[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

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                                                                   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\
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    \1\ For example, a one-ton cylinder of chlorine falls below the 
Risk Management Planning thresholds set by EPA, but can create levels 
of chlorine gas 2 miles offsite that are considered ``immediately 
dangerous to life and health.'' Department of Energy, ``Example Process 
Hazard Analysis of a Department of Energy Water Chlorination Process,'' 
DOE/EH-0340.
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    No Federal law systematically encourages inherently safer 
alternatives at facilities that could suddenly release dangerous 
chemical plumes into surrounding communities. As a result, thousands of 
communities across the country have chemical hazards that may be wholly 
unnecessary. Current laws, generally speaking, are limited to clean up, 
planning, response, and risk management:
     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).
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    \2\ Letter to the Attorney General from Senator Harry Reid of June 
14, 2001; letter to the Attorney General from Senators Frank Lautenberg 
and Max Baucus of February 11, 2000; and, letter to the National 
Institute of Justice from Senator James Jeffords of August 24, 2001.
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     The Agency for Toxic Substances and Disease Registry has 
reported that site security at chemical plants ranges from ``fair to 
very poor'' and at chemical transportation assets from ``poor to non-
existent.''\3\ The American Chemistry Council has pointedly criticized 
this work, apparently to get the agency to retract or revise the 
report. We do not believe that the agency should do so.
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    \3\ Agency for Toxic Substances and Disease Registry, Industrial 
Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and 
Prevention.
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     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\
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    \4\ ``Much Work Remains at Blue Plains, Officials Say,'' Washington 
Post, November 8, 1999.
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     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.
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     The Pacific Northwest National Laboratory found inadequate 
security at several Department of Energy military facilities that store 
hazardous chemicals.\6\
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    \6\ Judith Bradbury, Environmental Technology Division, Pacific 
Northwest National Laboratory, U.S. Department of Energy, 1999.
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     Under existing regulations, a terrorist organization can 
set up a new trucking company in the United States or Canada, and 
obtain operating authority in the United States for an 18-month period 
without any Federal or State safety review or security check simply by 
paying a fee. After obtaining a hazardous materials endorsement for a 
commercial drivers license by merely passing a written exam, drivers 
can legally drive semi-trailers carrying up to 80,000 pounds of 
placarded hazardous materials on nearly all roads and through all 
cities in the United States.\7\
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    \7\ Testimony of Joan Claybrook, Advocates for Highway and Auto 
Safety and Public Citizen, before the Senate Subcommittee on Surface 
Transportation and Merchant Marine, Senate Committee on Commerce, 
Science, and Transportation, October 10, 2001.
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Chemical Fires and Spills Occur Frequently
    Each year, companies in the United States report more than 25,000 
fires, spills, or explosions involving hazardous chemicals to the 
National Response Center, a broad but incomplete Federal record of 
mishaps involving oil or chemicals.\8\ At least 1,000 of these events 
each year involve deaths, injuries, or evacuations. Combined data from 
additional Federal sources suggest that in 1998 there were over 100 
deaths, nearly 5,000 injuries, and when including small spills, almost 
50,000 incidents related to ordinary industrial use of chemicals in the 
United States.\9\ Some analysts suggest that for each catastrophic 
chemical accident that causes a fatality, there are 30 lost-time 
incidents, 300 recordable incidents, and 30,000 near misses.\10\ 
Serious incidents often cost jobs, and uncounted people suffer long-
term consequences from being exposed to the dangerous chemicals. One 
estimate suggests costs of about $5 billion for major U.S. chemical 
accidents each year.\11\
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    \8\ National Response Center. The NRC is the central Federal agency 
to which chemical companies and transporters report oil and chemical 
spills. Reports to the NRC cover incidents small and large. Reports are 
initial and subject to verification and change (www.nrc.uscg.mil/
foia.htm).
    \9\ Sam Mannan, Michela Gentile, and Mike O'Connor, ``Chemical 
Incident Data Mining and Application to Chemical Safety Trend 
Analysis,'' Mary Kay O'Connor Process Safety Center, Texas A&M 
University, 2001.
    \10\ Mannan, et. al, adapted from Richard H. Squire, ``Zero Period 
Process--A Description Of a Process to Zero Injuries,'' Process Safety 
Progress, March 2001.
    \11\ Larry Collins, Carmen D'Angelo, Craig Mattheissen, and Michael 
Perron, Estimating Chemical Accident Costs in the United States: A New 
Analytical Approach.
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Mostly Volunteer Local Emergency Planning Committees are No Substitute 
        for an Urgent National Effort to Reduce Chemical Hazards
    A recent study of 32 ``active'' Local Emergency Planning Committees 
(LEPC) found that ``with a few exceptions, LEPCs do not believe they 
are positioned to effectively encourage facilities to reduce chemical 
hazards.'' Most of these LEPCs believe they ``do not have the time, 
resources or expertise to encourage hazard reduction.''\12\ Again, 
these were ``active'' LEPCs. An earlier national survey found that 21 
percent of LEPCs were ``inactive,'' 39 percent were ``quasi-active,'' 
16 percent were ``compliant,'' and 24 percent were ``proactive.'' \13\ 
Among many additional barriers, LEPCs lack the authority and mandate 
for hazard reduction; can be hampered by dependent relations with 
industry; have no formal role in implementing Risk Management Planning; 
and can become discouraged by a perceived unwillingness of government 
and industry to act. Many lack funding. According to one report, ``many 
LEPCs exist only on paper, and many others exist, but have not 
succeeded in meeting even their basic responsibilities.\14\ There is a 
role for local volunteer efforts, but these efforts are no substitute 
for a national chemical hazard reduction program, and indeed would 
benefit from the leadership provided by an effective national program.
