[Senate Hearing 113-714]
[From the U.S. Government Publishing Office]
S. Hrg. 113-714
OVERSIGHT OF FEDERAL RISK MANAGEMENT AND EMERGENCY PLANNING PROGRAMS TO
PREVENT AND ADDRESS CHEMICAL THREATS, INCLUDING THE EVENTS LEADING UP
TO THE EXPLOSIONS IN WEST, TX AND GEISMAR, LA
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
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JUNE 27, 2013
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Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island MIKE CRAPO, Idaho
TOM UDALL, New Mexico ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York DEB FISCHER, Nebraska
MAZIE K. HIRONO, Hawaii
Bettina Poirier, Majority Staff Director
Zak Baig, Republican Staff Director
C O N T E N T S
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Page
JUNE 27, 2013
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 1
Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 7
Fischer, Hon. Deb, U.S. Senator from the State of Nebraska....... 8
WITNESSES
Moure-Eraso, Rafael, Chairperson, U.S. Chemical Safety Board..... 8
Prepared statement........................................... 11
Response to an additional question from Senator Gillibrand... 24
Responses to additional questions from:
Senator Vitter........................................... 26
Senator Crapo............................................ 32
Breen, Barry, Deputy Assistant Administrator, Office of Solid
Waste and Emergency Response, U.S. Environmental Protection
Agency......................................................... 36
Prepared statement........................................... 38
Responses to additional questions from Senator Boxer......... 45
Response to an additional question from Senator Gillibrand... 48
Responses to additional questions from:
Senator Vitter........................................... 49
Senator Crapo............................................ 54
Sawyer, Randall, Chief Environmental Health and Hazardous
Materials Officer, Contra Costa Health Services................ 225
Prepared statement........................................... 227
Responses to additional questions from Senator Boxer......... 244
Webre, Rick, Director, Ascension Parish Office of Homeland
Security and Emergency Preparedness............................ 246
Prepared statement........................................... 249
Responses to additional questions from Senator Vitter........ 254
Orum, Paul, Consultant, Coalition to Prevent Chemical Disasters.. 256
Prepared statement........................................... 258
Responses to additional questions from Senator Boxer......... 264
Mannan, M. Sam, PE, CSP, DHC, Regents Professor and Director,
Mary Kay O'Connor Process Safety Center, Texas A&M University
System......................................................... 292
Prepared statement........................................... 294
Responses to additional questions from Senator Vitter........ 322
Nibarger, Kim, Health and Safety Specialist, Health, Safety and
Environment Department, United Steelworkers International Union 337
Prepared statement........................................... 339
Responses to additional questions from Senator Boxer......... 343
ADDITIONAL MATERIAL
Statement of the Agricultural Retailers Association and The
Fertilizer Institute........................................... 354
Letter to Senator Boxer and Senator Vitter from the Institute of
Makers of Explosives........................................... 361
OVERSIGHT OF FEDERAL RISK MANAGEMENT AND EMERGENCY PLANNING PROGRAMS TO
PREVENT AND ADDRESS CHEMICAL THREATS, INCLUDING THE EVENTS LEADING UP
TO THE EXPLOSIONS IN WEST, TX AND GEISMAR, LA
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THURSDAY, JUNE 27, 2013
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m. in room
406, Dirksen Senate Office Building, Hon. Barbara Boxer
(chairman of the committee) presiding.
Present: Senators Boxer, Vitter, Fischer, Barrasso, and
Boozman.
OPENING STATEMENT OF HON. BARBARA BOXER,
U.S. SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Good morning, everyone. Senator Vitter and I
are here because of tragedies that have occurred in our Nation.
We want to look at these and see what we can do.
Before I start my time, so we will not start it now, I have
a couple of items of business.
In the audience, I am just looking for him, is Timothy
White. Timothy, where are you? Would you stand? Timothy White
is the brother-in-law of Kevin Sanders, a firefighter who was
killed in the explosion in West, Texas, and he is here
representing their family. He is also a chemist who wrote us a
very thoughtful letter and, before I place it in the record, I
am just was going to quote a little part of it. If I could have
the last page of the letter? Thank you.
He starts off by saying let me begin by thanking you for
the opportunity to address the Committee regarding the
explosion at the fertilizer plant in West. My brother-in-law,
Kevin, was one of the first responders that was killed in the
explosion. The profound impact of this tragedy continues to
affect our family and while the changes proposed here will not
bring Kevin back to us, they will help ensure that other
families and our Country do not experience this type of tragedy
again.
And so, I am going to place, without objection, your full
letter in the record and the importance of finding alternatives
to these highly explosive materials that are used in fertilizer
and, in the meantime, storing these in an appropriate fashion.
So, we will put that in the record. We really thank you for
being here. It means a lot to us.
So, we will start my time. We have votes at 11:30, so we
are going to have to finish this entire discussion by 11:45.
What brings us here today is the tragic loss of life and
injuries caused by a chemical explosion in West, Texas. After
we announced our hearing, another tragic chemical explosion
occurred in Louisiana. We must look at why these tragedies and
others occur and what we can do to help prevent such disasters
in the future.
Let us walk through what happened at West. On April 17th, a
massive explosion and fire destroyed a fertilizer distribution
plant and caused widespread destruction. At least 14 people
died, hundreds of people were injured and homes, businesses and
three unoccupied schools were damaged or destroyed. An owner of
a local business there said ``It was like a war zone last
night. It was like a nightmare, something you would see in a
movie.''
Just 2 weeks ago another deadly tragedy occurred in
Louisiana where more than 100 people were injured and two
workers lost their lives. In that case, a vapor cloud of
flammable petroleum gases exploded at a petrochemical refinery,
releasing more than 62,000 pounds of toxic chemicals and
causing a serious fire.
And then, in August 2012 in my State of California in
Richmond, a refinery released flammable petroleum gases and
formed a vapor cloud that ignited. Six workers were injured,
thousands of people from nearby residential areas went to local
hospitals for medical treatment.
I want to express my deepest condolences to the first
responders, the workers and others who lost the lives or were
injured in chemical disasters in these communities and others
across this Nation.
Federal safety and health officials must use all of their
available tools, including, and most important, updated risk
management plans which are required under the law. They must
also use the best training methods and new technologies. Lives
are at stake and action must be taken now. Not tomorrow. Not
down the road. We do not need new legislation for a lot of
this. We can do it now.
Our Federal Risk Management and Emergency Response laws
were written after two tragic disasters in the mid-1980's. In
1984, a facility in Bhopal, India released a toxic chemical
that killed over 2,000 people. The following year, a facility
in West Virginia released thousands of pounds of dangerous
chemicals into a nearby community, sending more than 100 people
to the hospital.
In 1986, Congress passed the Emergency Planning and
Community Right to Know Act to enhance to address chemical
disasters. And in the 1990 amendments to the Clean Air Act,
which passed with a huge bipartisan vote, Congress required
risk management planning to help save people's lives at
facilities that handle dangerous chemicals.
Those risk management plans have to, and I want to thank
the Chemical Safety Board for their clarity on this, the risk
management plans have to address the risk. If they leave out an
obvious risk, such as the regulation or storage of ammonium
nitrate, they are not addressing the risks.
In the days following the West, Texas disaster, I wrote to
the Chemical Safety Board and the EPA requesting information
about the explosion, the Risk Management Program, the
safeguards under the law. This is part of the CSB's, the
Chemical Safety Board's, letter to me. The CSB considers the
West explosion to be among the most serious U.S. chemical
incidents affecting the public in many decades. That is what
they said.
So, this should be a wake up call for all of us. And we
must take steps to ensure that all such disasters never happen
again. And here is the good news. EPA can strengthen safety at
facilities that handle dangerous chemicals under existing law.
They have the power, the authority, and indeed, I would argue,
the responsibility to do it.
The CSB has already identified problems that may have
contributed to the disaster at West including large amounts of
combustible materials stored in the same areas as wooden
containers that hold ammonium nitrate which can explode when
heated. This CSB also found that the West, Texas facility was
not required to install sprinklers or other fire suppression
systems and that EPA's Risk Management Program does not require
the special handling for reactive or explosive materials like
ammonium nitrate.
I look forward to the CSB's final reports on West and on
their final reports on Louisiana and California and to the
adoption of any recommendations that CSB makes to help prevent
other tragic explosions and loss of life.
You know, this is an entity that does not get much credit.
And I want to say today thank you, because roughly 72 percent
of your recommendations have already been adopted. That is a
good thing. But it does mean that 28 percent of those
recommendations have not been adopted. And I hope the EPA and
other Federal agencies and the industry itself will act quickly
to adopt safety measures that will save lives.
In 2002, the CSB recommended that EPA strengthen the Risk
Management Program by including ammonium nitrate and other
dangerous chemicals. Again, that was a very prescient call. And
it did not happen. Unfortunately, EPA has not acted on CSB's
2002 recommendation. And I am calling on EPA today to adopt
this critical safeguard and to report back to me on this
request within the next 2 weeks. Acting on just that safety
measure alone is critically important because, hear me, there
are thousands of facilities across the Nation that handle
ammonium nitrate. And we do know that if this dangerous
chemical is not handled safely, disaster and loss of life could
follow.
As we review what happened and the recent explosions, we
must make safety the highest priority so we can protect not
only the first responders but the workers there and the people
in the community.
You know in West, I talked to some local people about the
facility at West. When it started, there was hardly anyone
around that facility. But over the years, population moved in,
schools were built, nursing homes were built, very close to the
facility. You have to look at a risk management plan not just
once, but over the years.
Local authorities can play a key role in enhancing safety
protections. Mr. Randall Sawyer is here from my home State of
California to testify on behalf of Contra Costa's Health
Department. I look forward to hearing from him, as well as
other witnesses, on the steps that the EPA, State and local
authorities and industry can take to eliminate these chemical
disasters.
We need action. And again, really, we do not need
legislation.
Again, I want to thank Tim White for his heartfelt letter
and for his dedication to call for enhanced safety measures so
that other families do not have to suffer the same loss that
his family did.
