The War for Chemical Plant Safety

One of my well-traveled colleagues dragged into my office the other day and asked (rhetorically), why does the federal government have mandatory regulations requiring grandmothers to take off their orthopedic shoes before they can get through airport security, and yet our whole system of keeping millions of people safe from terrorism targeted at chemical plants is totally voluntary?

Since then I’d been meaning to write something about the debate over chemical plant safety and terrorism. Last Friday's outrageous Wall St. Journal editorial, seemingly written by the American Chemical Council, has finally gotten me off of my butt. You can’t read it online, because you have to be a subscriber. So either go through the garbage of a nearby office building or trust me.

Question: What does chlorine have to do with terrorism? Answer: Nothing much, but that isn’t stopping new Jersey Democrat and world-class nuisance Jon Corzine from trying to ban it under the guise of homeland security….

Actually, the legislation introduced by Corzine has everything to do with chlorine, other highly hazardous chemical and terrorism. As the Journal itself points out,

The U.S. has at least 15,000 chemical plants refineries or other sites that use or store significant amounts of potentially hazardous chemicals, but no one has fully assessed their security.

Indeed, according to the National Environmental Trust, out of these 15,000 facilities,

in the EPA’s Risk Management Program, of these 110 plants hold enough chemicals that, if released through explosions or other mishaps, could form deadly vapor clouds put more than one million people in danger each. EPA found that each of 700 facilities could put at least 100,000 people at risk, and each of 3,000 facilities could put 10,000 people at risk

Corzine, whom the Journal accuses of “using terror fears to sneak through an environmental agenda that has nothing to do with safety” has introduced a bill for the second year in a row that requires the government to identify facilities that pose the greatest risk, assess their vulnerability to attack, and enforce safety upgrades. Plants would get credit for any voluntary measures already taken, and sensitive information would remain secret.

It would require sites to do a hazard assessment and consider the introduction of inherently safer technologies. Substituting a less hazardous chemical for a more hazardous chemical is one type of inherently safer technology. There are several ways to do this, listed in the Corzine Bill:

(i) use less hazardous substances or benign substances;
(ii) use a smaller quantity of highly hazardous chemicals;
(iii) reduce hazardous pressures or temperatures;
(iv) reduce the possibility and potential consequences of equipment failure and human error;
(v) improve inventory control and chemical use efficiency; and
(vi) reduce or eliminate storage, transportation, handling, disposal, and discharge of highly hazardous chemicals.

Senator Corzines’ bill is about getting rid of chemicals, period. He’d give half of the responsibilities for coming up with new security regulations to the highly trained, highly motivated anti-al Queda special forces at ---the Environmental Protection Agency.

The Journal clearly doesn’t like the idea of Inherently Safety Technologies.

In practice, this means the federal government could require sites to replace chemical it doesn’t like with ones it does – no matter how much more expensive, or less effective.

But as any first-year chemistry student knows, you can’t just willy-nilly substitute compounds…. Even when there is a substitute, the cost would be prohibitive. The millions of dollars that small communities would be forced to spend on a chlorine substitute for water purification is money they wouldn’t use on new fire engines or other first-response equipment.

Well, clearly the Wall St. Journal editors failed first-year chemistry. Replacing highly hazardous chemicals with equally effective less hazardous chemicals is not pie in the sky, either technically or financially. Immediately after September 11, Washington D.C.’s Blue Plains Wastewater Treatment Plant changed from chlorine to sodium hypochlorite, which is a strong version of bleach, but much safer. The change cost about $1 million, which translates into about 50 cents per customer more annually for sewage treatment.

"Needless to say, our neighbors were very pleased that we discontinued that practice," said Libby Lawson, a spokeswoman for the District of Columbia Water and Sewer Authority. "We had to rearrange a few of our economic priorities, but, obviously, it can be done."

This approach makes sense on a number of levels. There clearly may be a terrorist threat to chemical plants. A year ago, the CIA warned of the potential for an al-Queda attack on U.S. chemical facilities. But even if the only threat we had to worry about was terrorism, how much sense does it make to only commit resources to guard a target (with questionable effectiveness) when in most cases it’s entirely possible to shrink or even remove the target completely? As outlaw Willie Sutton explained, they robbed banks because that’s where the money was. Terrorists would be tempted to attack chemical plants because that’s where the greatest potential for terror is. Take the money out of the banks - -or the catastrophic potential out of chemical plants -- and no one cares.