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    \12\ National Institute for Chemical Studies (Charleston, W.V.), 
``Local Emergency Planning Committees and Risk Management Plans: 
Encouraging Hazard Reduction,'' prepared for U.S. EPA, Chemical 
Emergency Preparedness and Prevention Office (#CX 824095), June 2001.
    \13\ George Washington University, Department of Public 
Administration, Nationwide LEPC Survey, 1994.
    \14\ Resources for the Future, The Future of Local Emergency 
Planning Committees, 1993.
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Only Major Policy Changes Will Create a Successful National Effort
    We need a national response to potential terrorism, not just 
voluntary self-assessment programs. If site security at airports were 
voluntary, it wouldn't make Americans feel very safe. The following 
examples help illustrate the problem.
     Few chemical companies have set measurable goals and 
timelines to reduce inherent hazards. In a 1999 survey of 175 chemical 
industry facilities we found only one facility with a measurable goal 
and timeline for eliminating or reducing the size of its vulnerability 
zone for a worst-case accident.\15\ In a separate 1999 survey of nearly 
200 major chemical companies, only three had developed measurable goals 
and timelines to reduce worst-case vulnerability zones.\16\
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    \15\ U.S. Public Interest Research Group and Working Group on 
Community Right-to-Know, At Risk and In the Dark: Will Companies in Our 
Communities Reduce Their Chemical Disaster Zones?, June 1999.
    \16\ Environmental Defense, National Environmental Trust, OMB 
Watch, Sierra Club, Unison Institute, U.S. Public Interest Research 
Group, and Working Group on Community Right-to-Know, Hazard Reduction 
Challenge, June 1999.
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     The Environmental Protection Agency (EPA) has also side 
stepped obvious opportunities to encourage inherent safety. At EPA 
public hearings in 1994 and 1995, public interest groups vigorously 
supported having companies review inherently safer technologies as part 
of Risk Management Planning. The agency did not incorporate this 
approach. As an example of what can be achieved, Blue Plains sewage 
plant will complete work to replace chlorine gas in 2002, a welcome 
development.\17\ However, public interest groups, whistleblowers, and 
nearby facilities pushed for changes for years, and the problem has 
been known since 1982.\18\ This 20-year turnaround suggests why we need 
a more proactive effort. Congress should ensure that we don't have to 
wait another 20 years to make high priority facilities safer on a 
national scale.
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    \17\ ``Toxic Chemicals' Security Worries Officials,'' Washington 
Post, November 12, 2001.
    \18\ Radian Corporation, Air Dispersion Model Assessment of Impacts 
From a Chlorine Spill at the Blue Plains Wastewater Treatment Plant 
(Final Report), December 15, 1982.
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     Several chemical industry trade associations recently 
published voluntary site security guidelines for chemical 
companies.\19\ However, these guidelines are voluntary and lack 
standards, timelines, or measurable hazard reduction goals. They 
contain no third party verification and are not enforceable. They still 
dismiss worst-case scenarios and assume that mitigation will not be 
disabled (e.g., by an airplane crash). They don't address the added 
security risks of contract workers. They don't apply margins of safety. 
They don't weigh security costs against safer design. They don't 
include accounting methods to help identify theft. They don't address 
Internet sales and needed knowledge of customers. In general, they are 
not designed to protect public health and safety.
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    \19\ American Chemistry Council, Chlorine Institute Inc., and 
Synthetic Organic Chemical Manufacturers Association, Site Security 
Guidelines for the U.S. Chemical Industry, October 2001.
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The Chemical Security Act, S. 1602, Proposes Constructive Steps to Fix 
        the Problem
    The Chemical Security Act will give government the mandate and 
tools it needs to ensure that hazardous chemical industries reduce 
hazards and protect chemicals from theft or intrusion. The act:
     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\
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    \20\ The Pollution Prevention Act, 42 U.S.C.A. 13101(b), made it 
``the national policy of the United States that pollution should be 
prevented or reduced at the source whenever feasible'' followed by a 
hierarchy of waste management options.
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     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:
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    \21\ General sources on inherently safer design include: Health and 
Safety Executive (of the United Kingdom), Technology Division, 
Designing and operating safe chemical reaction processes 
(www.hse.gov.uk); and, Trevor Kletz, Process Plants: A Handbook for 
Inherently Safer Design, 1998.
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     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\
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    \23\ U.S. Environmental Protection Agency, Chemical Accident 
Prevention: Site Security (EPA-K-550-F00-002), February 2000.
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     A recent project conducted at four European firms (two 
each in the Netherlands and Greece) identified more than two-dozen 
feasible inherent safety alternatives, the majority with a payback 
period of less than 2 years.\24\
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    \24\ Gerard I.J.M. Zwetsloot and Nicholas A. Ashford, ``The 
Feasibility of Encouraging Inherently Safer Production in Industrial 
Firms,'' to be published in Safety Science. Zwetsloot is a professor at 
Erasmus University Rotterdam, Netherlands. Ashford is a professor at 
Massachusetts Institute of Technology.
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     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\
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    \25\ New Jersey Department of Environmental Protection, 
Communication from Reggie Baldini, September 19, 2001.
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     In Cheshire, Ohio, American Electric Power selected a 
urea-based pollution control system rather than one involving large-
scale storage of ammonia that would have endangered the surrounding 
community.\26\
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    \26\ American Electric Power, Press Release, December 18, 2000.
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     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.
