STATEMENT OF FREDERICK L. WEBBER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
testimony before the
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
SUBCOMMITTEE ON SUPERFUND, TOXICS, RISK & WASTE MANAGEMENT
Good afternoon. My name is Fred Webber. I am President and
CEO of the American Chemistry Council. I am pleased to speak today on behalf of
the Council's members on the important subject of security in the chemical
industry, a critical component of America’s infrastructure.
I believe it is very important for members of this subcommittee, and Congress as a whole, to understand three basic facts about our industry.
First, our industry is a critical and indispensable part of the nation’s infrastructure. We make significant—and sustained—contributions to America’s economic and national security. We make thousands of products that make people’s lives better, healthier, and safer – from medicines to medical equipment, from the space-age materials used by the military in stealth aircraft to aviation fuel and night vision equipment, from satellite communications systems to ensuring that the water we drink is safe and clean. What’s more, every other manufacturing industry in the United States depends in some way on the products of chemistry for their survival and growth.
Second, we have a culture of safety going back many years. The nature of our operations requires it. This culture of safety has created what Labor Department data reveals is one of the safest industries in the United States — and the world. Our longstanding safety culture has, in the last decade, evolved into a culture of security that extends beyond our industry into those with whom we work. This commitment—to both safety and security—is expressed through our industry’s own voluntary initiatives such as Responsible Care®, our adherence to—and support for— governmental standards and research, and our longstanding—and effective— partnerships with local, state and federal government agencies.
Third, we have an important role to play strengthening our national security. We are working with the Department of Justice and other law enforcement agencies to review and strengthen security at our manufacturing facilities and to protect against the diversion and misuse of our products. This work was going on before September 11. It has been accelerated since then. For example, in addition to the things we were doing either voluntarily or with others before September 11, we have urged President Bush to proceed with plans to conduct a comprehensive security assessment of the chemical industry that Congress requested a year ago. We plan on conducting our own assessment of industry security. Our industry will benefit from a comprehensive assessment conducted by appropriate federal law enforcement, national security, and safety experts.
I intend to address these issues today within the structure of the following outline. First, I will describe briefly some of the ways our industry contributes to making our lives better, healthier, and safer—in short, why the products of chemistry are so vital to our nation, its people, our economy and our collective security. In doing so, I will also describe some of the important industry programs and practices that illustrate our industry’s culture of safety—and the effect of this in establishing and strengthening our culture of security. I will describe the types of actions our industry has taken to enhance the security of its facilities since the unspeakable events of September 11.
Second, I will identify many of the comprehensive and effective laws and regulations that currently address chemical safety and security.
Third, I will identify specific actions that we believe Congress and the Executive branch should take that would help our industry—and many other industries—improve security. And I will suggest some creative ways in which the chemical industry can help Congress in further improving our nation’s overall security.
Finally, I will detail our views of the legislation currently under consideration by this Subcommittee—which has been introduced by Senator Corzine and others—and ways in which we believe it can—and should—be improved.
The chemical industry is a critical asset of our economy and our nation’s infrastructure. The science of chemistry and its benefits are interwoven into our daily lives. The business of chemistry is essential to the nutrients in our food, the purification of our water, the military that defends us, the vests our police officers wear, the suits our firefighters and pilots wear, the antibiotics so many people recently have been forced to take, and the products that we rely upon to heal and save lives. Chemistry not only makes life possible, it helps make all our lives healthier, safer, and more enjoyable.
The chemical industry is committed to the highest standards to safeguard our employees, our customers, our processes, our products, and our communities. During the last decade, the chemical industry has devoted significant attention and resources to improving security. Our industry concentrated more heavily on security issues as cyber and computer security issues began to arise. As our industry developed Risk Management Plans under the Clean Air Act and began analyzing in greater detail the possible off-site consequences of an accidental release, we devoted even greater effort and attention to security.
The events of September 11 very starkly demonstrate how differently the government and private industry must now think in order to protect our critical assets and national infrastructure.
The cornerstone of effective security is knowledge – intelligence about potential threats that allows the threat to be intercepted and allows the target of the threat to be properly prepared. In fact, knowledge is our best defense. Our industry believes it is critically important to establish formal procedures for circulating information about potential and, importantly, credible and specific threats to the nation’s critical infrastructure. At the same time, such a system can provide government decision-makers with the full range of information on which to make their decisions.
