The Fertilizer Institute
S. 1602—The Chemical Security Act of 2001
Director, Government Relations
For the Committee on the Environment and Public Works
United States Senate
November 14, 2001
On behalf of its membership, The Fertilizer Institute submits this statement and comments of concern regarding S. 1602, the Chemical Security Act of 2001, which is pending before the Senate Environment and Public Works Committee.
The Fertilizer Institute (TFI) represents by voluntary membership more than 90 percent of the U.S. fertilizer industry. Producers, manufacturers, retailers, trading firms and equipment manufacturers, which comprise its membership, are served by a full time Washington, D.C. staff in various legislative, educational and technical areas as well as with information and public relations programs. Together, TFI members produce and distribute approximately 22.0 million tons per year of commercial fertilizers to farmers. The North American fertilizer industry has developed the production facilities and infrastructure necessary to deliver the types and quantities of fertilizer products to farmers within the narrow time frames of the crop planting and growing seasons.
What is Fertilizer?
Fertilizer is simply, food for plants. Just like the human body needs vitamins and minerals, plants need nutrients in order to grow. Also like humans and animals, plants need adequate water, sufficient food, and protection from diseases and pests to be healthy. To grow and reproduce, plants need large amounts of three basic nutrients—nitrogen, phosphorous, and potassium.
Nitrogen, for example, is part of every plant’s proteins and is a component of DNA and RNA, the genetic “blueprints” of life itself. Taken up in larger amounts than other nutrients, nitrogen makes plants green and is usually most responsible for increasing yields. Phosphate helps plants use water efficiently, promotes root growth, and improves the quality of grains. Potassium, commonly called potash, is important because it is necessary for photosynthesis, which is the production, transportation and accumulation of
sugars in the plant. Potash makes plants hardy and helps them to withstand the stress of drought and helps the plant fight of disease.
Today’s commercial fertilizer industry was founded on the revolutionary scientific discovery in the last part of the 18th century that chemical elements play a direct role in plant nutrition. This initial concept opened the way for industrial scale manufacturing of fertilizers of all types in the 19th century. Following World War II, new technologies allowed for the rapid expansion of fertilizer production. Coupled with growing food demand and the development of higher-yielding crop varieties, fertilizer helped fuel the Green Revolution.
The efficient use of fertilizer also helps to conserve our natural environment. With fertilizers and modern high-yield farming practices, more food is produced per acre each year so land may be conserved. Fertilizers used properly, works to maximize yields on farmland already in production while helping to prevent the widespread loss of forests, rainforests, and environmentally important habitat. Use of marginal land, and habitat for “slash and burn” low-yield farming represents a major global environmental threat.
Fertilizers enhance many consumer products. For example, thanks to fertilizers, fruits and vegetables are available in affordable abundance year around in every state of the nation. Nitrogen is used to make nitric acid, a major component in batteries, tires, lacquers and paints. Many soda drinks contain phosphoric acid, derived from phosphate, and many bath soaps and detergents contain potash.
Fertilizers are also at work in industry. Aside from their benefits to agriculture, fertilizer components are central to such industrial processes as semiconductor chip making, resin manufacture, cattle feed production, metal finishing, the manufacture of detergents, fiberglass insulation and even rocket fuel needed for our space, satellite and communications industries.
Finally, and most importantly, fertilizers are critically necessary in order to feed our world’s growing population. As the world’s population continues to climb toward an estimated 8.5 billion in the year 2040, experts estimate that food production must increase more than two percent annually just to maintain current diets. For example, commercial fertilizer nitrogen (N) accounts for approximately half of all N reaching global croplands today and supplies food needs for at least 40 percent of the population. Due to global population increase and the expansion of global prosperity and diet quality, it is estimated that at least 60 percent of humanity will eventually owe its nutritional survival to N fertilizer. (Smil, V. 2001. Enriching the Earth. MIT Press, Cambridge Mass.)
Fertilizers Contribute to the American Way of Life
The United States and many other developed nations are blessed with safe, abundant and affordable food. Thanks to fertilizers, the productivity of U.S. farmers and livestock producers and an efficient agribusiness processing, storage and transportation system--Americans spend less than 8 percent of their disposable income on food. This leaves 92 percent of American’s disposable income for travel, entertainment, spacious homes, multiple cars, college tuition or a vast array of consumer products and activities that contribute to our way of life. Today, the abundance of food we enjoy is just one way fertilizers help enrich the world around us.
Commercial fertilizers are extensively regulated in the United States both at the federal and state levels. The industry must comply with federal laws regarding reporting and emission standards for air and water quality. The industry must also comply with many other federal laws including but not limited to: the Resource Conservation and Recovery Acts (RCRA), the Clean Air Act (CCA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), the Coastal Zone Management Act (CZMA), the Occupational Safety and Health Act (OSHA) and the Community Right-to-Know Act (EPCRA).
