)

               FERTILIZERS CONTRIBUTE TO THE AMERICAN WAY OF LIFE

        The United States and many other developed nations are blessed with
    safe, abundant and affordable food. Thanks to fertilizers, the
    productivity of U.S. farmers and livestock producers and an efficient
    agribusiness processing, storage and transportation system--Americans
    spend less than 8 percent of their disposable income on food. This
    leaves 92 percent of American's disposable income for travel,
    entertainment, spacious homes, multiple cars, college tuition or a vast
    array of consumer products and activities that contribute to our way of
    life. Today, the abundance of food we enjoy is just one way fertilizers
    help enrich the world around us.

                           FERTILIZERS ARE REGULATED

        Commercial fertilizers are extensively regulated in the United
    States both at the Federal and state levels. The industry must comply
    with Federal laws regarding reporting and emission standards for air
    and water quality. The industry must also comply with many other
    Federal laws including but not limited to: the Resource Conservation
    and Recovery Acts (RCRA), the Clean Air Act (CCA), the Clean Water Act
    (CWA), the Safe Drinking Water Act (SDWA), the Coastal Zone Management
    Act (CZMA), the Occupational Safety and Health Act (OSHA) and the
    Community Right-to-Know Act (EPCRA).
        State regulation of fertilizer products is primarily concerned with
    consumer protection, labeling, the protection of human health and the
    environment, and the proper handling and applications of fertilizers.

                             RESPONSE TO TERRORISM

        TFI members have greatly increased security procedures since
    September 11th, and we thank those Federal, state and local agencies
    that have worked with our individual facilities to improve our security
    programs. TFI and its member companies have worked closely with Federal
    agencies such as the Federal Bureau of Investigation (FBI), the Coast
    Guard, and the Environmental Protection Agency. In addition, we have
    cooperated with numerous state and local agencies, including emergency
    response personnel, to heighten security at our industry's
    manufacturing sites, storage facilities, transportation infrastructure
    and retail outlets.
        Our industry also has worked extensively to protect against misuse
    of our products, most notably through our voluntary ``Be Aware'' and
    ``Be Secure'' campaigns created in partnership with the U.S. Federal
    Bureau of Alcohol, Tobacco and Firearms (BATF). These important efforts
    have proven effective and successful in assisting our industry's retail
    sector and local law enforcement to be alert and suspicious people
    trying to purchase beneficial fertilizer products for potentially
    criminal purposes-and to report any suspicious activity immediately to
    the proper authorities. Future security efforts should buildupon these
    existing working relationships.

                                VIEWS ON S. 1602

        In light of the already extensive Federal and state regulations
    addressing commercial fertilizer products and the industry's proactive
    voluntary efforts noted above, TFI submits this statement of comments
    regarding the advisability and purpose of S. 1602.
                                     ______

             Summary of S. 1602, The Chemical Security Act of 2001

        On October 31, 2001 Senators Corzine, Jeffords, Boxer and Clinton
    introduced S. 1602, The Chemical Security Act of 2001. The legislation
    proposes to safeguard facilities where hazardous chemicals are present
    by giving EPA and the Justice Department authority to issue
    administrative orders or seek court orders requiring facilities to take
    immediate steps to improve security. These steps could include
    improvements to personnel security, as well as changes in a facility's
    physical structure or operations.
        Specifically the bill:
         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;
         Requires EPA and DOJ to consider severity of harm caused
    by a chemical's accidental or criminal release and a chemical's
    proximity to population centers, potential threat to national security
    and critical infrastructure;
         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 imported ammonia rises,
            then there would be increased risks associated with large
            barges from the Middle East, FSU, Asia, and Central/South
            America coming into ports around large metro areas. Likewise,
            focusing on production, transportation and storage of smaller
            quantities may lower the catastrophic risk, but greatly
            increase the overall risk because of the addition of more
            storage tanks, more individual transportation units on the
            roads and in navigable waters and increases in the number of
            small production facilities.
              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 anti-terrorism measures that can be
    implemented at their facilities. We are interested in a mechanism for
    secure exchange of information, data and security suggestions among
    Federal agencies and industry. Facilities would like to receive
    detailed information on specific or general threats. We would also like
    feedback when suspicious activity or potential incidents are reported
    to the proper authorities.
        Some decision will need to be made on balancing right-to-know
    considerations with security interests. Making all information
    collected during a ``right of entry'' or other visit available on the
    Internet is in itself a terrorist tool and increases designated
    facilities' terrorism vulnerability. We feel that access to facility-
    specific information should be taken out of the public domain and
    limits should be placed on FOIA requests for these data.

                                   CONCLUSION

        For the above reasons, TFI and its membership oppose S. 1602 as
    written in its current form. Our members urge the Senate to build on
    the existing cooperative relationships between industry and agencies
    that have formed since the September attacks.
        TFI looks forward to working with the authors, cosponsors, members
    of the committee and U.S. Senate in addressing these and other
    important chemical security concerns in a more cooperative, realistic
    and effective approach to keeping our nation's vital chemical products,
    including fertilizer, secure.
        TFI appreciates the opportunity to make this statement.
                                   __________
    Statement of Rick Hind, Legislative Director, Greenpeace Toxic Campaign

     IS THE U.S. CHEMICAL INDUSTRY OUR WEAKEST LINK AGAINST TERROR ATTACKS?