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EPA and DOJ Could Designate ``High Priority'' Categories in Several 
        Ways
    The Chemical Security Act does not prejudge which industries EPA 
and DOJ will determine pose the highest hazard. However there are 
several possible approaches, which EPA and DOJ could use in 
combination. For example:
     A draft screening analysis of EPA's Accidental Release 
Information Program reveals that 12 industry and chemical combinations 
account for 75 percent of serious accidents. The same approach 
identified 12 industry and chemical combinations that account for some 
70 percent of the serious accidents reported under EPA's Risk 
Management Planning program.\29\
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    \29\ National Chemical Safety Program, Mary Kay O'Connor Chemical 
Process Safety Center, Texas A&M University, Annual Assessment Report--
2001 (Draft Report); Neither the NCSP nor the National Chemical Safety 
Roundtable have endorsed as final the figures in this draft report.
---------------------------------------------------------------------------
     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\
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    \31\ James Belke, U.S. Environmental Protection Agency, ``Chemical 
accident risks in U.S. industry--A preliminary analysis of accident 
risk data from U.S. hazardous facilities,'' September 25, 2000
---------------------------------------------------------------------------
     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.
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                                 ______
                                 
  Responses of Paul Orum to Additional Questions from Senator Corzine
    Question 1. S. 1602 requires the Administration to identify and 
reduce high priority chemical risks. Your testimony identifies several 
possible ways that the Administration might approach this challenge. In 
fact, you note that EPA has already conducted analyses that would lend 
themselves to identifying high priorities. Do you think that the 
Administration could readily identify high priority risks in a sensible 
way?
    Response. The Administration can easily identify high-priorities 
from the vulnerabilities that Risk Management Plan (RMP) facilities 
pose to workers and surrounding communities. The chemical industry has 
for several years proclaimed that disclosing worst-case chemical 
release scenarios on the Internet would provide a ``blueprint'' or 
``roadmap'' for terrorists.\1\ \2\ Proponents of this theory explicitly 
claimed that a terrorist could use a data base of worst-case scenarios 
to realize ``one-stop shopping'' for ``targeting quality'' 
information.\3\ The Department of Justice amplified this claim in 
testimony and reports.\4\ The House Commerce Committee held hearings 
titled ``Internet Posting of Chemical `Worst Case' Scenarios: A Roadmap 
for Terrorists.'' \5\ Congress implicitly accepted the roadmap theory 
in restricting public access to the worst-case scenarios in 1999.\6\ 
Given this history, it is perplexing that anyone would now claim that 
the Administration could not identify high priority facilities for 
preventing chemical site terrorism.
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    \1\ American Chemistry Council (FKA Chemical Manufacturers 
Association), The Terrorist Threat in America, April 1998.
    \2\ Coalition for Effective Environmental Information, Government 
Accountability for Environmental Information Policy, 1999.
    \3\ American Chemistry Council, Part Two, p. 9.
    \4\ Statement of Robert M Burnham, Federal Bureau of Investigation, 
before the Senate Committee on Environment and Public Works, March 16, 
1999; and, U.S., Department of Justice, Assessment of the Increased 
Risk of Terrorist or Other Criminal Activity Associated With Posting 
Off-Site Consequence Analysis Information on the Internet, April 18, 
2000.
    \5\ U.S. House of Representatives, Committee on Commerce, February 
10, 1999.
    \6\ Chemical Safety Information, Site Security and Fuels Regulatory 
Relief Act (Public Law 106-40).
---------------------------------------------------------------------------
    In setting priorities, EPA and DOJ should read the blueprint and 
follow the roadmap. According to one industry analysis, the roadmap 
consists of bringing together three elements: chemical inventory, 
worst-case assessment, and population at risk.\7\ These three elements 
present EPA and DOJ a means to identify high-priority facilities for 
chemical terror prevention. Indeed, the DOJ is already working with 
EPA's complete data base of Risk Management Plans (RMP*Info). Congress 
should ask EPA and DOJ to provide the appropriate committee(s) with the 
RMP roadmap, including populations at risk. Congress needs the roadmap 
from EPA and DOJ to make informed decisions. Reducing these 
vulnerabilities will provide a basic measure of progress on homeland 
security.
---------------------------------------------------------------------------
    \7\ Arthur F. Burke, DuPont Corporation, Communication of Risk 
Management Plan Information: Some ``Principles & Concerns,'' March 4, 
1997.
---------------------------------------------------------------------------
    At the same time, to ensure that the Administration effectively 
identifies high priorities, Congress should define minimum standards in 
the Chemical Security Act. Without such a default ``backstop,'' the 
Administration may not set priorities that protect public safety. The 
Chemical Security Act should therefore require EPA and DOJ to consider 
by default as high-priority those facilities that put any person 
offsite at risk of death or serious injury. Alternatively, the Act 
could define as high-priority any facility that puts more than a 
specified number of persons at risk. The Act could then require those 
facilities to either drop below a threshold number of persons at risk 
or justify why they cannot do so and apply mandatory site security 
standards. Using an objective standard, such as population at risk, 
would ensure that inherent safety changes (involving production) are 
selected by the company and not, as industry charges, by the 
government. Facilities that are unable to meet the objective population 
standard, however, should meet rigorous, mandatory site security 
standards established by the government to prevent chemical terrorism. 
In addition, S. 1602 currently directs EPA and DOJ to address threats 
to national security, critical infrastructure, and threshold quantities 
of substances of concern (to which could be added worker safety, in 
consultation with the Department of Labor, and environmental 
protection.) This authority enables the EPA and DOJ to select 
particular industry sectors and substances of concern for additional 
scrutiny.