And with that, I call on Senator Vitter.
[The referenced letter follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
OPENING STATEMENT OF HON. DAVID VITTER,
U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Vitter. Thank you, Chairman Boxer, for convening
this important hearing today. And I, too, would like to begin
by saying our thoughts and prayers are with all of the people
of Geismar, Louisiana, Donaldsonville, Louisiana and West,
Texas who were affected by these recent horrible accidents.
In particular, our deepest sympathies to the families of
Rocky Morris of Belle Rose, Louisiana, Scott Thrower of St.
Amant and Zachary Green of Hammond, all of whom lost their
lives in the two Louisiana explosions, as well as the families
of the 15 people who were killed in West, Texas.
I am pleased to welcome all of our witnesses today. In
particular, I want to acknowledge and welcome Rick Webre who
serves as the Director of the Ascension Parish Office of
Homeland Security and Emergency Preparedness and Dr. M. Sam
Mannan who is not only an expert in process safety and chemical
security, but also a registered professional engineer in
Louisiana and Texas.
You know, when horrible accidents like these occur, it is
imperative that they are thoroughly and expeditiously
investigated so we can all understand their causes and ensure
that future incidents are prevented.
I was pleased to talk to Chairman Rafael Moure-Eraso of the
Chemical Safety Board shortly after the horrible accident in
Geismar and I am encouraged that the CSB could be on the ground
in Louisiana to begin investigation so quickly. And I thank the
Chairman for that follow up.
Louisiana, as in some other places, is experiencing a boom
in new chemical plants and expansions driven by low natural gas
prices and our strategic advantages. Louisiana economic
development counts more than $30 billion in investments
announced in Louisiana starting in 2011. And that does not even
include a number of upgrades.
While we certainly welcome that investment in our State and
all of the jobs it means, of course we must ensure that all of
these facilities are absolutely as safe as possible for the
workers and for the local communities.
Despite these horrible accidents we are discussing today,
the good news is the chemical industry has a strong safety
record overall. It has an injury rate about 45 percent lower
than overall manufacturing in the U.S. Bureau of Labor
Statistics. And in 2012, the industry invested nearly $15
billion in environmental and health and safety and security
programs. So, that is the good news.
But obviously we always can do better and that is what we
are going to learn about today. As we do that, of course, we
need to have all of the facts and all of the officials directly
investigating these incidents, local, State and Federal,
including CSB, need the time to conclude their investigations
before we reach any specific conclusions about these incidents.
It is vital we take that time to properly understand what
caused these horrible accidents and work hard to make sure
something like this never happens again.
Again, Madam Chair, thanks for holding this important
hearing.
Senator Boxer. Senator Vitter, thank you very much. Again,
my heart goes out to you and your State.
Senator Fischer.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM THE STATE OF NEBRASKA
Senator Fischer. Thank you, Madam Chairman, and Ranking
Member Vitter, for holding this hearing today.
I would also like to thank our witnesses for being here and
for their willingness to share their time and their expertise
with our Committee.
In Nebraska where agriculture is our No. 1 industry, we are
very mindful of the key role chemicals play in enhancing our
productivity and efficiency. There are 870 million
undernourished people in the world today. As we work to grow
food and provide other necessities for a world population that
is expected to exceed 9 billion by 2050, we know we will become
increasingly reliant upon chemical solutions.
Innovation in chemical products has helped to grow our
economy and improve lives across the globe. Chemical users
understand that our utilization of these powerful products is
not without risk. Recent events in Texas and Louisiana are
devastating reminders of our responsibility to remain vigilant
in our efforts to prevent, mitigate and address chemical
threats.
I am pleased that we are meeting today to conduct oversight
of our Federal Risk Management and Emergency Planning Programs
that we rely upon for occupational safety, environmental
protection and homeland security. Industry-led initiatives are
also an important part of our chemical risk management efforts.
I am encouraged that producers, manufacturers, transporters and
retailers have established an industry working group to develop
a code of practice and management system to promote continuous
improvement in the storage and handling of fertilizer and other
chemicals.
Among the guiding principles for such a code of practice is
coordinate communication with employees, communities and
emergency responders, as well as a third-party auditing and
inspection process for those facilities. These industry-driven
approaches are essential to improving chemical safety in a way
that is workable for both regulatory authorities and the
regulated community.
Thank you again, Madam Chair, for holding this hearing. I
look forward to the testimony and questions.
Senator Boxer. Thank you so much.
We will turn to our honored speakers. Our first panel,
Rafael Moure-Eraso, Chairman of the Chemical Safety Board.
Please proceed. I am going to hold you to 5 minutes, each
witness, just because we have those votes in an hour or so.
Go ahead.
STATEMENT OF RAFAEL MOURE-ERASO, CHAIRPERSON, U.S. CHEMICAL
SAFETY BOARD
Mr. Moure-Eraso. Chairman Boxer, Senator Vitter, Senator
Fischer and distinguished Committee members, thank you for
inviting me today and thank you for the kind words about the
CSB that you said.
I am CSB Chairperson Rafael Moure-Eraso. The two explosions
that we are discussing today, West Fertilizer and Williams
Olefins, are tragedies of the kind that should be prevented.
The destruction I personally saw in West, the obliteration of
homes, schools and businesses by an ammonium nitrate explosion,
was almost beyond imagination. The loss of life was horrible.
The CSB has determined that ammonium nitrate fertilizer,
its storage, falls under a patchwork of U.S. safety standards
and guidances, a patchwork that has many large holes. Those
holes include allowing the use of combustible wooden buildings
and wooden storage bins, the lack of the sprinklers that are
not required, and there is no Federal, State or local rules
restricting the storage of large amounts of ammonium nitrate
near homes, schools and hospitals.
Existing fire codes have some useful provisions for
ammonium nitrate. But Texas, among its counties, has no fire
code. So at West, the fire code provisions were strictly
voluntary and West Fertilizer had not volunteered. Our
investigators learned that combustible seeds were stored near
the ammonium nitrate, not separated by any fire-resistant
partitions.
OSHA had some similar provisions for ammonium nitrate
fertilizer in its explosives standard, 1910.109. However, OSHA
has not focused extensively on ammonium nitrate storage and had
not inspected West since 1985.
Other nations have gone much further than the U.S. on
ammonium nitrate safety. The UK recommends dedicated non-
combustible storage buildings and non-combustible bins. The
U.S. manufacturer, CF Industries, recommends the same and
sprinklers as well. But the fertilizer industry tells us that
U.S. sites commonly store ammonium nitrate still in wooden
buildings and use wooden bins, even near homes, schools and
other facilities. This situation must be addressed.
Preventing the risk of fire essentially eliminates the
potential for an explosion like we saw in West by removing one
of the preconditions of detonation. Facilities like West fall
outside existing Federal explosive safety standards which were
developed in the 1990s and are list based. Ammonium nitrate
would likely have been included if EPA had adopted our 2002
recommendation to include in the list reactive chemicals under
its Risk Management Program. But the RMP program of EPA is not
a panacea. It already covers large refineries of Petra
Chemical's size, including Williams Olefins. And yet, we still
have serious accidents.
The Williams plant has over 100 workers producing ethylene
and propylene. On June 13, there was a catastrophic failure
involving a heat exchanger and associated piping which broke
loose from a distillation tower. The ensuing explosion led to
the deaths of two employees. We join and mourn in their loss.
It is too soon in our investigation to tell why the equipment
failure occurred.
The biggest picture in process safety is that EPA and OSHA
resources are under duress. Regulations need to be modernized
but more inspection and prevention are needed as well. In the
meantime, we are finding encouraging alternatives to the
current situation. Following the Chevron refinery fire last
year, and acting upon CSB recommendations, California is poised
to triple the number of dedicated process safety inspectors
funded by industry fees.
Another promising approach is the safety case successfully
used in other nations which insurers say have much lower
petrochemical accident rates than we do. Companies identify and
commit to follow the best safety standards from around the
world, subject to approval and oversight of a competent and
well-funded regulator. Many experts believe this is the best
safety regime for complex technological industries rather than
the U.S. system which calls upon a prescriptive and often
outdated rule book.
Thank you again for the opportunity to testify today.
[The prepared statement of Mr. Moure-Eraso follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you very much.
And now we call on Mr. Barry Breen, Deputy Assistant
Administrator, Office of Solid Waste and Emergency Response,
U.S. EPA.
STATEMENT OF BARRY BREEN, DEPUTY ASSISTANT ADMINISTRATOR,
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Breen. Thank you, Chairman Boxer, and thank you,
Senators.
I am Barry Breen, as you said, and thank you for the
opportunity to testify today on EPA's Risk Management Program
as well as the Emergency Planning and Community Right to Know
issues. And thank you as well to Mr. White for being here. We
appreciate it.
The West, Texas facility fire and explosion have
highlighted the importance of properly managing the risks posed
by chemical facilities and the need for an effective Community
Right to Know Program.
The Clean Air Act provides the authority for EPA's Risk
Management Program. Those regulations apply to the owner or
operator of a stationary source producing, processing, handling
or storing more than a threshold quantity of a covered,
regulated substance. The list includes 63 flammable gases and
liquids and 77 acutely toxic chemicals.
Many of these substances are also included on the Emergency
Planning and Community Right to Know Act Extremely Hazardous
Substance List. Approximately 12,800 facilities are currently
covered under EPA's Risk Management Program.
Risk Management Program facilities must develop and submit
a risk management plan that includes facility hazard
assessments including worse case release and alternative
release scenarios, facility accident prevention activities such
as the use of special safety equipment, employee safety
training programs and processed hazard analyses, past chemical
accidents at a facility and facility emergency response
programs and plans.
Under Section 112(r) of the Clean Air Act there is also a
general duty to identify hazards which may result from releases
using appropriate hazard assessment techniques to design and
maintain a safe facility taking such steps as are necessary to
prevent releases and to minimize the consequences of accidental
releases which may occur.