After September 11, everyone began to revisit potential threat scenarios. Our estimations of the probability of a worst-case scenario have changed, and we are moving rapidly to prepare for these potential new threats. Our preparations are most effective when we have high quality and timely intelligence regarding threats. Our industry is moving aggressively to establish better information-sharing mechanisms with federal, state, and local officials – especially with the FBI’s National Infrastructure Protection Center, the main body of government responsible for communicating threats to the private sector. More can be done in this area, especially with the Office of Homeland Security, and we intend to do our part in this regard.
Security in the face of these threats is derived from planning and executing security strategies. Our industry has an advantage in this area because of our longstanding expertise in risk management. We have spent many years instituting progressively more sophisticated safety and security programs. We applaud the recent GAO testimony before Congress calling for a more thorough risk analysis of the nation’s critical infrastructure, and the mechanisms to manage those risks.
Response is another area in which we have demonstrated expertise. The chemical industry is one of the best-trained and equipped private sector emergency responders in the world. We coordinate closely with local responders and participate in joint training programs where multiple plants are clustered.
After September 11, chemical companies across the country went on higher alert. Many existing security procedures have been enhanced and contacts with law enforcement officials intensified. The security efforts at each facility vary depending upon its particular needs and those of the local community. However, some examples of the security measures taken by many of our companies include:
· Working closely and cooperatively with federal, state and local law enforcement and emergency management officials, including the FBI, the Coast Guard, and the Federal Emergency Management Agency (FEMA). The Coast Guard, in particular, has stepped up security at chemical terminals and ports across the country, including escorting vessels coming in and out of major ports.
· Increasing surveillance and the number of security guards at sites.
· Enhancing access control measures, including restricting access of scheduled visitors and deliveries on site and restricting access within the site.
· Permitting employee vehicles only on facility premises.
· Moving rail tank cars are being moved inside the fence-line.
· Centralizing receiving operations.
· Conducting background checks on company and contract employees.
· Requiring carriers to perform background security checks on their drivers.
· Reassessing crisis management, response and evacuation plans.
· Permitting cleaning crews to work only during business hours.
· Increasing communications with plant communities.
· Reviewing distribution routes and, where possible, reducing shipments of hazardous materials to urban centers.
· Adding second drivers to shipments of certain chemicals and requiring direct transit so that no overnight layovers are required.
We are intensifying our outreach to and information sharing with our partner trade associations. The Council is hosting a weekly security meeting of the heads of more than a dozen chemistry-related trade associations representing manufacturing and distribution enterprises.
B. Site Security and Distribution Guidelines
One of our more important actions since September 11 is the publication of our Site Security Guidelines for the chemical industry. Although we just recently published these guidelines, chemical industry security experts have been working on them for the past year. After September 11, these chemical security experts took a fresh look at the guidelines in light of the terrorist attacks and revamped some of the recommendations before publication. These guidelines are intended for use by anyone responsible for securing chemical manufacturing operations. They are available to anyone by visiting our website at www.americanchemistry.com. We have asked every one of our 180 members to distribute these guidelines broadly to their customers and their customers’ customers. We anticipate the guidelines will be useful to anyone who is concerned about security.
We have distributed the guidelines to our 20 state chemical industry councils. These councils, operating in the largest chemical manufacturing states, include member companies of the American Chemistry Council and hundreds of smaller firms.
We have distributed these guidelines to our Responsible Care® Partner Network. That network is composed of 60 chemical supply-chain related companies and trade associations. Importantly, this network includes most of the firms responsible for transporting chemicals in commerce. We have made the guidelines available to the 20,000 companies registered in the Council’s CHEMTREC® emergency response center (which I will discuss in more detail later in my testimony).
We have intensively publicized the availability of the guidelines to the chemical industry trade press, public policy-related media organizations, major dailies and periodicals, and electronic news services. These news services deliver news and information to thousands of local newspapers. We have also registered them on all major Internet search engines.
We have distributed the guidelines to trade associations outside the traditional chemical supply chain, including the National Federation of Independent Businesses, US Chamber of Commerce and National Association of Manufacturers. We have made the Guidelines available to many professional societies and organizations in the hope that they will find them useful as well.
We are also asking the FBI to consider sending the guidelines to the 27,000 private sector security professionals registered to receive the Bureau’s ANSIR alerts so that the Guidelines will reach as many persons as possible who are in the business of protecting the critical assets of out national infrastructure.
The guidelines are receiving attention and are being used. They are the most frequently visited and heavily downloaded documents we have ever posted on our web site.
