The Fertilizer Institute
on
S. 1602—The Chemical
Security Act of 2001
by
Everett Zillinger
Director, Government
Relations
For the Committee on the
Environment and Public Works
United States Senate
November 14, 2001
On
behalf of its membership, The Fertilizer Institute submits this statement and
comments of concern regarding S. 1602, the Chemical Security Act of 2001, which
is pending before the Senate Environment and Public Works Committee.
The Fertilizer Institute (TFI) represents by voluntary membership more than 90 percent of the U.S. fertilizer industry. Producers, manufacturers, retailers, trading firms and equipment manufacturers, which comprise its membership, are served by a full time Washington, D.C. staff in various legislative, educational and technical areas as well as with information and public relations programs. Together, TFI members produce and distribute approximately 22.0 million tons per year of commercial fertilizers to farmers. The North American fertilizer industry has developed the production facilities and infrastructure necessary to deliver the types and quantities of fertilizer products to farmers within the narrow time frames of the crop planting and growing seasons.
What is Fertilizer?
Fertilizer
is simply, food for plants. Just like
the human body needs vitamins and minerals, plants need nutrients in order to
grow. Also like humans and animals, plants need adequate water, sufficient
food, and protection from diseases and pests to be healthy. To grow and
reproduce, plants need large amounts of three basic nutrients—nitrogen, phosphorous, and potassium.
Nitrogen,
for example, is part of every plant’s proteins and is a component of DNA and
RNA, the genetic “blueprints” of life itself.
Taken up in larger amounts than other nutrients, nitrogen makes plants
green and is usually most responsible for increasing yields. Phosphate helps plants use water
efficiently, promotes root growth, and improves the quality of grains. Potassium, commonly called potash, is
important because it is necessary for photosynthesis, which is the production,
transportation and accumulation of
sugars
in the plant. Potash makes plants hardy and helps them to withstand the stress
of drought and helps the plant fight of disease.
Today’s
commercial fertilizer industry was founded on the revolutionary scientific
discovery in the last part of the 18th century that chemical
elements play a direct role in plant nutrition. This initial concept opened the
way for industrial scale manufacturing of fertilizers of all types in the 19th
century. Following World War II, new
technologies allowed for the rapid expansion of fertilizer production. Coupled with growing food demand and the
development of higher-yielding crop varieties, fertilizer helped fuel the Green
Revolution.
The efficient use of fertilizer also helps to conserve our natural environment. With fertilizers and modern high-yield farming practices, more food is produced per acre each year so land may be conserved. Fertilizers used properly, works to maximize yields on farmland already in production while helping to prevent the widespread loss of forests, rainforests, and environmentally important habitat. Use of marginal land, and habitat for “slash and burn” low-yield farming represents a major global environmental threat.
Fertilizers
enhance many consumer products. For
example, thanks to fertilizers, fruits and vegetables are available in
affordable abundance year around in every state of the nation. Nitrogen is used to make nitric acid, a
major component in batteries, tires, lacquers and paints. Many soda drinks contain phosphoric acid,
derived from phosphate, and many bath soaps and detergents contain potash.
Fertilizers
are also at work in industry. Aside
from their benefits to agriculture, fertilizer components are central to such
industrial processes as semiconductor chip making, resin manufacture, cattle
feed production, metal finishing, the manufacture of detergents, fiberglass
insulation and even rocket fuel needed for our space, satellite and
communications industries.
Finally,
and most importantly, fertilizers are critically necessary in order to feed our
world’s growing population. As the
world’s population continues to climb toward an estimated 8.5 billion in the
year 2040, experts estimate that food production must increase more than two
percent annually just to maintain current diets. For example, commercial fertilizer nitrogen (N) accounts for
approximately half of all N reaching global croplands today and supplies food
needs for at least 40 percent of the population. Due to global population increase and the expansion of global prosperity
and diet quality, it is estimated that at least 60 percent of humanity will
eventually owe its nutritional survival to N fertilizer. (Smil, V. 2001.
