Paul Orum of Working Group on Community Right-to-Know testified today before the Subcommittee on Superfund, Toxics, Risk, and Waste Management of the Senate Environment and Public Works Committee. Testimony of Paul Orum Working Group on Community Right-to-Know Before the Subcommittee on Superfund, Toxics, Risk, and Waste Management of the Senate Environment and Public Works Committee November 14, 2001   Thank you for the opportunity to testify today. I am Paul Orum, director of the Working Group on Community Right-to-Know. Since 1989 I have worked with many non-governmental organizations in all 50 states that are concerned with efforts to reduce chemical hazards and toxic pollution. We are here about one fundamental question: will there be a federal program to reduce chemical industry hazards that endanger communities - whether from criminal activity or accidents - or will there not? The terrorist attacks of September 11 show plainly that chemical plants and refineries could suffer a worst-case fire or toxic gas release. No longer can the chemical industry claim that a worst-case release is too improbable to occur. No longer can the U.S. Environmental Protection Agency claim that hazard reduction is a local matter with no need for a national hazard reduction program. No longer can the U.S. Department of Justice neglect its duty to review chemical security practices and to recommend ways of reducing vulnerabilities. No longer can the federal government impede public information about dangerous industry practices while taking no obvious steps to eliminate and reduce those dangers. No longer can anyone seriously propose that voluntary local programs are sufficient to fix the problem. Congress has an opportunity and a duty to fill a big hole in our laws by requiring chemical-using facilities to evaluate safer alternatives and use them wherever practicable. The Chemical Security Act of 2001 (S.1602) proposes constructive steps toward a national prevention and chemical security program, and gives government the tools it needs to protect communities in the new era of terrorism. There is a big hole in our chemical safety laws. People might think that the right programs are already in place, but they are not. Currently, no federal law actively regulates the vulnerability zones that hazardous chemical facilities impose on surrounding communities (in terms of size, intensity, or population at risk). Nor does any federal law require firms to even examine safer alternatives. Nor is terrorism a specific planning element in the Risk Management Program established by the Clean Air Act. Nor were regulatory thresholds under this act and other laws established with potential terrorism in mind.1 No federal law systematically encourages inherently safer alternatives at facilities that could suddenly release dangerous chemical plumes into surrounding communities. As a result, thousands of communities across the country have chemical hazards that may be wholly unnecessary. Current laws, generally speaking, are limited to cleanup, planning, response, and risk management:

• · In the early 1980s, U.S. chemical safety laws addressed cleaning up emergencies (i.e., CERCLA).
• · By the mid-1980s, U.S. chemical safety laws addressed preparing for emergencies (i.e., EPCRA).
• · From 1990, U.S. chemical safety laws addressed managing the risks of emergencies (i.e., EPA's Risk Management Plans and the Department of Labor's Process Safety Management of Highly Hazardous Chemicals).
• · The proposed Chemical Security Act, S.1602, will address eliminating and reducing chemical hazards in communities wherever practicable as the option of first resort.

Chemical site security is often poor. Both government reports and other incidents show serious security problems at chemical facilities. In addition, Congress should by now have in hand an interim report from the Department of Justice (DOJ) on site security for chemical facilities and transportation. Congress mandated this review in 1999 in the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act, with an interim report and recommendations due by August 2000. DOJ is apparently ignoring this requirement. Congress should make sure that DOJ produces this review and recommendations.2 DOJ is preparing a voluntary self-assessment tool for use by industrial facilities. This effort lacks a public docket. It uses an "acceptable risk" methodology that does not consult people at risk in surrounding communities. DOJ has not fulfilled a Freedom of Information Act request of July 30, 2001 on this project. The Department has also not directly addressed detailed concerns raised by a dozen environmental and labor groups in a letter first sent in August 2000, despite repeated attempts (see attached letters).