        The magnitude of a terrorist attack on just one major U.S. chemical
    facility could easily exceed the loss of life suffered on September 11
    in New York City. We are overdue in addressing the inherent
    vulnerability of this industry to terrorists and accidents. Recent
    events underscore the immediacy of this threat including the two
    nation-wide security alerts by the FBI and a 72-hour moratorium by the
    railroad industry on carrying chemicals such as chlorine.
        Even President Bush was at risk. On September 11, when Air Force
    One landed in Louisiana, he joined more than a million Louisiana
    residents who live in a region that is blanketed by chemical kill zones
    (www.greenpeaceusa.org). These kill zones surround more than 100 petro-
    chemical facilities located along the Mississippi River from Baton
    Rouge to New Orleans. A regional investigation by the Agency for Toxic
    Substances and Disease Registry found security against terrorists at
    selected U.S. chemical facilities to be ``fair to poor.''
        Thankfully, there has never been a terrorist attack on a U.S.
    chemical facility. But there have been more than 13,000 accidents
    involving more than 10,000 pounds of hazardous materials since 1987,
    with smaller incidents occurring daily. A December 2000 study by the
    Argonne National Laboratory for the Department of Transportation
    concluded, ``the failure to identify and evaluate opportunities to
    reduce the risks from these types of relatively rare accidents could
    ultimately lead to thousands of fatalities, injuries and evacuations.''
        Senator Corzine's bill (S. 1602) would finally begin the urgently
    needed process of addressing this crisis. It not only requires beefed
    up security it also puts prevention first, encouraging industry to
    eliminate catastrophic accidents and attacks by substituting inherently
    safer technologies. We applaud the Senator and his colleagues (Madame
    Chairwoman Boxer and Senator Clinton) for introducing and cosponsoring
    this important legislation.
        More than 15,000 facilities across the U.S. are required to report
    their worst case accident scenarios to the EPA. These reports contain
    estimates on the distance that a deadly toxic chemical cloud could
    extend over neighboring populations. Unfortunately, pressure has
    recently been put on the EPA to deny public access to this basic
    information. Denying access to these reports will only accomplish one
    thing: it will leave the public without vital information needed to
    protect themselves in the event of an attack or an accident. Hiding
    basic hazards information from the public undermines the credibility of
    government and industry and will lead to dedicated terrorists being the
    only non-governmental people outside industry to have this information.
        After using terrorism as an argument to hide potential chemical
    disasters, the U.S. chemical industry has been negligent in preventing
    accident and terrorist threats posed by chemical facilities, making,
    using or storing ultra-hazardous chemicals such as chlorine. Earlier
    this year Greenpeace exposed a significant example of this failure by
    publishing photographic evidence from inside a Dow Chemical plant in
    Plaquemine, Louisiana. The photos are also available on our web site
    (www.greenpeaceusa.org) show the internal control panels and operating
    instructions of an unguarded pump house that releases 550 million
    gallons of wastewater into the Mississippi River every day.
        While investigating Dow's Clean Water Act violations, Greenpeace
    activists entered this facility undetected. There were no guards at the
    perimeter, no security cameras and no burglar alarms. In fact, the door
    to the building was unlocked. All of these are rudimentary security
    measures that the EPA recommended in their February 2000 security
    alert. The EPA also recommended ``design'' changes in plants that even
    fewer facilities have implemented.
        In Washington, DC this month, Blue Plains, the local sewage
    treatment plant announced (Nov. 9th) that they were now 1 year ahead of
    schedule in ending the use of the highly toxic chlorine gas. The reason
    given for this accelerated action was the possibility of a terrorist
    attack. The plant is only four miles from the U.S. Capitol. According
    to the National Transportation Safety Board, the Coast Guard and the
    chlorine industry, a major chlorine gas leak can travel two miles in
    only 10 minutes and remain acutely toxic for a distance of
    approximately 20 miles.
        Greenpeace recommends a set of short and long-term steps to truly
    eliminate these unnecessary and preventable disasters. In the short-
    term these include the immediate adoption of S. 1602 by Congress. In
    addition, an emergency program is needed to ensure there is a rapid
    phaseout of shipping large quantities of these chemicals along with
    reductions in large quantity storage to levels that eliminate current
    threats posed to local communities. Other short-term actions should
    include the decentralized production of these substances to eliminate
    pressure for large container transport and storage.
        In the long-term, virtually all of the ultra-hazardous chemicals
    used in the U.S. have safer substitutes and conversion to them should
    begin as soon as possible. To end toxic chemical pollution in the Great
    Lakes the International Joint Commission (U.S./Canada) recommended in
    1992 that industry and government begin a phaseout of the industrial
    uses of chlorine. Had this recommendation been initiated in 1992, we
    would have had a model program for eliminating the threats now posed by
    these inherently dangerous facilities.
        America needs many systems to function, such as our besieged
    airline industry and the postal system. But we do not need to continue
    producing obsolete and ultra-hazardous chemicals that pose enormous
    risks to the public-with or without the threat of terrorist attack.
                                     ______