The Emergency Planning and Community Right to Know Act
establishes authorities for emergency planning and
preparedness, emergency release notification reporting,
Community Right to Know reporting, and toxic chemical release
reporting. It is intended to encourage State and local planning
for and response to releases of hazardous substances and to
provide the public, local governments, fire departments and
other emergency officials with information concerning chemical
hazards present in their communities.
Subtitle A of EPCRA established the framework for local
emergency planning, while Subtitle B established Community
Right to Know requirements to ensure information on chemicals
in the community is provided to the public as well as emergency
responders. The Act requires that EPA publish a list of
extremely hazardous substances. The list was established by EPA
to identify chemical substances that could cause serious,
irreversible health effects from accidental releases.
EPA was directed to establish a threshold planning quantity
for each extremely hazardous substance. The purpose of the list
is to focus initial efforts in the development of State and
local contingency plans. Inclusion of a chemical on the list
indicates a need for the community to undertake a program to
investigate and evaluate the potential for accidental exposure
associated with the production, storage or handling of a
chemical at a particular site and to develop a chemical
emergency response plan around those risks.
Under EPCRA, a facility that has an extremely hazardous
substance onsite in excess of its threshold planning quantity
must notify the State Emergency Response Commission and local
Emergency Planning Committee as well as participate in local
emergency planning activities. Under the statute, the LEPC then
develops a Community Emergency Response Plan. Emergency
response plans contain information that community officials can
use at the time of a chemical accident.
EPA will continue its efforts to help prevent chemical
accidents and releases under the Risk Management Program.
Strong chemical accident prevention, preparedness and response
programs rely on effective partnerships with the public at all
levels of government. We will continue our outreach efforts to
stakeholders and work with our Federal, State and local
partners to promote chemical safety, address chemical process
safety issues and explore opportunities for improving chemical
safety.
Chairman Boxer, that concludes my statement and I would be
happy to answer any questions you or other members may have.
[The prepared statement of Mr. Breen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Mr. Breen, I am going to ask you a series of
questions. But that was the most vague testimony I have ever
heard. You never talked about what happened in my State, you
did not talk about what happened in West, you did not talk
about happened in Louisiana and I do not sense in your voice
any type of shock or desire to use your authority to move
forward.
That is just a comment about the tone and lack of urgency
that I heard in your voice. Now, maybe as I ask you questions,
something else will come about. So, let me give you a minute to
think about what I just said which, by the way, you do not have
to agree with. It is one person's reaction after we have this
tragic loss of life in two and, since 2012, in three States,
including my own, including the Ranking Member's and, of
course, West. So, if I am the relative sitting here, I am
thinking OK, that is vague. What is your timeframe, what do you
want to do?
I want to talk for a minute to the Chairman of the Chemical
Safety Board, Chairman Moure-Eraso. Thank you for your
testimony.
Now, my understanding is that about 30 percent of what you
have recommended has not been adopted by any of the agencies.
Would you be willing to sit down with my staff and go through
those recommendations with them, in writing, and then if we
need to talk with you, so we can get a sense of what is out
there that has not been embraced by the agencies?
Mr. Moure-Eraso. Thank you very much for the offer,
Senator. I will be very, very glad to sit with my staff and
your staff and look at what is still on, what we waiting for
actions on our recommendations.
Senator Boxer. That would be very helpful to me because,
again, as I said in my opening statement, some of these will
need legislation but a lot of them can be done without
legislation.
Mr. Breen, a 2002 Chemical Safety Board report found an
average of five fatalities a year in our Nation related to
incidents with reactive chemicals such as this ammonium nitrate
and that more than 50 percent of these incidents involved
chemicals that were not covered by EPA or OSHA safeguards.
Among other issues, CSB recommended that EPA's Risk
Management Program ``explicitly cover catastrophic reactive
hazards that have the potential to seriously impact the
public.'' And I say it is not the potential. They have injured
the public, they continue to injure the public and they are not
handled in the way the CSB has recommended.
I do not know the extent of your authorities or who you
have to check with, but I am asking you, is it time for the EPA
to adopt this recommendation that was made in 2002 given the
tragedies that have occurred since then?
Mr. Breen. Thank you very much.
Senator Boxer. Yes.
Mr. Breen. Thank you, Senator, and I think that point is
worth some clarification. I saw in the Chairman's testimony the
statement, let me pull it, it was in his testimony just now,
that the 2002 recommendation was to list ``reactive chemicals''
on the RMP. I actually went back and looked at the 2002
recommendations and it says to revise the RMP program ``to
explicitly cover chemical reactive hazards''. And then I went
behind that recommendation into the report itself, which has
that recommendation and makes the following observations.
I will start with one of the key findings. It is under
``Conclusions.'' ``Using lists of chemicals is an inadequate
approach.'' The difference is between a ``list of chemicals''
and ``reactive hazards,'' so the CSB report states on page 1 of
the----
Senator Boxer. Mr. Breen.
Mr. Breen. Yes, Madam.
Senator Boxer. Please. Are you questioning the fact that
the CSB never said what Mr. Moure-Eraso said here today, that
you ought to take a look at, and I will quote him, storing
these reactive chemicals in non-combustible bins? Are you
saying they never suggested anything like that, that you look
at your Risk Management Plans and amend those so that the
storage of these potentially explosive chemicals is changed?
Are you suggesting they never said that?
Mr. Breen. Thank you. So, let me at the outset be clear
that this was a tragedy and more must be done----
Senator Boxer. I am asking a question.
Mr. Breen. I understand, Senator.
Senator Boxer. Are you questioning what he told us today?
Mr. Breen. Senator, let me turn to that in just a moment.
But I wanted to be clear because of the point you made earlier
about recognizing the tragedy. It is a tragedy and more must be
done.
What the CSB said in 2002 is important. And what it said
was that ``reactivity,'' and I am reading, ``is not necessarily
an intrinsic property of a chemical substance.'' It is
``related to process specific factors.'' And so, it went on to
conclude that ``lists of chemicals is an inadequate approach''
and specifically questioned, for example, several lists that
were extant at the time.
So, the actual recommendation I did not read as including
the idea of finding a list of reactive chemicals and adding
them to the RMP, but instead to deal with reactive hazards.
Senator Boxer. Well, sir, I do not agree. And I would like
to ask the Chairman of the Chemical Safety Board here, it
sounds to me like EPA is kind of putting a slant on what your
recommendation was. Could you tell us what your recommendation
was on the way to store these potentially explosive chemicals?
Mr. Moure-Eraso. Well, our idea was to address situations
that could have a catastrophic effect in the community. That
was the aim of it. And we were looking at reactive chemicals as
a not addressed situation on both an OSHA PSM and on EPA RMP.
The idea was the concept of reactive chemicals, and specific
reactive chemicals that were known to cause catastrophic
effects, will be included in these recommendations.
I would like to review with you, as you said, specifically
this recommendation that you said you wanted to look at with us
because this is still open with us and EPA, to clarify
specifically what will help to try to prevent what happened
here in West.
Senator Boxer. The bottom line is, as I read it, and I have
got your report here, I am going to put it into the record, to
EPA you say revise the accidental release prevention
requirements to explicitly cover catastrophic reactive hazards
that have the potential to seriously impact the public
including those resulting from self-reactive chemicals and a
combination of chemicals and process specific conditions. So,
we will put that in the record and that stands in stark
contrast to what you said, Mr. Breen.
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Senator Boxer. Now, Mr. Breen, if you do not want to listen
to the Chemical Safety Board, what about this? What about the
fact that in 2012, labor, health and environmental justice
groups petitioned EPA to use the Clean Air Act Section 112
rulemaking authority and the General Duty Clause to require
facilities that handle dangerous chemicals to use safer
technologies to prevent or eliminate threats from uncontrolled
chemical releases wherever feasible?
What is the status of EPA's review of this petition and for
requiring the use of inherently safer technologies where
feasible under the Risk Management Program?
Mr. Breen. Thank you, Senator. And thank you for entering
the 2002 full report into the record as well. We are grateful
for that.
So, we have the petition from the groups from July 2012.
The petition calls on us to adopt regulations under 112(r) of
the Clean Air Act to require, where feasible, inherently safer
technology. This is a different matter than what would be under
the RMP program.
Senator Boxer. I understand. I am asking you the second,
there are two things here. The way you store these chemicals or
making sure we get the opportunity to look at safer
alternatives where feasible. I understand that. How are you
responding? You did not much say how you are responding to the
first. But now the second, how are you responding to this
petition?
Mr. Breen. Thank you. So, again in the theme that more must
be done, we are looking at a number of potential policy options
in addressing this tragedy. One idea is that put forward by the
petition to use provisions of 112(r)(7), they suggest, to write
regulations and 112(r)(1) to write guidance, the General Duty
Clause. Separately, we have had recommendations, not in the
form of a formal petition but nonetheless important
recommendations, to use the General Duty Clause, 112(r)(1) to
write regulations.
Senator Boxer. Well, I am asking you, what is the status of
these recommendations? What are you doing? What is your time
line? When will we know what your recommendations are?
Mr. Breen. Thank you. So, inherently safer technology has
some attraction. And it has worked at site-specific ways with
important results. And the Chemical Safety Board has helped in
that respect.
The Chemical Safety Board's Strategic Plan for 2012 through
2016 identifies inherently safer technology as an issue of
concern, one of four issues of concern, and their letter to you
of May 17th indicates they are looking into it quite seriously
and that will be quite helpful. We are looking into it as well.
At the same time, the petition importantly asks us to
require it, where feasible. And the literature on this issue
indicates that----
Senator Boxer. What is your timeframe?
Mr. Breen. Let me just address----
Senator Boxer. Sir, I do not have enough time to hear your
entire biography. Just tell me. Please answer the question.
What is your timeframe on responding to this petition?
Mr. Breen. Senator, thank you. What I wanted to mention is
that the Congressional Research----
Senator Boxer. What is your timeframe?
Mr. Breen [continuing]. Service points out that in order to
establish that timeframe, we need to understand the issue
better. So, that is what we are doing now.
