STATEMENT OF
THOMAS P. DUNNE
DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
COMMITTEE ON HOMELAND SECURITY
AND GOVERNEMENT AFFAIRS
UNITED STATES SENATE
June 15,2005
Madam Chairwoman and members of the Committee, I am Thomas Dunne,
Deputy Assistant Administrator of the Office of Solid Waste and Emergency Response
(OSWER), U S Environmental Protection Agency (EPA). I am pleased to be here to
discuss EPA's Emergency Response Program and the issue of chemical site security
INTRODUCTION
EPA's Office of Solid Waste and Emergency Response manages EPA's response
to environmental emergencies, EPA's national planning and preparedness functions, as
well as development and implementation of Federal regulations to prevent hazardous
chemical accidents and oil spills.
In carrying out our emergency response functions, we work closely with EPA's
10 regional offices, our Federal agency partners, and state and local authorities to respond
to major environmental emergencies and to conduct emergency removal actions at oil
spill and hazardous waste sites. In this capacity, we respond to several hundred major oil
spills and hazardous chemical releases each year EPA has more than 200 highly trained
Federal response officials, known as On Scene Coordinators (OSCs), stationed
throughout the country, who are ready to quickly respond to release reports We have two
specialized Environmental Response Teams and a Radiological Emergency Response
Team available at all times. We are also in the process of staffing a new National
Decontamination Team - a cadre of highly specialized and expenenced emergency
responders, engineers and scientists dedicated to providing immediate technical
decontamination expertise at the scene of a chemical, biological, or radiological attack
The events EPA responds to cover a wide range of emergencies, including the anthrax
attacks that affected Senate office buildings, the collapse of the World Trade Center in
New York City, a multi-state effort to recover every surviving piece of the Space Shuttle
Columbia, and many others.
In addition to managing our field emergency response functions, EPA has also
partnered with the Department of Homeland Security and other Federal agencies in
development and implementation of the National Response Plan (NRP), the National
Incident Management System (NIMS), and the National Infrastructure Protection Plan
(NIPP) and to carry out EPA's responsibilities under those plans The NRP and NIMS
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abgn the old national response system into a more cohesive structure that integrates the
incident management and emergency response capabilities and resources of Federal,
State, and local governments into a national framework for domestic incident
management The NIPP provides a nsk management framework for the coordinated
protection of our critical infrastructure and key resources
Lastly, we are responsible for development and implementation of Federal
regulations for hazardous chemical inventory reporting under the Emergency Planning
and Community Right-to-Know Act (EPCRA), emergency release reporting requirements
contained in the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), oil spill prevention and response planning requirements under the Oil
Pollution Act (OPA), and chemical accident prevention and mitigation under the Clean
Air Act (CAA)
EPCRA AND THE CAA RISK MANAGEMENT PROGRAM
Congress passed both EPCRA and CAA section 112(r), establishing the chemical
accident prevention program, in response to the December 1984 toxic chemical disaster
in Bhopal, India, and subsequent chemical accidents that occurred in the United States in
the mid to late 1980s EPCRA calls on U S. states to create State Emergency Response
Commissions (SERCs) and local communities to form Local Emergency Planning
Committees (LEPCs) to prepare local emergency response plans for chemical accidents.
EPCRA also requires chemical facilities to provide LEPCs with information necessary
for emergency planning, and to submit annual chemical inventory reports and
information about the facility's hazardous chemicals to SERCs, LEPCs and local fire
departments
As its name suggests, EPCRA promotes hazard information sharing and
emergency planning However, EPCRA does not require facilities to take actions to
prevent chemical accidents from occurring Major chemical accidents continued to occur
in the U.S throughout the late 1980s, and in 1990 Congress added section 112(r) to the
Clean Air Act (CAA) to address the problem CAA section 112(r) imposes a "general
duty" on all stationary facilities handling extremely hazardous chemicals to prevent and
mitigate accidental releases of those chemicals into the air It also directs EPA to
promulgate risk management requirements for the subset of facilities having large
quantities of the most dangerous chemicals
In accordance with Congress' direction, EPA listed 140 chemicals and threshold
quantities, based on potential harm to human health and the environment in the event of
an air release Facilities having a listed chemical present in more than a threshold
quantity must conduct a hazard assessment, develop and implement an accident
prevention and emergency response program, analyze the potential consequences of
worst-case and alternative (less severe) release scenarios, and provide a summary report -
called a Risk Management Plan, or RMP - to EPA Approximately 15,000 chemical
facilities are subject to RMP requirements.