    As noted in my testimony, EPA identified in 1995 some 2,000 ``high 
priority/high risk facilities and areas'' for attention to prevent 
chemical releases.\8\ In this analysis, EPA used a number of criteria 
for selecting priority risk areas, including industrial concentration, 
population density, accident history, transportation density, 
environmental justice, sensitive environments, and natural disasters. 
The agency also selected 19 high priority substances based on chemical 
toxicity, volatility, production volume, accident history, and 
vulnerability zones. To my knowledge, however, the agency has not 
targeted any hazard reduction assistance to the high priority 
facilities and has no plans to do so.
---------------------------------------------------------------------------
    \8\ U.S. Environmental Protection Agency, Priority Risk Areas for 
CEPP Activities, June 1995.
---------------------------------------------------------------------------
    Unfortunately, DOJ has not produced as required a site security 
review that could help identify high priority sectors and 
substances.\9\ Neither has EPA promulgated required rules that would 
enable an independent ``qualified researcher'' to identify 
priorities.\10\ Nor has the chemical industry suggested which industry 
sectors or substances may require attention for improved security 
(other than the three factors noted above: chemical inventory, worst-
case assessment, and population at risk). Identifying priorities is not 
the problem; getting government and industry to act is the problem.
---------------------------------------------------------------------------
    \9\ 42 U.S.C. 7412(r)(7)(H)(xi).
    \10\ 42 U.S.C. 7412(r)(7)(H)(vii)

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

    Question 3. The testimony of Fred Webber points out that there are 
many existing safety requirements that apply to chemical facilities. In 
your view, do the authorities and security and hazard reduction 
measures contained in S. 1602 exist elsewhere in current law?
    Response. Existing Federal regulations do not address terrorism 
prevention to the extent envisioned in S. 1602. Existing regulations 
are from a different, pre-terrorism era. These regulations did not, as 
a rule, address terrorism in selecting covered substances, thresholds, 
and industrial sectors. Those few security measures that are contained 
in current regulations are not equivalent to those contained in S. 1602 
and are plainly insufficient to prevent chemical terrorism. To be sure, 
no existing Federal law regulates the scope and extent of the 
vulnerability zones that chemical facilities present to surrounding 
communities in terms of distance, chemical intensity, or populations at 
risk. Further, current laws do not require companies to assess safer 
alternatives to practices that can send toxic fumes into nearby schools 
or neighborhoods. In addition, many existing chemical safety laws do 
not address terrorism involving industrial chemicals (such as programs 
that regulate food quality, flammable fabrics, pesticide registration, 
pollution permits, and drugs and cosmetics).
    The Clean Air Act (CAA) contains certain authorities that EPA could 
use to address chemical terror prevention. Section 112(r) established 
the Risk Management Planning (RMP) program to prevent accidents 
involving extremely hazardous substances.\11\ However, EPA did not 
consider chemical terror prevention when selecting the chemicals, 
thresholds, and processes regulated under the RMP program. Nor did EPA 
include any requirement for firms to identify safer technologies in the 
RMP program, despite vigorous prompting from environmental and labor 
organizations.\12\ In addition, the CAA section 112(r)(7)(a) provides 
EPA authority to compel dangerous chemical facilities to reduce worst-
case chemical vulnerabilities imposed on surrounding communities. 
However, the agency has never used this authority and has no plans to 
do so.\13\ Congress should ask EPA to explain if the CAA 112(r)(7)(a) 
is for some reason insufficient to reduce the chemical terror 
vulnerabilities that hang over many communities. Alternatively, if this 
authority is sufficient, Congress should ask the agency to explain when 
it intends to use it. If the CAA 112(r)(7)(a) is to contribute to 
chemical terror prevention, Congress will apparently have to make this 
provision mandatory, not optional, and direct EPA to use it and to 
include inherent safety solutions.
---------------------------------------------------------------------------
    \11\ 42 U.S.C. 7412(r)
    \12\ U.S. Environmental Protection Agency, Supplemental Notice of 
Proposed Rulemaking, ``Accidental Release Prevention Requirements: Risk 
Management Programs Under Clean Air Act Section 112(r)(7); Proposed 
Rule,'' 60 Federal Register 13525, March 13, 1995; and EPA public 
hearings, March 31, 1995.
    \13\ Personal communication of Jim Makris, Director, Chemical 
Emergency Preparedness and Prevention Office, U.S. Environmental 
Protection Agency, December 17, 2001.
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    The Clean Air Act's general duty clause, Section 112(r)(1), enables 
EPA to bring enforcement cases if a firm fails to identify and use 
available inherently safer technologies that reduce the possibility of 
chemical terrorism.\14\ However, EPA has never used the general duty 
clause where a firm has failed to reduce unnecessary chemical hazards. 
Further, EPA's implementation of the general duty clause does not 
adequately address terrorism prevention in several ways. First, EPA's 
guidance does not clearly identify a structured process by which firms 
should identify, document, and select inherently safer options. Second, 
EPA's guidance necessarily follows ``generally accepted'' or 
``recognized'' industry practices--which routinely subject communities 
to extremely hazardous substances stored in large, dangerous amounts. 
Third, EPA's guidance does not set forth the agency's expectations for 
firms to prevent criminal releases, which may dissuade EPA from 
enforcing the general duty if a firm fails to take sufficient security 
precautions. These shortcomings, together with the agency's pervasive 
inactivity on inherent safety, illustrate the need for much more direct 
and vigorous Congressional intervention to ensure that the agency 
incorporates and uses design for inherent safety and terrorism 
prevention in general duty enforcement.
