[Senate Hearing 113-752]
[From the U.S. Government Publishing Office]









                                                        S. Hrg. 113-752

                 PREVENTING POTENTIAL CHEMICAL THREATS
                 AND IMPROVING SAFETY: OVERSIGHT OF THE
 PRESIDENT'S EXECUTIVE ORDER ON IMPROVING CHEMICAL FACILITY SAFETY AND 
                                SECURITY

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 6, 2014

                               __________

  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
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
THOMAS R. CARPER, Delaware           DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JAMES M. INHOFE, Oklahoma
BERNARD SANDERS, Vermont             JOHN BARRASSO, Wyoming
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
TOM UDALL, New Mexico                MIKE CRAPO, Idaho
JEFF MERKLEY, Oregon                 ROGER WICKER, Mississippi
KIRSTEN GILLIBRAND, New York         JOHN BOOZMAN, Arkansas
CORY A. BOOKER, New Jersey           DEB FISCHER, Nebraska
EDWARD J. MARKEY, Massachusetts

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                            C O N T E N T S

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                             MARCH 6, 2014
                           OPENING STATEMENTS

Boxer, Hon. Barbara, U.S. Senator from the State of California...     1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     3
Markey, Hon. Edward J., U.S. Senator from the State of 
  Massachusetts..................................................     4
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     5
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....    65
Udall, Hon. Tom, U.S. Senator from the State of New Mexico.......    70
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, 
  prepared statement.............................................   234

                               WITNESSES

Stanislaus, Hon. Mathy, Assistant Administrator for Solid Waste 
  and Emergency Response, U.S. Environmental Protection Agency...     7
    Prepared statement...........................................     9
    Responses to additional questions from:
        Senator Boxer............................................    25
        Senator Markey...........................................    26
        Senator Vitter...........................................    31
Moure-Eraso, Hon. Rafael, Chairman, U.S. Chemical Safety Board...    38
    Prepared statement...........................................    40
    Responses to additional questions from:
        Senator Boxer............................................    47
        Senator Vitter...........................................    50
Wilson, Michael P., Ph.D., MPH, Chief Scientist, Office of the 
  Director, California Department of Industrial Relations........    71
    Prepared statement...........................................    74
Frederick, James S., Assistant Director of Health, Safety & 
  Environment, United Steelworkers International Union...........    84
    Prepared statement...........................................    86
    Responses to additional questions from:
        Senator Boxer............................................    90
        Senator Vitter...........................................    93
Hansen, Evan P., President, Downstream Strategies................   100
    Prepared statement...........................................   102
    Responses to additional questions from Senator Vitter........   108
Pirkle, Billy, Senior Director, Environment, Health and Safety, 
  Crop Production Services.......................................   111
    Prepared statement...........................................   113
    Response to an additional question from Senator Boxer........   133
    Responses to additional questions from Senator Vitter........   134
Berger, Scott, Executive Director, Center for Chemical Process 
  Safety, American Institute of Chemical Engineers...............   223
    Prepared statement...........................................   225
    Response to an additional question from Senator Boxer........   228
    Responses to additional questions from Senator Vitter........   229

                          ADDITIONAL MATERIAL

Letter from the Institute of Makers of Explosives to Senators 
  Boxer and Vitter, March 18, 2014...............................   236
Safety and Security Guidelines for Ammonium Nitrate, from the 
  Institute of Makers of Explosives and the National Stone, Sand 
  & Gravel Association, December 13, 2013........................   240
Testimony of Peter S. Silva, Assistant Administrator for Water, 
  U.S. Environmental Protection Agency, October 1, 2009..........   253

 
 PREVENTING POTENTIAL CHEMICAL THREATS AND IMPROVING SAFETY: OVERSIGHT 
   OF THE PRESIDENT'S EXECUTIVE ORDER ON IMPROVING CHEMICAL FACILITY 
                          SAFETY AND SECURITY

                              ----------                              


                        THURSDAY, MARCH 6, 2014

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:01 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Barbara Boxer 
(chairman of the committee) presiding.
    Present: Senators Boxer, Vitter, Carper, Udall, Markey, and 
Barrasso.

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

    Senator Boxer. We come to order.
    Senator Vitter is on the floor of the Senate; he will get 
here when he can.
    Today this committee continues its important oversight of 
efforts to improve the safety and security of chemical 
facilities across this Nation. The long list of chemical 
disasters in recent years demonstrates that we need urgent 
action.
    In August 2012 there was a pipe failure at a refinery in 
Richmond, California which formed a vapor cloud that ignited 
and injured six workers. Toxic smoke caused approximately 
15,000 people to seek medical treatment.
    Then in April 2013 a massive explosion and fire in West, 
Texas, destroyed a fertilizer plant and caused widespread 
destruction, with 15 people dying and hundreds of people 
injured and homes, businesses, and three unoccupied schools 
damaged or destroyed.
    In June 2013, an explosion at a petrochemical refinery in 
Louisiana released more than 62,000 pounds of toxic chemicals, 
caused a serious fire, injured more than 100 people, and killed 
two workers.
    We held a full committee oversight hearing on these 
explosions in June 2013, and then I spoke with President Obama 
about the need to act, and he took a very important step 
forward. In August 2013, the President issued Executive Order 
13650, Improving Chemical Facility Safety and Security, which 
established a working group to undertake a comprehensive review 
of Federal chemical safety and security programs and develop 
recommendations for improving these programs.
    In August 2013, EPA, OSHA, and ATF issued an advisory on 
the safe storage, handling, and management of ammonium nitrate, 
which caused the West, Texas, explosion, but much, much, much 
more remains to be done. In fact, yet another chemical facility 
disaster occurred in January in West Virginia, which brought to 
light an entirely new set of issues which deal with poorly 
maintained chemical storage facilities that are located 
adjacent to our Nation's drinking water.
    An above-ground chemical storage facility near Charleston, 
West Virginia, failed, leaking thousands of gallons of toxic 
chemicals into the Elk River, a source of drinking water for 
over 300,000 people. The spill has terrible costs that continue 
to impact families and small businesses across West Virginia.
    I have written to EPA Administrator McCarthy to request 
that the failures in the system brought to light in West 
Virginia be specifically addressed by the President's Working 
Group, and we will examine this issue. I am working with 
Senator Manchin and colleagues on both sides of the aisle on 
legislation to better protect our drinking water sources from 
threats posed by chemical facilities.
    I am working with Senator Vitter, and I am hopeful he will 
join us in this effort. Whether he does or he doesn't, we are 
going to have a bill and we are going to mark up a bill. I am 
also working with a lot of the State people on this.
    We have decided, because I had a good chat with Senator 
Vitter yesterday, he asked for more time. We are giving more 
time and the markup has been changed on that Manchin bill on 
West Virginia from the 12th of this month to Wednesday, April 
2nd, at 11 a.m. So I hope members will make a note of that.
    The ever growing list of catastrophic failures must be a 
wake-up call for all of us, including EPA, which does have 
existing authorities they ought to be using. Federal safety and 
health officials must use all tools available to protect the 
health and safety of people working in and living near chemical 
facilities.
    We are here today to ensure that the Executive Order 
Working Group identifies ways to make real measurable 
improvements in the oversight of chemical facilities. We must 
act quickly for the good of the American people, because we 
don't want to be back here with postmortems of what could have, 
should have been done. We have to make sure we are inspecting 
these facilities, we know what to do if an accident does occur, 
but, most of all, we can prevent these failures because we have 
a very smart program in effect, and that is my goal as the 
chairman of this committee. And I know that everyone on this 
committee wants to stop these explosions and these leaks and 
these serious problems, but it doesn't happen by itself. People 
are well meaning but, frankly, we need a regimen in place, good 
practices that are followed.
    So that is the purpose of this oversight hearing.
    With that, I am very pleased to call upon my wonderful 
second-in-command here, Tom Carper.

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

    Senator Carper. Thank you, Madam Chair. I am pleased to 
welcome both of our witnesses here this morning, and thank you 
for your stewardship and thank you for your input.
    Also, I think it is the first time we have been in the room 
since our new Senator from Massachusetts, Ed Markey, has joined 
us. He is an old friend, and it is just great to have him on 
this committee.
    I wear two hats in this hearing. I am going to be in and 
out today, but I wanted to stop by and I will be back in a 
little bit. But I wear two hats today. One is I think of myself 
as Chairman Boxer's wingman, and on a good day she thinks of me 
as her wingman, too.
    Senator Boxer. I do.
    Senator Carper. But I also chair the Senate Committee on 
Homeland Security and Governmental Affairs, so I look at it 
through the prism of both of those glasses. It is almost like a 
pair of glasses and one eye is EPW, the other lens is Homeland 
Security.
    I am a native of West Virginia, and I have a lot of 
relatives who live around Charleston who didn't have any water 
to drink for a while, so that is on my mind and it is on the 
minds still of a lot of people in West Virginia and here, too.
    But the problem that we are here to discuss and to hear 
from you about is not an easy one, but it is one that we all 
have to be concerned about resolving. Each of us, in our own 
States, have industries that work with dangerous chemicals. 
That is certainly true in Delaware; I know it is true in 
Massachusetts and California and other States that are 
represented here. Many of the substances, which are essential 
for industry, they are essential for our economy, are used for 
agricultural, other uses; for the most part well controlled, 
safely handled, and years can go by without any incidents.
    Sometimes decades can go by without an incident. But 
sometimes, unfortunately, things do go wrong, as we know, and 
it is our duty to ask whether we could have done better, what 
we could have done so as to prevent the next incident from 
happening and prevent injuries and, in some cases, death.
    That is why the President has issued his Executive Order, 
as you know, on chemical facilities, creating the Chemical 
Facility Safety and Security Working Group, and that is why we 
are here today to ask how we can do better. Everything I do I 
know I can do better. I think that is true of all of us. I 
think that is true of all of our governmental agencies, too, 
and, frankly, the private sector.
    After the tragic example at West in Texas, as chairman of 
the Homeland Security Committee, I sent the Department of 
Homeland Security a long list of questions to help us figure 
out what went wrong. And their answers provided a great deal of 
insight, and I am glad that the Department of Homeland Security 
is a part of this Working Group; I think that is important.
    I understand that along with other agencies such as EPA, 
which we are pleased to have here with us today, Working Group 
officials have already identified I think 9 or 10 sets of 
options that might help us to improve our chemical facility 
safety and security. These include both mandatory and voluntary 
new safeguards, policies to encourage a shift to inherently 
safer technologies or the creation of a third-party audit 
system, and I am encouraged by the breadth and scope of the 
potential actions under consideration.
    As the Working Group finishes up its work, we need to 
evaluate all of these options to figure out what might work 
better for both stakeholders and for the public, and I look 
forward to hearing the testimony of the panelists. I am going 
to slip out of here for a few minutes, but I will be back 
shortly and maybe join in the questions. But we are looking 
forward to you helping us to better evaluate the 
recommendations of the Working Group as they arise.
    Thank you. Very nice to see you both.
    Thank you, Madam Chair.
    Senator Boxer. Senator, thank you so much. I know what it 
is like to be running back and forth; I do it many times.
    It is just a real, frankly, honor to introduce for his 
first time in public here at this committee, Ed Markey, who I 
just want to take a minute to add to what Tom Carper said and 
say a true leader in protecting the health and safety of not 
only the people of his great State, but the people of the 
country. I am going to be very honest here and say something 
usually you don't hear chairmen say. I really asked for Ed to 
be put on this committee in this slot, and I couldn't be more 
pleased. So, with that, Senator Markey.