Senator Boxer. All right. Here is the situation. I am
sympathetic to the fact that there is work to be done. I am
unsympathetic to the attitude that I hear, which is the lack of
urgency, because lives are being lost and recommendations were
made a long time ago and nothing is happening.
Now, there is another, there is another correspondence to
you, this is your own National Environmental Justice Advisory
Council. Your own, from EPA says ``We have already witnessed in
countless environmental justice communities what can and has
happened is chemical releases, explosions, fires, train
derailments and refinery releases have wreaked havoc upon local
communities.'' The Council, your own Council, recommended that
EPA use its authorities to eliminate the risks.
So, again, what are you doing about this communication? So,
now you have outside groups, inside groups, the Chemical Safety
Board, everyone is saying to you do something. So, how are you
responding to your own Council?
Mr. Breen. Yes. And I need to find a way to convey to you
that we share your sense of urgency.
Senator Boxer. Good. Convey it. Say it. It is good.
Mr. Breen. Thank you. We share it. More must be done and
this was a tragic loss. I share in that. We all do, of course.
The important thing is to get it right in addition to getting
it fast. With regard to the National Environment Justice
Advisory Committee----
Senator Boxer. Fast? It goes back to 2002. Please. The
Chemical Safety Board talked about this in 2002. Am I right?
So, do not say fast to me because this was before EPA, and I do
not know if you were there, I am not blaming you personally, I
do not know if you were there in 2002. Were you there in 2002?
Mr. Breen. Yes.
Senator Boxer. Yes. OK, so they called this out in 2002.
And now you are telling me fast? How many more of these do we
have to have? So, let me just cut to the chase because others
want to ask questions.
I understand that should you decide, in your wisdom, which
I hope you have, that these kinds of potentially explosive
materials should be stored in ways that people are saying would
be far safer, segregated, not near wooden bins and so on. If
you did that, I understand that is a regulation and it would
take about 18 months to get it done.
But I also understand that under EPA's rules you could
issue an alert, a guidance. What are you thinking about issuing
an alert or a guidance? How many more accidents does it take
before you issue an alert or a guidance on storage?
Mr. Breen. Thank you, Senator. I am showing now the
``Explosion Hazard from Ammonium Nitrate'' alert that EPA
issued and in which it warns that a fire involving ammonium
nitrate in an enclosed place could lead to an explosion.
Senator Boxer. When did you do that?
Mr. Breen. December 1997.
Senator Boxer. OK. You have not issued an alert since 1997.
Do you not think it would be a good thing since we have now
seen what has happened? This adds even more impact to the fact
that you have done nothing in terms of your Risk Management
Plan if you knew it, way back then, even before 2002.
So, you are reading to me, and taking credit for, something
that happened in the last century? We are in this century. I
would like to see a new alert, a new guidance. Is that
something you will look at, Mr. Breen, and report back to me
on?
Mr. Breen. Senator, naturally we would like to keep you up
to date on all of this----
Senator Boxer. No, no. I am not asking up to date. Would
you consider issuing an updated alert since that one is from
the last century and we have had many accidents since then, a
new alert and a new guidance, a guidance, and then potentially
a rule?
Mr. Breen. Senator, I do not want to leave you with a
misimpression. This alert is posted on our website----
Senator Boxer. I understand.
Mr. Breen [continuing]. And continues to be vital.
Senator Boxer. And you think it is adequate what is, all
these years, my staff says it is inadequate.
Mr. Breen. What we would like to do then is better
understand the ways in which it is inadequate and as part of a
panoply of making sure events----
Senator Boxer. So, you have an alert. You are taking credit
for having an alert that goes back to 1996. Now, one would
think technologies have changed just a bit since then. And
there are other ways that we can guide people on how best to
avert these disasters before there is a rule change.
So, I am going to stop now. But I wanted to say, express my
clear disappointment in your defensive testimony. You are
looking back. You are not looking forward. You are defending
non-action and some alert that was put up in 1996. And I feel
that EPA has to step up to the plate here and do a lot more.
And I will talk to my Ranking Member after this hearing. He may
not agree with me on this. He may. But I do plan to oversee
what you are going to do and that means alert guidance
rulemaking.
And I will turn to my colleague.
Senator Vitter. Thank you, Madam Chair.
Mr. Chairman, following the tragic incident in Geismar, we
talked on the phone and you were very gracious to act very,
very quickly and have had folks on the scene. Can you give me a
quick update on that particular investigation?
Mr. Moure-Eraso. Yes, Senator. We have deployed with an
investigating team there. We have engaged a number of
consultants, especially structural engineers. We have concerns
about the safety of the people that have to enter to look at
the specific site of the explosion. We customarily do not enter
until the structural engineer tells us it is safe because there
is still hanging debris in the place in there.
In the meantime, we are taking views with a, you know, we
are taking photographs, aerial photographs, of the site. We
have interviewed close to 14 people that have been witnesses,
direct witnesses of what happened, and we are preparing to
enter into the place immediately that our safety engineer tells
us that we will be safe to do it.
But we are at this time mostly engaged on interviewing
people on the site.
Mr. Vitter. OK, thank you, Mr. Chairman. Now, it has also
come to my attention that EPA has recently tried to subpoena
information from CSB and even CSB investigators themselves in
order to help EPA in their enforcement actions.
Now, I am concerned about this because Congress from the
get go has separated those two roles and I am concerned about
it because you basically, CSB basically relies on cooperation
with the site in question, the company in question. And if EPA
is going to subpoena everything you get, I am guessing you are
going to get less cooperation, you are going to get less
documents and information and that is going to hamper your
doing your job.
Can you elaborate on your concerns about this attempt by
EPA?
Mr. Moure-Eraso. Yes, Senator. We, normally in these
catastrophes we conduct parallel investigations with our sister
agencies in the Federal Government and the local government.
For the issue of our witnesses, we base our work mostly in what
a witness will tell us in good faith that was their experience
before the accident.
But we believe very strongly that workers and managers
should be allowed to tell the truth to the CSB on these
accidents without fear of retaliation or prosecution. We are
focusing on conducting a safety investigation, that is to find
out the hows and the whys of why something happened. And we
want that to be a focus that is what we consider just as
important as the other focus that other agencies are
investigating. I mean, their goals are different than our goals
but we believe that both goals of finding out law enforcement,
and our goal of finding out the root causes of the accidents,
are just as important and we should be able to work together to
obtain this information.
Senator Vitter. Thank you, Mr. Chairman.
Mr. Breen, let me turn to you with the same question. And
this really does concern me because I think it fundamentally
threatens CSB's ability to do its job and thereby prevent
future accidents.
In his February letter, Chairman Moure-Eraso wrote ``It is
our belief that EPA should use its own staff resources and
authorities in conducting civil and criminal investigations
rather than to seek the wholesale repurposing of the CSB
investigative record.'' And he went on to cite that EPA ``has
more than 400 times as many employees and more than 750 times
the budget of the Chemical Safety Board.'' Can you respond to
these concerns?
Mr. Breen. Only partially, Senator. The Department of
Justice would have an important role in any response and I
cannot represent what the Criminal Division or other parts of
the Department of Justice would say to these issues. The Bureau
of Alcohol, Tobacco and Firearms is part of the Department of
Justice as well.
I can share with you, Senator, that----
Senator Vitter. If I can just interrupt and I will
certainly let you finish however you want. But the Department
of Justice would not be trying to subpoena CSB stuff on behalf
of EPA unless EPA was asking them to do that. So, sort of
pointing to your lawyer is an evasion. Why is it EPA's policy
to try to subpoena CSB's documents and investigators when that
is a different type of investigation fundamentally and also
when it depends on cooperation which, in my opinion, these
actions are going to shut down?
Mr. Breen. Senator, cooperation is important in this
regard. And there are important civil as well as important
criminal needs to be met in the investigation. Perhaps there is
more than ought to be said in an open hearing, and if you would
like we can ask representatives of the criminal program to come
and brief you or your staff.
Senator Vitter. Well, I would like that, No. 1. No. 2, I
see no reason why we cannot talk about it in public. And No. 3,
I am not trying to prevent you from slowing down any, in terms
of any enforcement action, or justice, including a criminal
action if it is appropriate. But that has to be separate. And
once you start subpoenaing CSB's information and documents and
witnesses, they depend on cooperation. That is 95 percent of
their ability to do their job. You are going to shut it down.
Mr. Breen. Thank you, Senator. Again, cooperation and a
dual approach are important and we would be happy to fill you
in more fully when we are able to.
Senator Vitter. I will certainly follow up on that. I do
not understand why you are not able to this morning.
That is all I have.
Senator Boxer. Senator Fischer.
Senator Fischer. Thank you, Senator Boxer.
Mr. Chairman, in your testimony you mentioned that recent
investigations have ``further taxed the CSB's already
overstretched staffing and resources'' and that you are facing
a backlog of cases to investigate. Can you tell me how you
prioritize your work and what can be done to ensure that the
use of CSB's limited resources result in maximum safety
improvements?
Mr. Moure-Eraso. Thank you, Senator. When I started my job
at the CSB as the Chair in 2010, I was faced with a backlog of
22 investigations that were already in the pipeline. We have
added at least five new major ones during my estate, and we
have finished with nine and currently our backlog is 15
investigations.
Congress frequently calls on the CSB to investigate root
causes of some of the most complex tragic industrial accidents
in the U.S. For example, the Water Horizon is in the pipeline,
Chevron that we finished the preliminary report, and, you know,
in the last 2 months we have gotten requests to deploy at West
and at Williams Olefins.
That has a really ripple effect on all of our
investigations. We have to move the teams that are currently
working on and finished a report to deploy in the field to
start a new one. We believe that the situation is that I must
tell this Committee that when the next serious accident comes
along in the near future in the petrochemical industry, and
believe me, they are coming, we will not be able to have the
researchers to deploy.
Senator Fischer. Can you tell me how you prioritize? Do you
take it by the dates that they occur, by the chemicals that are
involved, by the number of fatalities, the destruction that
takes place? How do you prioritize which accident you are going
to move to though?
