on behalf of the
November 14, 2001
Madame Chairman, and members of the Subcommittee: Thank you for the opportunity to appear here today to testify in support of S. 1602, the Chemical Security Act of 2001, on behalf of the Natural Resources Defense Council (NRDC). NRDC is a national, non-profit organization of scientists, lawyers, economists, and other environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 500,000 members nationwide, and four national offices in New York, Washington, Los Angeles, and San Francisco.
In the wake of the tragedies that began on September 11, 2001, this legislation is one of the most important, proactive steps that the federal government can take in response to this particular threat, which belongs on the “top ten” of anyone’s list. No reasonable observer could dispute that the events covered by this legislation must be a national priority: namely, terrorist attacks that result in releases of acutely toxic chemicals at factories, petroleum storage facilities, and hazardous materials transportation locations, as well as the possibility that terrorists could steal chemicals from such facilities to make their own weapons of mass destruction.
Existing law does not address this problem. Waiting for states to erect a patchwork of inconsistent requirements could take years, and would cost excessive amounts. To its credit, the American Chemistry Council recognizes that these hazards must be an immediate priority and has already put in motion special programs to help its members upgrade plant security. However, the notion that we would leave industry to implement these efforts voluntarily, without government oversight, makes as much sense as leaving airport security to the exclusive discretion of the world’s air carriers.
The American people clearly want their government to protect them from the worst threats, and they want those activities begun yesterday. Not incidentally, the proposal you have before you today, like the one that Congress passed in 1986 in the wake of the Bhopal tragedy, will enable our nation’s brave police and firefighters to combat accidental releases of hazardous materials with the knowledge that the federal government, and the chemical, petroleum, and transportation industries, have done everything possible to avoid placing them in harm’s way.
For the sake of these brave men and women, and the public at large, NRDC urges you to move this legislation toward enactment as quickly as possible. The remainder of my testimony will address (1) the need for the legislation; (2) why a federal law is necessary, as opposed to consigning responsibility for this issue to the states or industry volunteerism; and (3) possible ways to strengthen the legislation.
Need for the Legislation
As you may remember, the Bhopal tragedy occurred when equipment at a pesticide manufacturing plant malfunctioned, causing the release of a cloud of lethal methyl isocyanate gas. People in the crowded neighborhoods around the plant saw the plume, assumed it was a fire, and ran toward the factory to help extinguish the blaze or to watch in excitement. As the plume drifted over the plant gates toward the crowds, some 3,000 people dropped dead in their tracks. Overcoming the temptation to view Bhopal as an example of Third World ineptitude, a congressional panel traveled to a twin Union Carbide facility in Institute, West Virginia, only to discover that although the county had prepared an emergency plan, the plant manager did not realize that it existed.
Congress responded to Bhopal and its aftermath by passing the 1986 Emergency Response and Community Right-to-Know Act (EPCRA), which was refined and expanded by the 1990 Clean Air Act (CAA) amendments. Under both statutes, state and local governments are responsible for dealing with such incidents, with the federal government playing a very small role in providing technical support for their efforts. Emergency response has two distinct components in this context: first, the containment of the explosion, fires, and toxic releases that typically accompany such incidents and, second, the successful protection of the affected populations near the facilities. But neither law addresses the all-important tasks of preventing such incidents by reducing hazards and ensuring plant and transportation system security. Human error in operating complex machinery killed several thousand people in Bhopal. What price would we pay for deliberate sabotage at such a facility?
In the decade and a half since EPCRA went on the books, funding shortfalls have undermined local efforts to make progress on either containing accidents or protecting the public and, until recently, very few cities and towns had even thought about reducing the use of toxic chemicals or improving the technology of storage equipment. Indeed, it is commonly understood by everyone involved at the grassroots level – from firefighters, police, and other municipal officials to the companies that own and operate the factories, railroads, pipelines, and truck fleets – that local emergency response capacity, even in large cities, falls far short of either these legal requirements or safe practice. Despite the valiant efforts of fire departments nationwide, local governments under pressure to fund other services simply have not given firefighters, police, and emergency medical personnel what they need to do a very difficult job.
As a classic example of this problem, I refer you to press accounts of a fire caused by a train derailment in a tunnel running through the center of Baltimore City last summer; I have attached one comprehensive analysis of the implications of the incident to my testimony. The short story is that it took several days to put out the fire, and everyone involved with the response was enormously relieved that no acutely toxic chemicals were involved because the City was fundamentally unprepared to deal with such a catastrophe.
