[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

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             JUNE 27, 2013

                               ----------                              

  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

                              ----------                              


                        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:]    
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
          
    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.]
    [Additional material submitted for the record follows:]
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