Mr. Moure-Eraso. Yes. We have a department that takes care
of evaluating the incidents that are constantly being monitored
on a daily basis. They have the relevant algorithm by which you
determine, based on the consequences of the accident, we can
classify them as major, medium or minor.
What concerns us is basically whether a statute has called
us do to, that is to look at accidents that cause fatalities,
that cause people to go to hospital, that cause destruction in
the environment and in the communities, and that will be
applicable and could be able to generalize to a sector so we
can learn something out of them so that we can develop
recommendations for prevention of further accidents to happen
this way.
So, once we gather all of this information on a particular
incident, we meet in our headquarters with all of the
department heads, get all of the inputs, look at the algorithm,
look at how it is being classified, and then we make a decision
of deployment.
Senator Fischer. On all of your investigations, do you make
recommendations on safety improvements?
Mr. Moure-Eraso. Yes, we make recommendations to a number
of stakeholders. We make recommendations to the company itself,
to the sector which that company belongs to. We make
recommendations also to the regulatory agencies when we feel
that the particular regulations have not been enough to prevent
what has happened. We make recommendations especially to OSHA
and to EPA.
We also make recommendations to the private organizations
that establish guidelines for safety like the National Fire
Protection Association, the American Petroleum Institute and
other organizations like that.
Senator Fischer. And these are just recommendations and
guidelines? Are there any teeth in them?
Mr. Moure-Eraso. We believe they do have some teeth. We
have established in our organization a recommendations
department and their job is not only to formulate these
recommendations but to follow up with a very specific system
that we have to find out what is the action that is being
taken.
We send 180-day letters in which we ask the stakeholders,
the people that we make the recommendations to, saying what is
the recommendation and asking them what specific actions are
going to be taken in that period. These are public letters,
public information, and we use that information basically to be
sure that our recommendations that are public are also answered
in public by the receivers of our recommendations.
And, as you can see, we have a very good, our tracking
record tells us that over 70 percent of what we have
recommended has been acted upon in a way that we are have
declared the recommendations closed and acceptable.
Senator Fischer. Also, Mr. Chairman, in your written
testimony you state that ``The CSB has had a number of
discussions with fertilizer industry representatives since
April 17th, including officials from the Fertilizer Institute
and the Agriculture Retailers Association. We believe the
industry has a strong and sincere interest in learning from the
tragedy in West and taking steps to prevent future incidents
involving ammonium nitrate including the development of new
audit tools and product stewardship programs.''
Can you please elaborate on this part of your statement and
what role do you see industry-led initiatives have in advancing
chemical safety?
Mr. Moure-Eraso. We have had conversations with the
Fertilizer Institute and the Agriculture Retailers Association
on this issue. Normally, these organizations are the ones that
are going to determine for their affiliates what is the state-
of-the-art for issues of safety. And we have learned that they,
for the prevention of future accidents, it is very useful that
they be, that they understand and that they embrace the issue
of safety. And we find out that the Fertilizer Institute and
the Agriculture Retailers Association do have programs and of
course they are similarly interested on the particular
situation to prevent this from happening.
I would like to add that this complements the effort that
should be done at the level of the Federal Government and the
State organizations because even though this is, we applaud
their programs, voluntary programs by themselves are not
substitutes for eventually having regulations.
Senator Fischer. Do you feel that you have a good working
relationship, though, with the private industry and trying to
reach better safety requirements?
Mr. Moure-Eraso. I believe we do. I believe we do. We have
discussions with the Fertilizer Institute in which they have
described to us the programs that they have and we are
encouraging them, they have, they want very much to see the
results of our investigation and they are very positive about
supporting the work that we are doing. So yes, we have very
good relationship with them.
Senator Fischer. OK, thank you. Also in your testimony
regarding West Fertilizer, you state that no manufacturing
occurred in the site, only blending of fertilizers for retail
customers. Can you tell us, maybe better explain what the
difference is between manufacturing and blending of fertilizer?
Mr. Moure-Eraso. Yes. Manufacturing of a chemical is done
in a chemical plant in which you have reactors and you have a
system by which you use raw materials to come out with a
product at the end, a chemical product, like in this case it
would be ammonium nitrate. You have to use ammonia as a raw
materials, you have to you nitric acid, and there is a whole,
it is a chemical process.
That is not what was happening in West. They would receive
the finalized product that had already been classified as a
fertilizer. They were receiving it by train and they would
store it in a storage place and from that storage place, in
bulk form was the storage, it was sold to farmers from the
region that come to get the amounts that they need for
planting.
So, basically what the operation was is a distribution
center of an already finalized product. It was a retail
operation.
Senator Fischer. I would assume you would have different
recommendations for regulations on the chemical process and the
storage process. Is that correct?
Mr. Moure-Eraso. Yes, it is correct. When you store
substantial amounts of a particular chemical that is a strong
oxidizer like ammonium nitrate, there are specific
recommendations of how it should be done safely. The key issue
is that you have to avoid a fire hazard by all possible means
because fire is one of the components that could make the
chemical detonate, not by fire itself.
Senator Boxer. Sorry. I am sorry. Because we are running
out of time, we do not want to short the other panel, I am
going to have to stop the questioning of this panel----
Senator Fischer. OK. Thank you so much.
Senator Boxer. We are going to move forward. Senator
Barrasso, we have run out of time here, so can I have you lead
off the questioning of the next panel? Is that all right with
you? Unless you would like to make a 5-minute statement now.
Senator Barrasso. Madam Chairman, I could limit myself to
the 5 minutes.
Senator Boxer. OK. Go right ahead.
Senator Barrasso. Thank you, Madam Chairman. And I am
pleased that you are having this hearing to discuss the issues
surrounding chemical safety and learn more about the tragic
events that occurred in Texas and Louisiana.
I would like to say that my home State of Wyoming is the
largest consumer in the U.S. of ammonium nitrate, a chemical
oxidizer that was implicated in the West, Texas accident.
Mining companies in Wyoming use 1.5 billion pounds of ammonium
nitrate each year in places like Powder River Basin to extract
coal.
At these mining sites, ammonium nitrate is mixed with fuel
oil, pumped and poured into the blast hole which is fitted with
an initiation system. The subsequent explosion gets rock out of
the way so that we can get to coal. Through this process,
Wyoming and other States can provide essential building
materials and affordable energy for families and small
businesses across the Country.
Now, ammonium nitrate was not always the chemical used to
do this work. In the past, nitroglycerin-based explosives were
used which were less safe and led to accidents and cost lives.
And, Madam Chairman, I would recommend to you a book
Senator Mansfield, Mike Mansfield, we go to the Mansfield Room
for our leadership lunches, he was the leader and a Democrat in
the Senate and had a history as a miner. And as you go through
this, he talked about working with nitroglycerin. And through
his entire career they would always say to Mike, tap it light
because you do not want to tap it too hard and cause the
explosion that causes these kinds of significant injuries.
And the transition to ammonium nitrate from nitroglycerin
has produced inherently safer products. Today, ammonium nitrate
comprises at least 90 percent of all the commercial explosive
material and the use of ammonium nitrate is so pervasive that
there is no viable substitute for the chemical explosives
industry.
So, I do have a couple of questions. I see I have some time
left. The first to Mr. Moure-Eraso.
You referenced a series of past events where ammonium
nitrate was involved in the explosions in Texas as well as in
France in 2001. Is it not true that the type of ammonium
nitrate involved in the 1947 Texas City tragedy that you talk
about is vastly different than the type manufactured today?
Simply yes or no.
Mr. Moure-Eraso. I concluded, I do not have the data about
what was exactly the chemical composition of the Texas City and
we are waiting for the data on West.
Senator Barrasso. Well, with regard to the one in France,
is it not true that the ammonium nitrate involved in that
explosion was contaminated?
Mr. Moure-Eraso. I could not tell you. I am sorry, Senator.
Senator Barrasso. OK. Now in the 1974 ruling, OSHA ruled to
ensure the safe handling and storage of ammonium nitrate. Are
there any examples of accidental detonations of ammonium
nitrate where ammonium nitrate was handled and stored in
compliance with the rules, if they actually did it properly
within the rules?
Mr. Moure-Eraso. I am not aware of them, Senator.
Senator Barrasso. Mr. Breen, does the EPA have enough
personnel and inspectors to police the facilities like the West
Fertilizer Company if ammonium nitrate was included under a
Risk Management Plan as some have advocated? When you take a
look at some of these reports, it sounds like there are about
12,800 different facilities which might then be covered if we
went and expanded this and right now I think you are looking at
about 500 a year. I do not know how many more facilities you
would have to inspect each year and do you have the personnel
to do that? What would the cost be?
Mr. Breen. Senator, the President's Fiscal Year Budget asks
for additional funding for this program and that would allow
for additional inspectors as well.
Senator Barrasso. And how many more do you think you would
have to go, from 500 a year to----
Mr. Breen. The number of inspections, Senator?
Senator Barrasso. Yes.
Mr. Breen. I do not have an answer for that.
Senator Barrasso. OK. Thank you.
Thank you, Madam Chairman.
Senator Boxer. Senator, thank you.
What we are talking about is the way to safely store AN. I
mean, that is my perspective here. So, we want to thank the
panel.
I just want to say to the EPA, I am going to be working
with you much more than you would like. We need to do better
than point to an alert that was written in 1997. I have looked
up, many States have moved beyond that type of an alert. Many
States have guidance. Many other countries have guidance.
And I would like to put in the record a June 2014 editorial
in the Nebraska Journal Star that calls on EPA to update your
Risk Management Plans to ensure that this type of potential
explosive is stored safely.
This does not seem to me to be an unsolvable problem. We
have seen what happens when it is not stored correctly. Let us
fix it. And you have the tools, sir, and we are going to work
with you and if we have to against you. I mean I do not want
to, but if we cannot work with you we are going to have to, you
know, make sure this happens. We are going to make sure that
this alert is updated, that this guidance is updated, and that
you have perhaps a rules change so that what Senator Barrasso
says is accurate, that this is used but it is used safely.
