U.S. House of Representatives: Committee on Energy and Commerce, RepublicansPrepared Witness Testimony: Baumann, Jeremiah

Subcommittee on Oversight and Investigations
July 9, 2002
09:00 AM
2123 Rayburn House Office Building

Mr. Jeremiah Baumann
Environmental Health Advocate
U.S. Public Interest Research Group
218 D Street, SE
Washington, DC, 20003

Thank you, Mr. Chairman and members of the Committee on Energy and Commerce, for the opportunity to testify before you today on the proposed Department of Homeland Security. My name is Jeremiah Baumann and I am the Environmental Health Advocate for the U.S. Public Interest Research Group (PIRG). U.S. PIRG is the federal advocacy office of the state PIRGs, a network of state-based public interest advocacy organizations with a 30-year history of advocacy for environmental and public health protection, consumer protection, good-government reforms, and other public interest issues.

My testimony will focus on the issue of chemical security, what needs to be done about this critical gap in security improvements to date, and ways that the Department of Homeland Security - as proposed - could become an obstacle rather than an asset in addressing this issue. In advance, however, I would like to make a few general observations that I think pervade the proposed bill creating a Department of Homeland Security beyond the realm of chemical security:

. The proposed bill, and particularly the sections addressing critical infrastructure, and chemical, biological, radiological, and nuclear countermeasures, lacks a focus on protecting public health and safety. Instead, the focus is on securing infrastructure and protecting assets. While these are often closely related to public health and safety, they need to be put in this context, and the new Department of Homeland Security needs a mandate from Congress to make public health and safety its priority.

. The proposed bill tends to focus on securing existing infrastructure when the first priority should be making infrastructure safer. Some attributes of critical infrastructures are inherently hazardous, but could be made inherently safer. Making our infrastructure safer will require changes to the infrastructure and investment in the near term. However, making infrastructure safer will be less expensive in the long term because the up-front investment will reduce or eliminate the significant costs of making inherently dangerous facilities and operations more secure, and of preparing for or responding to attacks on infrastructure.

. The proposed bill indicates a dangerous preference for secrecy. This could undermine basic mechanisms of public accountability, the public's right to know about threats to health and safety, and is likely to hinder, rather than help, safety.

Examining the threats posed by the use and storage of highly hazardous chemicals in facilities through out nation's industrial infrastructure demonstrates why these three concepts are important. Protecting against terrorist attacks on a chemical-using industrial site requires a focus on protecting public health and safety using the most effective strategies, not just securing industrial facilities and protecting their assets. Furthermore, simply securing facilities as they are, without making them inherently safer, will not protect public health and safety from terrorist-related chemical incidents. Finally, new secrecy measures will be an obstacle to protecting public health and safety from chemical incidents, a category of hazard where a long record of public safety improvements has demonstrated the value of openness and of the public's right to know.

Across America, thousands of industrial facilities use and store hazardous chemicals in quantities that put large numbers of Americans at risk of serious injury or death in the event of a chemical release. One hundred twenty-five facilities each put at least 1 million people at risk; 700 facilities each put at least 100,000 people at risk; and 3,000 facilities each put at least 10,000 people at risk.[1] According to a 1998 report by U.S. PIRG, 1 in 6 Americans lives within a vulnerable zone - the area in which there could be serious injury or death in the event of a chemical accident - created by a nearby industrial facility.[2]

The threat of terrorism has brought new scrutiny to the potential for terrorists to deliberately trigger accidents that until recently the chemical industry characterized as unlikely worst-case scenarios. Such an act could have even more severe consequences than the tens of thousands of chemical accidents that kill 150 Americans and injure 5,000 every year.[3]

Frederick L. Webber, president of the American Chemistry Council, has said "No one needed to convince us that we could be - and indeed would be - a target at some future date..If they're looking for the big bang, obviously you don't have to go far in your imagination to think about what the possibilities are."[4] The Agency for Toxic Substances and Disease Registry said in 1999 that chemicals at industrial sites provide terrorists with ".effective and readily accessible materials to develop improvised explosives, incendiaries and poisons."[5]

Unfortunately, that report found security at these facilities ranging from poor to nonexistent. More recent investigations since September 11^th tell the same story. Just months ago, a series in the Pittsburgh Tribune-Review reported that an intruder could freely enter and walk through more than 60 chemical facilities in Pennsylvania, Houston, Chicago, and Baltimore - completely unchallenged.[6] A recent report by the Department of Justice, made secret for unexplained reasons, apparently confirms these findings.