On November 9, 2001, the new Transportation Security Guidelines were published. These guidelines adopt a risk-based approach to addressing security considerations relevant to the transportation of hazardous materials on all modes of transportation. The document provides chemical shippers with information on conducting a risk-based transportation security assessment, as well as examples of preventive measures and alternatives that could be implemented to address potential security concerns. The American Chemistry Council, The National Association of Chemical Distributors, and The Chlorine Institute developed the guidelines with the assistance of a number of other associations and Responsible Care® partners. These guidelines are available on our website at www.americanchemistry.com. We intend to disseminate them as broadly as has been done with our Site Security Guidelines.
My staff is working with EPA, DOT, FBI and others to organize regional security briefings around the country. Five have been scheduled between Thanksgiving and Christmas. A similar conference held earlier this month in New Jersey drew 225 attendees, twice the number expected. We intend to encourage additional face-to-face discussions between government security officials and companies throughout the chemical supply chain. We have pledged our full support and cooperation to work with government agencies to continuously improve the safety and security of the chemical industry. .
D. Emergency Preparedness Programs
Our 180 member companies continually evaluate their security measures, and have increased efforts since September 11. When they evaluate their security practices, they work closely with their Local Emergency Planning Committees, called LEPCs. Members of LEPCs include fire fighters, health officials, representatives from government and the media, community groups as well as representatives from industrial facilities. LEPCs engage in a collaborative effort with respect to planning and responding to chemical emergencies. The member companies of the American Chemistry Council have a long history of working as part of the LEPC network to ensure the safety and health of plant communities.
Our member companies work with LEPCs in many ways. They help communities prepare for transportation related incidents, and help LEPCs develop and test emergency plans and systems, train emergency responders, and raise community awareness of the potential emergencies related to our production sites. Our companies hold public meetings to communicate worst case and worst probable scenarios to our communities and the plans to minimize the risk.
While local emergency responders, chemical facilities and the surrounding communities can do many things to prepare for and mitigate the potential impact of a terrorist attack; we are not in a position by ourselves to prevent such an attack. We must have advance intelligence and clear communications to assist our military in its response to such an event.
E. Chemical Industry Vulnerability Assessment
For the past year, the Council has been involved in a Congressionally established study with the Department of Justice designed to assess the vulnerabilities of plant sites and to recommend ways to deal with those vulnerabilities. We have consistently supported this study and have cooperated fully with the Department of Justice and its contractor, Sandia Laboratories. In fact, we recently wrote to President Bush urging him to ask Congress to provide adequate additional funding to ensure that it will be the most comprehensive study possible.
At this stage in my remarks, I would like to briefly comment on a report Senator Corzine referred to in his floor speech when he introduced his legislation. The report, issued in 1999 by Agency for Toxic Substances and Disease Registry (ATSDR), was incomplete because it was based on a sampling of only two plant communities. It therefore led to an inaccurate portrayal of the state of the industry’s security when it was published more than two years ago. It remained an inaccurate portrayal on September 11. It continues to be an inaccurate portrayal of the industry’s security actions and efforts. We have produced an analysis of the report and will furnish it to you and your staff.
Despite our concerns with the ASTDR report, we have already begun a dialogue with ATSDR on how we can work together to improve the security of our industry.
I also would like to direct the Subcommittee to testimony
delivered to the Senate recently by the General Accounting Office (GAO). In that testimony, the GAO recommended to
the Senate that any programs designed to combat terrorism must be based on
sound risk management principles—that systematically analyze threats,
vulnerabilities and the critical nature (or relative) importance of our
national assets, such as the chemical industry. As the GAO testified, threat assessments are an important first
step in this process—but only the first step.
The second is a vulnerability assessment—which is a way to identify
weaknesses. Finally, the third step in
this process is what the GAO calls a “criticality assessment—which are
necessary to prioritize assets for protection.” We agree with the GAO.
We also agree that the government’s use of these risk management
principles has been inconclusive. This
Subcommittee could do much to further this approach.
F. Responsible Care® And Other Industry Initiatives
The business of chemistry has many voluntary programs that support efforts to improve the safe distribution of our products. The most comprehensive is the American Chemistry Council’s Responsible Care® Code of Management Practices. This Program emphasizes performance. When first adopted in 1988, the Codes of Management Practices were designed to help our member companies develop systems to continuously improve the industry’s responsible management of chemicals. Today, members still must adhere to the Codes. But they also report to the American Chemistry Council their progress toward the vision of no accidents, no injuries, and no harm to the environment.