          OPENING STATEMENT OF HON. EDWARD J. MARKEY, 
          U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Markey. Thank you, Madam Chair, and it is my honor, 
actually, to be on this committee with you as chair and Tom 
Carper and so many other great leaders. The issues that you are 
working on and leading on are going to largely determine the 
relationship between the American people and their environment; 
the safety of it, the security of it. So I am very pleased to 
be here.
    The chemical sector represents the best of American 
technological might. Its products help to make our water safe 
to drink, make the microchips used in our iPhones and ICBMs, 
refine our oil, grow our food. But these same chemicals could 
also be turned into a weapon of mass destruction by terrorists. 
They could wreak havoc in the event of a catastrophic natural 
disaster. And as we have seen so recently in West, Texas, and 
West Virginia, human error can cause fatal accidents and 
massive economic and environmental damage.
    Unfortunately, this is not a new story. On December 3rd, 
1984, an accident at a pesticide plant in Bhopal, India, now 
owned by Dow, released 42 tons of toxic MIC gas, killing 
thousands of people and injuring many more. Safer substitutes 
existed even at the time, but these were not used. Even a 
simple change, like using smaller storage tanks, would have 
greatly reduced the consequences of a devastating accident.
    But in the United States we didn't learn the lessons of 
Bhopal. In 2008, a chemical tank exploded at a Bayer factory in 
West Virginia, sending a fireball into the sky and killing two 
employees. That facility also stored large quantities of toxic 
MIC gas, the same as Bhopal. And just like the Bhopal facility, 
it could easily have been using safer processes that eliminated 
or greatly reduced the need for the toxic chemicals in the 
first place.
    It has been 6 years since that accident occurred, but we 
are still here hearing about accidents at chemical facilities, 
environmental damage, and the loss of human life, all of which 
was largely preventable.
    Four years ago, while in the House of Representatives, I 
worked with my colleagues and in close consultation with the 
American Chemistry Council to craft legislation that would have 
ensured that facilities containing toxic chemicals switch to 
safer processes or substances when it was technologically and 
economically feasible to do so. But that effort did not become 
law.
    The reality is that terrorists cannot blow up what is no 
longer there. Earthquakes, hurricanes, and other natural 
disasters can't spread toxic plumes if the toxic chemicals are 
replaced by safer alternatives. And while human error can never 
fully be eliminated, it is our job to reduce the consequences 
so that there is a dramatically reduced capacity for these 
chemicals to cause the disasters which they are capable of 
doing. There are safer processes. There are safer technologies. 
I look forward to hearing from our witnesses on how the 
Executive Order will incorporate the use of inherently safer 
chemicals and processes into our chemical safety regulatory 
framework.
    I thank you, Madam Chair.
    Senator Boxer. Thank you, Senator.
    I am happy to say we are joined by Senator Barrasso.
    I also want to announce we have, I believe, three votes at 
11:20, so we are going to have to move and groove, so everyone 
has to be sharp and stay within the 5-minutes. Thank you.
    Senator.

           OPENING STATEMENT OF HON. JOHN BARRASSO, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. Thank you, Madam Chairman. I am pleased 
to have this hearing today as we discuss the issues surrounding 
chemical safety.
    First, I would like to say that my home State of Wyoming is 
the largest consumer in the United States of ammonium nitrate, 
a chemical oxidizer implicated in the West, Texas, accident. 
Mining companies in Wyoming use 1.5 billion pounds of ammonium 
nitrate each year in places like the Powder River Basin, and 
they use it to extract coal. At these mining sites, ammonium 
nitrate is mixed with fuel oil and pumped or poured into a 
blast hole which is fitted with an ignition system. The 
subsequent explosion heaves the rock to get the coal or the 
minerals out.
    Through this process, Wyoming and other mining States can 
provide essential building materials, as well as affordable 
energy for families and small businesses around the country. 
Wyoming, West Virginia, Indiana, Kentucky, Nevada, 
Pennsylvania, Minnesota, Virginia, and Alabama are, in order, 
the leading ammonium nitrate explosives consuming States.
    Ammonium nitrate is also the safer alternative in mining, 
having replaced nitroglycerin as the primary ingredient in 
chemical explosives, and saving lives in the process. Ammonium 
nitrate is a stable, relatively benign chemical when managed 
properly, and proper management is simple, easily understood, 
and accomplished.
    Now, OSHA, not EPA, has issued rules to ensure that 
ammonium nitrate is managed properly at ammonium nitrate 
manufacturing and storage sites such as West Fertilizer; and, 
when it is, workers, first responders, and the public are 
protected. On October 9th, 2013, OSHA issued 24 citations to 
West Fertilizer. These violations alleged that the facility 
failed to properly store ammonium nitrate, including failing to 
eliminate sources of combustible materials, installing needed 
firewalls, and limiting bulk quantities of the material. The 
facility also did not provide proper ventilation or fire 
suppression in case of fire.
    We also know that there are a series of Federal agencies 
that regulate ammonium nitrate. These agencies include OSHA, 
Homeland Security, the Department of Transportation, the EPA, 
the Department of Labor, the Department of Justice, the U.S. 
Coast Guard, and the ATF. This also does not include industry's 
own guidelines and best practices for managing ammonium 
nitrate.
    Unfortunately, there appears to have been, and still 
appears to be, a lack of oversight in communications between 
regulatory agencies concerning noncompliant chemical facilities 
such as West Fertilizer. The solution proposed by some is 
additional regulation to be imposed by the EPA, in particular 
under the Agency's Risk Management Program. For reasons I have 
already mentioned, I believe there is no need for EPA to impose 
additional regulations on top of regulations that already exist 
but are not being properly enforced.
    In fact, as I pointed out in the October 23rd letter to EPA 
Assistant Administrator Mathy Stanislaus, who is testifying 
before us today, his fellow panelist who is here, Mr. Rafael 
Moure-Eraso, he stated at our last hearing on this subject that 
he is not aware of any accidental explosions of ammonium 
nitrate where existing safety regulations of OSHA were 
followed.
    It is my hope that we can ensure that Federal agencies work 
together to better achieve our goal of keeping communities 
safe. If additional regulations are required, I would hope that 
we consider those proposals through regular order. If we make a 
mistake and overregulate a needed chemical without all the 
facts, we could negatively impact mining and other commercial 
operations. The end result will be lost jobs for already 
struggling communities.
    I will note that the Dyno Nobel plant in Cheyenne, Wyoming, 
is the second largest ammonium nitrate producing plant in the 
United States, producing 455,000 tons of ammonium nitrate a 
year. It employs 206 people, with an annual payroll of over 
$15.2 million.
    Thank you, Madam Chairman, and I look forward to the 
testimony.
    Senator Boxer. Pray for the safety of that plant and all 
these plants, and I also think it is important for us to do 
more, because these explosions keep on happening. It doesn't 
necessarily mean new laws, you are right. But it certainly 
means we need to enforce the laws we have, and tighten them up 
and make sure they work. That is really the key.
    So we are going to go to our first panel, and I hope that 
our EPA witness, Hon. Mathy Stanislaus, is going to tell us the 
progress being made here by the working group. And I am looking 
forward to hearing Rafael Moure-Eraso, who has been such a 
strong voice for chemical safety.
    So please proceed, Mr. Stanislaus.