Thank you very much.
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Senator Boxer. We will call up our next panel. We are sorry
it took so long to get you up here but we are going to give you
each 5 minutes and then I will turn to Senator Vitter first to
question because he had the tragedy most recently in his State.
So Mr. Randall Sawyer, Dr. Rick Webre, Mr. Paul Orum, Dr.
Sam Mannan, Mr. Kim Nibarger. And I think we are going to try
to, if you can cut down to 4 minutes that would be far better
because then we will have some time to question.
So, let us get started. As you are seating, I am going to
have to just move forward.
Mr. Randall Sawyer, I am so honored you are here. You are
the Chief Environmental Health and HazMat Officer in Contra
Costa County, a large county in California and one that has
some of these companies in it. So, I am very pleased you are
here. Please go ahead.
STATEMENT OF RANDALL SAWYER, CHIEF ENVIRONMENTAL HEALTH AND
HAZARDOUS MATERIALS OFFICER, CONTRA COSTA HEALTH SERVICES
Mr. Sawyer. Thank you, Chairman Boxer, Ranking Member
Vitter. Thank you for inviting me to participate in today's
hearing.
As you know, my name is Randy Sawyer and I am the Contra
Costa Health Services Chief Environmental Health and Hazardous
Materials Officer.
Contra Costa County is a safer place to work and live
because of the actions taken by the citizens of the county, the
county's Board of Supervisors, United Steelworkers local
unions, the Hazardous Materials Program staff and the regulated
industry. The safety culture of the petroleum refineries and
chemical facilities have dramatically improved over the last 15
years.
Contra Costa County is located on the San Francisco Bay
Estuary. It is home to four petroleum refineries and several
small to medium chemical facilities. In the 1990s, there were
many chemical accidents and releases, some of which caused the
death and injury of workers and impacted communities, causing
the public to seek medical attention.
As a result, two actions were taken to address the
accidents and concerns raised by the community and the county's
Board of Supervisors. First was installation of the most
integrated community warning system in the Country and the
second was implementation of the most encompassing accidental
release prevention program in the Country.
The Industrial Safety Ordinance was adopted by the county
and the city of Richmond. The Industrial Safety Ordinance
requirements go beyond those required by the U.S. EPA Risk
Management and Federal OSH Process Safety Management Programs.
The Industrial Safety Ordinance requires regulated stationary
sources to consider inherently safer alternatives, perform root
cause analysis as part of their accident incident investigation
programs, perform human factors analysis and perform a safety
culture assessment at least once every 5 years.
The Contra Costa Health Services Hazardous Materials
Program engineers have industrial experience and perform in-
depth audits of the regulated sources at least once every 3
years. These audits may take five engineers 4 weeks to perform
and may be the most thorough audits in the Country.
The results of these actions is a change in the way
industry does business in Contra Costa County. In addition to
putting safeguards in place, they are also looking at how to
avoid hazards all together. As a result, from May 1999 to
August 2012, there was not an accidental release from a
regulated source that had a major impact on the surrounding
community or caused serious injury or death of a regulated
sources worker.
On October 6, 2012, the Chevron Richmond Refinery had a
major release and fire and more than 15,000 sought medical
attention. Five different investigations were performed, Cal
OSHA issued 25 citations with 11 being willful, 12 being
serious and fines totaling $963,200. Chevron issued their
investigation report on April 12th, U.S. EPA and Bay Area Air
Quality Management District investigations are ongoing.
The Chemical Safety and Hazard Investigation Board issued
its interim report on April 19th with recommendations to
Chevron, the city of Richmond, Contra Costa County, the State
of California and the U.S. EPA. Contra Costa County and the
city of Richmond are working together to address these
recommendations and is in the process of modifying the
Industrial Safety Ordinance. The Chemical Safety and Hazard
Investigation Board plans to have a final report issued by the
end of this year with additional recommendations.
Contra Costa Health Services is hiring a third party to
perform a safety evaluation of the refinery. The selection of
the third party will occur next week and it is expected the
work will begin in August. Governor Brown has established a
task force to look at the refinery's safety and the task force
is planning to issue a report in July.
The Community Warning System and the Industrial Safety
Ordinance has made a dramatic positive impact on refinery and
the chemical facility safety in Contra Costa County that has
resulted in reduced accidents. Last year's incident at Chevron
Richmond underscores the need for continued vigilance around
these efforts to prevent such occurrence and continue the
overall trend toward a safer worker environment for the
employees of the petroleum refineries and the chemical plants
and a safer community for our citizens to live.
Thank you.
[The prepared statement of Mr. Sawyer follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so much. And thank you for taking
action to protect my constituents. And clearly you just cannot
sit back and wait for EPA. That is obvious. So thank you.
Mr. Sawyer. You are welcome.
Senator Boxer. Mr. Rick Webre. And would you like to
introduce him, David?
Senator Vitter. Sure. I began to, in my opening. Rick Webre
is Director of the Ascension Parish Office of Homeland Security
and Emergency Preparedness. If there is any good news about the
two incidents there it is that the response after the horrible
accidents seemed to go very well, be very, very well
coordinated. That is not by accident. It is because of a lot of
work and practice.
And so, Mr. Webre, thanks for your service and welcome.
Thank you for being here.
STATEMENT OF RICK WEBRE, DIRECTOR, ASCENSION PARISH OFFICE OF
HOMELAND SECURITY AND EMERGENCY PREPAREDNESS
Mr. Webre. Madam Chairman, Senator Vitter, I appreciate the
opportunity to testify.
I understand that the purpose of this hearing is to conduct
oversight of Federal programs addressing chemical threats. My
job is at the local level of government, so I will only provide
insight from a local emergency management perspective.
Emergency managers perform the coordination efforts for all
hazards within their jurisdiction. Petrochemical threats are
only one of these hazards. They coordinate and plan through a
Local Emergency Planning Committee, or LEPC, mandated by the
Federal Emergency Planning and Community Right to Know Act of
1986.
A well-managed LEPC is one of the most critical functions
that a community can form to prevent, mitigate, respond to and
recover from an industrial incident. I cannot emphasize enough
that all disasters are initially local.
Federal legislation governing chemical threats are unfunded
mandates that are written at the strategic level of management,
then interpreted operationally at the State level of
government. Unfortunately, in many cases the tactical core at
the local level of government is either overlooked or not well
enforced. I believe that these Federal laws are not well
enforced for the following reasons.
One is a lack of formal training and education for
emergency managers in overseeing the LEPC. It is nearly
nonexistent. Chairing the LEPC should be the responsibility of
the duly appointed local emergency manager at the County level
of government and should never be assigned to any other entity
or the chemical industry.
There are no consequences should a State or local
government choose not to enforce or poorly enforce the EPCRA
mandates for an LEPC.
The Federal mandate to plan and coordinate with industry at
the local level of government is unfunded. Funding that is
available to local governments through Federal grants in many
cases are retained at the State level of government. Chemical
inventory filing fees that could assist in managing an
Emergency Management Office and coordinating with industry are
at times retained at the State level of government.
And metrics or standards do not exist in determining the
performance level of an LEPC or SERC.
For over a decade, new Homeland Security doctrine has been
drafted and significantly changed the emergency management
environment in this Country. However, none of this superseded
legislation from the U.S. Department of Transportation
governing railway and pipeline incidents nor any element of the
EPCRA law.
I believe that because of the new Federal doctrine, much
less emphasis has been placed on EPCRA and the LEPC. However, I
do not believe that more Federal legislation is required. I
believe that the State and Federal legislation regarding
chemical facilities, pipeline and railway incidents need to be
compared, assessed and de-conflicted.
Instructions to first responders during a chemical incident
must be predetermined and very simplistic. Complexity can
result in poor performance on scene. My staff has developed
very complex emergency operations plans which are excellent
documents for training and planning and resourcing, but they
are almost useless during an incident.
Creating one common operating picture between the chemical
industry and the 911 center, the emergency operations center
and the first responders on scene is absolutely critical. A
simple few pages site-specific plan can contain the critical
data that is needed.
And I cannot express how important the radio communications
layer is during a petrochemical incident. There are 33 chemical
facilities within our jurisdiction and each of them possesses a
radio capable of communicating directly with the 911 center,
the emergency operations center and the first responders on the
ground. They communicate while referring to a site-specific
plan that I mentioned earlier and this is what I referred to as
one common operating picture.
None of this could have been accomplished without a having
a strong LEPC in place. Our local chemical industry has been
absolutely instrumental in coordinating with the LEPC as well
as funding and managing the Ascension Parish Community
Awareness Emergency Response Committee and the Geismar Area
Mutual Aid Association. Between these two organizations, they
fund and maintain the community siren system, defray the cost
of our reverse 911 system, manage public outreach for the near-
site population, provide mutual aid across a three-county
jurisdiction, and manage the installation of our emergency
radios.
I have been in my position for 7 years. Before June 2013,
we experienced only two general emergencies resulting in zero
fatalities and injuries. Now 2 weeks ago we experienced two
general emergencies in 2 days resulting in three fatalities and
over 100 injuries to chemical workers.
No other injuries were sustained by first responders or the
general public and no damage was reported to adjacent critical
infrastructure. I attribute this in large part to the ability
of the first responder community and the chemical industry
being able to operate effectively under a unified command.
I see that my time is up. My recommendations, Madam
Chairman, were included in my written testimony.
[The prepared statement Mr. Webre follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you so very much, Mr. Webre.
Mr. Paul Orum, Consultant, Coalition to Prevent Chemical
Disasters. Welcome, sir.
STATEMENT OF PAUL ORUM, CONSULTANT, COALITION TO PREVENT
CHEMICAL DISASTERS
Mr. Orum. Good morning. My name is Paul Orum and I thank
the Committee for the opportunity to present views important to
a broad coalition of environmental health, labor, and community
organizations. I have worked 25 years in government information
policy on hazardous materials from the community perspective.