Fortunately, there are well-established measures for reducing hazards at facilities - and making communities safer. Reducing chemical hazards at industrial facilities means making process changes that reduce or eliminate the possibility of a chemical release by reducing chemical use or switching to safer chemicals and processes. For many chemicals and processes, there are readily available and safer alternatives. A few examples demonstrate this simple concept:

. In New Jersey, 553 water treatment facilities have stopped using chlorine gas because of its notorious potential for disastrous chemical releases.[7]

. Here in Washington, DC, the city's Blue Plains Sewage Treatment Plant has long recognized that a release of chlorine gas or sulfur dioxide could blanket the downtown area, as well as Anacostia, Reagan National Airport, and Alexandria.[8] Over the course of eight weeks after September 11^th, authorities quietly removed up to 900 tons of liquid chlorine and sulfur dioxide, moving tanker cars at night under guard. The city switched to a hypochlorite process that dramatically reduces the safety risk, virtually eliminating the chance of any off-site impact.[9]

. In response to the Pittsburgh Tribune-Review series on the danger of chemical plants' lax security, Bethlehem Steel in Pennsylvania is switching from hazardous sulfur dioxide to safer materials and processes.[10]

The threat of terrorism requires looking for ways to make industrial facilities inherently safer when it comes to chemical use. If terrorists continue to use airplanes or truck bombs, add-on security measures such as safety guards and physical barriers cannot prevent a chemical release. Similarly, secondary prevention or mitigation measures, such as safety valves, would be decidedly inadequate in the event of an attack like those seen on September 11^th.

Inherent safety is an opportunity for policymakers to remove a terrorist threat in many cases. This is an option that is not available for all terrorist risks. Airline passengers have to rely on increased security to make flying safer. For American industry, however, many chemicals have readily available safer alternatives and many facilities could re-design processes to be inherently safer.

Since September 11^th, the Senate has introduced, held hearings, and scheduled mark-up on a bill. But at this late date, little else has occurred to address chemical security. The administration developed a proposal on chemical security, but appears to have backed away from it. An EPA presentation in May outlined an aggressive legislative proposal, but later reports indicated that the proposal had been scaled back in scope and potentially reduced to agency guidance with little enforceability. News reports indicate that progress on the proposal slowed in response to resistance from the industry and from within the administration.

The Department of Justice has released its "Sandia methodology," guidance on assessing site security at chemical facilities. Unfortunately, this guidance has been issued with no indication that facilities will be required to implement it. Also, the guidance relies primarily on site security with only minimal mention of making facilities inherently safer. Additionally, the guidance is quite complicated and relies on sophisticated judgments on the relative risk of different security threats; it is unlikely that the average plant manager would have the expertise to implement this plan without assistance from security experts.

The American Chemistry Council touts a voluntary program being developed to increase site security at chemical plants. While the American Chemistry Council is doing the right thing by beginning to address the security risks at their facilities, their program is not and cannot be sufficient, for three reasons:

The threat of chemical use and storage at thousands of industrial facilities deserves the same attention to security as water treatment facilities and nuclear plants. Three basic components are required: a vulnerability assessment, a hazard reduction plan, and increases in site security where significant threats of off-site consequences remain.

The vulnerability assessment can follow methodologies laid out for other industry sectors and by various federal agencies and industry experts on a voluntary basis to date, with one critical difference: accountability. EPA's proposals have not included a requirement that vulnerability assessments be submitted to the federal government. This basic accountability is critical to government's ability to increase safety and protect against terrorist risks. Without the basic requirement that facilities submit their vulnerability assessments (and plans for reducing hazards and increasing site security) to the government, a federal program would be hardly an improvement over a voluntary program.