                                                    Greenpeace,
                                      Washington, DC., August 10, 2001.
    Secretary Norman Mineta,
    Department of Transportation,
    Washington, DC.
        Dear Secretary Mineta: The fire in Baltimore's train tunnel,
    adjacent to Camden Yards, was a wake up call to the nation. Those who
    said it could never happen now must resort to claiming it will not
    happen again. To prevent a more serious chemical accident than the July
    18-23 Baltimore tunnel fire aboard the CSX freight train, Greenpeace
    proposes that the Department of Transportation impose an immediate ban
    on the shipping of hazardous materials through highly populated
    communities. As you know, the transport of hazardous materials through
    either of Baltimore's two highway tunnels is punishable by a year in
    jail.
        The heroic deeds of Baltimore and other emergency response
    personnel not withstanding, this incident could easily have been
    catastrophic. According to a recent report done for the Department of
    Transportation (DOT) by the Argonne National Laboratory, ``the
    potential exists for very serious accidents involving large numbers of
    injuries and fatalities, especially for TIH [toxic-by-inhalation]
    materials.''
        The report further cautions:
        ``While review of the statistics alone might suggest that accidents
    associated with the transportation of hazardous materials should not be
    a major concern, these accidents can have enormous impacts when they
    occur. As a result, the failure to identify and evaluate opportunities
    to reduce the risks from these types of relatively rare accidents could
    ultimately lead to thousands of fatalities, injuries, and
    evacuations.''
        As one of the leaders in Congress who led efforts to enact the
    Federal right-to-know law in 1986, you know that legislation only
    became an imperative after the worst industrial accident in history
    occurred at the Union Carbide facility in Bhopal, India in December,
    1984. A leak of methyl isocyanate (MIC) killed approximately 4,000
    people and injured hundreds of thousands.
        The Argonne report estimates that there are 100,000 shipments a
    year of equally toxic chemicals such as chlorine. In fact, Argonne
    lists chlorine and hydrochloric acid (HCL) among the top 10 materials
    responsible for major injuries and evacuations and emphasizes the need
    to focus on these TIH materials.
        Enclosed is a map of a hypothetical release of 17,000 gallons of
    chlorine from a railroad tank care accident whose toxic fumes could
    reach 20 miles. According to the National Institute for Occupational
    Safety and Health, chlorine gas concentrations of 10 parts per million
    (PPM) are classified as ``immediately dangerous to life or health''
    (IDHL). And according to modeling by the National Transportation Safety
    Board and U.S. Coast Guard, a chlorine gas cloud could travel 2 miles
    in just 10.5 minutes at concentrations of 100 PPM. The chemical
    industry's Chlorine Institute also estimates that a chlorine cloud
    could travel 20.5 miles at concentrations above 10 PPM.--Baltimore is 9
    miles wide and 10.5 miles long.
        Clearly, this kind of catastrophe is unacceptable. It is also
    completely preventable. By prohibiting the shipment of these materials
    through populated areas, you dramatically reduce the numbers of exposed
    people. However, to eliminate these risks for all communities, the
    Federal Government should also convene a multi-agency task force to
    address these hazards. A first step would be to implement the
    recommendations of the International Joint Commission which has
    repeatedly advised the U.S. and Canada to ``sunset the use of chlorine
    and chlorine-containing compounds [such as HCL] as industrial
    feedstocks.''
        Also enclosed is a copy of our letter to the EPA regarding their
    agreement to conduct dioxin sampling from the Baltimore train tunnel
    fire site. Because the fire aboard the CSX train involved thousands of
    gallons of leaking HCL, the conditions may have been ideal for the
    formation and release of dioxins. Dioxins are by-products of chlorine
    compounds exposed to fire and are potent carcinogens. It is important
    to determine if emergency response personnel, the community or biota in
    the harbor were exposed to dioxin as well.
        Thank you for your immediate attention to this matter.
                Sincerely,
                                                     Rick Hind,
                                                  Legislative Director.
                                     ______