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    \14\ 42 U.S.C. 7412(r)(1)
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    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\
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    \15\ 42 U.S.C. 6901 et seq.
    \16\ 40 CFR 264.14, 265.14.
    \17\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe, 
Accident Epidemiology in the U.S. Chemical Industry: Preliminary 
Results from RMP*Info, Center for Risk Management and Decision 
Processes, The Wharton School, University of Pennsylvania, March 6, 
2000.
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     The Toxic Substances Control Act (TSCA) Section 6 gives 
EPA broad power to control any chemical that poses an ``unreasonable 
risk of injury to health or the environment.'' However, this standard 
has proven indisputably cumbersome in practice and was never intended 
to address terror prevention across a diverse array of industries. 
Nonetheless, EPA could use TSCA Section 4 authority to require chemical 
companies to field-test the dispersion plumes of high-volume chemicals 
that they produce and use.\18\ Congress previously directed EPA to 
conduct chemical dispersion tests under the Clean Air Act, including 
field tests on two chemicals each year.\19\ However, EPA has not 
actually field tested any chemical under this program, citing lack of 
funding, among other impediments. Given the lack of testing progress 
under the Clean Air Act, Congress should direct EPA to obtain chemical 
dispersion test information from manufacturers under TSCA.
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    \18\ 40 CFR 766, 790-799
    \19\ 42 U.S.C. 7403(f)
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     The Process Safety Management (PSM) standard of the 
Occupational Safety and Health Administration (OSHA) is intended to 
protect workers onsite from chemical accidents.\20\ The PSM standard 
requires firms to identify hazards, but not to address how terrorists 
could defeat add-on safety controls, and not how safer alternative 
processes or chemicals could reduce the firm's vulnerability to 
terrorism. Many serious chemical accidents involve chemicals that are 
not covered by the PSM standard. For example, the U.S. Chemical Safety 
Board recently examined 167 deadly reactive chemical accidents that 
together killed more than 100 Americans: over half of the chemicals 
involved in these deadly incidents are not currently covered by PSM or 
RMP.\21\ Further, more than half of the facilities covered by the RMP 
program are not covered by PSM requirements.\22\
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    \20\ OSH Act, Section 6; 29 CFR 1910.119
    \21\ Presentation of John Murphy, U.S. Chemical Safety and Hazard 
Investigation Board, Reactive Chemicals Hazard Investigation, Draft 
Work Product, November 9, 2001.
    \22\ Paul R. Kleindorfer, Harold Feldman, and Robert A. Lowe, 
Accident Epidemiology and the U.S. Chemical Industry: Preliminary 
Results from RMP*Info, Center for Risk Management and Decision 
Processes, The Wharton School, University of Pennsylvania, March 6, 
2000.
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     The OSHA Hazard Communication Standard informs workers 
about hazardous chemicals with which they work.\23\ OSHA notes that 
these standards ``do not address the precautions necessary to prevent 
large accidental releases that could result in catastrophes.'' \24\
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    \23\ OSH Act, Section 6; 29 CFR 1910.1200
    \24\ Occupational Safety and Health Administration, Process Safety 
Management of Highly Hazardous Chemicals.
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     The Comprehensive Environmental Response Compensation and 
Liability Act of 1980 (CERCLA) and Superfund Amendments and 
Reauthorization Act of 1986 (SARA) address responding to spills and 
emergencies and cleaning up ``superfund'' and other contaminated 
sites.\25\ These cleanup programs do not require companies to 
investigate safer alternatives or reduce chemical hazards that a 
terrorist could use as an expedient weapon.
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    \25\ 42 U.S.C., Chapter 103
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     The Emergency Planning and Community Right-to-Know Act of 
1986 (EPCRA), a freestanding title of SARA, addresses preparing for 
spills or emergencies, through Local Emergency Planning Committees 
(LEPC) and other means, and encourages chemical hazard communication to 
the public.\26\ EPCRA does not require, however, that companies assess 
or implement chemical hazard reduction strategies or even prevent 
releases. Further, EPA-sponsored studies show that LEPCs generally 
believe they lack the resources, expertise, and mandate for hazard 
reduction work with facilities.\27\ In addition, EPCRA's most 
successful community right-to-know provision, the Toxics Release 
Inventory, primarily addresses routine toxic pollution, not emergency 
releases.
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    \26\ 42 U.S.C., Chapter 116
    \27\ National Institute for Chemical Studies (Charleston, W.V.), 
Local Emergency Planning Committees and Risk Management Plans: 
Encouraging Hazard Reduction, prepared for U.S. EPA, Chemical Emergency 
Preparedness and Prevention office (#CX 824095), June 2001.
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     The Chemicals Safety Information, Site Security and Fuels 
Regulatory Relief Act (CSISSFRRA) restricted public disclosure and 
oversight of chemical industry hazards, including the public's ability 
to readily track progress in reducing those hazards.\28\ This law also 
required DOJ to conduct a review of site security at chemical plants 
and to produce recommendations. However, DOJ has not apparently 
conducted this review, including an interim report due in August 2000. 
DOJ has not addressed substantial concerns raised by environmental and 
labor groups about this review. These concerns include more than three-
dozen specific site security recommendations and a framework for 
incorporating inherent safety design in improving site security.\29\ 
Congress should ensure that DOJ completes this statutory requirement 
and responds to public concerns. However Congress should also condition 
resources provided to the security agencies on completion of specific 
tasks by explicit deadlines.
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    \28\ 42 U.S.C. 7401 (Public Law 106-40)
    \29\ Working Group on Community Right-to-Know et al, letters to the 
Attorney General of August 14, 2000; April 23, 2001; June 15, 2001; 
and, September 27, 2001 (www.rtknet.org/wcs).