STATEMENT OF HON. MATHY STANISLAUS, ASSISTANT ADMINISTRATOR FOR 
    SOLID WASTE AND EMERGENCY RESPONSE, U.S. ENVIRONMENTAL 
                       PROTECTION AGENCY

    Mr. Stanislaus. Good morning, Chairman Boxer, Senator 
Carper, who I guess left, Senator Markey, Senator Barrasso. I 
am Mathy Stanislaus, Assistant Administrator of the U.S. 
Environmental Protection Agency's Office of Solid Waste and 
Emergency Response. Thank you for this hearing and the 
opportunity to testify on behalf of the Tri-Chair agencies that 
lead the Federal Working Group established under the 
President's Executive Order 13650.
    President Obama and the Federal departments and agencies 
that make up the Working Group recognize the terrible loss 
suffered by families and communities as a result of chemical 
accidents and releases, and we are committed to working 
collaboratively with facility owners and operators, State and 
local tribal partners, local community residents, organizations 
and associations with an interest in improving chemical 
facility safety and security.
    I will summarize my written testimony that describes the 
progress being made by the Federal Working Group, departments 
and agencies to implement the Executive Order.
    Chairman Boxer, I want to first thank you for your 
longstanding support of efforts to protect communities from the 
risks posed by chemical releases and spills. In the aftermath 
of the tragic West, Texas, facility and explosion, the 
President, in fact, issued the Executive Order improving 
chemical facility safety and security on August 1st. One of the 
initial actions taken at the issuance of the Executive Order 
was the development by EPA, OSHA, ATF of a chemical advisory 
that provides information to communities, workers, first 
responders, and commercial sectors on the hazards of ammonium 
nitrate storage, handling, and management, and this was issued 
on August 30th.
    Subsequently, in February 2014, the Assistant Secretary of 
Labor of OSHA sent a letter to the agricultural trade 
associations to provide more than 7,000 employees with the 
legal requirements and best practice recommendations for safely 
storing and handling ammonium nitrate.
    Another Working Group effort underway is to cross-walk 
whether there are any outliers between facilities subject to 
DHS's Chemical Facility Anti-Terrorism Standard Top Screen data 
base and the Risk Management Plan data base. We in fact have 
identified a subset and have communicated to those facilities 
and asked them to provide information regarding whether those 
facilities are subject to the RMP program, and, also, DHS has 
done the same with the facilities identified under the RMP data 
base.
    Last, I would note that the Working Group has stood up a 
pilot in New York, New Jersey with State and local emergency 
response officials to identify best practices and innovative 
methods so that the Federal Government, State government, local 
responders can act in a coordinated way to prepare, reduce 
risk, and respond, if necessary.
    I am also pleased to report that the President's fiscal 
year 2015 budget request strongly supports EPS chemical 
facility efforts. The budget requests $27.5 million, an 
increase of $12.5 million from fiscal year 2014, for EPA's 
support for State and local prevention preparedness efforts.
    Let me also address the accident at the Freedom Industries 
facility in West Virginia. Chairman Boxer, you sent a letter 
yesterday to the administrator on that. EPA agrees the incident 
at the Freedom Industries facility that resulted in exposure of 
hundreds of thousands of people must be addressed by the 
Executive Order Working Group in a comprehensive fashion. And 
the comprehensive fashion, as laid out by the President, 
includes looking at elevated levels of Government, roles and 
responsibilities and expertise to prevent and, if necessary, 
plan and respond to activities. We identified a number of 
options to date and will continue to explore based on lessons 
learned from the West Virginia accident.
    It should be noted that Freedom Industries did in fact 
provide the chemical information to the local emergency 
planning committee, so one of the things that we are committed 
to do, and as recommended by local and State emergency planning 
officials, is increase the technical capacity to identify 
risks, for example, to water resources, that must be addressed 
up front and, in some cases, prevent and relocate certain kinds 
of risks.
    An excellent example of the local, State, and Federal 
infrastructure working is what the State of Oklahoma did upon 
the West Virginia incident. Based on the Federal EPCRA chemical 
inventory information, they work with the water utilities and 
the emergency response officials to map the locations of 
chemical facilities and water intakes within 1.2 miles of 
chemical facilities so that, one, there is a knowledge of the 
proximity and then, therefore, there can be local planning to 
prevent impacts to water resources. These are one of the best 
practices that we are looking to lift up and make a standard 
practice throughout the country.
    Clearly, we cannot stop there. We clearly have to look at 
Federal authorities, as well as the role of State and local 
governments to prevent incidents in the future, as well as 
technical assistance to enable those that are on the front 
lines, the local responders and local emergency response 
officials, to better prepare and respond to events like West, 
Texas, and West Virginia.
    I should note a vital part of the President's effort under 
the Executive Order is to really hear from people on the 
ground; to hear from local responders, from local community 
residents, to operators of local community facilities, to State 
officials. We have held 12 listening sessions around the 
country. Close to 2,000 people have participated in the 
listening sessions, and those recommendations from the variety 
of stakeholders are going to form the foundation for the 
recommendations that we plan to present to the President.
    To highlight some key issues noted by key stakeholders----
    Senator Boxer. Sir, unfortunately, your time has expired, 
so we are going to move on and we will get to you in the 
questions.
    Mr. Stanislaus. OK, sure. Great.
    [The prepared statement of Mr. Stanislaus follows:]
    
    
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
    
 
    
    
       
    Senator Boxer. Thank you.
    Mr. Moure-Eraso. Make sure your mic is on, sir. Thank you 
so much.

 STATEMENT OF HON. RAFAEL MOURE-ERASO, CHAIRMAN, U.S. CHEMICAL 
                          SAFETY BOARD

    Mr. Moure-Eraso. Chairman Boxer, Senator Barrasso, and 
distinguished committee members, thank you for inviting me here 
today. I am Rafael Moure-Eraso, the Chairperson of the U.S. 
Chemical Safety Board.
    The Chevron refinery fire in California in 2012, the West, 
Texas, explosion last year, and the West Virginia water crisis 
in January, all these were preventable accidents.
    The United States is facing an industrial chemical safety 
crisis. After all these actions, we hear frustration, 
heartbreak; workers, emergency responders, and the public 
continue to die and suffer injuries.
    Estus Powell, a father who lost his daughter, a refinery 
operator, in the 2010 fire at the Desoto refinery in Washington 
State, recently told us, my life was forever changed. All I 
want to know is does anybody care. It seems we can get nobody 
to have any teeth in anything, to get anything done. That is 
what Mr. Powell told us.
    Our investigations have concluded that certain fundamental 
changes are needed. We have a regulatory system that sometimes 
encourages paper compliance over real risk reduction. As an 
interim measure, I advocate that the EPA use its existing 
authority under the Clean Air Act to encourage chemical 
facilities to make their operations inherently safer where it 
is feasible to do so. Then the EPA should follow up by adopting 
specific regulations with clear requirements.
    The goal should be to drive chemical process risk as low as 
reasonably practicable. In Europe, this is a cornerstone of the 
regulatory system. Insurance statistics tell us European 
chemical sites have an accident rate at least three times lower 
than in the United States. Time and again, as reports show, we 
find examples where companies could have used available, 
feasible, safer technologies to prevent disastrous accidents, 
but choose not to do so.
    I realize inherently safer technology, or IST, is a term 
that has drawn some controversy, but it is really just a well 
established concept developed by industry and used by industry. 
It focuses on eliminating and minimizing hazards, instead of 
just trying to control hazards that already exist. Many 
accidents could be prevented using off-the-shelf technologies, 
such as corrosion-resistant materials, or reducing the storage 
of hazardous materials to the minimum necessary.
    In West Virginia, applying these principles could have 
prevented or reduced the consequence of the recent spill. For 
example, the chemical storage tank could have been sited away 
from drinking water supplies and also constructed of different 
resistant materials.
    I commend Senator Boxer, Senator Manchin, and Senator 
Rockefeller for promptly introducing legislation on this and 
encourage you to pass a strong bill.
    I am also encouraged by the leadership of the White House 
on this issue, especially the Executive Order on chemical 
safety that we are discussing today, and I hope that regulatory 
agencies respond in kind. The EPA has the authority today to 
require companies to apply ISTs in design, equipment, and 
processes. I call on the industry to join in support of this 
reform, which companies know will go a long way to stopping 
these catastrophes.
    I must add that no regulatory system will work unless 
regulatory agencies like the EPA and OSHA receive more 
resources for more highly specialized technical inspectors.
    Madam Chairman, your State of California has been leading 
the way on this. Following the Chevron fire in 2012 and a 
recommendation from the CSB, the legislature has moved to 
triple the number of process safety inspectors, using fees 
collected from the refinery industry. And California is going 
to mandate using safer technologies and also is looking at what 
is called the safety case model. Under the safety case model, 
the burden is on companies to prove they can operate safely by 
following the most up-to-date safety standards; it is a 
condition of operating.
    In conclusion, these major accidents don't have to happen. 
They kill and injure workers, harm communities, and destroy 
productive business. The best companies in the U.S. and 
overseas know how to prevent these disasters, but we need a 
regulatory system here that ensures that all the companies are 
operating to the same high standards.
    That concludes my testimony. Thank you, Madam Chairman.
    [The prepared statement of Mr. Moure-Eraso follows:]
 