Under this program, chemical companies implement additional measures to achieve safer operations. Responsible CareÒ has received considerable recognition by independent external organizations because of the progress our member companies have achieved. For example, in 2000, the American Chemistry Council was awarded the Keystone Center Leadership in Industry Award for its commitment to making a better, healthier and safer world through chemistry.
There are 6 Codes of Management Practices in Responsible Care. ®
(1) The Community Awareness And Emergency Preparedness Code.
The goal of the CAER Code is to assure emergency preparedness and to foster communities’ right-to-know. It demands a commitment to openness and community dialogue. The Code has two major components. First, member facilities that manufacture, process, use, distribute, or store hazardous materials initiate and maintain a community outreach program to communicate relevant, useful information responsive to the public’s questions and concerns about safety, health, and the environment. Second, members help protect employees and communities by assuring them that each facility has an emergency response program to respond rapidly and effectively to emergencies. Many companies have established community advisory panels as forums to share issues between plant sites and their surrounding communities. More than 300 community advisory panels are in operation around the country.
(2) The Pollution Prevention Code.
This Code is designed to achieve ongoing reductions in the amount of all contaminants and pollutants released to the air, water, and land from member company facilities. These reductions are intended to respond to public concerns with the existence of such releases, and to further increase the margin of safety for public health and the environment.
(3) The Employee Health and Safety Code.
The goal of this Code is to protect and promote the health and safety of people working at or visiting member company work sites. To achieve this goal, the Code provides Management Practices designed to improve work site health and safety. These practices provide a multidisciplinary means to identify and assess hazards, prevent unsafe acts and conditions, maintain and improve employee health, and foster communication on health and safety issues.
(4) The Process Safety Code.
This Code is designed to improve operations and performance to reduce the potential for fires, explosions, and accidental chemical releases. The principal foundation of the Practices is that facilities will be safe if they are designed according to sound engineering practices; built, operated and maintained properly; and periodically reviewed for conformance. The Practices encompass process safety from the design stage through training, operation, and maintenance, and are applicable to existing operations as well as new facilities. The Code also requires that our members share relevant safety knowledge and lessons learned from incidents with industry, government and the community. Additionally, the Code mandates programs to assure that employees in safety critical jobs are fit for duty.
(5) The Distribution Code.
The purpose of the Distribution Code is to reduce the harm posed by the distribution of chemicals to the general public, carriers, distributors, contractors, chemical industry employees, and the environment. The Distribution Code of Management Practices applies to all modes of transportation and to the shipment of all chemicals, including chemical waste.
(6) The Product Stewardship Code.
The purpose of the Product Stewardship Code of Management Practices is to make health, safety, and environmental protection an integral part of designing, manufacturing, marketing, distributing, using, recycling, and disposing of our products. The Code provides guidance, as well as a means of measuring continuous improvement in the practice of product stewardship. The scope of the Code covers all stages of a product’s life. Successful implementation is a shared responsibility. Everyone involved with the product has responsibilities to address society’s interest in a healthy environment and in products that can be used safely. All employers are responsible for providing a safe workplace, and all who use and handle products must follow safe and environmentally sound practices.
The Council is also developing an accredited, third party audit process that will result in ISO 14001 and Responsible Care® certificates.
Our companies are committed to improving our safety record. We are continually working to improve our processes and eliminate accidents. One single injury or death is too many. Each year every member of the American Chemistry Council receives data relating to its process safety reportable incidents and distribution incidents for the previous year. Each company evaluates that information and takes steps to prevent those incidents in the future.
Since 1971, the Council has operated, as a public service, the 24-hour-a-day/7-day-a-week emergency communication center known as CHEMTREC®, which stands for CHEMical Transportation Emergency Center. When an incident occurs, CHEMTREC® provides emergency responders with technical assistance from industry product safety specialists, emergency response coordinators, toxicologists, physicians and other industry experts to safely mitigate the incident. All calls are free of charge to emergency responders. Additionally, CHEMTREC® has agreements in force with the U.S. Department of Transportation, the U.S. Army, and the Department of Defense to provide information and assistance to those organizations whenever and wherever it is needed.
Shortly after September 11, CHEMTREC® and the FBI’s Hazardous Materials Response Team augmented and improved their information-sharing and coordination activities.
Several organizations have joined together to form networks of private sector emergency responders and response contractors to further enhance the timely and efficient response to chemical transportation incidents. Other programs similar to Responsible Care® include the National Association of Chemical Distributors Responsible Distribution Program, and the American Waterways Operators Responsible Carrier Program.