                                                    Greenpeace,
                                      Washington, DC., August 17, 2001.
    Ms. Christine Todd Whitman,
    EPA Administrator,
    U.S. Environmental Protection Agency,
    Washington, DC.
        Dear Ms. Whitman: As you may know, a number of serious incidents
    involving hazardous materials and toxic chemicals have renewed concerns
    that a chemical accident on the scale of the 1984 Bhopal, India
    disaster could occur in a large populated area in the U.S., such as
    Philadelphia or Baltimore. These and several other U.S. cities are home
    to high concentrations of chemical facilities and are also heavily
    traveled by trains, trucks and ships carrying ultra-hazardous cargo,
    putting densely populated communities and business centers at risk.
        According to a recent report done for the Department of
    Transportation (DOT) by the Argonne National Laboratory, the risks in
    transporting hazardous materials are potentially catastrophic. The
    report cautions:
        ``While review of the statistics alone might suggest that accidents
    associated with the transportation of hazardous materials should not be
    a major concern, these accidents can have enormous impacts when they
    occur. As a result, the failure to identify and evaluate opportunities
    to reduce the risks from these types of relatively rare accidents could
    ultimately lead to thousands of fatalities, injuries, and
    evacuations.''
        The enclosed map illustrates a worst case scenario submitted to the
    EPA by Occidental Chemical for a chlorine tank failure of 400,000
    pounds at their facility in New Castle, Delaware. They estimate that
    dangerous chlorine fumes could spread 20 miles from their plant, an
    area populated by 585,000 people. In addition, the map shows a similar
    scenario involving a train accident involving a 90 ton chlorine tank
    car with toxic chlorine also reaching 20 miles. These two scenarios
    blanket populated areas in Delaware, Pennsylvania, Maryland and New
    Jersey where millions of people live and work.
        The DOT report estimates that there are 100,000 shipments a year of
    chlorine alone. In fact, they list chlorine and hydrochloric acid (HCL)
    among the top 10 materials responsible for major injuries and
    evacuations. They also emphasize the need to focus on these highly
    toxic-by-inhalation (TIH) substances.
        According to the National Institute for Occupational Safety and
    Health, chlorine gas concentrations of 10 parts per million (PPM) are
    classified as ``immediately dangerous to life or health'' (IDHL).
    According to the National Transportation Safety Board and U.S. Coast
    Guard, a chlorine gas cloud could travel 2 miles in just 10.5 minutes
    at concentrations of 100 PPM.
        Two recent incidents in the Mid-Atlantic region have served as a
    sobering wake up call. On July 17 the catastrophic failure of a storage
    tank containing spent sulfuric acid at Motiva Enterprise's Delaware
    City, DE refinery resulted in eight injuries and left one person
    missing. On July 18 a CSX train derailment and tunnel fire paralyzed
    Baltimore for 5 days while hydrochloric acid and other toxic chemicals
    burned off and leaked into the Baltimore harbor.
        Even without accidents, chemical facilities in this region pose
    serious hazards to human health and the environment:
        Occidental's Delaware chlorine plant uses an obsolete mercury-cell
    chlor-alkali process to make chlorine that threatens the region with
    contamination from fugitive emissions. It is one of 11 remaining
    mercury-cell plants in the U.S., representing approximately 14 percent
    of chlorine manufacturers. The others use mercury-free processes such
    as diaphragm and membrane processes. According to the Agency for Toxic
    Substances and Disease Registry, the largest commercial use of mercury
    in the U.S. is in mercury-cell chlorine plants which account for 35
    percent of all domestic consumption of mercury.
        The EPA is currently engaged in a partnership with Occidental and
    the other chlorine industry users of mercury that will perpetuate their
    use of 80 tons of mercury a year. One EPA official admitted that this
    program is a ``best of the worst'' project. This kind of sweet-heart
    deal further calls into question the credibility of the Bush
    Administration's proposal to delegate environmental enforcement to the
    states.--``Enforcing'' unnecessary mercury use and ongoing chlorine
    risks can hardly be called protecting the environment.
        In contrast, European nations who are members of the Paris
    Convention for the Prevention of Marine Pollution from Land-Based
    Sources (PARCOM) agreed in 1990 to phaseout all mercury-cell chlor-
    alkali plants by 2010.
        Other chlorine users in this region include Dupont, which recently
    reported that it's Edge Moor, Delaware plant was responsible for
    500,000 tons of dioxin-contaminated waste. Dupont's titanium dioxide
    plant uses a chlorine process which results in the generation of
    dioxins and furans as waste by-products. Dioxins and furans are
    chlorinated by-products of the use of chlorine in manufacturing and
    disposal, such as waste incineration.
        To prevent the most serious chemical accidents Greenpeace proposes
    a three stage process:
        (1) In an August 10 letter to the Department of Transportation we
    proposed an immediate ban on the shipping of hazardous materials
    through highly populated communities. For example, the transport of
    hazardous materials by truck through either of Baltimore's two highway
    tunnels is punishable by a year in jail but trains routinely carry
    hazardous materials through the center of Baltimore. As an interim
    measure, makers of TIH substances should also be urged to make batches
    of these substances for local-use-only to minimize any shipping of
    these materials.
        (2) To eliminate these risks for all communities, we recommend that
    a multi-agency task force be convened to prioritize the most hazardous
    chemicals first. The next step in this process would be to implement
    the recommendations of the International Joint Commission which has
    repeatedly advised the United States and Canada to ``sunset the use of
    chlorine and chlorine-containing compounds as industrial feedstocks.''
        Likewise, the global treaty you signed in Stockholm this May
    requires the phaseout of the worst persistent organic pollutants
    (POPs), including the elimination of dioxin. President Bush has pledged
    to seek Senate ratification of the POPs treaty this summer but the
    elimination of dioxin will also require a long-term commitment to
    phaseout chlorine. The major industrial uses of chlorine are PVC
    plastics, solvents and bleaching paper. All of these uses have widely
    available safer alternatives such as vegetable-based plastics, water-
    based solvents and oxygen-based bleaching.
        (3) In the meantime, the chlorine industry should at a minimum be
    required to eliminate the use of all their remaining mercury-cell
    processes by 2010 as the European PARCOM countries have agreed to do.
        The worst industrial accident in history occurred at the Union
    Carbide facility in Bhopal, India in December, 1984, when a leak of
    methyl isocyanate (MIC) killed approximately 4,000 people and injured
    hundreds of thousands. We in the U.S. are fortunate that an accident of
    this magnitude has not yet occurred here. However, if and when a
    similar disaster occurs, you will be asked why the continued
    manufacture and use of ultra-toxic chemicals was allowed, especially
    when safer alternatives were available.
        Thank you for your immediate attention to this matter.
                Sincerely,
                                                     Rick Hind,
                                                  Legislative Director.
         Statement of the National Association of Chemical Distributors