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    Senator Boxer. Thank you so very much.
    Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Madam Chair. Sorry I am late; I 
had to be on the floor at 10. But I certainly wanted to 
participate in this hearing.
    I think we have a historic opportunity to come together in 
this committee on a bipartisan basis, not just on 
infrastructure issues, which, thankfully, we have a long 
tradition of doing, but on some environmental issues 
specifically in the chemical safety area. So I just want to 
say, in general, I am committed to that process which is 
ongoing. I am committed to continue to work with you and 
Senator Manchin on the Manchin bill.
    We have some serious substantive concerns that we are 
working through, but I am committed to trying to work through 
that and I appreciate your putting off the markup until April 
to give that process the time it needs. And I think we have a 
broader opportunity in chemical safety to move forward in a 
bipartisan way. It is a historic opportunity. It hasn't 
happened on this committee on any major environmental issue in 
decades, so I really hope we take full advantage of that 
opportunity.
    I also want to thank our witnesses for your testimony.
    Mr. Moure-Eraso, I wanted to ask you, are you here 
representing yourself or CSB? Because I am specifically 
interested in the safety case scheme and your Chevron 
investigation, which I did not think had the consensus support 
of CSB.
    Mr. Moure-Eraso. Well, I am presenting testimony here as 
the head of the agency, the Chemical Safety Board, and we are 
still waiting to vote on the decision on that report in which 
we recommended the safety case.
    Senator Vitter. OK. So far, isn't it true that the safety 
case program, specific recommendations to implement that, does 
not have consensus support, at least as we speak today, of the 
whole board?
    Mr. Moure-Eraso. We haven't voted on it. We defer it to 
further study to vote to make a decision on that point, 
Senator.
    Senator Vitter. OK. Mr. Moure-Eraso, you mention in your 
testimony that inspections ``are among the least effective 
safeguards'' and ``the effectiveness of inspections totally 
depends on the skill and thoroughness of the inspector.'' Do 
you think EPA has inspectors with the necessary skill and 
thoroughness, and enough of them, to oversee the implementation 
of IST and all other Federal mandates that you are supporting?
    Mr. Moure-Eraso. In my experience, I will say that I 
believe there are people with the necessary skills in EPA to 
look at the situations; however, my concern is that probably 
there might not be enough and that there are more resources 
necessary to have enough to cover the different places that 
they have to cover.
    Senator Vitter. In your opinion, should inherently safer 
technologies take into account factors such as risk shifting, 
unintended consequences, feasibility, and economic impacts?
    Mr. Moure-Eraso. Absolutely. That is part of the process of 
dealing with inherently safer technologies, is to look at what 
are you replacing and to be sure that what you are replacing is 
not going to cause more trouble than what you had before. So it 
is an engineering process of very carefully and systematically 
looking at what you should act, what you should change to 
improve and prevent negative outcomes. All the considerations 
of comparing what you are substituting for what you are 
proposing have to be taken into account.
    Senator Vitter. And you think EPA has the resources and 
expertise to do all of that analysis specifically with regard 
to risk shifting, unintended consequences, feasibility, and 
economic impacts?
    Mr. Moure-Eraso. I believe so. As I said, the science and 
the engineering capabilities of the agency obviously are there. 
My only concern is that there might be not enough inspectors 
without the additional resources for enough inspectors to look 
at these issues.
    Senator Vitter. OK. Are you aware of the budget growth EPA 
has had in the last 5 years or so?
    Mr. Moure-Eraso. Not in very much detail, no.
    Senator Vitter. OK. All right, thank you.
    Senator Boxer. Thank you, Senator.
    So, Senator, you have asked your questions, so is it OK if 
I ask mine, then we will move on to the next panel, because we 
have votes?
    Senator Vitter. Sure.
    Senator Boxer. Thanks.
    Mr. Stanislaus, I heard you say West Virginia was an 
accident. In my opinion, that leak was not an accident. Would 
you want to reconsider using that word or you still think it 
was an accident, the leak?
    Mr. Stanislaus. Well, clearly it was a catastrophic 
failure. Based on information that we know right now, there 
were practices that should have been----
    Senator Boxer. I mean, no truck slammed into this tank, as 
far as we know. This was a tank that was not equipped, 
apparently, to hold this chemical, which then leaked into the 
water. So I am just saying when you say it is an accident, I 
think you ought to reconsider that. I don't see that as an 
accident; I see it as a failure, as you say, of the equipment 
to hold the chemical.
    Mr. Stanislaus. I agree.
    Senator Boxer. Good. OK. Mr. Stanislaus, you are the co-
chair of this Working Group and yesterday I got another report. 
I am looking for action here, not a lot of words, and so far I 
have seen a lot of words. And it is good that you updated the 
advisory, which I recommended that be done, since you hadn't 
updated it since the 1990s. That was good. But when can I 
expect to see actual actions that are recommended and taken?
    Mr. Stanislaus. So, Chairman Boxer, as I detailed in my 
opening comments, we have already taken certain actions that we 
are in the midst of evaluating, for example, whether there are 
any outliers between the RMP program and the DHS's CFATS 
program, meaning other facilities that should be subject to the 
RMP program that----
    Senator Boxer. The Risk Management Program.
    Mr. Stanislaus. I am sorry?
    Senator Boxer. You are talking about the Risk Management 
Program?
    Mr. Stanislaus. The Risk Management Program. We are 
comparing facilities that are in DHS's CFATS program----
    Senator Boxer. Well, don't use these acronyms.
    Mr. Stanislaus. OK.
    Senator Boxer. Please explain what you are talking about.
    Mr. Stanislaus. Well, DHS's chemical facility data base, we 
are comparing facilities under that data base to EPA's Risk 
Management Planning data base to identify whether facilities 
that should have been subject to Risk Management Planning 
program but did not submit. So we are in the midst and have 
contacted those facility owners. But we are planning some 
immediate short-term, mid-term, and long-term actions.
    Senator Boxer. When will I hear about that? When will we 
hear about that, this committee?
    Mr. Stanislaus. We will report. Just yesterday we 
identified a number of actions with respect to strengthening 
the local response, capability, and capacity. One of the core 
things that we have heard from local responders, local 
communities, and State emergency response commissions was the 
need for combination of resources and technical assistance to 
the participation of all States----
    Senator Boxer. So just tell me when will we get from the 
Working Group, because the President did this because he was so 
dismayed. He went down to West, Texas. When can we all expect 
to see specific steps that you will be taking?
    Mr. Stanislaus. So we plan to submit a report to the 
President in the end of May.
    Senator Boxer. Thank you.
    Mr. Stanislaus. OK.
    Senator Boxer. OK. You brought up the issue of how you 
classify different chemicals, whether they are risk-managed. 
And you haven't done that with ammonium nitrate. Shouldn't that 
be part of the risk management system?
    Mr. Stanislaus. Well, clearly we are evaluating that. We 
are in the midst of public comment regarding whether ammonium 
nitrate should be regulated under the Risk Management Plan 
program. We are also looking at regulating under the Risk 
Management Planning program, as well as the way that it is 
regulated currently under other of our Federal agency programs. 
The Alcohol, Tobacco, and Firearms currently regulates it from 
an explosive perspective. OSHA also regulates it----
    Senator Boxer. OK, let me cut through this, because we just 
don't have a lot of time, sorry. The Chemical Safety Board, 
sitting next to the chairman here, has recommended that you 
should add explosive hazardous chemicals, including ammonium 
nitrate to EPA's Risk Management Program.
    Instead, you did the advisory, which I am glad you did 
that, but I don't know it is taking so long for you to figure 
this out. They have been on the record and I am just saying it 
means a lot if you take that type of action, and I just don't 
understand why you wouldn't do it, given all the deaths that we 
have seen. So I was dismayed you didn't act on their 
recommendation to add explosive chemicals to your Risk 
Management Program, and I am going to continue to press on that 
and hope that you will do so, because we are seeing the results 
of not doing it.
    So the last thing I would say is will you commit that the 
Working Group will look at the oversight of aboveground storage 
tanks under the Clean Water Act?
    Mr. Stanislaus. Well, per your letter yesterday, we 
certainly are going to evaluate the utilization of existing 
authorities, including under the spill prevention containment 
countermeasure program.
    Senator Boxer. Thank you.
    So I see, Senator Markey, you are back. Would you have some 
questions?
    Senator Markey. I do. Thank you, Madam Chair.
    Senator Boxer. Please go ahead, yes.
    Senator Markey. I appreciate it. Thank you.
    Mr. Moure-Eraso, at times the chemical industry has said 
that inherently safer technology could result in huge expense 
for industry, or even the elimination of common household goods 
or medications. But inherently safer technology is not 
exclusively focused on substituting safer chemicals for more 
dangerous ones. Isn't it true that the 2012 Chevron refinery 
accident in California that caused a huge fire and the 2010 
explosion at the Tesero refinery in Washington State could have 
been prevented if aging pipes and other systems had been 
replaced by corrosion-resistant materials?
    Mr. Moure-Eraso. It is correct that in our investigation of 
Chevron we found out that if inherently safer technologies will 
have applied in the choosing of the adequate materials for 
piping, the corrosion probably would not have occurred and we 
would not have the incident that happened in the Chevron 
refinery.
    Senator Markey. OK, thank you. Isn't it true that the 
explosion at the fertilizer facility in West, Texas, that 
killed more than a dozen people and destroyed a large portion 
of the town could have been prevented or minimized if it had 
stored its ammonium nitrate more safely and kept less of it 
onsite?
    Mr. Moure-Eraso. That is very true, Senator. The minimizing 
of storage of dangerous substances is an inherently safer 
strategy to avoid accidents to happen.
    Senator Markey. Isn't it true that the chemical storage 
tank in West Virginia that leaked into the Elk River might not 
have contaminated the drinking water of 300,000 people if the 
tank had been of a safer design or if the tank had not been 
placed right next to the drinking water source in the first 
place?
    Mr. Moure-Eraso. Yes, Senator. The issue of siting of this 
facility is an inherently safer strategy, and also the 
materials that are used that will avoid corrosion that seems to 
be the mechanism that produced the leak in the tank.
    Senator Markey. More than 500 drinking and wastewater 
facilities have replaced their toxic chlorine gas with safer 
alternatives. Isn't it true that some chemical substitutions 
like this can be done quickly and inexpensively?
    Mr. Moure-Eraso. Yes, Senator, that is very true. As a 
matter of fact, it has been happening and it is happening 
almost every day in the United States, to look at these types 
of substitutions to avoid risky situations.
    Senator Markey. In 2009, during consideration of a chemical 
security bill I co-authored in the House, the Obama 
administration went through an interagency process to establish 
policy principles related to the use of inherently safer 
technology. The Administration policy that was presented in 
congressional testimony, which I would like to submit for the 
record, said that all high risk chemical facilities should have 
to assess whether inherently safer chemicals or processes could 
be utilized in their operations, and that assessment had to be 
submitted to the Federal Government. Do you think requiring 
companies to assess whether there exists opportunities to 
reduce the consequences of a potential attack or accident by 
using safer processes or chemicals makes sense?
    Mr. Moure-Eraso. Senator, the truth of the matter is that 
there are a number of companies that are already practicing 
inherently safer technologies. What we are trying to tell 
people is that this should be expanded, that all the chemical 
industry be covered by these approaches.
    Senator Markey. Excellent. Thank you.
    Mr. Stanislaus, how about you? The EPA testified in support 
of a requirement to assess the potential to use inherently 
safer technology in 2009. Is that still EPA's position?
    Mr. Stanislaus. Well, clearly the President, in the 
Executive Order issued in August, called on not only EPA, but 
all the Federal agencies to look at the issue of safer 
alternatives and IST, and we are certainly examining that and 
providing a recommendation to the President regarding that.
    Senator Markey. So why is your answer not yes right now, 
Mr. Stanislaus?
    Mr. Stanislaus. Well, clearly we agree that IST, as part of 
a broader process safety program, will in fact reduce risk, and 
it is part of, as the chairman noted, part of the standard 
practice and part of the code of industries. We are currently 
evaluating how to evaluate an IST. We have presented to the 
stakeholders a variety of options to implement safer 
alternatives and ISTs, and we are going to evaluate, then 
provide a recommendation to the President.
    Senator Markey. OK. Well, you know what I would like, and I 
think the chairwoman would like this as well, which is I would 
like you to be providing the committee with the documents that 
you are using if you are going to be changing your position in 
terms of ensuring that yes is the answer to that question, 
because I think our committee is going to be very interested in 
making sure that that ultimately becomes the policy.
    Thank you, Madam.
    Senator Boxer. Let me apologize for using this fast gavel. 
Here is where we are. I promised Senator Udall, who has not 
spoken yet, to give him 5 minutes, and then, Senator Carper, we 
are going to go to the next panel, because we have to stop. We 
have a series of votes at 11:10, and then we have eight votes 
in the afternoon. People flew here for the second panel. So if 
it is OK with the committee, we will hear from Senator Udall. 
He can use his time as he wishes. We will then move to the next 
panel. I will give up my chance to question and I will start 
with you, Senator. All right?