Joint initiatives between the Council, the Association of American Railroads, and the Railway Progress Institute led to the publication of recommendations for the safe transport of hazardous materials by rail, addressing a range of issues from train speed and training to loading, unloading and preparation of tank cars.
A partnership between the Council and the National Tank Truck Carriers, Inc. led to the publication of a manual of recommendations addressing issues including: motor carrier selection, equipment and product handling, training, route selection, incident reporting, shipment documentation, risk management and others.
I. Chemical And Biological Weapons
After the September 11 attacks, interest turned toward a potential “second wave” of terrorist attacks. Many in the law enforcement community have said this next wave may consist of attacks using biological or chemical weapons.
The chemical industry has been a strong and steadfast supporter of the Chemical Weapons Convention. In fact, President Clinton cited the American Chemistry Council for its “extraordinary, sustained commitment to eliminating the threat of chemical weapons” after the convention became effective in 1997.
The goal of the convention is praiseworthy and it is one-of-a-kind in its approach. Members of the CWC commit to exclude completely the possibility of the use of chemical weapons worldwide through the combined efforts of their respective militaries and private industry.
In practice, the convention prohibits the manufacture of any chemical and certain specifically listed chemicals for use as a weapon, and mandates the destruction of all chemical weapons stockpiles. It also bans trade in certain chemical weapons agents and direct chemical weapons precursors between members and non-members. Private industry submits regular and detailed reports to the U.S. government on operations that involve chemicals that can be precursors to chemical weapons. The convention is the first of its kind in permitting on-site inspections of commercial facilities to verify compliance with the spirit and letter of the convention.
Since the CWC became effective in 1997, 143 countries have committed to the global cause of chemical weapons elimination under these terms.
In the United States, there is an additional incentive to comply with the convention. The U.S. criminalized the failure to submit required reports and to host on-site inspections. Failure to comply comes at an exceedingly high price.
At the same time, the CWC is just one among a number of chemical controls applied by American chemical companies. Chemical companies maintain comprehensive and current systems to “red-flag” potential sales of chemicals with potential for diversion and misuse in making chemical weapons. The systems are based on a company’s product line, customer markets, and regulatory obligations, and also incorporate extensive and informative guidance on effectively screening and identifying your customer. Combined with the company’s knowledge of chemistry and the business of chemistry, these systems protect the legitimate and intended use of chemicals in the vital and varied downstream industries we supply including, electronics, pharmaceuticals, computers and healthcare.
The CWC essentially requires government licenses on international sales of dual-use chemicals (chemicals manufactured for commercial use, but capable of being converted into a chemical weapon). The Convention imposes strict government reporting requirements on manufacturers of listed chemicals. They are required to keep records, provide access by appropriate officials to those records, and to submit appropriate periodic reports to the government. The treaty is also the first of its kind to permit on-site inspection of commercial facilities.
II. A Comprehensive Network of Existing Laws and Rules Already Promote Security.
The safety and security of America’s chemical manufacturing sites is the subject of many existing laws and regulations. These laws and regulations complement -- and in some cases were inspired by -- the Responsible Care® Management Practices that I discussed previously.
A. Toxic Substances Control Act (TSCA)
TSCA gives EPA comprehensive authority to regulate any chemical substance whose manufacture; processing, distribution in commerce; use or disposal may present an unreasonable risk of injury to health or the environment. Among other requirements, it mandates that chemical companies submit premanufacture notices that provide information on health and environmental effects for each new product and to test existing products for these effects. It also gives EPA authority to prohibit, limit or ban the manufacture, process, and use of chemicals.
B. Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Superfund Amendments Reauthorization Act (SARA).
CERCLA and SARA provide the basic legal framework for the federal “Superfund” program to clean up abandoned hazardous waste sites. CERCLA imposes specific taxes on chemicals and petroleum to fund the clean up program. Title III of SARA, the Emergency Planning and Community Right to Know Act, established the “right-to-know” standards. Since 1986, the chemical industry has been among the thousands of manufacturing sites regulated by EPCRA. The basic requirement of EPCRA is information sharing among manufacturers, state and local emergency planning and response agencies, and the public. Another important aspect of SARA is Section 313, Toxic Chemical Release Inventory (TRI) reporting. According to 1999 figures, since 1988, emissions have declined 65%.