Enriching the Earth. MIT Press, Cambridge Mass.)
Fertilizers Contribute to
the American Way of Life
The
United States and many other developed nations are blessed with safe, abundant
and affordable food. Thanks to
fertilizers, the productivity of U.S. farmers and livestock producers and an
efficient agribusiness processing, storage and transportation system--Americans
spend less than 8 percent of their disposable income on food. This leaves 92 percent of American’s
disposable income for travel, entertainment, spacious homes, multiple cars,
college tuition or a vast array of consumer products and activities that
contribute to our way of life. Today,
the abundance of food we enjoy is just one way fertilizers help enrich the
world around us.
Commercial
fertilizers are extensively regulated in the United States both at the federal
and state levels. The industry must
comply with federal laws regarding reporting and emission standards for air and
water quality. The industry must also
comply with many other federal laws including but not limited to: the Resource
Conservation and Recovery Acts (RCRA), the Clean Air Act (CCA), the Clean Water
Act (CWA), the Safe Drinking Water Act (SDWA), the Coastal Zone Management Act
(CZMA), the Occupational Safety and Health Act (OSHA) and the Community
Right-to-Know Act (EPCRA).
State
regulation of fertilizer products is primarily concerned with consumer
protection, labeling, the protection of human health and the environment, and
the proper handling and applications of fertilizers.
Response to
Terrorism
TFI members have greatly increased security
procedures since September 11th, and we thank those federal, state
and local agencies that have worked with our individual facilities to improve
our security programs. TFI and its member companies have worked closely with
federal agencies such as the Federal Bureau of Investigation (FBI), the Coast
Guard, and the Environmental Protection Agency. In addition, we have cooperated with numerous state and local
agencies, including emergency response personnel, to heighten security at our
industry’s manufacturing sites, storage facilities, transportation
infrastructure and retail outlets.
Our industry also has worked extensively to protect
against misuse of our products, most notably through our voluntary “Be Aware”
and “Be Secure” campaigns created in partnership with the U.S. Federal Bureau
of Alcohol, Tobacco and Firearms (BATF).
These important efforts have proven effective and successful in
assisting our industry’s retail sector and local law enforcement to be alert
and suspicious people trying to purchase beneficial fertilizer products for
potentially criminal purposes—and to report any suspicious activity immediately
to the proper authorities. Future security efforts should build upon these
existing working relationships.
Views on S.
1602
In
light of the already extensive federal and state regulations addressing
commercial fertilizer products and the industry’s proactive voluntary efforts
noted above, TFI submits this statement of comments regarding the advisability
and purpose of S. 1602.
SUMMARY
OF S. 1602, THE CHEMICAL SECURITY ACT OF 2001
On
October 31, 2001 Senators Corzine, Jeffords, Boxer and Clinton introduced S.
1602, The Chemical Security Act of 2001.
The legislation proposes to safeguard facilities where hazardous
chemicals are present by giving EPA and the Justice Department authority to
issue administrative orders or seek court orders requiring facilities to take
immediate steps to improve security.
These steps could include improvements to personnel security, as well as
changes in a facility’s physical structure or operations.
Specifically
the bill:
·
Requires
each owner or operator of a high priority chemical source to take actions
including safer design and maintenance to prevent, control and minimize
potential accidental or criminal releases;
·
Defines
“safer design and maintenance” as the use of inherently safer technology,
well-maintained secondary containment, control or mitigation equipment, making
a chemical source highly resistant to intruders, improving security and employee
training including employee personnel background checks, use of buffer zones
between a chemical source and surrounding populations centers.
·
Defines
“inherently safer technology” to include input substitution, catalyst or
carrier substitution, process redesign,
product reformulation, procedure simplification and technology modification;
·
Establish
a “general duty” requiring each owner or operator to identify hazards that may
result in an accidental or criminal release.