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     The Pollution Prevention Act (PPA) makes it the national 
policy of the United States to reduce toxic waste at the source 
wherever feasible.\30\ The PPA also directs the EPA to consider how 
agency actions affect source reduction of toxic waste. Source 
reduction, broadly considered, covers both routine releases and one-
time events. However, the focus of the PPA is to prevent routine 
industrial toxic pollution rather than emergencies.
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    \30\ 42 U.S.C. 13101 et seq. (Public Law 101-508)
---------------------------------------------------------------------------
     The Hazardous Materials Transportation Act (HMTA) governs 
transportation of hazardous materials.\31\ The Department of 
Transportation's (DOT) hazardous materials regulations under HMTA have 
significant gaps. Railcars held on leased track (on sidings or under 
``rolling'' leases), often in populated areas, pose major chemical 
release hazards but may not be covered by either DOT regulations or 
EPA's RMP program.\32\ Railcars may in some cases sit just outside the 
fence at an RMP facility without being included in hazard assessments, 
public disclosure, and risk management planning. DOT has recently noted 
that the threat of continuing terrorism makes it more important to 
address such regulatory gaps.\33\ Ubiquitous graffiti scrawled on 
railcars also suggests weak or non-existent security.
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    \31\ 42 U.S.C. 5101 et seq.
    \32\ 66 Federal Register 32420
    \33\ 66 Federal Register 59220

    Question 4. The American Chemistry Council and SOCMA testified 
about the security and transportation guidelines that they have 
developed and are working to implement. What do you think of the 
adequacy of the guidelines? Do you think that a voluntary approach to 
implementing such guidelines would be more effective than the 
regulatory approach in S. 1602?
    Response. The American Chemistry Council's voluntary ``Site 
Security Guidelines for the U.S. Chemical Industry,'' recently released 
with SOCMA and the Chlorine Institute, are neither intended nor suited 
to protect public health and safety. Voluntary chemical site security 
is no more appropriate than voluntary airport security, and is no more 
likely to succeed. Voluntary efforts can economically penalize industry 
leaders who do a thorough job and reward laggards who don't. The ACC's 
voluntary industry guidelines also suffer major deficiencies. The 
guidelines:
     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\
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    \34\ CBS Channel 2 New York City, Chemical Plant Security Story, 
November 26, 2001.
    \35\ Violence Policy Center, Voting From the Rooftops, October 
2001.
    \36\ Neil C. Livingstone, et al, American Bophals (SIC), Energy 
Safety Council (Washington, DC).
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    Voluntary approaches are plainly insufficient. Current voluntary 
efforts have not led many chemical manufacturers to reduce the size of 
the danger zones that their facilities impose on surrounding 
communities (in terms of vulnerable distance, population at risk, or 
toxic intensity). For example, as noted in my testimony:
     In 1999, the Working Group and six other organizations 
asked 192 major chemical companies to set measurable goals and 
timelines to reduce the size of their worst-case vulnerability zones 
for chemical fires and spills. These 192 companies were members of the 
American Chemistry Council and often have multiple facilities. Some 78 
companies responded. Of those, 14 stated that they were not required to 
file Risk Management Plans (the basis document for the worst-case 
scenarios). Among the remaining 64, only three provided measurable 
goals and timelines to reduce the size and danger to the community of 
their vulnerability zones. Two more asked for more time, but then 
didn't set any later goals.\37\
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    \37\ Environmental Defense, National Environmental Trust, OMB 
Watch, Sierra Club, Unison Institute, U.S. Public Interest Research 
Group, and Working Group on Community Right-to-Know, Hazard Reduction 
Challenge, June 1999.
---------------------------------------------------------------------------
     In 1999, the Working Group and U.S. PIRG surveyed 175 
specific chemical facilities that had active community dialog efforts. 
Only one facility out of 175 proved to have publicly announced a 
measurable goal and timeline for reducing the zone of vulnerability in 
which people could be hurt or killed in a worst-case chemical fire or 
spill.\38\
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    \38\ U.S. Public Interest Research Group and Working Group on 
Community Right-to-Know, At Risk and In the Dark: Will Companies in Our 
Communities Reduce Their Chemical Disaster Zones?, June 1999.
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    In the past, chemical industry representatives have insisted that 
voluntary initiatives such as Responsible Care should not be used to 
oppose government actions. In the words of John Holtzman, a former 
director of public affairs at the American Chemistry Council (then the 
Chemical Manufacturers Association):
    ``We don't want anyone to say, `We don't need this regulation, 
because we have Responsible Care.' We don't view the program as a 
shield [against regulation.]'' \39\
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    \39\ Chemical Marketing Reporter, What's in a Logo, January 6, 
1992.
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                               __________
                                                   August 14, 2000.
Hon. Janet Reno,
Attorney General of the United States,
Department of Justice,
950 Pennsylvania Ave., NW, Room 4545,
Washington, DC.
    Dear Attorney General Reno: The Department of Justice has asserted, 
in response to chemical industry lobbying,\1\ that extremely hazardous 
substances (EHS) at industrial facilities present attractive targets 
for criminal activity.\2\ The Agency for Toxic Substances and Disease 
Registry confirms that site security at chemical-using industries 
ranges from fair to very poor.\3\
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    \1\ Chemical Manufacturers Association, The Terrorist Threat in 
America, 1998; also, Arthur F. Burk, Communication of Risk Management 
Plan Information: Some Principles & Concerns, March 4, 1997; also U.S. 
Environmental Protection Agency, Final Report of the Electronic 
Submission Workgroup (Section 2: Access System), 1997.