EPCRA requires manufacturers to prepare and submit hazardous chemical inventory form to the appropriate local emergency planning committee, the state emergency response commission and the local fire department. Companies are required to report the amount of chemicals present at the facility, their location and manner of storage. The information is automatically made public through local emergency planning committees, and the law requires fire department access for on-site inspections. Companies must supply more detailed information upon request by local authorities.
EPCRA was derived largely from CAER, the Community Awareness and Emergency Response (CAER) program developed by the American Chemistry Council in 1985 in the immediate aftermath of Bhopal. As I discussed earlier, CAER is the Code of Management Practices that requires participating facilities to develop emergency response plans, and to conduct live drills to rehearse those plans on at least an annual basis.
The CAA provides EPA the authority to regulate air pollutants from automobiles, electric power plants, chemical plants and other industrial sources. Its 1990 amendments set control standards for industrial sources of 189 toxic air pollutants. Key provisions include:
v EPA’s Risk Management Program (RMP) Rule. The RMP is a set of regulations established under Section 112(r) of the Clean Air Act that provide guidance for the prevention and detection of accidental releases of regulated hazardous substance and preparation of facility risk management plans. This rule requires regulated facilities to prepare off-site consequence analyses in the event of a worst-case accidental release or exposure. These analyses help companies plan for effective emergency response and to take the appropriate measures to prevent off-site consequences from occurring.
v The Chemical Safety Information, Site Security and Fuels Regulatory Relief Act. This Act required facilities to hold a public meeting to summarize their RMP information, prohibits off-site consequence analyses from being posted by the government on the Internet, and mandates the DOJ vulnerability assessment of the chemical industry that I referred to previously.
v Clean Air Section 112(r) Act General Duty Clause directs owners and operators of facilities producing, using, handling or storing extremely hazardous substances (regardless of whether they are regulated substances) to design and maintain a safe facility to prevent accidental releases, and to minimize the consequence of any that occur.
D. Clean Water Act (CWA)
The CWA authorizes EPA to regulate effluents from sewage treatment works, chemical plants, and other industrial sources into waters. The CWA also requests that states identify and alleviate pollution problems. Currently, there are proposals in Congress to reauthorize the Act.
E. Safe Drinking Water Act (SDWA)
Establishes standards for public drinking water supplies.
F. Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
FIFRA provides EPA authority to register and assess the risks of agricultural pesticides, industrial biocides, and other non-agricultural pesticides.
G. Federal Food, Drug and Cosmetics Act (FFDCA)
The FFDCA provides the Food and Drug Administration authority to regulate the manufacturing of drugs and pharmaceuticals and the use of packaging and additives in food and cosmetics.
H. Food Quality Protection Act (FQPA)
The FQPA amends FIFRA and FFDCA to provide EPA with authority to regulate pesticides. It mandates a single, health-based standard for all pesticides in all foods; provides special protections for infants and children; expedites approval of safer pesticides; creates incentives for the development and maintenance of effective crop protection tools for American farmers; and requires periodic re-evaluation of pesticide registrations and tolerances to ensure that the scientific data supporting pesticide registrations will remain up-to-date in the future.
I. Resource Conservation and Recovery Act (RCRA)
RCRA provides EPA with authority to establish standards and regulations for handling and disposing of solid and hazardous wastes. These requirements include access controls, secondary containment, emergency preparedness plans and other plant security and safety measures.
OSHA provides the Department of Labor authority to set comprehensive workplace safety and health standards, including permissible exposures to chemicals in the workplace, and authority to conduct inspections and issue citations for violations of safety and health regulations. A key provisions is:
K. Hazardous Material Transportation Act (HMTA)
The HMTA provides the U.S. Department of Transportation (DOT) with the authority and responsibility to regulate the movement of hazardous materials. DOT's comprehensive "hazmat" regulations cover the packaging, labeling and movement of hazardous materials by railroad, truck, aircraft, and ships. (DOT also regulates hazmat pipeline safety under a separate statute, the Pipeline Safety Act.) Additional DOT hazmat regulations require training for employees, reports of transportation-related releases, and the provision on emergency response information, including a 24-hour telephone number on each hazmat shipment. Through this regulatory process, DOT provides the American public, the chemical industry, and our transportation partners with consistent national regulations governing the transportation of hazardous materials to customers across the country and around the world. In conjunction with representatives of other nations, DOT also participates in the development of international standards for the movement of hazardous materials. This further enhances safety and promotes commerce by harmonizing transport standards among nations.