                               BACKGROUND ON NACD

        The National Association of Chemical Distributors (NACD) is the
    leading association of chemical distribution companies in the United
    States. Chemical distributor companies purchase and take title to
    chemical products from manufacturers. Member companies process,
    formulate, blend, re-package, warehouse, transport, and market these
    chemical products. These companies collectively employ more than 20,000
    workers and serve a customer base of approximately 750,000. The typical
    NACD member company, nonetheless, is a small enterprise that maintains
    lean operations in a highly competitive market. Most facilities
    operated by NACD member companies employ approximately 15-25 workers
    each. NACD's approximately 330 member companies have a vital interest
    in transporting hazardous materials safely.

                    RESPONSIBLE DISTRIBUTION PROCESSS (RDP)

        As a condition of membership in NACD, chemical distribution
    companies are required to adhere to and be verified on the Codes of
    Management Practice of the Responsible Distribution Processs (RDP). RDP
    is a member-driven initiative, developed by NACD members in 1991, which
    promotes continuous improvement in environmental, health, and safety
    performance of all member companies. Member companies' implementation
    of RDP includes a commitment to comply with relevant environmental,
    health, and safety regulations as they apply to company operations. The
    senior executive in each NACD member company has formally accepted
    these principles.
        Members of NACD are required, as a condition of membership, to
    undergo independent third-party verification. RDP requires two stages
    of third-party verification of a member's written policies and
    procedures. Continuous improvement in environmental, health, and safety
    performance is taken very seriously. In fact, NACD has terminated 12
    companies for failing to comply with RDP. Many of these companies,
    following their termination, realized the value of RDP to their
    business, and came into compliance with RDP, to become eligible for re-
    admission as an NACD member.
        RDP has gained national and international recognition and
    visibility. Insurance companies, for example, are recognizing the
    strength of the RDP program. One major, national carrier offers a
    reduction in its premium for NACD members, based on the member
    company's compliance with RDP. In addition, this carrier provides a
    premium credit equal to the full cost of an On-Site MSV because its
    thoroughness replaces the need for the insurance carrier to send a team
    onsite.
        In addition, one Federal agency has recently recognized RDP as a
    risk management compliance tool. The U.S. Environmental Protection
    Agency (EPA), in its Risk Management Program (RMP) Guidance for
    Chemical Distributors, states that companies that adhere to RDP may
    have taken the necessary steps to comply with some RMP requirements.
    RDP Codes similar to EPA's RMP accident prevention requirements include
    Risk Management, Emergency Response and Public Preparedness, Compliance
    Review and Training, Job Procedures and Training, Handling and Storage,
    Corrective and Preventive Actions, and Product Stewardship. A side-by-
    side comparison between RMP accident prevention and emergency response
    requirements and similar RDP Codes are published in the EPA guidance.
    NACD's RDP Code of Management Practice, Adjunct Policies, and
    Implementation Guide details each RDP Code.

                CURRENT REGULATORY REQUIREMENTS OF NACD MEMBERS

        In addition to their commitment and responsibilities under RDP,
    NACD members are subject to a myriad of Federal regulations (EPA, DOT,
    DOL, DEA, BATF). For example, many members must comply with the U.S.
    Environmental Protection Agency's (EPA) Risk Management Program (RMP),
    a mandatory program to implement risk management and accident
    prevention methodologies. In addition, some members are required to
    comply with the Occupational Safety and Health Administration's (OSHA)
    Process Safety Management (PSM) Standard, another comprehensive
    regulation to prevent workplace accidents. Importantly, there are
    numerous Department of Transportation requirements under the Hazardous
    Materials Regulations (HMR) that NACD members must follow because
    transportation of hazardous materials is a major part of their
    business--chemical distribution. S. 1602 would unnecessarily duplicate
    these laws and regulations.

                       S. 1602, THE CHEMICAL SECURITY ACT

        Like Senator Corzine and the other sponsors of S. 1602, we are
    deeply concerned about the safety and security of our products,
    employees, friends and neighbors. Clearly, NACD members have a vested
    interest in ensuring the safe handling and distribution of the
    thousands of products they sell to hundreds of thousands of customers.
    Unfortunately, S. 1602 will not help them reach this goal any more
    effectively then they do today.
        NACD companies were concerned about security and safety before the
    tragic attacks of September 11, 2001; now it is a primary focus. While
    we cannot at this time disclose the specific steps each member has
    taken to enhance its security, NACD members have made security a top
    priority by hardening their facilities and vehicles against potential
    attacks. In fact, in conjunction with other industry partners,
    including the American Chemistry Council (ACC), NACD has helped develop
    industry site and transportation security guidelines. In addition,
    these same industry partners have met on a weekly basis at the CEO
    level with representatives from the FBI, DOT, EPA (including directly
    with Administrator Whitman), Commerce and other Federal departments
    agencies to facilitate information exchange, transfer best practices
    and focus on security concerns. NACD has diligently distributed
    security information from Federal agencies to our members on a weekly
    and sometimes daily basis. NACD has brought in external security
    consultants to its regional and annual meetings to help educate members
    on how to enhance their site and transportation security.