Requiring facilities to submit hazard reduction plans must be the heart of a federal chemical security program. Reducing hazards means reducing or eliminating terrorist targets in communities nationwide - the most effective protection possible. A program can take two approaches:

A federal chemical security program should be led by EPA. The agency has the expertise and history with chemical plant safety, as well as, appropriately, the regulatory authority. The new Department of Homeland Security should play an advisory or coordinating role, particularly on the site security components. Additionally, research-and-development funding could be directed toward identifying and promoting inherently safer technologies. It is critical that the new Department help improve chemical safety and security, but it is equally critical that the development of the new Department not stand in the way of swiftly establishing a federal chemical security program.

As noted above, EPA's attempts to establish a chemical security program have met obstacles in recent weeks. Congress should mandate a chemical security program to ensure that the program moves forward without delay. The Chemical Security Act, S. 1602, introduced in the Senate, provides a good model. That legislation should be passed by Congress, either as an amendment to the Homeland Security bill, or separately on a similar or shorter timeline.

The bill, as currently proposed, does not establish any chemical security program and moreover could confuse or delay progress on chemical security. It could do so because of its lack of clarity on the Department's role in chemical plant security and because of its lack of clear vision for how to address chemical security. Additionally, the proposed bill could undermine existing chemical safety programs by creating a sweeping exemption from the Freedom of Information Act that could reduce government and industry accountability and limit public access to information that could prove critical to protecting communities.

The bill does not clearly define what the new Department's authorities regarding critical infrastructure generally, and chemical plant security specifically, would be. Section 201 provides the Under Secretary for Information Analysis and Infrastructure Protection with "primary responsibilities" including:

. "comprehensively assessing the vulnerabilities" (paragraph (2)) and "developing a comprehensive national plan for securing" (paragraph (4)) "the key resources and critical infrastructure" (paragraphs (2) and (4));

. "integrating relevant information.to identify protective priorities and support protective measures by the Department, by other executive agencies.and by other entities" (paragraph (3));

. "taking or seeking to effect necessary measures to protect the key resources and critical infrastructures..in coordination with other executive agencies and.other entities" (paragraph (5)).

Section 301 provides the Under Secretary for Chemical, Biological, Radiological, and Nuclear Countermeasures with "primary responsibilities" including:

. "securing the people, infrastructures, property, resources, and systems" from acts of terrorism involving "chemical, biological, radiological, or nuclear weapons or other emerging threats" (paragraph (1));

. "conducting a national scientific research and development program" including efforts to "identify, devise, and implement scientific, technological, and other countermeasures" to the same threats (paragraph (2)); and

. "establishing priorities for, directing, funding, and conducting national research, development, and procurement of technology and systems..for detecting, preventing, protecting against, and responding to terrorist attacks that involve [chemical, biological, radiological, nuclear, and related] weapons and material" (paragraph (3) and (3)(B)).

These sections, examined together, create confusion and contradictions about where various authorities and responsibilities lie:

1. There are internal contradictions and confusion. What is the difference (or relationship) between the responsibility of the Under Secretary for Information Analysis and Infrastructure Protection for "taking or seeking to effect measures necessary to protect" critical infrastructure and the responsibility of the Under Secretary for Chemical, Biological, Radiological, and Nuclear Countermeasures for "securing" the people and infrastructures? Similarly, what is the difference (or relationship) between the former and latter Under Secretaries' responsibilities for identifying and establishing priorities?

2. It is unclear how these new Under Secretaries' "primary responsibilities" relate to those of other agencies whose functions are not transferred to the new Department. In some cases the new Department's responsibility seems to include "securing" people and infrastructure, but in other cases "taking or seeking to effect" measures "in coordination" with other executive agencies.

Congress should clarify that the role for the Department of Homeland Security is one of coordinating security programs and advising agencies whose functions are not transferred to the new Department, but that new authority in these cases is not being transferred or otherwise given to the new Department. EPA has the expertise and experience to address chemical safety and security. Moreover, EPA has the authority to address chemical safety and security, granted by the 1990 Clean Air Act Amendments.[12]

The agency which has the substantive expertise on safety protections for the affected industry should retain the authority. This is particularly true for the chemical industry, because deliberate or criminal efforts to trigger chemical releases are only one of many reasons a chemical release could threaten health and safety in a community (as noted above, there are thousands of accidental and non-terrorist related spills and releases every year), and because safety improvements through hazard reduction must be the primary strategy for securing public health and safety from chemical releases related to terrorism.