As a result, facilities would have the general duty to prevent criminal
activities for which they had no knowledge or participation. If operators fail to prevent criminal
releases then the owner or operator is subject to the criminal penalties noted
below;
·
Requires
EPA and DOJ to consider severity of harm caused by a chemical’s accidental or
criminal release and a chemical’s proximity to population centers, potential threat
to national security and critical infrastructure;
·
Requires
EPA and DOJ to designate those chemical manufacturers and transporters most at
risk;
·
Defines
a chemical source as a stationary source, vessel, motor vehicle, rolling stock
or container;
·
Allows
EPA and DOJ to seek relief in district courts to abate danger or threat to the
public health and welfare or the environment from an accidental or criminal
release and issue such orders as necessary to protect public health or welfare
of the environment;
·
Requires
record keeping, reporting and provides EPA or DOJ the right of entry on any
premises of an owner or operator of a chemical source and copying of any
records or information necessary;
·
Provides
for civil penalties of up to $25,000 a day and criminal penalties of no less
than $2,500 a day or no more than $25,000 a day, or imprisonment (or both) of
an owner or operator of a chemical source that violates, fails to comply with
or knowing violates orders issued or regulations promulgated as a result of
this Act.
Following is a listing of specific concerns regarding S. 1602, and the effects the legislation could have on the North American fertilizer industry:
1.
Prevention of accidental
releases is very different than prevention of terrorism acts. These should not
be viewed as equivalent activities.
-
Accident
prevention involves ensuring equipment integrity, managing process parameters
and emergency planning and execution. It is a facility-specific process that
focuses on maximizing the routine of efficient, safe chemical production.
-
Terrorism
prevention involves securing infrastructure, scrutinizing all personnel and
materials that move onsite, and implementing anti-terrorism infrastructure and
programs. It is an extroverted process
that focuses on the unusual, unknown or asymmetrical.
-
While
there are areas of overlap, prevention of accidental releases will not prevent
terrorist threats and vice versa.
2.
The bill as proposed creates
redundant accidental release activities.
-
Accidental
releases at facilities are already covered under two existing regulatory
frameworks – EPA’s Risk Management Plan and OSHA’s Process Safety Management
programs.
-
Many
of the provisions in this legislation, including definitions, general duty
clauses, and activities are taken from these existing regulations, making this
legislation redundant to existing laws.
-
DOT’s
HM223 covers loading, transportation and unloading of hazardous materials.
-
By
definition, a criminal release means that some law was broken. Therefore, a
release caused by a criminal act is already unlawful. Existing (pre-September
11th) security measures at most facilities are geared towards
minimizing criminal activity onsite.
3.
S 1602 may have unintended
consequences for both industry and homeland security.
-
The
bill is too heavily focused on chemicals rather than overall security issues.
An inflexible law (and subsequent regulations) makes it hard for individual
industries and facilities to comply because of the narrow definition of
compliance.
-
Some
chemicals, such as ammonia, are both an end-product (i.e., fertilizer) and an
intermediate. There are no substitutes
for ammonia and no safer production method than that currently used. Further, storage of ammonia in large
quantities is necessary because of the unique seasonal demands of the
product.
-
Publishing
a list of “high priority combinations” in the Federal Register is in itself a terrorist tool and increases
designated facilities’ terrorism vulnerability.
-
Many
compliance activities would be redundant with existing RMP and PSM provisions,
and will take personnel and resources away from true security functions.
-
This
designation will greatly increase insurance premiums, increase terrorism
exclusions in new policies, and price industries out of the terrorism insurance
market. Given current state of insurance companies, they may decide to refuse
insurance to anyone on the “high priority combinations.”
-
Many
provisions of this bill do not account for possible substitution risks. For
example, if domestic ammonia production falls and the demand for imported
ammonia rises, then there would be increased risks associated with large barges
from the Middle East, FSU, Asia, and Central/South America coming into ports
around large metro areas. Likewise,
focusing on production, transportation and storage of smaller quantities may
lower the catastrophic risk, but greatly increase the overall risk because of
the addition of more storage tanks, more individual transportation units on the
roads and in navigable waters and increases in the number of small production
facilities.