    \2\ Federal Register, Volume 65, p. 24833, and supporting 
documents, April 27, 2000.
    \3\ Agency for Toxic Substances and Disease Registry, Industrial 
Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and 
Prevention, 1999.
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     For these reasons, Congress directed the Department of Justice, in 
consultation with government, industry, and the public, to report on 
``actions, including the design and maintenance of safe facilities, 
that are effective in detecting, preventing, and minimizing the 
consequences of releases of regulated [extremely hazardous] substances 
that may be caused by criminal activity.'' Congress further directed 
the Department to make ``recommendations for reducing vulnerability of 
covered stationary sources to criminal and terrorist activity''. 
Congress directed the Department to produce an interim report by August 
5, 2000.\4\ The Department did not meet this non-discretionary 
deadline.
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    \4\ Chemical Safety Information, Site Security and Fuels Regulatory 
Relief Act of 1999, Section 3(a)(xi).
---------------------------------------------------------------------------
    Environmental, labor, and public health organizations have 
vigorously supported a serious reduction in the potential for onsite 
and offsite consequences of chemical fires and explosions at EHS 
facilities. Our organizations have, in particular, championed the use 
of inherently safer design to reduce and eliminate chemical hazards 
that may be wholly unnecessary.
    We strongly urge the Department not to limit its review and 
recommendations to the reactive control of existing EHS hazards. 
Rather, the Department should include, as the option of first resort, 
the possibility of reducing, eliminating, or removing these hazards. 
This proactive approach is consistent with the Department's new 
emphasis on preventing, rather than simply responding to, terrorism and 
other crimes.
    The advantages of preventive design are widely acknowledged, but 
seldom acted upon. For example, the ``Handbook of Loss Prevention and 
Crime Prevention'' notes that:
    ``All too frequently insufficient consideration is given to 
security factors before and during construction; security protection is 
too often added as an afterthought, if at all.'' The author recommends 
that ``model security codes must be established and built into all new 
construction.'' \5\
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    \5\ Lawrence J. Fennelly, Handbook of Loss Prevention and Crime 
Prevention, Second Edition, 1989, p.35.
---------------------------------------------------------------------------
    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.
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    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\
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    \8\ Senator Frank Lautenberg, U.S. Senate, Chemical Security Act of 
1999 (S. 1470).
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    We do not suggest that safer design can avoid every safety and 
security hazard. In fact, even the best security systems will be 
breached and the best safety systems will fail. Therefore, we suggest 
that safer design should be the first alternative in the hierarchy of 
safety and security options: first prevent, then control, then 
mitigate, and only last, buffer.
    Add-on security measures (such as guards, alarms, and access 
controls) frequently are costly. In contrast, inherently safer design 
can help firms to simultaneously control costs and improve security and 
reduce hazards. While best considered during design, existing plants 
can retrofit many inherent safety features.
    We recognize that the Department may not view preventive design as 
within its traditional field of expertise. Certainly local police and 
security consultants often know little about inherently safer design 
for EHS facilities. We therefore urge the Department to actively 
obtain, as needed, necessary expertise on design for inherent safety 
and security, both to report to Congress and to assure sufficient long-
term access by local, state, and Federal security agencies to such 
expertise.
    The chemical process industry's leading expert in inherently safer 
design, Trevor Kletz, has identified more than a dozen ways to reduce 
hazards by improving plant design: \9\
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    \9\ Trevor Kletz, Process Plants: A Handbook for Inherently Safer 
Design, 1998.
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     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:
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    * These safety and security elements are derived from, among other 
sources: Lawrence J. Fennelly, Handbook of Loss Prevention and Crime 
Prevention, Second Edition, 1989; and Russell L. Bintliff, The Complete 
Manual of Corporate and Industrial Security, 1992. Elements related to 
inherent safety are derived from, among other sources: Trevor Kletz, 
Process Plants. A Handbook for Inherently Safer Design, 1998.
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     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.
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    \1\ See, for example, Eric Pianin, Toxic Chemicals' Security 
Worries Officials; Widespread Use of Industrial Materials Makes Them 
Potential Target of Terrorists, Washington Post, November 12, 2001, at 
A14, attached as Appendix A-1.
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    Existing law does not address this problem. Waiting for States to 
erect a patchwork of inconsistent requirements could take years, and 
would cost excessive amounts. To its credit, the American Chemistry 
Council recognizes that these hazards must be an immediate priority and 
has already put in motion special programs to help its members upgrade 
plant security. However, the notion that we would leave industry to 
implement these efforts voluntarily, without government oversight, 
makes as much sense as leaving airport security to the exclusive 
discretion of the world's air carriers.
    The American people clearly want their government to protect them 
from the worst threats, and they want those activities begun yesterday. 
Not incidentally, the proposal you have before you today, like the one 
that Congress passed in 1986 in the wake of the Bhopal tragedy, will 
enable our nation's brave police and firefighters to combat accidental 
releases of hazardous materials with the knowledge that the Federal 
Government, and the chemical, petroleum, and transportation industries, 
have done everything possible to avoid placing them in harm's way.
    For the sake of these brave men and women, and the public at large, 
NRDC urges you to move this legislation toward enactment as quickly as 
possible. The remainder of my testimony will address (1) the need for 
the legislation; (2) why a Federal law is necessary, as opposed to 
consigning responsibility for this issue to the States or industry 
volunteerism; and (3) possible ways to strengthen the legislation.