We all know what happened in Texas and that chemical plant
incidents are common. I will depart from my written testimony
just for three overall points. First, the explosion at West
Fertilizer was preventable. Second, prevention is ultimately
always more effective than response. And third, EPA should be
using existing authorities to do more to prevent these
incidents. I hope we can agree on the need for better public
protections.
Returning to the specifics as listed in my written
testimony, first, risk management planning should include
reactive chemicals like the ammonium nitrate that detonated at
West Fertilizer. Where there is serious potential harm to the
public, reactive chemicals should be included in risk
management planning which is, after all, the Clean Air Act
program designed to cover such hazards. And, as has been noted,
the Chemical Safety Board has in fact an open recommendation to
EPA to do this.
Second, management systems and controls do fail. This seems
mundane but we should plan on it. This goes to Senator
Barrasso's point about rules and regulations. We should plan on
failures. Chemical companies should be held responsible not
only to understand their own hazards but also to understand
less hazardous alternatives that are available in their
industry.
Surveys show that risk management planning prompts some
companies to remove avoidable hazards and there are examples in
my written testimony. EPA should better incorporate methods
that prevent potential consequences into risk management
planning.
Third, the explosion in Texas illustrates the importance of
the Clean Air Act's general duty to operate safely. West
Fertilizer was subject to an incomplete patchwork of
regulations. The general duty holds firms responsible for
operating safely regardless of the completeness or
incompleteness of Government actions. We would strongly oppose
restricting the general duty in ways that could hamper
enforcement or prevention.
Fourth, emergency planning notification is incomplete. The
ammonium nitrate that exploded in Texas was not on the list of
substances that require emergency planning notification. This
is EPCRA 302. These notifications are only the starting point
for emergency planning and do not guarantee follow up.
Nonetheless, EPA should make sure that this list is more
complete.
Fifth, EPCRA inventory reporting, this is Section 312, is
valuable but insufficient. West Fertilizer did report ammonium
nitrate to the State of Texas, a Tier II report. However,
simple reporting on chemical inventories is not sufficient. We
need to get from providing information to assuring
communication. There should be fee-based programs to support
prevention, pre-fire planning, inspections, drills and hazmat
training for first responders.
Sixth, independent investigations are important. The
Chemical Safety Board provides credible public information and
focused recommendations for change. When we hear about barriers
to investigations such as site access and preservation, we
think they should be resolved.
A couple of quick issues beyond EPCRA and the Clean Air
Act. Schools and nursing homes should not be in potential blast
zones. State and local planners could benefit from Federal
guidelines for safe setbacks. Site criteria for federally
funded projects should take into account proximity to hazards.
And then, finally, hazardous chemical operations should not
be underinsured.
In summary, sustained improvement is long term and involves
a range of actions, not any one thing. But among immediate
lessons from the recent explosions are the need for EPA to make
sure that major recognized hazards first, are included in
programs designed to address them, second, are subject to safer
alternatives analysis by companies that hold them, and third,
are covered by appropriate lists and thresholds and by the
general duty to operate safely.
Thanks for the opportunity to testify. I would be glad to
take any questions.
[The prepared statement of Mr. Orum follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you very much.
Next we go to Dr. M. Sam Mannan, Regents Professor and
Director, Mary Kay O'Connor Process Safety Center, Texas A&M.
STATEMENT OF M. SAM MANNAN, PE, CSP, DHC, REGENTS PROFESSOR AND
DIRECTOR, MARY KAY O'CONNOR PROCESS SAFETY CENTER, DEPARTMENT
OF CHEMICAL ENGINEERING, TEXAS A&M UNIVERSITY SYSTEM
Mr. Mannan. Good morning, Chairman Boxer, Ranking Member
Vitter and other distinguished members of the Committee.
My name is Sam Mannan and I am Director of the Mary Kay
O'Connor Process Safety Center, holder of the T. Michael
O'Connor Chair I in Chemical Engineering, and Regents Professor
at Texas A&M University. The center seeks to develop safer
processes, equipment, procedures and management strategies that
will minimize losses in the chemical process industries. The
opinions presented during this hearing represent my personal
position on these issues.
Risk management and emergency planning programs to prevent
and address chemical threats are of extreme importance for the
protection of the work force, public and the environment. These
programs are also of great importance for the U.S. national
economy and security.
So, what should we do in the aftermath of the incidents in
West, Texas and Geismar, Louisiana? I believe that before we
start looking at new regulations or revising regulations, we
owe it to ourselves to determine if the existing regulations
are being implemented and enforced in a comprehensive and
universal manner. As I have elaborated in my written report, I
do not think we are currently doing that, that is enforcing
existing regulations through a comprehensive screen scheme and
plan of inspections and audits.
I have made a total of nine recommendations in my written
report but, in order to stay within the time allotted, I will
address a few of those.
I sincerely believe that the establishment of a national
chemical incident surveillance system for process safety
incidents is essential. There is presently no reliable means
for evaluating the performance of industry and limiting the
number and severity of accidental chemical releases.
I strongly urge Congress to mandate a risk-based study to
determine the hazards and risks and develop a regulatory map of
hazardous materials oversight. This study should take into
consideration types of facilities, their locations, chemicals
involved and their quantities in order to determine what
agencies do or do not regulate these facilities.
All Federal agencies with responsibility to regulate risk
and associated issues should be required to conduct a
comprehensive screening to determine their regulatory
landscape, that is, create an exhaustive list of facilities
covered by their respective regulations.
Once the regulatory landscape is determined, each Federal
agency should be charged with developing a plan and schedule
for ensuring compliance through regular inspections. Congress
should consider directing Federal agencies to create verifiable
and certifiable third party auditing and inspection systems.
This approach has worked for ISO-9000 certifications and other
programs. There are market-based approaches through which this
regime can be implemented without causing a major burden on the
regulatory authority or the regulated community.
I urge Congress to look into ways to utilize the local
emergency planning committee framework in a much more effective
manner. I urge Congress to look into ways to encourage States
and local governments to improve and enforce risk-based zoning
and land use planning.
In summary, I applaud Congress for providing leadership in
this important area of risk management and emergency planning
programs to prevent and address chemical threats. We have made
a lot of progress in moving forward to overcome the challenges
we face in using chemicals to improve our lives without hurting
the industry employees, the public or the environment.
We all can agree that chemicals do improve our lives and we
also can agree that they can hurt us, too. And I have often
said, if we do not the right things, they can make us extinct
as well.
This is a serious matter and I am pleased that people at
the highest level of Government are involved in looking into
this matter.
Thank you for inviting me to present my opinions and I
would be happy to answer any questions.
[The prepared statement of Mr. Mannan follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Boxer. Thank you. And then we call on, last but not
least, Mr. Kim Nibarger. Mr. Nibarger is a Health and Safety
Specialist at United Steelworkers International Union.
STATEMENT OF KIM NIBARGER, HEALTH AND SAFETY SPECIALIST,
HEALTH, SAFETY AND ENVIRONMENT DEPARTMENT, UNITED STEELWORKERS
INTERNATIONAL UNION
Mr. Nibarger. Chairman Boxer, Ranking Member Vitter and
members of the Committee, thank you for the opportunity to
testify at this hearing.
We represent the majority of organized workers in the
petrochemical industry as well as hundreds of thousands of
workers who use chemicals on the job. I worked in a West Coast
oil refinery for 17 years.
First I would like to point out that the two events under
discussion, the explosions at the West, Texas fertilizer plant
and the Williams chemical facility, are in no way isolated
incidents. Also in April of this year, 12 workers were burned
at the Exxon Mobile Refinery, two of who subsequently died from
their injuries. Later that month, eight workers were sent to
the hospital after an explosion and fire at the Chevron Port
Arthur refinery. And on this past Monday, an explosion at a
fertilizer plant in Indiana killed one person.
Since 2008, the oil industry has reported an average of
over 45 fires a year. So far, 2013 appears to be right on track
with 22 fires through June 21st. These are industry self-
reported and do not include many small fires that our members
bring to our attention. It also does not include oil rigs,
pipelines or storage terminal fires and does not include
chemical plants.
These sometimes deadly and potentially catastrophic events
take place all too often in this industry. The first response
from industry after a tragedy is that the safety of their
employees is their top priority. The widowed wives and
husbands, children left without a father or mother, may feel
differently. More must be done to prevent these types of
incidents from occurring in the first place.
The regulatory process relies on much self-reporting which,
in essence, allows the industry to self-regulate. As seen in
the November 2012 EPA Risk Management Inspection at the
ExxonMobil facility in Baton Rouge, the company had never done
a compliance audit for risk management planning although it is
required to be done every 3 years.
In order to assess compliance, the EPA reviewed the PSM
audits, which they had conducted, since they were similar. The
EPA evaluation found that not only were required elements
missing altogether, but even where an element was addressed the
company did not follow the appropriate technical procedures and
practices.
One of the problems with the Process Safety Management
Standard which governs the health and safety of facilities
using a specified volume of highly hazardous chemicals is that
it is performance based. The standard tells you what to do but
how it is done is left up to the company.
This is necessary to a degree in that it allows the
employer to bring in new technology or what is termed
Recognized and Generally Accepted Good Engineering Practices,
or RAGAGEP, to make improvements under the standard. But what
we typically see are employers riding on past practices, that
this was RAGAGEP at the time it was put into place so we do not
need to upgrade it now.
OSHA is under-funded and under-staffed. The Process Safety
Management Standard requires considerable technical expertise
to enforce and there are not enough adequately trained
compliance officers to address the PSM covered sites as is the
case with RMP under EPA.
The Process Safety Management Standard itself is written to
require certain plans but there is no requirement that these
plans be good, only that certain items be addressed. For
example, an MOC meets the regulatory compliance if it is done.
So, all you need is a check sheet or a checklist.
We also hear that workers have stop work authority, that if
they identify an unsafe condition they can stop the work until
it is deemed safe to continue. That was not the case for
members at the Chevron Richmond refinery in California. Workers
who wanted to take the unit that caught fire off line were
overruled. While as workers we have the authority, we certainly
do not have the power. This is a fallacy in talking about a
safety culture. It is based on a harmonized model. Without the
power, the authority means nothing.