The bill, as proposed, focuses almost entirely on securing infrastructure and resources with little attention to protecting public health and safety. In fact, one of the few mentions of the public int the bill is to the Department having primary responsibility for "securing the people" (Sec. 301, paragraph (3)). "Securing" people hardly implies sound protection for public health and safety. While protecting public health and safety are presumably an end for which protecting critical infrastructure is a means, it is important that the new Department's mandate reside explicitly in this context. Without a clear mandate to protect public health and safety, the new Department could expend time and resources on measures that are in the short-term interest of protecting infrastructure and property but not in the long-term interest of protecting public safety, or could expend time and resources on security programs without a clear public benefit.

Without a clear definition of "critical infrastructures" or "key resources," there are few limits on or clear characteristics of what types of industrial facilities or other private properties represent resources whose protection is sufficiently in the public interest to justify expending considerable public funds. Protecting undefined assets could result in programs to protect private property and resources without any requirement that such protections merit the use of public resources. To help clarify what types of facilities or properties may merit protection, Congress should make protecting public health and safety a clear priority of the Department, its Secretary, and each of the relevant Under Secretaries.

Congress should ensure that the new Department prioritizes reducing hazards and reducing vulnerabilities, not simply assessing them and not relying only on traditional security strategies of perimeter security, access control, and surveillance. As discussed above, public health and safety can best be "secured" against a deliberate chemical release from an industrial facility by reducing the hazard such that off-site impacts of a release are reduced or eliminated.

Site security - perimeter security, access control, and surveillance - are band-aid fixes that should only be relied on where there is no way to reduce the inherent danger. The first question that the new Department (and other agencies with whom it coordinates) should ask is: Can the infrastructure be made safer? Reducing or eliminating the possibility of a chemical release is the most effective and long-term protection for public health and safety and also reduced (or eliminates) the need for security measures, reducing costs to the government and the affected industry.

Inherent safety can be applied across industry sectors. For example, transporting nuclear waste throughout our country to move it to the Yucca Mountain site will dramatically increase the inherent dangers in our infrastructure. Since nuclear facilities will continue to generate highly hazardous nuclear waste on site, regularly moving waste across our highways and rails will expand, not reduce, the amount of highly hazardous "infrastructure" in our country. This increased hazard will require more costs for security than would leaving the waste on site, where a fixed facility would be easier to secure than a moving vehicle.

Fossil fuel energy offers another example. Securing the length of a vulnerable pipeline would likely be extraordinarily expensive and questionably effective. Removing pipelines from densely populated areas would not only be less costly, but also dramatically (and inherently) safer. Moving toward renewable energy, such as solar and wind, and particularly distributed generation, such as on-site solar or wind generators, would be inherently safer than expanding production from fossil-fuel based energy sources that rely on highly vulnerable systems for transporting energy.

Congress should make reducing hazards and vulnerabilities the national policy of the United States, as the most effective threat reduction strategy, and should direct the new Department to work toward this end with the agencies that have current authority, rather than providing new or redundant authority.

The proposed bill shows a troubling request for secrecy by proposing a sweeping and unprecedented exemption from the Freedom of Information Act. Restricting the public's right to know about hazards in communities and industry or government actions to remedy them could hurt safety rather than help it. By restricting our right to know, even through a well-intentioned effort to protect safety, government is abandoning its duty to warn the public if a community is at risk. It is limiting the ability of the public and communities to understand, prepare for, and respond to threats to safety. And it is also removing one of the most effective - and in a democratic society, substantively important - incentives for public safety improvements: public information.

There are three primary ways that restricting public access to information can decrease public safety. First, secrecy without safety provisions - which is the strategy proposed by the bill - does nothing to address the threats except make them secret. Since September 11^th, the administration has regularly employed public warnings. Allowing new secrecy could undermine efforts to provide due warning. Restricting public access also makes the community less safe because the ability of individuals and communities to participate in safety decisions ranging from chemical management and hazard reduction to site security and emergency response planning, is reduced and potentially eliminated. It is for exactly this reason that the Congress has for several decades used public disclosure and right-to-know laws - not secrecy provisions - to protect public safety, particularly from chemical hazards.