                            LEGISLATION IS PREMATURE

        This legislation is unnecessary and premature at best. S. 1602
    attempts to remedy an alleged security problem before it has been
    determined if and where vulnerabilities may exist. The Department of
    Justice through Sandia National Laboratories is currently studying
    chemical site security. Further studies of the security of hazardous
    materials transportation are being contemplated. It makes more sense to
    make these studies a top priority and then determine what course of
    action to take rather than to rush in and regulate with limited
    information.
        There can be a steep price to pay for acting too hastily. As we saw
    with the Risk Management Program regulations, NACD and many other
    industry members strenuously argued for years that making that
    information broadly available would unnecessarily expose chemical
    companies to possible terrorist attacks. Many members of this committee
    dismissed these concerns and insisted that worst-case scenarios be
    posted on the Internet unrestricted. Fortunately, EPA and the DOJ came
    to the realization that some protection was needed, and post September
    11, EPA has since pulled much of this information off the Internet.
    Unfortunately, the authors of S. 1602 seemed to have not learned this
    lesson. Section 6 of the legislation provides for broad access to
    information unless it can be demonstrated that release of the
    information should not be disclosed for reasons of national security.
    This type of information is undoubtedly in the interests of national
    security and the burden of proof should be reversed: those seeking the
    information should demonstrate an overriding need for it.

                             TRANSPORTATION ISSUES

        The authors of this legislation severely underestimate the impact
    it could have on the economy of our industry and staggering American
    economy. For example, in Section 3 the ``buffer zones'' between
    chemical sources and surrounding populations defy explanation and are
    not practical in the real world. NACD members ship over 30 billion
    pounds of product annually, how are they to continue these necessary
    deliveries? It is not clear how these deliveries can be buffered from
    public transportation routes already used without devastating
    consequences for our members and the broader economy. DOT has studied
    this issue extensively and controls risk through routing standards,
    packaging, material segregation and separation and numerous other
    requirements. It should be noted that there are over one million
    shipments of hazardous materials per day, yet only an average of 11
    deaths per year can be attributed to hazardous materials releases. EPA
    involvement in the process is redundant and unlikely to produce any
    security benefits.
        Transportation is a primary area where the legislation overreaches
    and overlaps existing Federal regulation. The Hazardous Materials
    Transportation Act (HMTA) already heavily regulates chemical
    distribution, including loading, unloading, storage, intrastate,
    interstate and international commerce. However, S. 1602 inserts EPA
    into this process by requiring it to assess the vulnerability of
    chemical transportation and address those concerns. That is in direct
    conflict with DOT's preexisting jurisdiction. How will this
    relationship work?
        Further, S. 1602, designates ``substances of concern'' that overlap
    and conflict with the pre-existing definition of ``hazardous
    materials'' already in regulation and practice. Confusion over these
    definitions will place unnecessary hardship on NACD members without
    enhancing security. In fact, the legislation is overly broad,
    unnecessarily covering a wide range of chemicals. Many, if not most of
    them are not security risks. That is another reason why it is better to
    wait for the studies currently underway to determine those products and
    facilities that pose legitimate concerns and then act accordingly. This
    approach avoids the needless and wasteful use of limited Federal and
    industry resources.
        In addition, DOT already shares jurisdiction with DOL over the
    training of hazardous materials employees. S. 1602 inserts EPA into
    this area, needlessly complicating employee training with no
    appreciable security benefit. Further, DOT already has jurisdiction for
    background checks for certain persons involved in aviation or drivers
    of hazardous materials. Does S. 1602 supercede these existing laws and
    regulations, including the recently passed anti-terrorism legislation
    (USA Patriot Act, Public Law No: 107-56)?
        The HMTA already carries civil and criminal penalties for
    violations that are stronger than those proposed in Section 7 of S.
    1602. In its recently submitted re-authorization proposal to Congress,
    DOT proposes to expand its enforcement authority. S. 1602 moves in the
    opposite direction on this issue and further reveals the ignorance of
    pre-existing regulations covering many of these areas of concern.
        S. 1602 could also threaten DOT's preemption authority, which is a
    primary factor in the industry's sterling safety record. Safety and
    security depend upon uniform standards so that the millions of
    hazardous materials shipments can be prepared and transported by
    employees who know what the requirements for these products are. This
    uniformity is equally important to local emergency response personnel.
    This approach contrasts starkly with the general statutory authorities
    administered by EPA which set minimum Federal standards and allow
    states to exceed them. Under the HMTA, Congress has given DOT unique
    authority and S. 1602 should not alter it.