-
There
is no database of “inherently safer technologies.” Nor could it be easily or
quickly assembled. There are no
existing criteria for designation of “inherently safer technologies.” Some methodology is also needed to balance
security considerations vs. energy efficiency, quantity and types of emissions,
and other substitution risks. In fact,
most of the manufacturing and handling processes now in place were designed
with process safety in mind.
-
The
general duty clause combined with liability provisions creates both ethical
questions and substitution risks.
4.
Industry has greatly
increased its security since September 11th and continues to urge
federal and state agencies to work with our individual facilities to prevent
terrorist activities. The federal government should adopt a compliance
assistance model for future anti-terrorism initiatives.
-
Most
facilities have greatly increased security and are working with applicable
federal, state and local agencies.
Future security efforts should build upon these existing working
relationships.
-
Successful
anti-terrorist programs must involve joint agency-industry cooperation and
coordination. Because security is facility and chemical specific, increased
security is best achieved by guidance, protocols and joint programs in which
facilities work with applicable and relevant federal agencies in a cooperative
fashion.
-
Facilities
are most interested in speaking with those federal agencies that can provide
them with specific recommendations for surveillance, security and
anti-terrorism measures that can be implemented at their facilities.
-
No
facility or infrastructure system can be certified as terrorism-proof; that is,
there is no zero-risk scenario for industry.
We do urge federal agencies to develop a means of prioritizing of
infrastructure based on real risks. Some assessment of costs, benefits and
substitution risks should also be considered.
-
We
are interested in a mechanism for secure exchange of information, data and
security suggestions among federal agencies and industry. Facilities would like to receive detailed
information on specific or general threats.
We would also like feedback when suspicious activity or potential
incidents are reported to the proper authorities. We would prefer to avoid situations in which federal agencies use
either “right of entry” or “abatement actions” without previous
consultation. These should be the last
action taken in an anti-terrorism effort, not the only tool in the toolbox.
-
Some decision will need to be made on balancing
right-to-know considerations with security interests. Making all information collected during a “right of entry” or
other visit available on the Internet is in itself a potential terrorist tool
and is in itself a major vulnerability.
We feel that access to facility-specific information should be taken out
of the public domain and limits should be placed on FOIA requests for these
data.
Focusing
Future Industry/Government Partnerships
The federal government should adopt a compliance
assistance model for future anti-terrorism initiatives. Successful anti-terrorist programs must involve joint
agency-industry cooperation and coordination. Because security is facility and
chemical specific, increased security is best achieved by guidance, protocols
and joint programs in which facilities work with applicable and relevant federal
agencies in a cooperative fashion.
TFI members are most interested in speaking with
those federal agencies that can provide them with specific recommendations for
surveillance, security and anti-terrorism measures that can be implemented at
their facilities. We are interested in a mechanism for secure exchange of
information, data and security suggestions among federal agencies and
industry. Facilities would like to
receive detailed information on specific or general threats. We would also like feedback when suspicious
activity or potential incidents are reported to the proper authorities.
Some decision will need to be made on balancing
right-to-know considerations with security interests. Making all information collected during a “right of entry” or other
visit available on the Internet is in itself a terrorist tool and increases
designated facilities’ terrorism vulnerability. We feel that access to facility-specific information should be
taken out of the public domain and limits should be placed on FOIA requests for
these data.
For the above reasons, TFI and its membership oppose
S. 1602 as written in its current form. Our members urge the Senate to build on
the existing cooperative relationships between industry and agencies that have
formed since the September attacks. TFI looks forward to working with the
authors, cosponsors, members of the Committee and U.S. Senate in addressing
these and other important chemical security concerns in a more cooperative,
realistic and effective approach to keeping our nation’s vital chemical
products, including fertilizer, secure.
TFI appreciates the opportunity to make this
statement.