L. Chemical Diversion and Trafficking Act (CDTA)
The CDTA is designed to prevent the diversion of chemicals to illegal drug producers. It gives the Drug Enforcement Agency the authority to control exports of chemicals to designated drug source countries.
M. Pollution Prevention Act (PPA)
The PPA makes it the national policy of the United States to reduce or eliminate the generation of waste at the source whenever feasible and directs EPA to undertake a multimedia program of information collection, technology transfer, and financial assistance to the States to implement this policy and to promote the use of source reduction techniques.
N. Flammable Fabrics Act (FFA)
The FFA gives the Consumer Product Safety Commission (CPSC) the authority to set flammability standards for fabrics that protect against an unreasonable risk of the occurrence of fire.
O. Poison Packaging Prevention Act (PPPA)
The PPPA provides the CPSC the authority to set standards for the special packaging of any household product to protect children from a hazard.
P. State Regulations
Many state governments are increasingly active in the environmental and safety areas. In addition to implementing federal programs like those described above, the states themselves are active in a range of issues that impact the chemical industry. These include hazardous waste and state right-to-know statutes.
In sum, thousands of pages of rules and regulations regulate the chemical industry.
III. Government Security Actions Needed
Let me now identify for you the things that our industry and others need in order to enhance our ability to secure our facilities and the safety of this country.
1. We need to have the DOJ chemical industry vulnerability study completed in a comprehensive manner. Currently, the only phase of the study that has been funded by Congress is the development of a methodology for use in the assessment. This is insufficient. In addition to our own actions to improve security, our industry would benefit from a comprehensive assessment conducted by law enforcement, security and safety experts. We have asked that funding be dedicated to complete the entire DOJ project so that the study will be completed in the most comprehensive manner possible.
We need to work together to devise performance-based and flexible approaches that address what needs to be accomplished, not how it is accomplished. This type of outreach program has a far better chance of actually reaching the broadest segment of chemical companies.
2. We need an efficient and timely intelligence and information sharing mechanism established at the highest level and in the timeliest manner possible. One method of facilitating this need would be for Congress to act quickly to pass a bill that would enable critical infrastructures and government to share information relating to physical and cyber security. A hybrid version of HR 2435, sponsored by Representatives Davis (R-VA) and Moran (D-VA), and S. 1456, sponsored by Senators Bennett (R-UT) and Kyl (R-AZ), provides the critical protections – such as exemptions from antitrust and freedom of information laws – that would allow industries to share this critical and sensitive information with one another and with government. I would be pleased to share a copy of this hybrid bill with you if requested.
3. Significant federal funding is necessary to increase the security of the entire rail transportation network; the security of our nation’s critical communications, computer, and train control systems; investment in the physical hardening of critical railroad infrastructures; research and development of improved technology for sealing rail cars.
4. Another action that would assist industries and communities throughout the country would be a program that provides financial assistance and tools to Local Emergency Planning Committees (LEPCs) that are struggling. LEPCs are critical to planning for emergency response and preparedness. We need to do all we can to enhance these critically important organizations.
IV. Chemical Security Act Of 2001
As I turn now to address the Chemical Security Act of 2001, let me first say that the American Chemistry Council supports this Subcommittee’s desire to improve the security of the chemical industry from a terrorist attack. We would like to cooperate with Senator Corzine and this Subcommittee to improve that security. However, we are concerned about several important aspects of this bill.
· Security begins by knowing the areas in which you are vulnerable. We should press forward with full funding and the early completion of the DOJ vulnerability assessment. Let us devote our time and money to the areas where the greatest risks lie.
· As we consider the best ways to enhance our nation's safety and security, it is imperative that we understand the vital products supplied by the business of chemistry, and thoroughly understand the ramifications of our actions.
Precipitous restrictions on the business of chemistry can have serious unintended consequences. For example, just last month the railroads invoked a short-term moratorium on shipments of chlorine, presumably as a security measure. Because they did not involve stakeholders in their decision-making process, they apparently did not know what effect that decision could have had on the safety of the nation's water supply. Chlorine-based disinfectants are used by 98% of modern water purification plants to kill bacteria and viruses. This is an essential factor in delivering safe water to homes for drinking, cooking and bathing. But many water utilities have only a few days' supply of these chemicals on-hand at any given time -- and sudden stoppages in our ability to deliver those products can have dire consequences.
· Our industry currently uses safe technologies and continually works to develop and implement safer ones. We conduct process hazard analyses of our facilities and as a result change processes, modify procedures and substitute materials to reduce and manage risks. Risk management decisions are made with several objectives in mind, including reduction of environmental impacts, worker safety, safety of the community in the vicinity of the plant and.