While we complain about the lack of regulatory involvement,
what about the companies' responsibility to act? When the leak
was discovered at Chevron, the decision should have made to de-
pressure and shut the unit down based on material and volume.
To maintain the idea that it is safer to operate a unit with a
hole in the pipe which was not going to get better than to shut
a unit down is absurd. If that is the case, you need to take a
serious look at your operating procedures and parameters.
Calling this type of operation risk-based management is not
managing the risk at all. It is just taking a risk.
Thank you again for the opportunity to raise some fears
workers have about the state of process safety in the
petrochemical industry.
[The prepared statement of Mr. Nibarger follows:]
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Senator Boxer. Thank you. It was very well said.
I am going to ask Senator Vitter to lead off with the
questions, then I will follow and we will finish in time to
vote.
Senator Vitter. Thank you all, again, for your work and
your testimony.
Mr. Webre, based on the recent Ascension Parish incidents,
you all have demonstrated that the emergency preparedness after
the fact is first rate. How do you coordinate and integrate
your emergency management system with all of your emergency
response organizations and social services and volunteers? And
specifically, what has been your experience with the local
chemical industry and their engagement with the Local Emergency
Planning Committee?
Mr. Webre. The key to making is successful, Senator, is to
have a robust LEPC. And within our LEPC, it is all about first
responder, community, fire, EMS, law enforcement communications
as well as the chemical industry. It is looking at the risk
assessments and what is the most probable from those risk
assessments within the chemical industry. And not just the
chemical industry. We look at it from an all hazards
perspective.
As far as the reaction from the chemical industry, they
have been instrumental in supporting in us. I mean, our
alerting and warning sirens, they pay for and maintain. Our
reverse 911 system, our mass casualty bus, the CARE committee
helped fund. I can go on and on and on about some of the
things, the hazmat team, they have supported us on.
I have never met one of the plant managers or any of the
chemical workers that were not willing to support the LPEC.
They want to do the right thing. They live in our community and
they have supported us 100 percent.
Senator Vitter. Great. Thank you.
Dr. Mannan, one concern I have whenever something horrible
like this happens is that it is used and abused, quite frankly,
to advance some preexisting agenda that does not really relate
to whatever happened.
So, with that in mind, I want to ask you about an issue
that certainly comes up here and may come up again, Inherently
Safer Technologies. Would mandating IST have prevented the
incidents and explosions in West, Texas or in Ascension Parish,
Louisiana?
Mr. Mannan. Just because I am occupying the seat that the
EPA Administrator was sitting on does not mean that it is still
the hot seat.
[Laughter.]
Mr. Mannan. But I appreciate your question and I think it
is very important question to look at.
Inherently Safer Technology, there is no question that that
is something that should be looked at, something that should be
evaluated. But I am still, as I have testified before in other
Committee in Congress, I am still not sure that inherent safety
as a regulation is a good thing to do because you have got to
understand, this is not a technology that you just take off the
shelf and implement. And there are lots of opportunities for
unintended consequences to occur, like risk transfers,
accumulation and things like that.
Having said that, exactly what it would have done in the
case of West or Geismar, I think we have to wait and see what
actual root cause the investigations indicate. I know a little
bit more about West because we have been looking into that much
more closely.
I can tell you this. They were covered by OSHA 109. And if
you look at OSHA 109, a lot of those requirements that are in
there, if they had followed that, my guess is the probability
of this incident would have been almost none.
And if you think about it, what would IST have caused them
to do? Well, naturally they could have looked for alternate
chemicals. That is a possibility and we should always look at
that. They could have looked at the issue of contamination and
all of that.
But my point is, if any of that is put in, the ultimate
issue still comes down to enforcement. And until we come up
with a regime where we are doing the enforcement
comprehensively in a manner that yields good results, we are
not going to accomplish anything. We just add another
legislation that does not get enforced.
Senator Vitter. Great. Thank you all very much.
Senator Boxer. Thank you. The vote started at 11:35. I am
going to do my questions and if there is a timeframe left, I
will ask Senator Boozman.
Does anyone disagree with what I am about to say? So,
listen carefully. And if you disagree, please speak up. If you
prevent ammonium nitrate from being exposed to fire, would that
not be an obvious safety measure? So, would you agree that if
you, just forget about all of the ifs, ands and buts around it,
if it is isolated from fire, that would be a measure. Does
anyone disagree with that?
No. So, to me, what I like to do in my life is kind of take
the big, complicated issues and see can we start somewhere. So,
it seems to me we know this. It almost seems to me we know, as
a result of this important hearing, that the Chemical Safety
Board had made that suggestion in 2002. We also know from the
EPA that they have not done that and we also know that their
safety alert goes back to 1997 and has not been updated.
So, for my question, I want to talk to Mr. Orum who is
looking at the issue overall. And as I listened to you, and I
went over your recommendations, you talk about the general duty
clause that holds firms responsible for understanding and
managing their chemical hazards regardless of what the
Government does or does not do. And I think it is worth
repeating that the industry has an obligation. Am I stating
that correctly, Mr. Orum?
Mr. Orum. Yes. We basically do not want to see a situation
where Government actions are deliberately tied up in delay and
then the Government is unable to use prevention strategies or
enforcement and these delays----
Senator Boxer. Well, that is not answering my question. Is
it your opinion that the general duty clause holds firms
responsible for understanding and managing their chemical
hazards regardless of Government actions or lack of actions?
Mr. Orum. Well, yes.
Senator Boxer. OK. That is what I want to get at. And do
you also believe, I mean, you have written this but I just want
it so clear in your testimony, you wrote that risk management
planning should include reactive chemicals like that ammonium
nitrate that detonated at West Fertilizer. Very straightforward
recommendation. Do you stand behind that?
Mr. Orum. Yes. Yes.
Senator Boxer. OK. I mean, I do agree with Mr. Mannan that
you have to enforce. I mean, you could put out the alerts, you
can change the regs, but you still have to send out folks to
enforce.
But I have to say, it is a bad example to use these days,
but practically all of us do pay our taxes regardless of the
fact that some people may say well that tax is unfair and I do
not like the IRS. Obviously, most of us are not audited and
most of us do the right thing.
So at some point, I mean we are not going to be able to
look at every single thing, but let me ask you specifically,
since you talked about enforcement, in the case of West could
you point to one particular regulation that, if it was
enforced, could have prevented what happened at West, since you
site the lack of enforcement of existing regs as a problem?
What, give me an example of what enforcement could have
stopped this problem, of the existing laws?
Mr. Mannan. Thank you, Chairman Boxer, for that question.
Specifically OSHA 1910.109, the Explosive and Blasting Agents
Standard, that has a paragraph (i) that is specific to ammonium
nitrate.
Senator Boxer. OK.
Mr. Mannan. And in there, I will quote just one part, it
says ammonium nitrate shall be in a separate building or shall
be separated by approved-type firewalls of not less than 1 hour
fire resistance rating from storage of organic and on and on.
Right there is just one critical element of what you said.
Separate ammonium nitrate from combustible----
Senator Boxer. OK. So, are you saying that if OSHA had
inspected, they would have caught this problem?
Mr. Mannan. If OSHA had some competent inspector who had
gone there on a regular basis and made that enforcement, yes,
they would have looked at that.
Senator Boxer. So, the company is in violation of an OSHA
standard?
Mr. Mannan. It is in violation of an OSHA standard if what
we are seeing and hearing now is true.
Senator Boxer. All right. And does that mean that all large
facilities are in violation of the OSHA standard if they do not
store AN separately?
Mr. Mannan. I would have to look at that.
Senator Boxer. Or most facilities?
Mr. Mannan. Most of them, yes, if they do not follow the
standard they are in violation.
Senator Boxer. Well, it would be nice if the EPA did a
little bit of consulting with OSHA and their alert could
update, update their alert to state that OSHA has this
regulation. That would be the minimum they ought to do this
afternoon.
Do you know what year that OSHA regulation went into place?
Mr. Mannan. No, Madam Chairman, I do not. But if I could
take just a few seconds to say something.
Senator Boxer. Please, go ahead.
Mr. Mannan. OSHA has 109 in the books. While EPA issued the
guidance and should, as you suggested, updated that guidance,
we all should be careful that we should not have overlapping
regulations. So, if OSHA, through 109, can accomplish the
objectives, that is what we should do.
Senator Boxer. Well, see, I do not agree with that at all.
If this can cause multiple deaths, it does not bother me that a
couple of health and safety agencies have similar laws on the
books. But let me just stop you there because I want to give
some time to the Senator because the vote has how many minutes
left? Four minutes left.
Can I just say thank you, all of you. I mean, I am so happy
you are here. This was very important. I am going to be
following up with a very important letter to, which will
include the White House, about what needs to be done and you
have all really helped me, all of you, each of you. Senator.
Senator Boozman. I also want to thank you for being here. I
apologize for just being here at the end. I had a conflict with
a markup in another Committee.
But in the interest of time, Madam Chair, I think what I
would like to do is just submit my questions for the record and
see if we can get it done that way. Thank you.
Senator Boxer. Of course. Senator, absolutely. And I have
other questions as well that I was unable to do because we have
these very big votes now on immigration.
So, we are going to head out. Thank you to all. If our Tim
is still here, I think he is, again I want to say thank you so
very much for being here and we, I want you to know, and you
tell the family, that we are not stopping until we make
positive reforms that will make the likelihood of this far less
than it is today.
And to the Chemical Safety Board, if I could just say
something to you, in this particular case, and you know, I do
not know what you are going to do tomorrow, I just, you are my
heroes in this. And please do exactly what you are doing, get
to the bottom of this, and do not be afraid to say what you
believe. It is critically important. And I am very proud of the
work you have done.
Thank you very much. We stand adjourned.
[Whereupon, at 11:48 a.m., the committee was adjourned.]
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