                                  OTHER ISSUES

        Further, it is not at all clear how the Corzine legislation fits
    with the authority of the newly formed Office of Homeland Security,
    headed by Governor Ridge. The last thing the legislation ought to do is
    to duplicate, or worse yet, conflict with what another agency is doing
    to increase security.
        NACD is particularly troubled by the General Duty Clause in S.
    1602. Employers already have a general duty to their employees and
    contractors under OSHA regulation to maintain safe workplaces and under
    EPA regulation to identify workplace hazards, design and maintain safe
    facilities, and minimize the consequences of an accidental release.
    General Duty clauses are usually vague and leave a regulatory authority
    and/or the courts much latitude to determine an employer's guilt or
    innocence. Establishing yet another clause will do little to add more
    protection for the public or add more effective measures against
    terrorism.
        Finally, and perhaps most notably, NACD is not aware that EPA or
    DOJ or any other Federal agency has asked for the authority resembling
    this legislation in any form.

                                   CONCLUSION

        NACD shares the noble of goal of the Corzine legislation. However,
    that goal is more likely to be reached through partnership with
    industry, not dictation to it. With numerous Federal regulations
    applicable to the chemical distribution industry, as well as NACD
    members' adherence to the comprehensive environmental, health, and
    safety continuous improvement program--RDP--there is sufficient
    availability of both regulatory and selfadministered programs currently
    existing and being implemented. This legislation would merely burden
    our members in an economically difficult environment without increasing
    security.