For example, low air emission standards require the use of vapor recovery systems that create closed systems that have a greater potential for fires and explosions. In these analyses it is important that the facility be given flexibility to choose management options that will reduce risk and meet existing regulatory requirements. In some cases this will involve process and equipment changes, but more effective choices might include modification of process controls. Imposing regulatory requirements that focus solely on equipment and raw materials, such as those in this bill can complicate these analyses and lead to decisions that may not address the largest risk and risk reduction opportunities.
We also need to keep in mind the complexity of the chemical industry processes. There are no “standard processes” and thus to expect meaningful and helpful regulatory oversight may be very difficult and very expensive. In fact, EPA concluded in the context of the RMP rulemaking that it would be impossible for EPA to understand the myriad of processes that exist and thus to determine how to propose regulations.
· The bill would duplicate existing legislative authority and regulations in several ways. First, the transportation of hazardous substances is already extensively regulated by the Department of Transportation. These regulations address all aspects of the transportation continuum, including training, packaging, loading, transport, unloading, storage incidental to transportation, and routing. Additionally, United Nations (UN) standards apply to packaging, labeling and handling of hazardous materials. The business of chemistry assists government agencies and the UN to develop safe and efficient transportation standards. The Department of Transportation should continue to have primary regulatory oversight for transportation issues, and every effort should be made to avoid overlapping and/or duplicative requirements.
Second, as I mentioned earlier, the Clean Air Act already contains a general duty clause applicable to owners and operators of stationary sources producing, processing, handling or storing any extremely hazardous substance to prevent against accidental releases. Thus, the bill appears simply duplicative of that authority, while at the same time extending it in very broad and unpredictable ways.
Third, the imminent and substantial endangerment provisions of this bill appear to overlap completely with Section 106 of CERCLA which authorizes response and cleanup actions when there is an “imminent and substantial endangerment” to the public’s natural resources from an actual or threatened release of hazardous substances. However, it expands unnecessarily what is already sufficiently broad authority. Section 5 also fails to preserve the President’s power under CERCLA to delegate his authorities to agencies besides EPA (e.g., the Coast Guard).
· The scope of the bill is overly broad in several respects. First, the substances of concern under the bill would be not just hazardous substances under CERCLA, but also pollutants and contaminants under that law, as well as petroleum in all its manifestations. This is a potentially infinite range of materials, particularly since there is no list of “pollutants and contaminants,” only a very inclusive definition. Congress and federal agencies have already identified those highly hazardous substances that may pose the greatest threat from accidental releases, and they are identified under EPA’s Risk Management Plan rule and OSHA’s Process Safety Management standard. Those lists were identified based upon their likely impact upon surrounding communities. Unless there is some new information, these do not need to identified again in a new law.
Second, many features of the bill are not limited to the “high priority” combinations of substances and sources that EPA would designate. Sections 5 (“abatement action”), 6 (“record keeping and entry”) and 7 (“penalties”) would apply to the owner or operator of any chemical source. That would include, for example, any person driving an automobile.
· This bill appears to establish absolute responsibility for any release no matter what the cause. Although it is unclear how it would be enforced, the bill appears to make it a crime to be a victim of a crime. Any owner or operator of a chemical facility would potentially become criminally responsible if a terrorist or other criminal attacked the facility. This is simply untenable and possible unconstitutional. The General Duty Clause of the Clean Air Act already requires industry to design and maintain a safe facility to prevent accidental releases, and to minimize the consequence of any that does occur. This is perfectly appropriate. But to enhance that duty to require industry to prevent acts of crime is completely improper. We cannot be expected to assume the role of a law enforcement authority. This is the government’s job.
· The bill presumes the public availability of “information relating to a potential accidental release or criminal release.” We have grave concerns about the unsupervised availability of this information. The American Chemistry Council fully supports the principles espoused in most legislation concerning the public’s right to know important information about their communities. However, we must find a way to achieve this without offering terrorists a roadmap.
· We now have an Office of Homeland Security that is charged with the responsibility of coordinating the multiple government agencies that influence and affect our national security. The security of the chemical industry is properly reserved to that office.
you for the opportunity to testify regarding the very important subject
of security in the chemical industry, a critical component of America’s
infrastructure. The chemical industry
stands ready to continue to work closely with Congress, EPA, law enforcement
and security experts to improve the security of our facilities.