             OPENING STATEMENT OF HON. TOM UDALL, 
           U.S. SENATOR FROM THE STATE OF NEW MEXICO

    Senator Udall. Thank you, Madam Chair, and I will try to 
not use the whole time so that we can move forward.
    Let me, first of all, thank you for holding the hearing 
today on the President's Executive Order on improving chemical 
safety and security. This committee, I think, has shown real 
leadership in the wake of the West, Texas, fertilizer explosion 
almost 1 year ago and the more recent chemical spill into the 
Elk River in West Virginia, and I want to commend the chairman 
for making this a priority of this committee and elevating the 
issue in these hearings.
    Chemical facilities need to ensure the highest level of 
protection for their employees and the communities nearby. The 
law needs to ensure that we hold the industry to these 
standards, and I have a number of constituents in Albuquerque, 
New Mexico, and other parts of New Mexico who are concerned for 
their safety and the safety of those who live around these 
facilities. These are often people of color and people of lower 
income levels.
    In an earlier hearing we had on this issue, we had a 
witness from an innovative New Mexico company called Miox. They 
develop water filtration technologies that do not require toxic 
chemicals, and they can operate at any scale, offering products 
for individuals, facilities, and utilities. They are pretty 
successful in showing that their products are competitive.
    The Environmental Protection Agency is currently undergoing 
a process to implement the Executive Order, and I am encouraged 
that they have included inherently safer technologies and safer 
alternatives and best practices among the policy options they 
are considering. This is really the direction we need to move 
in.
    I want to also thank the chair for her leadership on the 
bill as far as Senator Manchin, working with that bill, and 
announce my co-sponsorship today. We need to move this 
legislation. I would encourage all my Republican colleagues on 
this committee to help us do so.
    I would insert the rest of my testimony in the record.
    I would like to ask the Chemical Safety Board, your 
testimony cites a number of examples where companies could have 
used available, feasible safer technologies to prevent 
disastrous accidents, but chose not to do so. My main question 
is why. From your investigation, can you identify why these 
companies choose not to implement these technologies? Is it a 
cost factor? Is it a general industry inertia? Are there other 
disincentives? It is just extremely frustrating to hear that so 
many of these disasters could have been prevented, and also 
deeply concerning to think about how many potential disasters 
we are on the cusp of that may be happening across the country 
in the future.
    So could you give me a quick answer to that? And I want you 
to just stay within the time here so that we can move on to the 
next panel.
    Mr. Moure-Eraso. Sure. The best way to deliver this is look 
at the example of Chevron, for example. Their own engineering 
groups have told the management, the line management of the 
plant that there was a necessity to replace the pipes that were 
being corroded with different material pipes, and the line 
management in the plant chose to delay this for a number of 
years and said I think we can wait, I think we can take the 
risk for a number of years before some accident happens and not 
replace the pipes.
    So the issue that I see is an issue of safety management in 
the plant, of what is the weight that a safety recommendation, 
an engineering recommendation have into a plant and how these 
people are listened to when recommendations on risks are made 
or increasing risks are made; and that is kind of a problem 
that I see or why the choices are made, you basically are 
taking the risk and accepting the risk and hoping for the best, 
and sometimes the best just doesn't happen.
    Senator Udall. Well, that has been the case too many times, 
as we have seen.
    I would yield back.
    [The referenced statement was not received at time of 
print.]
    Senator Boxer. Senator, thank you so much and thank you for 
your sponsorship of the Manchin bill. Working with Senator 
Vitter, we both decided we are going to change the markup until 
April 2nd so we have more time to work together, because we 
would love a bipartisan bill. We are not there yet, we are 
working on it, and I know you will help me get there, so I 
appreciate it.
    OK, thank you very much to this panel.
    We will quickly move to Dr. Michael Wilson, Ph.D., Chief 
Scientist, Office of the Director, California Department of 
Industrial Relations; James Frederick, Assistant Director for 
Health, Safety & Environment, Steelworkers International Union; 
Evan Hansen, President, Downstream Strategies; Billy Pirkle, 
Director, Environment, Health and Safety, Crop Production 
Services; Scott Berger, Executive Director, Center for Chemical 
Process Safety, American Institute of Chemical Engineers.
    Gentlemen, thank you very, very much. I know that you will 
be staying within the 5 minutes. That will be good because then 
a few of us can get to ask questions, and, as I say, I will 
defer to my colleagues on this. So please let's start with Dr. 
Michael Wilson from California.
    I am very happy to see you, sir. Please go ahead.

 STATEMENT OF MICHAEL P. WILSON, Ph.D., MPH, CHIEF SCIENTIST, 
  OFFICE OF THE DIRECTOR, CALIFORNIA DEPARTMENT OF INDUSTRIAL 
                           RELATIONS

    Mr. Wilson. Thank you, Chairman Boxer, Ranking Member 
Vitter, distinguished members of the committee. Thank you for 
the opportunity to appear before you today. My name is Michael 
Wilson. I am the Chief Scientist in the California Department 
of Industrial Relations within the State's Labor and Workforce 
Development Agency. Our Department is charged with protecting 
the health and safety of California's 18 million workers. We 
are a core member of the Governor's Interagency Refinery Task 
Force, whose views I represent today.
    As you know, on August 6, 2012, the Bay Area's Chevron 
refinery, the Richmond refinery, experienced a catastrophic 
failure of a corroded pipe. The pipe emitted an explosive vapor 
cloud that rapidly expanded through the unit to about the size 
of a football field. It engulfed 19 workers, who avoided injury 
or death by escaping into other areas of the plant about 90 
seconds before the cloud ignited. One Chevron firefighter 
escaped through the ensuing fire wearing protective clothing. 
The resulting smoke plume spread well beyond the refinery 
confines and ultimately caused some 15,000 people in nearby 
communities to seek medical attention for symptoms related to 
possible exposure to the combustion products.
    Immediately following the incident, California Governor 
Jerry Brown established an Interagency Working Group on 
Refinery Safety made up of 13 State agencies and departments, 
and charged the group with figuring out what went wrong in 
Richmond and what should be done to prevent an incident such as 
this from happening again. The Working Group spent the next 18 
months gathering input from the public and from technical 
experts in industry, labor, the U.S. Chemical Safety Board, 
emergency responders, and regulatory agencies.
    Last month, the Working Group released the final report of 
its findings and recommendations, entitled Improving Public and 
Worker Safety at Oil Refineries. The report addresses both 
incident prevention and emergency response. Nine prevention 
recommendations include: improving coordination of regulatory 
activities; improving the flow of relevant information from 
refineries to agencies and the public; improve overall safety 
and security by requiring the adoption of inherently safer 
systems wherever feasible; improve incident investigations by 
requiring a root cause analysis; improve methods for detecting 
problems early, such as pipe corrosion, by requiring facility-
wide hazard reviews; improve the safety culture by requiring 
facility-wide safety culture assessments with meaningful worker 
involvement; improve the integration of human factors; 
strengthen regulatory enforcement capacity; and improve 
community access to air quality monitoring data around 
refineries.
    Relevant to today's hearing, the report is noteworthy 
because, like Executive Order 13650, it expands the focus of 
chemical safety from requiring industry to install protections 
around hazards to requiring industry to continuously evaluate 
and reduce those hazards wherever feasible. The report 
concludes that, in complex industrial operations, prevention is 
best achieved through the application of a hierarchy of 
controls in which inherently safer design is the primary 
objective. The report grounds this recommendation in the 
industry's own guidance documents, as published by the Center 
for Chemical Process Safety within the American Institute of 
Chemical Engineers.
    Of course, like any industrial process, inherently safer 
design is not a perfect science. If improperly applied, it can 
shift risks along a production or process chain; it can 
sometimes be difficult and expensive to implement in older 
facilities such as California's refineries.
    Despite these challenges, however, inherently safer design 
is increasingly recognized by industry leaders as the most 
effective and enduring defense against potential accidents, 
natural disasters, or acts of sabotage. Many industry leaders 
have adopted this approach. Perhaps most notably, for example, 
in their successful efforts to replace pressurized tanks of 
highly toxic and mobile chlorine gas with sodium hypochlorite, 
otherwise known as bleach.
    The Governor's report concludes that improving refinery 
safety is a goal strongly shared by government, industry, 
workers, and communities. It calls on government agencies and 
industry to work together to develop and implement a culture 
that fosters inherent safety, including stronger accident 
prevention and hazard reduction measures.
    We are now moving forward rapidly in our regulatory process 
to implement the report's recommendations. We are heartened to 
see attention and action on chemical safety and security at the 
Federal level. We strongly encourage Federal OSHA, the USEPA, 
and the Department of Homeland Security to continue their 
collaboration and, wherever possible, incorporate strategies to 
prevent risks through the application of inherently safer 
design within the hierarchy of controls.
    The State of California offers our support to your efforts 
in moving these important initiatives forward.
    [The prepared statement of Mr. Wilson follows:]
  
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    Senator Boxer. You were very close to being perfect, but of 
course my State is absolutely perfect.
    Mr. Wilson. Thank you.
    Senator Boxer. And thank you very much for that. I am proud 
of our State and what we are doing.
    Mr. James Frederick, Assistant Director for Health, Safety 
& Environment, United Steelworkers International Union. 
Welcome.