State regulation of fertilizer products is primarily concerned with consumer protection, labeling, the protection of human health and the environment, and the proper handling and applications of fertilizers.
Response to Terrorism
TFI members have greatly increased security procedures since September 11th, and we thank those federal, state and local agencies that have worked with our individual facilities to improve our security programs. TFI and its member companies have worked closely with federal agencies such as the Federal Bureau of Investigation (FBI), the Coast Guard, and the Environmental Protection Agency. In addition, we have cooperated with numerous state and local agencies, including emergency response personnel, to heighten security at our industry’s manufacturing sites, storage facilities, transportation infrastructure and retail outlets.
Our industry also has worked extensively to protect against misuse of our products, most notably through our voluntary “Be Aware” and “Be Secure” campaigns created in partnership with the U.S. Federal Bureau of Alcohol, Tobacco and Firearms (BATF). These important efforts have proven effective and successful in assisting our industry’s retail sector and local law enforcement to be alert and suspicious people trying to purchase beneficial fertilizer products for potentially criminal purposes—and to report any suspicious activity immediately to the proper authorities. Future security efforts should build upon these existing working relationships.
Views on S. 1602
In light of the already extensive federal and state regulations addressing commercial fertilizer products and the industry’s proactive voluntary efforts noted above, TFI submits this statement of comments regarding the advisability and purpose of S. 1602.
SUMMARY OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001
On October 31, 2001 Senators Corzine, Jeffords, Boxer and Clinton introduced S. 1602, The Chemical Security Act of 2001. The legislation proposes to safeguard facilities where hazardous chemicals are present by giving EPA and the Justice Department authority to issue administrative orders or seek court orders requiring facilities to take immediate steps to improve security. These steps could include improvements to personnel security, as well as changes in a facility’s physical structure or operations.
Specifically the bill:
· Requires each owner or operator of a high priority chemical source to take actions including safer design and maintenance to prevent, control and minimize potential accidental or criminal releases;
· Defines “safer design and maintenance” as the use of inherently safer technology, well-maintained secondary containment, control or mitigation equipment, making a chemical source highly resistant to intruders, improving security and employee training including employee personnel background checks, use of buffer zones between a chemical source and surrounding populations centers.
· Defines “inherently safer technology” to include input substitution, catalyst or carrier substitution, process redesign, product reformulation, procedure simplification and technology modification;
· Establish a “general duty” requiring each owner or operator to identify hazards that may result in an accidental or criminal release. As a result, facilities would have the general duty to prevent criminal activities for which they had no knowledge or participation. If operators fail to prevent criminal releases then the owner or operator is subject to the criminal penalties noted below;
· Requires EPA and DOJ to consider severity of harm caused by a chemical’s accidental or criminal release and a chemical’s proximity to population centers, potential threat to national security and critical infrastructure;
· Requires EPA and DOJ to designate those chemical manufacturers and transporters most at risk;
· Defines a chemical source as a stationary source, vessel, motor vehicle, rolling stock or container;
· Allows EPA and DOJ to seek relief in district courts to abate danger or threat to the public health and welfare or the environment from an accidental or criminal release and issue such orders as necessary to protect public health or welfare of the environment;
· Requires record keeping, reporting and provides EPA or DOJ the right of entry on any premises of an owner or operator of a chemical source and copying of any records or information necessary;
· Provides for civil penalties of up to $25,000 a day and criminal penalties of no less than $2,500 a day or no more than $25,000 a day, or imprisonment (or both) of an owner or operator of a chemical source that violates, fails to comply with or knowing violates orders issued or regulations promulgated as a result of this Act.
Following is a listing of specific concerns regarding S. 1602, and the effects the legislation could have on the North American fertilizer industry:
1. Prevention of accidental releases is very different than prevention of terrorism acts. These should not be viewed as equivalent activities.
- Accident prevention involves ensuring equipment integrity, managing process parameters and emergency planning and execution. It is a facility-specific process that focuses on maximizing the routine of efficient, safe chemical production.
- Terrorism prevention involves securing infrastructure, scrutinizing all personnel and materials that move onsite, and implementing anti-terrorism infrastructure and programs. It is an extroverted process that focuses on the unusual, unknown or asymmetrical.
- While there are areas of overlap, prevention of accidental releases will not prevent terrorist threats and vice versa.
2. The bill as proposed creates redundant accidental release activities.
- Accidental releases at facilities are already covered under two existing regulatory frameworks – EPA’s Risk Management Plan and OSHA’s Process Safety Management programs.
- Many of the provisions in this legislation, including definitions, general duty clauses, and activities are taken from these existing regulations, making this legislation redundant to existing laws.
- DOT’s HM223 covers loading, transportation and unloading of hazardous materials.
- By definition, a criminal release means that some law was broken. Therefore, a release caused by a criminal act is already unlawful. Existing (pre-September 11th) security measures at most facilities are geared towards minimizing criminal activity onsite.