• The Agency for Toxic Substances and Disease Registry has reported that site security at chemical plants ranges from "fair to very poor" and at chemical transportation assets from "poor to non-existent."3 The American Chemistry Council has pointedly criticized this work, apparently to get the agency to retract or revise the report. We do not believe that the agency should do so.
• Greenpeace published photographs from inside a Dow Chemical plant in Plaquemine, Louisiana. The photos show the inside of an unoccupied building that controls big pumps that dump 500 million gallons of wastewater into the Mississippi River each day. Greenpeace reports that there were no guards at the perimeter, no security cameras, no alarms, and the door was unlocked. (See the photographs at: www.greenpeaceusa.org/media/press_releases/01_03_23.htm).
• In 1999, a reporter roamed about inside the Washington, DC's Blue Plains sewage treatment facility, which at that time stored tons of chlorine and sulfur dioxide, without being stopped or asked for identification.4
• A recent news article cited a professor who had confirmed that he could purchase all the essential ingredients for nerve gas - even after the September terrorist attacks.5 In addition, some commercial web sites assure buyers that they will remain anonymous (after simply registering) when buying chemicals.
• The Pacific Northwest National Laboratory found inadequate security at several Department of Energy military facilities that store hazardous chemicals.6
• Under existing regulations, a terrorist organization can set up a new trucking company in the U.S. or Canada, and obtain operating authority in the U.S. for an 18-month period without any federal or state safety review or security check simply by paying a fee. After obtaining a hazardous materials endorsement for a commercial drivers license by merely passing a written exam, drivers can legally drive semi-trailers carrying up to 80,000 pounds of placarded hazardous materials on nearly all roads and through all cities in the U.S.7

Chemical fires and spills occur frequently. Each year, companies in the United States report more than 25,000 fires, spills, or explosions involving hazardous chemicals to the National Response Center, a broad but incomplete federal record of mishaps involving oil or chemicals. At least 1,000 of these events each year involve deaths, injuries, or evacuations. Combined data from additional federal sources suggest that in 1998 there were over 100 deaths, nearly 5,000 injuries, and when including small spills, almost 50,000 incidents related to ordinary industrial use of chemicals in the United States.9 Some analysts suggest that for each catastrophic chemical accident that causes a fatality, there are 30 lost-time incidents, 300 recordable incidents, and 30,000 near misses.10 Serious incidents often cost jobs, and uncounted people suffer long-term consequences from being exposed to the dangerous chemicals. One estimate suggests costs of about $5 billion for major U.S. chemical accidents each year.11 Mostly-volunteer Local Emergency Planning Committees are no substitute for an urgent national effort to reduce chemical hazards. A recent study of 32 "active" Local Emergency Planning Committees (LEPC) found that "with a few exceptions, LEPCs do not believe they are positioned to effectively encourage facilities to reduce chemical hazards." Most of these LEPCs believe they "do not have the time, resources or expertise to encourage hazard reduction."12 Again, these were "active" LEPCs. An earlier national survey found that 21 percent of LEPCs were "inactive," 39 percent were "quasi-active," 16 percent were "compliant," and 24 percent were "proactive."13 Among many additional barriers, LEPCs lack the authority and mandate for hazard reduction; can be hampered by dependent relations with industry; have no formal role in implementing Risk Management Planning; and can become discouraged by a perceived unwillingness of government and industry to act. Many lack funding. According to one report, "many LEPCs exist only on paper, and many others exist, but have not succeeded in meeting even their basic responsibilities.14 There is a role for local volunteer efforts, but these efforts are no substitute for a national chemical hazard reduction program, and indeed would benefit from the leadership provided by an effective national program. Only major policy changes will create a successful national effort. We need a national response to potential terrorism, not just voluntary self-assessment programs. If site security at airports were voluntary, it wouldn't make Americans feel very safe. The following examples help illustrate the problem.