STATEMENT OF JAMES S. FREDERICK, ASSISTANT DIRECTOR OF HEALTH, 
 SAFETY & ENVIRONMENT, UNITED STEELWORKERS INTERNATIONAL UNION

    Mr. Frederick. Thank you, Chairman Boxer, Ranking Member 
Vitter, and members of the committee. Thank you for the 
opportunity to testify today. My name is Jim Frederick, and I 
am here on behalf of the United Steelworkers International 
Union. We represent 850,000 workers in many sectors of the 
economy, including the majority of unionized workers in the 
chemical industry and workers in many workplaces using large 
quantities of industrial chemicals.
    The massive explosion at West Fertilizer Company 
highlighted vulnerabilities in our communities. As devastating 
as the West explosion was, the potential disaster is present at 
other facilities across the country.
    Our members are well aware of many of these hazards and 
potential for widespread damage to the communities where they 
work and live. USW members are on the front lines if a 
catastrophic event occurs in their workplace. It is for this 
reason that our Union strongly supports President Obama's 
Executive Order 13650 on improving chemical facility safety and 
security. This testimony addresses the four goals and the 
implementation of the Executive Order.
    One, improve operational coordination with State and local 
partners. Federal agencies should share best practices about 
interacting with communities and local emergency responders. 
The EO's pilot project in New York and New Jersey provides a 
unique opportunity for agencies to implement lessons learned 
and innovative coordination. The pilot project is an 
opportunity for agencies to make a difference on the ground 
facility by facility.
    Two, enhance Federal agency coordination and information 
sharing. Workers' experiences demonstrate the importance of 
Federal agency coordination and information sharing. The USW 
strongly supports cross-training and joint inspections by 
regulators to more efficiently and effectively address chemical 
hazards at facilities.
    As EPA discussed in the last panel, DHS indicated that 
3,000 facilities were identified as not complying with their 
responsibilities under CFATS after the DHS data base and EPA 
Risk Management data base were cross-referenced. The DHS has 
contacted those facilities, but much more work remains to be 
done to ensure that they comply with the law to minimize the 
risk of terror attack under those provisions.
    Three, modernize policies, regulations, and standards. The 
EO Working Group is currently gathering public input on policy 
regulation and standards modernization. We strongly recommend 
that the Working Group consider recommendations made by the 
CSB, California's Interagency Working Group on Refinery Safety, 
and the New Jersey DEP, who all have been leaders in preventing 
incidents at chemical facilities.
    The USW strongly supports the Working Group using this 
opportunity to develop and promote the use of safer chemical 
processes. As a member of the Coalition to Prevent Chemical 
Disasters, we petitioned the EPA to exercise its authority 
under Section 112(r) of the Clean Air Act to prevent chemical 
facility disasters through the use of safer chemical processes. 
We have not yet received a formal response to this petition. 
Additionally, the USW issued a report, titled A Risk Too Great, 
about the oil refineries to switch from deadly hydrofluoric 
acid to the use of safer chemicals and processes.
    The DHS, EPA, CSB have all highlighted the effectiveness of 
assessing and, where feasible, implementing safer alternatives 
at high risk facilities.
    Despite the effectiveness of safer chemical processes, they 
may take time to implement, so regulation and policy updates 
should take place in the meantime. For example, the agencies 
should look into harmonizing the list of chemicals that are 
covered under each agency's policies. For example, the EPA's 
Risk Management Program list of regulated toxic substances 
contains 77 toxic chemicals and 63 flammable substances; and 
OSHA's Process Safety Managements lists 137 chemicals as highly 
hazardous, toxic, or reactive. Currently, too many dangerous 
chemicals are not listed and, therefore, not reportable under 
the Risk Management Program, including many explosives.
    The USW applauds OSHA's efforts to begin the process of 
updating the Process Safety Management standard, and we urge 
EPA to engage in similar information gathering process and to 
update the RMP standard. The USW is also pleased to see the 
President's proposed budget narrows the small business rider to 
allow for programmed inspections at PSM- and RMP-covered 
processes. This is a step forward on implementing the Executive 
Order.
    Workers who operate and maintain chemical facilities should 
be seen as assets to chemical facility safety. Workers should 
be involved in a meaningful way in all aspects of planning for, 
preventing, and responding to an accidental release or 
incident. When Federal agencies inspect facilities, 
representatives of those workers should be included in 
inspection to correction of any issues found. Finally, workers 
need to be protected with strong whistleblower language should 
they report problems or inadequacies that may contribute to the 
risk of chemical disaster.
    The Working Group has cited the Government shutdown.
    Senator Boxer. Unfortunately, I have to stop you at this 
point and move, because we have these votes starting in 5 
minutes.
    [The prepared statement of Mr. Frederick follows:]
  
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    Senator Boxer. Mr. Hansen, we are very happy to see you 
here, President, Downstream Strategies. Welcome.

 STATEMENT OF EVAN P. HANSEN, PRESIDENT, DOWNSTREAM STRATEGIES

    Mr. Hansen. Chairman Boxer, Ranking Member Vitter, and 
members of the committee, thank you for the opportunity to 
testify. I am President of Downstream Strategies, an 
environmental consulting firm in West Virginia. Since 1997, we 
have worked with Government agencies, nonprofits and others on 
issues related to energy and water, science and policy.
    On January 9th, a chemical leak was discovered one and a 
half miles upstream from the intake for West Virginia's largest 
public water system, and the leak was occurring from Freedom 
Industries, a chemical storage facility near Charleston. 
Secondary containment failed and 10,000 gallons of chemicals 
reached the Elk River. These chemicals were drawn into the 
drinking water plant and contaminated the water supply for more 
than 300,000 people. Businesses were closed, schools were shut, 
and hundreds of people sought medical attention.
    In response, I coauthored a report, entitled The Freedom 
Industries Spill: Lessons Learned and Needed Reforms, which 
provides recommendations to prevent contamination of public 
water systems in the future. I then coauthored a second report, 
called Potential Significant Contaminant Sources Above West 
Virginian Water's Charleston Intake, which documents the range 
of potential water quality risks above the intake on the Elk 
River.
    I would now like to address three existing Federal 
authorities with relevance to the President's Executive Order.
    The first includes spill prevention control and 
countermeasure, or SPCC, requirements. The Freedom site was not 
subject to SPCC because these rules only apply to oil 
facilities. If SPCC rules had applied to chemical storage 
facilities, the risk of the Freedom leak occurring would have 
been significantly reduced. And if a leak did occur, specific 
planning and procedures would have already existed to respond 
rapidly and appropriately. New regulations using existing 
authorities could widen the applicability of SPCC to include 
not just oil facilities, but also other facilities that store 
hazardous substances.
    The second Federal authority, the Safe Drinking Water Act, 
provides a planning process to address risks to drinking water. 
Public water systems must create source water assessment 
reports which delineate a zone of critical concern the river 
corridor immediately upstream from the intake that warrants 
more detailed management, because spills in this zone would 
quickly reach the intake. These assessment reports also 
inventory potential significant contaminant sources within 
these zones. The Act, however, does not mandate that public 
water systems take the next step to develop source water 
protection plans, which build upon the assessment reports and 
require planning for alternative water sources, contingency 
planning should contamination occur, and management planning to 
minimize risks.
    The Chemical Safety and Drinking Water Protection Act would 
require additional oversight and inspections of chemical 
storage facilities under the Safe Drinking Water Act, and it 
requires other important steps toward improving chemical 
safety. However, I would suggest that additional measures be 
taken to protect intakes against all potential risks. It should 
be mandatory for public water systems to create protection 
plans, and both the assessment reports and protection plans 
should be periodically updated. Finally, all facilities 
upstream from intakes should be required to share pollution-
related plans with downstream water systems.
    Under the third Federal authority, the National Pollutant 
Discharge Elimination System, or NPDES, permits are typically 
required for operations, such as chemical facilities, with 
aboveground storage tanks. Freedom Industries held such a 
permit, but did not appear to follow the management practices 
the permit required. Nor did they immediately report the spill. 
In addition, the West Virginia Department of Environmental 
Protection did not inspect the site under NPDES, and did not 
review Freedom's stormwater pollution prevention plan or 
groundwater protection plan, as required.
    I encourage the use of existing authorities to make 
individual permits mandatory for facilities within zones of 
critical concern above drinking water intakes. Individual 
permits must undergo public notice and comment, and would allow 
regulatory agencies to include site-specific conditions to 
protect source water. In addition, I encourage a requirement 
for annual inspections at NPDES-permitted facilities within 
these zones of critical concern.
    Thank you.
    [The prepared statement of Mr. Hansen follows:]
   
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    Senator Boxer. Thank you, sir. I put in the record a letter 
I sent to Administrator McCarthy, asking her to look at 
existing authorities, and we will share that information with 
you and, of course, everyone else who is interested in this 
issue when I get that answer back. So thank you for that.
    [The referenced letter was not received at time of print.]
    Mr. Hansen. Thank you.
    Senator Boxer. We are now going to turn to Mr. Billy 
Pirkle, Senior Director, Environment, Health and Safety, Crop 
Production Services. Thank you very much for being here, sir.