Public disclosure is a strategy with a long record of reducing risk. Public information empowers individuals and communities to work for measures that will reduce risk by working directly with a company locally or by advocating for policy changes to require risk reductions. As importantly, right-to-know programs provide a public incentive for relevant parties to be accountable to public values. The Toxics Release Inventory, established under the 1986 Emergency Planning and Community Right-to-Know Act, has been credited with contributing to a nearly-50% reduction in toxic chemical releases. More robust right-to-know programs have seen proportionally greater impacts. In Massachusetts, where companies report not just chemical releases but also chemical use, in products or in the workplace, chemical use is down approximately 40% and chemical releases are down nearly 90%. Restricting public access to information restricts opportunities for these kinds of protections of public safety and health and removes accountability for government and corporate actors.

Section 204 of the proposed bill would contradict these lessons by creating an unprecedented and unwarranted loophole in the Freedom of Information Act. This section runs counter to the fundamental principle of FOIA: a presumption that the people of the United States have wide-ranging access to their government and that a government of, by, and for the people requires an open government. In the rare cases where a compelling public interest requires secrecy, FOIA allows carefully limited exceptions for specific documents.

The proposed bill runs almost exactly counter to this approach. It does not even define what documents would be exempt from FOIA that could not be covered by current FOIA exemptions (which already exist for national security, trade secrets, and certain voluntarily provided information), much less explain what compelling public interest necessitates this exemption. The requirements for what information could be made exempt are so vague that virtually any information on American industry, including information required to be public under other laws, could potentially be submitted to the new Department, certified as "relating" to critical infrastructure vulnerabilities, and permanently removed from public access. This would be a colossal step backwards for open government, public accountability, and the public's right to know about safety threats.

When Congress addressed the security of water supplies, it was first determined that for vulnerability assessments being submitted to the government, current FOIA law may require public disclosure and that such disclosure could be a security threat. Congress then exempted only these documents from disclosure under FOIA. This should be the model for considering any exceptions from FOIA.

Because this bill creates no new vulnerability assessments and requires no new information to be submitted to the government, Congress should not consider creating any new FOIA exemptions. Section 204 should be struck from the bill.

[1] James 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.

[2] U.S. Public Interest Research Group and National Environmental Law Center. Too Close to Home. July 1998.

[3]Mannan, Gentile, and O'Connor. "Chemical Incident Data Mining and Application to Chemical Safety Trend Analysis," Mary Kay O'Connor Process Safety Center, Texas A&M University, 2001.

[4] Eric Pianin. "Toxic Chemicals' Security Worries Officials," Washington Post, November 12, 2001.

[5] Pianin 2001 Ibid.

[6] Carl Prine. "Lax Security Exposes Lethal Chemical Supplies," Pittsburgh Tribune-Review, April 7, 2002; and "Chemicals Pose Risks Nationwide," Pittsburgh Tribune-Review, May 5, 2002.

[7] Information provided by R. Baldini, Bureau of Release Prevention, New Jersey Department of Environmental Protection, September 2001.

[8] Radian Corporation. "Air Dispersion Model Assessment of Impacts From a Chlorine Spill at the Blue Plains Wastewater Treatment Plant," 1982; See also Chlorine Institute, Pamphlet 74, April 1998.

[9] Carol D. Leonnig and Spencer S. Hsu. "Fearing Attack, Blue Plains Ceases Toxic Chemical Use," Washington Post, November 10, 2001.

[10] Carl Prine. "Companies Respond to Infiltration of Facilities." The Pittsburgh Tribune-Review, May 5, 2002.

[11] U.S. PIRG Education Fund. Trust Us, Don't Track Us. January 1998.

[12] Clean Air Act Section 112(r)'s general duty clause, definitions, and particularly 112(r)(7)(a).

Creating the Department of Homeland Security: Consideration of the Administration's Proposal