• Few chemical companies have set measurable goals and timelines to reduce inherent hazards. In a 1999 survey of 175 chemical industry facilities we found only one facility with a measurable goal and timeline for eliminating or reducing the size of its vulnerability zone for a worst-case accident.15 In a separate 1999 survey of nearly 200 major chemical companies, only three had developed measurable goals and timelines to reduce worst-case vulnerability zones.16
• The Environmental Protection Agency (EPA) has also side stepped obvious opportunities to encourage inherent safety. At EPA public hearings in 1994 and 1995, public interest groups vigorously supported having companies review inherently safer technologies as part of Risk Management Planning. The agency did not incorporate this approach. As an example of what can be achieved, Blue Plains sewage plant will complete work to replace chlorine gas in 2002, a welcome development.17 However, public interest groups, whistleblowers, and nearby facilities pushed for changes for years, and the problem has been known since 1982.18 This twenty-year turnaround suggests why we need a more proactive effort. Congress should ensure that we don't have to wait another twenty years to make high priority facilities safer on a national scale.
• Several chemical industry trade associations recently published voluntary site security guidelines for chemical companies.19 However, these guidelines are voluntary and lack standards, timelines, or measurable hazard reduction goals. They contain no third party verification and are not enforceable. They still dismiss worst-case scenarios and assume that mitigation will not be disabled (e.g., by an airplane crash). They don't address the added security risks of contract workers. They don't apply margins of safety. They don't weigh security costs against safer design. They don't include accounting methods to help identify theft. They don't address Internet sales and needed knowledge of customers. In general, they are not designed to protect public health and safety.

The Chemical Security Act, S.1602, proposes constructive steps to fix the problem. The Chemical Security Act will give government the mandate and tools it needs to ensure that hazardous chemical industries reduce hazards and protect chemicals from theft or intrusion. The act:

• Makes it a duty of high-priority industries to identify their chemical hazards, take steps to reduce the possibility of releases, and minimize the consequences of any releases that do occur.
• Puts prevention first, a new stage in U.S. chemical safety laws. The bill establishes a prevention hierarchy for accidental and criminal releases - from prevention as the first resort, to add-on controls, security,, and buffer zones. This hierarchy is similar to the one already used to prevent routine toxic pollution under the Pollution Prevention Act.20
• Inherently safer technologies eliminate or reduce the possibility of a chemical release;
• Well-maintained secondary containment, control, or mitigation options reduce the potential severity of a chemical release;
• Site security and training further reduce the likelihood of incidents; and,
• Buffer zones keep hazards away from vulnerable populations (and vice versa).
This approach addresses the fundamental difference between preventing a hazard and controlling it. There may not be safer alternatives to all chemical processes. But the Chemical Security Act proposes a hierarchy of responses that covers all bases and in all cases will identify feasible measures to protect lives, property, and the environment.
• Encourages technological innovation before static, add-on security measures. Add-on security always costs money. Innovation sometimes saves money. This approach recognizes that choice of technology determines safety features and site security. The bill does not prescribe "one size fits all" technologies.
• Provides a consistent definition of inherently safer technologies.
• Ensures that each safer technology used "reduces or eliminates the threats to public health and the environment" of a potential chemical release. This provision guards against shifting hazards to other environmental media or venues.
• Encourages healthy competition to produce, market, and use inherently safer technologies.
• Provides the Administrator and the Attorney General with necessary authorities (for abatement, record keeping, site entry, and penalties for non-compliance).
• Helps to ensure that government acts to protect people and communities.

There are many opportunities for inherently safer technologies. Specific examples, recent reports, and government efforts all suggest that there are opportunities to reduce inherent chemical safety hazards.21 A few examples help to illustrate what is possible:

• The European Union has issued guidance for its principle chemical accident prevention directive (the "Seveso Directive") that places inherent safety as a preferred approach to preventing chemical accidents.22
• The EPA has recommended in a chemical accident prevention site security alert that "eliminating or attenuating to the extent practicable any hazardous characteristic during facility or process design is generally preferable to simply adding on safety equipment or security measures."23
• A recent project conducted at four European firms (two each in the Netherlands and Greece) identified more than two-dozen feasible inherent safety alternatives, the majority with a payback period of less than two years.24
• In Washington, DC, the city's large Blue Plains Sewage Plant is switching from volatile chlorine gas to less volatile sodium hypochlorite bleach, which has far less potential for airborne off-site impact (as noted above).
• In New Jersey, hundreds of water treatment plants have switched away from or below threshold volumes of chlorine gas as a result of the state's Toxic Catastrophe Prevention Act - from 575 such water treatment facilities in 1988 to just 22 in 2001.25
• In Cheshire, Ohio, American Electric Power selected a urea-based pollution control system rather than one involving large-scale storage of ammonia that would have endangered the surrounding community.26
• In Cuyahoga County, Ohio, ALCOA reduced its potential off-site impact by working with local emergency planners and ending on-site storage of hydrofluoric acid and nitric acid.27
• A recent study of Local Emergency Planning Committees identified successful examples of hazard reduction in eight communities, involving ammonia, chlorine, toluene diisocyanate, and cyanide.28