3. S 1602 may have unintended consequences for both industry and homeland security.
- The bill is too heavily focused on chemicals rather than overall security issues. An inflexible law (and subsequent regulations) makes it hard for individual industries and facilities to comply because of the narrow definition of compliance.
- Some chemicals, such as ammonia, are both an end-product (i.e., fertilizer) and an intermediate. There are no substitutes for ammonia and no safer production method than that currently used. Further, storage of ammonia in large quantities is necessary because of the unique seasonal demands of the product.
- Publishing a list of “high priority combinations” in the Federal Register is in itself a terrorist tool and increases designated facilities’ terrorism vulnerability.
- Many compliance activities would be redundant with existing RMP and PSM provisions, and will take personnel and resources away from true security functions.
- This designation will greatly increase insurance premiums, increase terrorism exclusions in new policies, and price industries out of the terrorism insurance market. Given current state of insurance companies, they may decide to refuse insurance to anyone on the “high priority combinations.”
- Many provisions of this bill do not account for possible substitution risks. For example, if domestic ammonia production falls and the demand for imported ammonia rises, then there would be increased risks associated with large barges from the Middle East, FSU, Asia, and Central/South America coming into ports around large metro areas. Likewise, focusing on production, transportation and storage of smaller quantities may lower the catastrophic risk, but greatly increase the overall risk because of the addition of more storage tanks, more individual transportation units on the roads and in navigable waters and increases in the number of small production facilities.
- There is no database of “inherently safer technologies.” Nor could it be easily or quickly assembled. There are no existing criteria for designation of “inherently safer technologies.” Some methodology is also needed to balance security considerations vs. energy efficiency, quantity and types of emissions, and other substitution risks. In fact, most of the manufacturing and handling processes now in place were designed with process safety in mind.
- The general duty clause combined with liability provisions creates both ethical questions and substitution risks.
4. Industry has greatly increased its security since September 11th and continues to urge federal and state agencies to work with our individual facilities to prevent terrorist activities. The federal government should adopt a compliance assistance model for future anti-terrorism initiatives.
- Most facilities have greatly increased security and are working with applicable federal, state and local agencies. Future security efforts should build upon these existing working relationships.
- Successful anti-terrorist programs must involve joint agency-industry cooperation and coordination. Because security is facility and chemical specific, increased security is best achieved by guidance, protocols and joint programs in which facilities work with applicable and relevant federal agencies in a cooperative fashion.
- Facilities are most interested in speaking with those federal agencies that can provide them with specific recommendations for surveillance, security and anti-terrorism measures that can be implemented at their facilities.
- No facility or infrastructure system can be certified as terrorism-proof; that is, there is no zero-risk scenario for industry. We do urge federal agencies to develop a means of prioritizing of infrastructure based on real risks. Some assessment of costs, benefits and substitution risks should also be considered.
- We are interested in a mechanism for secure exchange of information, data and security suggestions among federal agencies and industry. Facilities would like to receive detailed information on specific or general threats. We would also like feedback when suspicious activity or potential incidents are reported to the proper authorities. We would prefer to avoid situations in which federal agencies use either “right of entry” or “abatement actions” without previous consultation. These should be the last action taken in an anti-terrorism effort, not the only tool in the toolbox.
- Some decision will need to be made on balancing right-to-know considerations with security interests. Making all information collected during a “right of entry” or other visit available on the Internet is in itself a potential terrorist tool and is in itself a major vulnerability. We feel that access to facility-specific information should be taken out of the public domain and limits should be placed on FOIA requests for these data.
Focusing Future Industry/Government Partnerships
The federal government should adopt a compliance assistance model for future anti-terrorism initiatives. Successful anti-terrorist programs must involve joint agency-industry cooperation and coordination. Because security is facility and chemical specific, increased security is best achieved by guidance, protocols and joint programs in which facilities work with applicable and relevant federal agencies in a cooperative fashion.
TFI members are most interested in speaking with those federal agencies that can provide them with specific recommendations for surveillance, security and anti-terrorism measures that can be implemented at their facilities. We are interested in a mechanism for secure exchange of information, data and security suggestions among federal agencies and industry. Facilities would like to receive detailed information on specific or general threats. We would also like feedback when suspicious activity or potential incidents are reported to the proper authorities.
Some decision will need to be made on balancing right-to-know considerations with security interests. Making all information collected during a “right of entry” or other visit available on the Internet is in itself a terrorist tool and increases designated facilities’ terrorism vulnerability. We feel that access to facility-specific information should be taken out of the public domain and limits should be placed on FOIA requests for these data.
For the above reasons, TFI and its membership oppose S. 1602 as written in its current form. Our members urge the Senate to build on the existing cooperative relationships between industry and agencies that have formed since the September attacks. TFI looks forward to working with the authors, cosponsors, members of the Committee and U.S. Senate in addressing these and other important chemical security concerns in a more cooperative, realistic and effective approach to keeping our nation’s vital chemical products, including fertilizer, secure.
TFI appreciates the opportunity to make this statement.