STATEMENT OF BILLY PIRKLE, SENIOR DIRECTOR, ENVIRONMENT, HEALTH 
              AND SAFETY, CROP PRODUCTION SERVICES

    Mr. Pirkle. Thank you, Chairman Boxer and Ranking Member 
Vitter, and members of the committee. I am speaking here today, 
testifying on behalf of The Fertilizer Institute, which is the 
representative of most of the fertilizer producers, 
wholesalers, retailers, and trading firms. In my role with CPS, 
I am the Senior Director of Environmental Health and Safety, 
and our office is located in Loveland, Colorado.
    The fertilizer industry is accountable, responsible, and 
committed to the safety of the communities in which we operate. 
Our employees often live and work in the same communities in 
which our facilities are located and have a deep understanding 
and a commitment to the safe operations and the impact that it 
has on the families and their neighbors. We are dedicated to 
working with the investigators and regulators to understand the 
cause or causes of last April's West Fertilizer chemical 
tragedy. We have already taken concrete steps to prevent and, 
if necessary, mitigate future incidents from occurring.
    I am proud to announce today that TFI and ARA, the 
Agricultural Retailers Association, are creating ResponsibleAg, 
an independent, not-for-profit organization designed to support 
and enhance fertilizer retailer awareness and compliance with 
Federal safety and security regulations. A brochure is attached 
to my testimony for your reference.
    Under ResponsibleAg, all of the Nation's retail fertilizer 
dealerships will have access to comprehensive inspections based 
on Federal regulatory requirements. The inspections will be 
carried out by professionally trained auditors who will have 
successfully completed an intensive training course based on 
the objectives of ResponsibleAg.
    While the majority of fertilizer retail businesses operate 
safely and securely, we are acting out of an abundance of 
caution and concern for the well being of the workers and the 
communities. ResponsibleAg will enhance the current regulatory 
scheme to verify compliance at more facilities. For some 
retailers, the myriad Federal agencies that regulate our 
industry can be a challenge to navigate, and we understand that 
the Government agencies have limited resources. We are choosing 
now to act more quickly to address these issues.
    ResponsibleAg will certify auditors who inspect and verify 
individual facilities' level of compliance with applicable 
Federal regulations. Facilities will complete assessments and 
be recognized for the completion, and those that have not 
successfully completed will receive an audit report with 
recommendations and suggested corrective actions.
    Getting ResponsibleAg up and running is a priority for TFI, 
and we are donating or providing $100,000 in startup capital to 
ensure a quick startup of the organization. ARA, the 
Agricultural Retailers Association, has pledged an identical 
financial donation, and the Asmark Institute will provide 
training programs, facilities, and administer the Web site and 
data base. Asmark Institute has previously worked in a 
cooperative manner with EPA in developing the myRMP Risk 
Management Program compliance tool for ag retailers. They also 
have worked with the Department of Transportation to develop an 
anhydrous ammonia nurse tank inspection program.
    Once established, ResponsibleAg will be funded by 
registration fees by participating fertilizer storage and 
handling inventory points and their suppliers. Auditor training 
costs will be funded by the tuition paid by these members 
seeking the auditor credentials, and membership in this 
association is not a requirement for participation by any other 
State or trade association.
    We support the Executive Order 13650 and have worked 
collectively with the Working Group and will continue to do so. 
TFI supports better coordination between State and Federal 
agencies and cross-reference data bases that improve 
coordination of inspections to minimize facility time and 
agency resources. TFI has strongly encouraged its members to 
reach out to local emergency responders, inviting them to visit 
and tour their facilities to clearly understand the risks and 
hazards of the products that we handle.
    I thank you for the time, Senator Boxer.
    [The prepared statement of Mr. Pirkle follows:]
    
    
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    Senator Boxer. Well, sir, I am just very pleased to see 
this and look forward to learning more about it, and I do 
encourage all of these players to join, because at the end of 
the day the costs to the industry are enormous and people lose 
faith, right? So I think it is a smart thing to do.
    OK, with that we call, last but not least, Mr. Scott 
Berger, Executive Director, Center for Chemical Process Safety, 
the American Institute of Chemical Engineers. Welcome.

   STATEMENT OF SCOTT BERGER, EXECUTIVE DIRECTOR, CENTER FOR 
    CHEMICAL PROCESS SAFETY, AMERICAN INSTITUTE OF CHEMICAL 
                           ENGINEERS

    Mr. Berger. Thank you, Chairman Boxer, Ranking Member 
Vitter, and distinguished committee members. Thanks for the 
opportunity to testify today. I am speaking today from the 
perspective of an organization which has been working very hard 
for the last 29 years to provide guidance to help companies 
prevent these accidents from occurring.
    To this end, our organization has published more than 80 
books addressing the technical and management skills, 
procedures, concepts required to prevent these fires, 
explosions, toxic releases, and spills. So my comments today 
are specifically directed the topic of inherently safer 
technologies, or IST.
    Our organization has much experience in this field, having 
published two editions of a book dedicated to IST. We have also 
addressed that in many of our other books. In 2010, our unique 
experience and expertise led the DHS to request CCPS to lead a 
team of technical experts to develop a formal definition of 
IST.
    IST has long been one of the important tools in the toolbox 
used by chemical engineers to design safe processes. It is so 
ingrained in our thinking that we often do not even realize 
that we are doing it. This is certainly my personal experience. 
I had never heard the term IST before the early 1990s, but once 
I did hear it I recognized that I had been learning these 
principles as an undergraduate in the 1970s and I had been 
using them since my first assignments in industry.
    A Web link to the definition report is provided in my 
written testimony, and I would just like to highlight a few key 
elements of the definition.
    First of all, IST is one way of many ways that we use to 
prevent fires, explosions, and toxic releases. There is no 
specific IST technology that can be substituted broadly. Each 
plant is unique and the IST philosophy has to be applied 
differently from plant to plant.
    There is really no clear boundary between IST and other 
design strategies. As demonstrated in the New Jersey 
experience, IST can go well beyond simple replacement of one 
material with another; it can be applied to reactor design 
control systems, operating instructions, even emergency 
response.
    A technology can be only described as inherently safer when 
compared to some other technology. There is no inherently safe 
technology. It can be safer than another technology with 
respect to one hazard, but it can actually be less safe with 
respect to others. And even if the technology is inherently 
safer, it may not be safe enough.
    Last, technology that is inherently safer in one location 
can also reduce safety somewhere else, shifting the risk. The 
bottom line is that design requires tradeoffs, and IST, as part 
of a design, also requires tradeoffs.
    Based on the formal definition of IST, it is clear that 
several existing regulatory provisions within the EPA and OSHA 
requirements already address IST, and I have detailed those in 
my written testimony.
    Considering that the application of IST is so tightly 
integrated into the overall work of process safety, I believe 
that EPA and OSHA would require significant additional 
resources beyond those excellent resources they already have to 
really get into the details of designs and question all the 
decisions that are design decisions that are made. I think, as 
a practical matter, going into a level of detail beyond this 
would not be possible.
    So the bottom line on IST is this: it is effective to teach 
it, it is wonderful that we are talking about it today, but it 
is really not effective to regulate it. I think there clearly 
are things that we can all do to improve process safety 
regulations, and most prominent among them is to require 
tracking and reporting of process safety metrics following 
standards such as the API recommended practice 754. What gets 
measured gets improved, and that is, after all, what we all 
want.
    Thank you for the opportunity to provide these comments.
    [The prepared statement of Mr. Berger follows:]
    