EPA and DOJ could designate "high priority" categories in several ways. The Chemical Security Act does not prejudge which industries EPA and DOJ will determine pose the highest hazard. However there are several possible approaches, which EPA and DOJ could use in combination. For example:

• A draft screening analysis of EPA's Accidental Release Information Program reveals that 12 industry and chemical combinations account for 75 percent of serious accidents. The same approach identified 12 industry and chemical combinations that account for some 70 percent of the serious accidents reported under EPA's Risk Management Planning program.29
• In a 1995 analysis, EPA selected 19 high priority chemicals based on toxicity, volatility, production volume, accident history, and generic vulnerable zones. All but one of these chemicals had caused injuries or death in accidental releases. EPA then considered the storage, production, or use of these chemicals in conjunction with population density to identify approximately 2,000 high priority facilities in certain areas.30
• EPA's Risk Management Planning program includes some 15,000 facilities that use large amounts of extremely hazardous substances. Some 8,000 of these facilities project worst-case vulnerability zones in which more than 1,000 people live (not all of whom could usually be affected at once). Over 3,000 facilities project worst-case vulnerability zones in which more than 10,000 people live; about 700 facilities project vulnerability zones in which more than 100,000 people live, and 125 facilities project vulnerability zones in which more than 1,000,000 people live.31
• EPA and DOJ could set a minimum standard for high priority categories so as to include any facility that could cause death or serious injury off-site.