                        NEED FOR THE LEGISLATION

    As you may remember, the Bhopal tragedy occurred when equipment at 
a pesticide manufacturing plant malfunctioned, causing the release of a 
cloud of lethal methyl isocyanate gas.\2\ People in the crowded 
neighborhoods around the plant saw the plume, assumed it was a fire, 
and ran toward the factory to help extinguish the blaze or to watch in 
excitement. As the plume drifted over the plant gates toward the 
crowds, some 3,000 people dropped dead in their tracks. Overcoming the 
temptation to view Bhopal as an example of Third World ineptitude, a 
congressional panel traveled to a twin Union Carbide facility in 
Institute, West Virginia, only to discover that although the county had 
prepared an emergency plan, the plant manager did not realize that it 
existed.\3\
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    \2\ Diamond, Stuart, The Bhopal Disaster: How It Happened, New York 
Times, January 28, 1985, at A1, attached as Appendix A-2.
    \3\ Pienciak, Richard T., Flaws found in emergency plans near toxic 
plants, Los Angeles Times, January 6, 1985, at 2, attached as Appendix 
A-3.
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    Congress responded to Bhopal and its aftermath by passing the 1986 
Emergency Response and Community Right-to-Know Act (EPCRA), which was 
refined and expanded by the 1990 Clean Air Act (CAA) amendments. Under 
both statutes, State and local governments are responsible for dealing 
with such incidents, with the Federal Government playing a very small 
role in providing technical support for their efforts. Emergency 
response has two distinct components in this context: first, the 
containment of the explosion, fires, and toxic releases that typically 
accompany such incidents and, second, the successful protection of the 
affected populations near the facilities. But neither law addresses the 
all-important tasks of preventing such incidents by reducing hazards 
and ensuring plant and transportation system security. Human error in 
operating complex machinery killed several thousand people in Bhopal. 
What price would we pay for deliberate sabotage at such a facility?
    In the decade-and-a-half since EPCRA went on the books, funding 
shortfalls have undermined local efforts to make progress on either 
containing accidents or protecting the public and, until recently, very 
few cities and towns had even thought about reducing the use of toxic 
chemicals or improving the technology of storage equipment. Indeed, it 
is commonly understood by everyone involved at the grassroots level--
from firefighters, police, and other municipal officials to the 
companies that own and operate the factories, railroads, pipelines, and 
truck fleets--that local emergency response capacity, even in large 
cities, falls far short of either these legal requirements or safe 
practice. Despite the valiant efforts of fire departments nationwide, 
local governments under pressure to fund other services simply have not 
given firefighters, police, and emergency medical personnel what they 
need to do a very difficult job.
    As a classic example of this problem, I refer you to press accounts 
of a fire caused by a train derailment in a tunnel running through the 
center of Baltimore City last summer; I have attached one comprehensive 
analysis of the implications of the incident to my testimony.\4\ The 
short story is that it took several days to put out the fire, and 
everyone involved with the response was enormously relieved that no 
acutely toxic chemicals were involved because the City was 
fundamentally unprepared to deal with such a catastrophe.
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    \4\ Heather Dewar, When Chemical Safety is a Matter of Security, 
Baltimore Sun, October 17, 2001, at 1A, attached as Appendix A-4.
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    To understand the gravity of the situation in Baltimore and 
elsewhere, consider the following realities of any emergency that 
involves the release of an acutely toxic chemical. Experts agree that 
there are only two possible alternatives when a toxic plume is released 
near a population center: (1) shelter-in-place or (2) evacuation. They 
further agree that the first of these is only as effective as the 
shelter itself. In the absence of measures to seal off ventilation 
systems, and plug other leaks in a building, shelter-in-place can serve 
to compound chemical exposures. Evacuation therefore remains an 
essential component of any emergency response plans. EPCRA recognized 
this reality, explicitly requiring that ``local emergency response 
committees'' include detailed evacuation scenarios in their plans.
    Many cities have made little, if any, progress on these critical 
tasks, again as indicated by the Baltimore incident.\5\ They have not 
deployed effective warning systems; they have no contingency plan for 
dealing with vulnerable populations; they have made no effort to train 
the public on shelter in place techniques, and they have no idea how 
they would conduct an evacuation if one was necessary. Even worse, most 
cities have not yet mastered the important challenge of integrating 
fire department efforts to contain fires, explosions, and releases with 
police efforts to evacuate or otherwise aid the public. Police lack 
equipment to protect themselves in the event of an acutely toxic 
release, do not routinely train with firefighters to develop effective 
coordination procedures, and have no concrete plan for controlling 
traffic, much less organizing a large-scale evacuation of affected 
neighborhoods.
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    \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.
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    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.
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    \6\ U.S. Department of Justice, 2000. Assessment of the Increased 
Risk of Terrorist or Other Criminal Activity Associated with Posting 
Off-Site Consequence Analysis Information on the Internet, at 27, 
attached as Appendix B.
    \7\ U.S. Environmental Protection Agency, Chemical Emergency 
Preparedness and Prevention Office, 2000. Assessment of the Incentives 
Created by Public Disclosure of Off-Site Consequence Analysis 
Information for Reduction In the Risk of Accidental Releases, at 2, 11-
12, attached as Appendix C.
    \8\ Mukerjee, Madhusree, Toxins Abounding, Scientific American, 
July 1995, at 22, attached as Appendix D.
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    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\
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    \9\ David Wagman, A Vulnerable System Looks for Security, Energy 
Insight Today (September 14, 2001).
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    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\
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    \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.
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                           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.
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    \11\ Greer, Linda, Anatomy of a Successful Pollution Reduction 
Project, 34 Environmental Science and Technology 254A (2001), attached 
as Appendix E.
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    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.
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    \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.
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    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.
  
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