To understand the gravity of the situation in Baltimore and elsewhere, consider the following realities of any emergency that involves the release of an acutely toxic chemical. Experts agree that there are only two possible alternatives when a toxic plume is released near a population center: (1) shelter- in-place or (2) evacuation. They further agree that the first of these is only as effective as the shelter itself. In the absence of measures to seal off ventilation systems, and plug other leaks in a building, shelter in place can serve to compound chemical exposures. Evacuation therefore remains an essential component of any emergency response plans. EPCRA recognized this reality, explicitly requiring that “local emergency response committees” include detailed evacuation scenarios in their plans.
Many cities have made little, if any, progress on these critical tasks, again as indicated by the Baltimore incident. They have not deployed effective warning systems; they have no contingency plan for dealing with vulnerable populations; they have made no effort to train the public on shelter in place techniques, and they have no idea how they would conduct an evacuation if one was necessary. Even worse, most cities have not yet mastered the important challenge of integrating fire department efforts to contain fires, explosions, and releases with police efforts to evacuate or otherwise aid the public. Police lack equipment to protect themselves in the event of an acutely toxic release, do not routinely train with firefighters to develop effective coordination procedures, and have no concrete plan for controlling traffic, much less organizing a large-scale evacuation of affected neighborhoods.
To date, there have been only two confirmed attempts to perpetrate terrorist attacks on facilities handling toxic chemicals, both of which were prevented by the authorities. However, there have been numerous accidents involving such materials, with several involving severe injuries or even fatalities, primarily among the workers at such facilities but under circumstances that could easily have posed a threat to the public. Fifteen accidental gas releases of greater amount and toxicity than Bhopal occurred in the United States between 1980 and 1990. A careful review of press accounts of these incidents indicates that luck rather than preparation is the reason such incidents have not resulted in widespread fatalities.
The vast majority of hazardous chemicals are stored in tanks or other containers that require electricity to maintain the correct temperature and pressure. Power outages of any significant duration could have the same disastrous effects as a direct attack on such facilities. Consequently, the facilities covered by S. 1602 are in jeopardy from the indirect effects on attacks on the power grid, as well as direct assaults. For further information on this too-often overlooked aspect of the problem, I have attached a recent paper regarding the vulnerability of the nation’s power grid to terrorist attack.
These realities, partnered with the lessons of September 11, demonstrate beyond any reasonable doubt the importance of increased prevention of hazards and physical security, as required by the legislation before you. Some enlightened local governments have begun such initiatives, demonstrating that they are indeed possible. As reported in this Monday’s Washington Post, the Blue Plains sewage treatment plant has accelerated its efforts to replace lethal chlorine gas with a far less hazardous chemical, demonstrating the feasibility of the requirements contained in S. 1602.
Although devolution of traditional federal functions to the states is a popular approach to government at the moment, the events of September 11 have reminded us why we operate under a system of national environmental laws. Three major reasons were articulated by congressional sponsors of the legislation that created the federal regulatory system, and by commentators on federalism ever since:
1. The need to address transboundary pollution. For example, there are a large, albeit uncounted, number of plants that use, store, or produce toxic chemicals in this country located in a place where an emergency release would affect populations living in two states. Of course, trucks and trains carrying toxic chemicals routinely cross state lines.
2. The superior performance and economic efficiency achieved by regulation at the national level. Asking 50 state and thousands of local governments to assess the threat of chemical plant and transportation system sabotage and regulate accordingly would not only consume enormous resources but would inevitably result in failure in far too many places. Federal expertise is needed desperately in this endeavor, and is far more efficient economically. It is also worth noting that a patchwork of state and local requirements would only drive industry into your offices to beg for a uniform federal system. Indeed, this is exactly the scenario that occurred when states tried to regulate hazardous materials transportation.
3. Establishing a federal regulatory framework leaves a role for first responders at the state and local levels. States and local governments must be indispensable partners in this effort, as the legislation recognizes when it directs EPA and the Department of Justice to consult closely with their sister agencies and elected officials.
As for the question of whether industry volunteerism is enough to meet this challenge, the information released thus far suggests that industry is focusing on physical security, with prevention by hazard reduction a distant and far lower priority. NRDC’s experiences over the last decade in working with industry to encourage hazard reduction (aka “pollution prevention”) illustrate just how very difficult it is going to be to change corporate culture to accomplish this crucial component of any reasonable response to the terrorist threat.11 Rather, the instinct of most companies will be to post security guards, strengthen fences, and make alarms louder, all of which may well be appropriate but are an incomplete answer in the face of the kind of coordination and determination displayed by the terrorists who attacked us on September 11.