People support a federal prevention role. A recent survey found that between 81 percent and 88 percent of people living within a one-mile radius of a Risk Management Plan facility would feel safer knowing that the EPA or the Occupational Safety and Health Administration were providing accident prevention and hazard reduction assistance to hazardous chemical industries. This survey predated the September attacks. The survey also found that between 50 percent and 67 percent of these "near neighbors" were unaware of the specific Risk Management Plan facility.32The Chemical Security Act will help assure people that the government is legitimately taking steps to protect them. Attached: Design for prevention letter to the Attorney General, August 14, 2000. Send comments on this paper to Paul Orum Footnotes 1For example, a one-ton cylinder of chlorine falls below the Risk Management Planning thresholds set by EPA, but can create levels of chlorine gas two miles off-site that are considered "immediately dangerous to life and health." Department of Energy, "Example Process Hazard Analysis of a Department of Energy Water Chlorination Process," DOE/EH-0340. 2Letter to the Attorney General from Senator Harry Reid of June 14, 2001; letter to the Attorney General from Senators Frank Lautenberg and Max Baucus of February 11, 2000; and, letter to the National Institute of Justice from Senator James Jeffords of August 24, 2001. 3Agency for Toxic Substances and Disease Registry, Industrial Chemicals and Terrorism: Human Health Threat Analysis, Mitigation and Prevention. 4"Much Work Remains at Blue Plains, Officials Say," Washington Post, November 8, 1999. 5"Chemical Industry Rallies to Security Needs, But Perhaps Too Late, Experts Say," Newhouse News Service, 2001. 6Judith Bradbury, Environmental Technology Division, Pacific Northwest National Laboratory, U.S. Department of Energy, 1999. 7Testimony of Joan Claybrook, Advocates for Highway and Auto Safety and Public Citizen, before the Senate Subcommittee on Surface Transportation and Merchant Marine, Senate Committee on Commerce, Science, and Transportation, October 10, 2001. 8National Response Center. The NRC is the central federal agency to which chemical companies and transporters report oil and chemical spills. Reports to the NRC cover incidents small and large. Reports are initial and subject to verification and change (www.nrc.uscg.mil/foia.htm). 9Sam Mannan, Michela Gentile, and Mike O'Connor, "Chemical Incident Data Mining and Application to Chemical Safety Trend Analysis," Mary Kay O'Connor Chemical Process Safety Center, Texas A&M University, 2001. 10Mannan, et. al, adapted from Richard H. Squire, "Zero Period Process-A Description Of a Process to Zero Injuries," Process Safety Progress, March 2001. 11Larry Collins, Carmen D'Angelo, Craig Mattheissen, and Michael Perron, Estimating Chemical Accident Costs in the United States: A New Analytical Approach. 12National Institute for Chemical Studies (Charleston, W.V.), "Local Emergency Planning Committees and Risk Management Plans: Encouraging Hazard Reduction," prepared for U.S. EPA, Chemical Emergency Preparedness and Prevention Office (#CX 824095), June 2001. 13George Washington University, Department of Public Administration, Nationwide LEPC Survey, 1994. 14Resources for the Future, The Future of Local Emergency Planning Committees, 1993. 15U.S. Public Interest Research Group and Working Group on Community Right-to-Know, At Risk and In the Dark: Will Companies in Our Communities Reduce Their Chemical Disaster Zones?, June 1999. 16U.S. Public Interest Research Group and Working Group on Community Right-to-Know, At Risk and In the Dark: Will Companies in Our Communities Reduce Their Chemical Disaster Zones?, June 1999. 17"Toxic Chemicals' Security Worries Officials," Washington Post, November 12, 2001. 18Radian Corporation, Air Dispersion Model Assessment of Impacts From a Chlorine Spill at the Blue Plains Wastewater Treatment Plant (Final Report), December 15, 1982. 19American Chemistry Council, Chlorine Institute Inc., and Synthetic Organic Chemical Manufacturers Association, Site Security Guidelines for the U.S. Chemical Industry, October 2001. 20The Pollution Prevention Act, 42 U.S.C.A. 13101(b), made it "the national policy of the United States that pollution should be prevented or reduced at the source whenever feasible" followed by a hierarchy of waste management options. 21 General sources on inherently safer design include: Health and Safety Executive (of the United Kingdom), Technology Division, Designing and operating safe chemical reaction processes (www.hse.gov.uk); and, Trevor Kletz, Process Plants: A Handbook for Inherently Safer Design, 1998. 22The Directive on the Major Accident Hazards of Certain Industrial Activities (the "Seveso Directive") requires member countries to ensure that manufacturers prove a "competent authority" to identify major hazards, adopt appropriate safety measures, and inform, train, and equip employees. Directive guidance adopted in 1997 addresses inherent safety. 23U.S. Environmental Protection Agency, Chemical Accident Prevention: Site Security (EPA-K-550-F00-002), February 2000. 24Gerard I.J.M. Zwetsloot and Nicholas A. Ashford, "The Feasibility of Encouraging Inherently Safer Production in Industrial Firms," to be published in Safety Science. Zwetsloot is a professor at Erasmus University Rotterdam, Netherlands. Ashford is a professor at Massachusetts Institute of Technology. 25New Jersey Department of Environmental Protection, Communication from Reggie Baldini, September 19, 2001. 26American Electric Power, Press Release, December 18, 2000. 27Information provided by Stuart Greenberg, member, Cuyahoga County (Ohio) Local Emergency Planning Committee, 1998. 28National Institute for Chemical Studies, Ibid. 29National Chemical Safety Program, Mary Kay O'Connor Chemical Process Safety Center, Texas A&M University, Annual Assessment Report - 2001 (Draft Report); Neither the NCSP nor the National Chemical Safety Roundtable have endorsed as final the figures in this draft report. 30U.S. Environmental Protection Agency, Priority Risk Areas for CEPP Activities, June 1995. 31James Belke, U.S. Environmental Protection Agency, "Chemical accident risks in U.S. industry - A preliminary analysis of accident risk data from U.S. hazardous facilities," September 25, 2000. 32National Chemical Safety Center, Mary Kay O'Connor Chemical Process Safety Center, Texas A&M University, Survey of Public Trust and Community Interaction, 2001. This survey contacted over 700 people in randomly selected households near facilities that use, manufacture, or distribute chemicals around the United States.