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    Senator Boxer. Senator Carper.
    Senator Carper. Thank you, Madam Chair.
    Thanks to all of you for joining us today and for your 
testimony.
    Following the disaster at West Fertilizer, the Department 
of Homeland Security, which my committee has jurisdiction over, 
determined that the facility had not complied with requirements 
to submit a so-called top-down top screen under the Chemical 
Facility Antiterrorism Standards Program, CFATS. Officials were 
actually unaware that the facility even existed. CFATS program, 
as you may know, at the Department of Homeland Security is not 
voluntary, it is mandatory, but it relies on self-reporting to 
identify which facilities need to be assessed for possible 
regulation. I think self-reporting can be effective, but only 
when there is full cooperation from industry.
    My question is this. From your perspectives, how effective 
is self-reporting and what can be done to improve the 
effectiveness of these reporting programs to make sure that 
oversight agencies do have the information that they need?
    Dr. Wilson, would you like to go first, please? Thank you.
    Mr. Wilson. Thank you, Senator. Sure, just quickly. I think 
what we are looking at in California is the idea of required 
reporting with the direction moving with requiring facilities 
to rigorously evaluate a hierarchy of controls in which 
inherently safer design is the preferred outcome. The intent 
here is not to regulate inherently safer design, but to put in 
place a mechanism that motivates companies to do that and to 
invest in that, and moving companies toward good practices, 
standards, codes, learnings from similar incidents, documenting 
those, and justifying why or why they didn't take action.
    And I guess, to your point, the challenge, I think, is that 
these are difficult and complex industries to operate and the 
process of reporting information, gathering that information is 
difficult and challenging in the crush of other business 
demands of function, price, and performance of getting product 
and services out the door. So we are looking at, yes, required 
reporting for that reason.
    Senator Carper. Thanks.
    Others, please. Mr. Frederick.
    Mr. Frederick. Self-reporting is somewhat akin to a 
voluntary initiative by those facilities covered, and a 
voluntary initiative is fine as long as all of the facilities 
covered choose to volunteer, but through a couple of important 
pieces through education and oversight by the regulatory 
agency, but most importantly of enforcement to make certain 
that the rules are being followed, that the voluntary 
compliance is being followed, and that a lack of compliance has 
some enforcement behind it so that it provides a level playing 
field for all involved.
    Senator Carper. OK, thanks.
    Mr. Hansen.
    Mr. Hansen. In terms of the West Virginia chemical leak, 
the Freedom Industries site did self-report the types and 
amounts of chemicals it was storing onsite in accordance with 
the Emergency Planning and Community Right to Know Act, and the 
main issue there was not so much self-reporting as what did the 
State and local officials and public water systems do with that 
information that was made available.
    Senator Carper. That is a great point. Thanks.
    Mr. Pirkle.
    Mr. Pirkle. Our industry proposed and worked with Congress 
in 2005 to seek traceability regulations for ammonium nitrate, 
resulting in the Secure Holding of Ammonium Nitrate Act, which 
was signed into law in December 2007. There was an advanced 
public notice issued in October 2008 and a notice of final 
rulemaking in 2011. That rule is not final at this date, but we 
feel like that is a regulatory and we sort of led and 
approached Congress with that. We think that would have 
assisted in making that facility there in West, Texas, more 
visible.
    Senator Carper. Good. Thanks.
    Mr. Berger, you have 30 seconds.
    Mr. Berger. On the subject of voluntary reporting with the 
subject of process safety metrics, which I talked about 
earlier, is encouraged that is voluntarily being reported by a 
number of the trade associations, by their members. I think I 
would also like to point out that, in terms of improvement of 
processes and greater safety, the RMP regulation does require 
companies to report every 5 years on their plans to improve 
their process safety, which is a good program and should be 
more encouraged.
    Senator Carper. Perfect. Thank you.
    Thank you all very, very much.
    Thank you, Madam Chair.
    Senator Boxer. So the votes started, but I have a little 
time for questions, and I am going to take that time.
    The problem with risk management doesn't include ammonium 
nitrate, so that is a problem for us.
    Can I just thank all of you? You have been terrific. I know 
that it has been hard to talk in very quick sound bites. We are 
used to it, but you are not, so I know it is hard.
    Mr. Hansen, you said in West Virginia the secondary 
containment failed. What was the secondary containment for this 
particular tank?
    Mr. Hansen. For this site, there was what I believe to be a 
concrete block wall that surrounded the tanks, but there were 
two issues with the secondary containment. One is that that 
wall was not properly watertight, and the second issue is that 
it appears that the fluid that spilled actually went under the 
wall, into the river.
    Senator Boxer. Wow. You know, when I heard the name Freedom 
Industries, I thought, yes, the freedom to pollute everybody's 
drinking water. It is a horrible example, which leads me to Mr. 
Pirkle. I am so pleased to see this initiative. And, you know, 
what troubles me about all of this is there are so many good 
actors involved in this and you have a few bad actors. When 
something bad happens, it hurts everybody else and it hurts, of 
course, the people impacted, some of whom don't live to tell 
the tale.
    So I am going to ask you, in this ResponsibleAg, it is a 
voluntary deal, but do you have plans to publicize the people 
who join? Because I would love to help you in that, and I think 
that is one way. You get the seal of approval. This is 
important for people to know. When they give their business to 
a chemical fertilizer retail store, or wherever it is, that 
they have joined this group. So I wondered whether or not you 
intend to take your ResponsibleAg logo and make it prominent 
and be recognized, which I would love to help you with. What 
are your plans on that?
    Mr. Pirkle. Thank you, Madam Chair. Our plan is to have a 
public Web site developed, and those facilities that are vetted 
through the program would be published. We are in the early 
stages of branding the image, and the image would be branded 
and made available to those who successfully complete the 
program.
    Senator Boxer. Good. Well, I can't encourage you enough, 
because, a, if only a few people join, it doesn't mean that 
much; b, if you make this a marketing tool in the private 
sector, this is a good thing. It is like the Energy Star. 
People look for the Energy Star because they know that that 
refrigerator is better, and I think we ought to build on that 
or the bill I wrote, Dolphin Safe Tuna. If that little picture 
on there and people will buy, rather than the other one. 
Because they are voting with their feet. So I want to encourage 
that.
    My staff just handed me these unbelievable photographs. 
This is the wall that Mr. Hansen talked about, which had bricks 
just falling out. I don't know if you can see it, but I will 
leave it up here. If the press wants to see the condition of 
this. You don't have to have a degree in inspection to see the 
sorry state of affairs with Freedom Industries.
    Well, Dr. Wilson, in what ways can Government motivate 
industry to adopt inherently safer design options?
    Mr. Wilson. I was out, a week and a half ago, at the Tesero 
refinery, and the State of California had the authority to shut 
down the process that splashed acid on a couple of workers 
there, requiring their being air-lifted to UC-Davis Medical 
Center. It was a near miss. And in abating the problems sort of 
associated with that process, we could require the plant to 
implement training, we could require procedures, personal 
protective equipment. We could not require the plant to 
seriously investigate inherently safer design options, which 
other refineries have put in place 10 and 20 years ago for this 
particular process. So to motivate refineries in this case, but 
I think other plants, to take a direction toward a hierarchy of 
controls and inherently safer design, we have to require 
reporting, transparency, and, as I was saying, learnings from 
what the CSB has reported, and adherence to well recognized 
standards and codes in the industry itself.
    Senator Boxer. So you are going to require that.
    Mr. Wilson. That is the direction that the Task Force has 
recommended to 13 State agencies.
    Senator Boxer. Good.
    Mr. Wilson. We are moving forward with our regulations now.
    Senator Boxer. Good. Because at the end of the day 
everybody benefits from this.
    So I am running out of time, but I have one question for 
you, Mr. Hansen. I just want to say your understated approach 
belies, I know, what you feel about this West Virginia 
situation. What were the results of the in-home tap water 
testing that your company conducted in Charleston, did you find 
the chemicals from the Freedom Industries spill still in tap 
water, even after their plumbing systems were flushed?
    Mr. Hansen. We did. We did tap water testing in dozens of 
homes at the request of homeowners, they were our clients, and 
for the first set of samples that were taken between one and a 
half and 3 weeks after the all-clear was given, we continued to 
find polluted water was being delivered to people's homes. 
These were homes that had followed the proper flushing 
procedures and homes in which our technicians further purged 
the lines so that we were getting water as delivered by West 
Virginia American Water. In the first 10 homes that we tested 
during that time period, 4 out of those 10, or 40 percent, were 
still being delivered water that had quantities of MCHM.
    Senator Boxer. You know, just talking to my colleagues from 
West Virginia, this has been a huge blow to that State. You 
just think about it. One company, a really bad, bad player, bad 
actor has caused untold misery. So I just want to say to all of 
you who were in Government, protecting workers, nonprofits, in 
the industry, I think at the end of the day it is such a win-
win if we all work together and not fight each other on how to 
fix this, and that is what I am attempting to do with the 
Manchin bill; talk to the chemical people, talk to the State 
folks, talk to Senator Vitter.
    We just need to be smart about this. There are so many 
chemicals out there, we all know that. We don't even know what 
they do, but the least we can do is make sure they are stored 
safely and then make sure that, because they are stored in the 
right way, we don't face all these other questions and whether 
or not this is going to really cause lasting harm.
    So I just wanted to thank the whole panel. I felt that the 
tenor of this was terrific. I call on the Working Group to get 
busy. They are not moving as fast as I would like to see 
because there is more we can do. But this committee stands 
ready to assist in all areas regarding West Virginia and the 
West explosion, because we don't want to see the misery that 
has hit too many of our families.
    Thank you. We stand adjourned.
    [Whereupon, at 11:34 a.m. the committee was adjourned.]
    [An additional statement submitted for the record follows:]

                  Statement of Hon. James M. Inhofe, 
                U.S. Senator from the State of Oklahoma

    I want to thank Chairman Boxer for holding this hearing, 
and I also want to note how deeply saddened I am by the loss of 
life that's been experienced at the chemical plant incidents 
over the last year. They are tragic, and my thoughts and 
prayers are with the impacted families.
    In light of this, I think it's important that we highlight 
the great work that industry has been doing to respond to these 
incidents to make sure the risk of future accidents is 
minimized.
    The Fertilizer Institute, which we'll hear from during the 
second panel, has led the way, responding quickly and 
aggressively to the accident that occurred in West, Texas.
    Though the cause of that accident remains unknown, TFI has 
identified that one of the major areas where improvements can 
be made across the industry is through education about safety 
regulations and compliance with them.
    Together with the Agriculture Retailers Association, 
they've created ResponsibleAg, which will serve as a voluntary 
accountability organization that will provide assessments to 
fertilizer facilities and other agriculture retailers to ensure 
they're up to date with regulations, particularly as they 
relate to the handling of ammonium nitrate and anhydrous 
ammonia.
    These assessments will be done every 3 years by auditors 
credentialed by ResponsibleAg.
    This is the kind of responsible action that displays the 
commitment of the private sector to conduct their operations in 
a safe and efficient manner, and I applaud them for the work 
they're doing.
    Unfortunately, there are many who would like to use these 
tragedies as an opportunity to force Inherently Safer 
Technologies (IST) into regulations, which would give 
Government agencies the ability to mandate the designs of 
manufacturing processes.
    It's a goal that's inherent to the President's Executive 
Order 13650, and it's something that the Chemical Security 
Board wants to implement. EPA also thinks we should thoroughly 
evaluate the idea.
    But when you stop and think, it's actually in every 
industry's interest to design their facilities in the safest 
way possible. A disaster like those we're discussing today can 
bankrupt companies; there is no incentive to be reckless in 
design. In fact, all normal business incentives direct 
companies in the opposite direction.
    Because of that, there is no need for the Government to 
exercise the kind of power that would be needed to evaluate and 
approve the manufacturing processes of every chemical facility, 
which is what IST regulations would require.
    If the Federal Government were given the power to mandate 
IST, all it would do is limit the great potential for 
innovation within this industry--which would quell its growth.
    The United States' chemical industry employs nearly 800,000 
people with an average wage of nearly $85,000, and the industry 
is booming--in just the last few years, nearly $100 billion in 
new facilities and expansions have been announced.
    The last thing we want is for this trend to stop. Safety 
and security are mutual goals of industry and Government, but 
mandating IST is the wrong approach. Rather than encourage this 
manufacturing renaissance, it would cause a chilling effect to 
ripple across the entire industry and stop this major growth 
story in its tracks.

    [Additional material submitted for the record follows:]
    
    
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