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RMPs contain valuable information about a chemical facility and its hazards. In
addition to providing the address and physical location of the facility, RMPs report the
identity and quantity of each regulated chemical on site, information about the measures
taken by the facility to prevent accidental releases, facility emergency planning
information, the history of significant accidents at the facility over the last five years, and
the facility's Offsite Consequence Analysis (OCA) information, which provides the
facility's analytical estimate of the potential consequences of hypothetical worst-case and
alternative release scenarios EPA maintains a national electronic database of RMPs,
known as RMP*Info, which is currently the most comprehensive database of chemical
facility hazard information in existence
Both EPCRA and CAA section 112 (r) contribute to facility safety and emergency
preparedness to reduce the vulnerability of facilities and their communities to terrorist
attacks EPCRA's reporting requirements ensure that communities are made aware of
hazardous chemicals located in their area, and SERCs and LEPCs established under the
law help prepare communities to respond to any catastrophic releases of those chemicals
The CAA requirement for facilities to assess and address their chemical hazards reduces
the risk that any unanticipated release will seriously threaten public health and the
environment The CAA requirement that facilities have emergency response plans in
place also helps lessen the potential consequences of any unanticipated release, however
caused In addition, the national RMP database created under the CAA has proven to be
one of the Federal government's most important sources of information on the risks
associated with U.S. hazardous chemical facilities
Following September 11 terrorist attacks, the President initially assigned EPA
with the responsibility for addressing the security of the chemical and drinking water
sectors. In that capacity, EPA considered whether it had authority under CAA section
112(r) to require facilities handling extremely hazardous substances to secure themselves
against terrorist attack. The CAA section 112(r) requirements apply to "accidental
releases" of extremely hazardous substances, and the Act defines "accidental releases" as
"unanticipated releases" from stationary sources to ambient (or outdoor) air. While an
argument could be made that concern for "unanticipated releases" might require some
measures that would diminish the effect of a terrorist attack, EPA concluded that a broad
interpretation would be subject to significant legal vulnerability It would be legally
questionable to conclude that EPA's 112 (r) authority can be stretched to mandate that
facilities install particular types of perimeter fencing, vehicle barriers, armed protection,
cyber security, anti-sabotage or other security measures specifically designed to defeat
intentional terrorist attacks The Agency also recognized that even if the CAA were
interpreted to reach terrorist-caused releases, it would not address all the ways in which a
terrorist might attempt to use a chemical facility to harm the public. Because the CAA
definition of "accidental releases" is limited to outdoor air releases from stationary
sources, a CAA chemical security program could not reach releases to water, land or
indoor air, or theft of chemicals from facilities for release elsewhere. In light of these
legal and policy concerns, EPA decided against interpreting the CAA to require facilities
subject to section 112(r) to protect them against terrorist attack.
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FEDERAL CHEMICAL SITE SECURITY LEGISLATION
Two U S laws enacted since September 11, 2001 mandate security requirements
for some categories of chemical facilities The Public Health Security and Bioterronsm
Preparedness and Response Act of 2002 requires larger community water utilities (many
of which use large quantities of hazardous chemicals such as chlonne and ammonia) to
conduct security vulnerability assessments, implement emergency preparedness and
response plans, and submit the vulnerability assessments to EPA The Bioterrorism Act
does not require that utilities make specific security-related improvements However,
EPA does have authority under section 1431 of the Safe Drinking Water Act to require a
water system, or any person, to take any action necessary to address an imminent and
substantial endangerment to public health as a result of potential or threatened
contamination of public water systems Such actions might include requiring a utility or
a group of utilities to enhance security in response to certain threats to the water supply
The Bioterronsm Act also requires EPA to study methods to prevent, detect, and respond
to terrorist threats to the safety and security of water distribution systems and
infrastructure
A second new law, the Maritime Transportation Security Act (MTSA), requires
ports, vessels, and port facilities to conduct vulnerability assessments, develop
transportation security plans, and develop security incident response plans. For chemical
facilities located within a port, this law requires specific security measures
PRIVATE SECTOR EFFORTS
Since September 11, 2001, many hazardous chemical facilities have already made
significant investments in traditional physical security measures such as perimeter fences
and lighting, security guards, access controls and the like, as well as measures to improve
operational security, employee screening, and security of electronic systems. For
example, shortly after 9/11, one of the first steps taken by the American Chemistry
Council was to add a new Security Code to the existing Responsible Care program, and
issue site security guidelines for the U S. chemical industry. The new Security Code
requires ACC member companies to conduct a security vulnerability assessment,
implement security enhancements, and independently verify those enhancements using a
third-party audit. Other trade associations representing industries that manufacture or use
hazardous chemicals have also implemented non-regulatory programs to enhance
security Some facilities have also taken steps to reduce their level of inherent risk by
employing safer production technologies or substituting less hazardous chemicals for
highly toxic chemicals.
COORDINATION WITH DHS
After the creation of the Department of Homeland Secunty (DHS), Homeland
Security Presidential Directive 7 made DHS the lead agency for interacting with the
chemical industry and the hazardous materials sector on infrastructure protection issues
in the chemical sector At that time, EPA and DHS effected a transition of ongoing
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Federal chemical security efforts to DHS in a series of meetings between the two
agencies. DHS is currently the lead Federal agency for chemical sector security, and
EPA serves in a supporting role by providing information and analytical support as
requested.
CONCLUSION
In closing, the Federal government and the chemical sector have made significant
progress in improving the security of facilities handling extremely hazardous substances
At the same time, only a fraction of U.S hazardous chemical facilities are currently
subject to Federal security requirements under the Bioterronsm Act or the MTSA. While
organizations such as the Amencan Chemistry Council should be recognized for their
important voluntary efforts, we cannot be sure that every high-risk chemical facility has
taken voluntary action to secure itself against terrorism As DHS continues its efforts to
address chemical site security issues, EPA stands ready to support them in those
initiatives
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