Even if increased security was an adequate agenda for the moment, every past experience with volunteerism indicates that compliance with such programs is spotty at best. With an economic downturn ahead of us, we simply cannot afford to leave decisions whether to invest in complex new systems up to senior management, no matter how well-meaning they may be. Indeed, it is likely that the economically weakest companies with the most neglected and therefore more vulnerable physical infrastructures, will be the ones that never quite get around to doing their share to satisfy their civic responsibilities.
Of course, there are other incentives to make plants, trucks, and trains more secure, and we would be foolish to ignore them. The most important is liability for damages if a company ignores this crucial imperative, and we trust that the Subcommittee will leave these incentives in place no matter what the outcome of this valuable legislative debate.
Streamlining the Bill
The legislation, as drafted, is comprehensive, covering all conceivable manifestations of the terrorist threat. It anticipates that EPA, in consultation with the Justice Department and the states, will prioritize facilities and chemicals in order to develop a workable list of high priority targets for the final regulatory regime.
While we appreciate your interest in moving this legislation quickly, and we plan to do anything we can to assist you in that effort, we are also aware that the history of the Agency’s regulatory performance over the last decade and a half suggests that the more broad its mandate, and the more endless the regulatory possibilities, the more attenuated the rulemaking process becomes. Accordingly, we offer to continue to work on developing information that will help you target the worst threats. Of some 22,000 facilities now reporting to the Toxics Release Inventory, approximately 200 account for over 50 percent of reported releases. (This caluclation is based on Toxic Release Inventory data, and excludes acids and bases, focusing instead on other toxic chemicals that are not readily neutralized.) We are confident that with some additional research, it will be possible to focus on a significantly smaller subset of facilities posing the greatest risk.
For example, I have attached to this testimony a report by the Agency for Toxic Substances and Disease Registry entitled Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and Prevention.12 This extraordinarily useful document suggests several steps that could be taken to prioritize the risks in this arena, and also proposes a 10-step procedure for upgrading emergency response plans. The experts who produced this document, and others like them at EPA, the Federal Emergency Management Administration, and the Federal Bureau of Investigation, should make themselves available right now to assist you in the effort to isolate the top priorities and get the regulatory process moving at a fast clip.
Thank you for the opportunity to appear before you today. I would be pleased to answer any questions you may have.
 See, for example, Eric Pianin, Toxic Chemicals’ Security Worries Officials; Widespread Use of Industrial Materials Makes Them Potential Target of Terrorists, Washington Post, November 12, 2001, at A14, attached as Appendix A-1.
 Diamond, Stuart, The Bhopal Disaster: How It Happened, New York Times, January 28, 1985, at A1, attached as Appendix A-2.
 Pienciak, Richard T., Flaws found in emergency plans near toxic plants, Los Angeles Times, January 6, 1985, at 2, attached as Appendix A-3.
 Heather Dewar, When chemical safety is a matter of security, Baltimore Sun, October 17, 2001, at IA, attached as Appendix A-4.
 Tunnel damage assessed after derailment blaze, Houston Chronicle, July 23, 2001, at 8. See also Editorial, There when you need them, Baltimore Sun, July 20, 2001, at 20A, attached as Appendix A-5.
 U.S. Department of Justice, 2000. Assessment of the Increased Risk of Terrorist or Other Criminal Activity Associated with Posting Off-Site Consequence Analysis Information on the Internet, at 27, attached as Appendix B.
 U.S. Environmental Protection Agency, Chemical Emergency Preparedness and Prevention Office, 2000. Assessment of the Incentives Created by Public Disclosure of Off-Site Consequence Analysis Information for Reduction In the Risk of Accidental Releases, at 2, 11-12, attached as Appendix C.
 Mukerjee, Madhusree, Toxins Abounding, Scientific American, July 1995, at 22, attached as Appendix D.
 David Wagman, A vulnerable system looks for security, Energy Insight Today (Sept. 14, 2001).
 See Eric Pianin, Toxic Chemicals’ Security Worries Officials; Widespread Use of Industrial Materials Makes Them Potential Target of Terrorists, Washington Post, November 12, 2001, at A14, attached as Appendix A-1.
11 Greer, Linda, Anatomy of a Successful Pollution Reduction Project, 34 Environmental Science and Technology 254A (2001), attached as Appendix E.
12 U.S. Public Health Service, Agency for Toxic Substances and Disease Registry, Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation, and Prevention (1999), attached as Appendix F.