                                   __________
               Statement of the National Propane Gas Association

        The National Propane Gas Association (NPGA) appreciates the
    opportunity to present our concerns with S. 1602, as well as safety and
    security issues related to the September 11, 2001 terrorist attacks.
        NPGA is the national trade association of the LP-gas (principally
    propane) industry with a membership of about 3,800 companies, including
    39 affiliated state and regional associations representing members in
    all 50 states. Although the single largest group of NPGA members are
    retail marketers of propane gas, the membership includes propane
    producers, transporters and wholesalers, as well as manufacturers and
    distributors of associated equipment, containers and appliances.
        Propane gas is used in over 18 million installations nationwide for
    home and commercial heating and cooking, in agriculture, in industrial
    processing, and as a clean air alternative engine fuel for both over-
    the-road vehicles and industrial lift trucks. Propane is a non-toxic
    substance designated as a clean air alternative fuel in both the Clean
    Air Act Amendments of 1990 and the Energy Policy Act of 1992.
        It goes without saying that the September 11, 2001 terrorist
    attacks completely changed America's public policy priorities and
    agenda. Before that date, the debate over chemical usage by industry
    centered on reducing or eliminating industrial accidents involving
    toxic substances. Now the terms of the debate have changed to emphasize
    the safety of the American people from deliberate attempts to cause
    harm through willful and wanton destruction. Individual companies have
    long sought to protect themselves, their employees, and their assets
    from criminals and vandals, and while these efforts are typically
    effective, they are not designed to ward off deliberate acts by
    suicidal killers. NPGA believes that while it may be impossible in
    every case for private sector businesses to defend themselves against
    attack from secretive, intelligent, patient, and well-trained
    terrorists, this does not mean that renewing one's commitment to safety
    and security will not accrue benefits. Indeed, as Americans move beyond
    the horror of the attacks, issues of public safety will forever be
    viewed through the lens of private security.
        NPGA believes that policymakers and the media need to avoid debates
    that only serve to stir up uncertainty and fear in the United States.
    For example, a study by Argonne National Laboratory was used to
    buttress a November 12, 2001 Washington Post article entitled ``Toxic
    Chemicals' Security Worries Officials.'' The Argonne data underpins a
    chart showing relative numbers of deaths and injuries, but it is
    important for Congress and others to know that the U.S. Department of
    Transportation--the Argonne report's sponsor--has essentially disavowed
    it and removed it from its website. The weaknesses of the Argonne study
    were made even more stark in a study performed by Visual Risk
    Technologies Inc. which concluded that ``the study results [are]
    extremely suspect.''
        Likewise, there are many weaknesses in S. 1602. Among other things,
    this bill would set up a bureaucratic nightmare of duplicative
    regulations that would overlap existing Federal departmental
    jurisdictions causing the type of confusion that invariably weakens
    compliance. For example, S. 1602 requires the EPA Administrator to
    issue regulations within 1 year of enactment designating certain
    combinations of chemical sources and substances of concern as high
    priority categories based on the severity of the threat posed by an
    accidental release or criminal release from the chemical sources. This
    would duplicate the scope and purpose of the Risk Management Program
    regulations required by Section 112(r) of the Clean Air Act Amendments
    of 1990. Moreover, it would require high-level negotiations with DOT
    because it specifically covers hazardous material motor vehicles,
    rolling stock, and containers, all of which are subject to existing DOT
    regulations.
        S. 1602 would also require EPA to subsequently issue additional
    regulations to require each owner/operator of a chemical source within
    a high priority category to take adequate action, including safer
    design and maintenance, to prevent, control, and minimize the potential
    consequences of an accidental or criminal release. In the case of the
    propane industry, this would require EPA to duplicate fire safety
    regulations which already exist in every State based upon National Fire
    Protection Association safety standard 58 (NFPA 58), Liquefied
    Petroleum Gas Code, an ANSI consensus standard. NFPA 58 has been the
    primary source of propane industry safety regulations for 70 years.
    Congress should not seek to increase regulatory confusion in the
    propane industry because confusion will only lead to less safe
    operations.
        Finally, S. 1602 would make all information generated in
    implementing its provisions to be made available to the public except
    in cases of national security or trade secrets. This field has already
    been thoroughly plowed in the debate over the Fuels Regulatory Relief
    Act of 1999 which severely limited EPA's ability to publish detailed
    industrial worst-case scenario data on the internet for public--and
    terrorist--consumption.
        Propane industry participants are well-versed in the need for
    product safety and stewardship, and the industry has been consistently
    proactive in this regard. Industry achievements and objectives are most
    visible in the debate over the Fuels Regulatory Relief Act of 1999; in
    a negotiated retrofit program agreed to by industry and DOT; and a
    multi-million dollar industry-funded program to inform emergency
    responders on how to protect themselves.
        In 1999, the industry anticipated the potential harmful uses of
    sensitive data required under EPA's Risk Management Program
    regulations. At NPGA's urging, Congress passed the Fuels Regulatory
    Relief Act of 1999 to forbid EPA from publishing worst-case scenarios
    on the internet and to require EPA to exempt from the RMP rules
    flammable substances used as fuel. NPGA demonstrated that the RMP
    rules, if allowed to stand, would have: (1) harmed the human health and
    the environment by encouraging fuel switching to less environmentally
    benign fuels; (2) reduced safety by creating incentives to demand more
    small deliveries; and (3) burdened hundreds of thousands of propane
    customers with substantial Federal paperwork requirements.
        S. 1602 would contradict the Fuels Regulatory Relief Act of 1999
    with no justification. Congress unanimously passed this law after
    multiple hearings and appropriate committee consideration. Congress
    heeded the concerns expressed by firefighters and other emergency
    responders, large and small businesses, many sectors of the industrial
    community, Federal, State, and local regulators, and others. With
    regard to the propane industry, there simply is no reason to undermine
    this recent congressional decision.
        Also in 1999, NPGA negotiated with DOT an estimated $50 million
    industry-wide retrofit of delivery vehicles to install the latest
    electronic delivery control devices and make other important
    operational changes that will increase safety. This program is making
    an already safe industry even safer. Propane is typically delivered
    from terminals to storage facilities in tractor-trailer size trucks. As
    part of the negotiated rulemaking with DOT, the propane industry agreed
    to retrofit these delivery vehicles on an aggressive schedule with the
    most advanced technology. Under regulations implemented by the U.S.
    Department of Transportation, all new vehicles of this type must have a
    passive shut-down system installed, i.e. no human intervention is
    needed to activate it in the event of a leak. All local delivery
    vehicles (bobtails) are being retrofitted with remote shutdown devices
    allowing drivers to stop the delivery of propane in the event of an
    emergency. The entire fleet of trucks must be retrofitted with the
    appropriate system no later than each truck's first scheduled pressure
    test after July 1, 2001.
        In recognition of their importance to public safety, NPGA members
    are also closely tied in with emergency responders at the local level.
    Storage inventory data is provided in a standardized format to local
    fire departments through Emergency Planning and Community Right-to-Know
    Act reporting. Moreover, the industry is most proud of its multi-
    million dollar Propane Emergencies program which is the best source of
    information for preventing or responding to propane emergencies. This
    program has been sent free of charge by the industry to every
    professional and volunteer fire department in the United States.
    Developed by a team of highly qualified propane product and container
    specialists from NPGA, this program is a comprehensive educational
    safety program which includes a textbook, facilitator's guide, and
    videotape that establishes a new level of readily accessed reference
    information, along with workshops and interactive scenarios that
    increase the knowledge of procedures to use in the event of a variety
    of real-world emergency situations.
        This award-winning program was launched as a cooperative effort
    between the NPGA and the Propane Education & Research Council (PERC).
    The need for the development of high quality emergency response
    resources and training materials is a recognized priority within both
    the propane industry and emergency services community. Funded by
    industry assessments paid to PERC, the propane industry's financial
    commitment has permitted the creation of a 240-page textbook covering
    the physical properties of propane, design and construction features of
    both bulk and non-bulk propane containers, typical emergency scenarios,
    and tactical guidelines and considerations.
        Safety in the propane industry is also enhanced by the rigorous
    regulation at the state level through National Fire Protection
    Association safety standard 58, LP-Gas Code. NFPA 58 is a comprehensive
    safety consensus standard adopted either by reference or direct
    incorporation into state regulations in all 50 states without
    exception. Very few propane industry operations are unaffected by the
    provisions of this standard.
        In addition to industry initiatives to increase the safety and
    security of our nation's fuel supply, the propane industry has many
    other aspects that need to be borne in mind by policymakers as
    decisions are made to allocate resources against potential future
    terrorist attacks. Among the most obvious are:
         Odorized vs. non-odorized propane.--Propane destined for
    use as a fuel is given an odorant called ethyl mercaptan to alert
    people of its presence in the air as a safety feature. Odorization
    serves the same purpose as a siren--it's an alert mechanism. Propane
    has one of the most distinctive odors that clearly alerts people into
    taking precautions. To the extent that Congress chooses to address
    sectors with higher risks, Congress could address those sectors that
    utilize non-odorized propane.
         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.
        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.