But in reality, terrorism is not the only thing we have to worry about when it comes to chemical plant safety – in fact it’s probably not even the primary concern. Ever since the Bhopal catastrophe at a Union Carbide plant in India that released a toxic cloud of methyl isocyanate, killing more than 3,000 people and injuring 600,000, the American public has been concerned about similar catastrophic incidents happening here—and with good reason.

The legislation passed in the wake of Bhopal set up a process that identified the 15,000 plants of highest concern and created the U.S. Chemical Safety and Hazard Investigation board that investigates chemical accidents, identifies the root causes and recommends measures to prevent future incidents. The CSB's database and a perusal of any news database reveal hundreds of incidents each year, many of which were only kept from becoming large-scale disasters by luck. In other words, if one is concerned about catastrophic chemical accidents, one need not just dwell on terrorism; there’s enough concern with management system and equipment failures.

It’s no accident, therefore that Greenpeace hailed as a “breakthrough” the original Corzine Bill that died last year

The Journal seems to perceive a grand enviro-socialist conspiracy to take over control of the chemical industry, noting that the idea of inherently safer technologies (and for some groups, even phasing out chlorine completely) was on the environmentalists’ agenda prior to 9/11. Given the hazards inherent in chemical plants that use highly hazardous materials, concern about chemical plant safety and interest in inherently safer technologies has, in fact, understandably been on the agenda of environmentalists and communities living near chemical plants ever since Bhopal. The only difference is that they make more sense in this post-9/11 world. In fact, before 9/11 and since that day, we have seen many chemical plant explosion stemming from management system errors and equipment failures, and none related to terrorism.

Another small quibble with the Journal’s word selection. The Corzine bill didn’t exactly “die” last year. It would be more accurate to say that it was assassinated by the American Chemistry Council after the bill passed the Senate Environment and Public Works Committee, unanimously, 19-0. According to the National Journal, “Then the council ramped up its opposition arguing that the bill’s regulatory regime was overzealous and so potentially costly that it risked driving American companies out of business. By the time the full Senate took up the bill in September, most of the committee’s Republicans agreed with the industry’s message. The GOP members backtracked on their earlier vote and the measure died.” (National Journal 4/26/03, p. 1310-1311)

The ACC is concerned that the Corzine bill would “Drive American companies out of business?" Now where have we heard that before? Hint: Check industry testimony on every environmental or health and safety regulation proposed over the past 30 years.

Indeed, one would have that that after 9/11 laws requiring the safety of chemical plants would have been hot on the heals of laws requiring enhanced airport security. But that was not to be. While some chemicals users, such as the Washington D.C. sewer authority, cited above, got the idea quickly, others remaining frighteningly lax. An article in Government Executive magazine reviews a number of reports of lax security at highly hazardous chemical plants.

After 9/11 the ACC assured us that the association and its members were voluntarily taking care of the problem. In June 2002, the ACC announced that it had “made enhanced security activities mandatory for its members, to help assure the public that all member facilities are involved in making their neighbors and America more secure”

According to Government Executive Magazine, however:

The industry’s largest trade group, the American Chemistry Council, now requires member companies to assess their vulnerabilities. Those analyses were completed at the end of last year. By the end of 2003, member companies must develop security plans. The association eventually will require companies to get verification of their assessments and plans from an independent third party, according to Chris VandenHeuvel, an association spokesman.

Results from the assessments are being kept secret. Not even the association sees them. VandenHeuvel says the association does not have a secure location to keep the reports, nor does it have security experts on staff. The association requires that chief executive officers at member companies certify compliance with the mandate to assess vulnerabilities. But an association executive, speaking on the condition of anonymity, acknowledges that the group has no way to verify company results.

Newspapers across the nation are filled with frightening stories of the potential damage that a terrorist attack on nearby chemical plants could do. (Examples here and here and here and here)

The Bush Administration, which was considering having EPA issue chemical security regulations under its existing Clean Air Act authority, last October “abandoned efforts to impose tough new security regulations on the chemical industry to protect against possible terrorist attacks, following months of intense internal fighting within the administration and resistance from the industry....The decision marks a victory for major chemical manufacturers who have argued they can improve security without regulatory intervention.” Instead, the Administration has decided to opt for new legislation that would give all authority for chemical plant security to the Department of Homeland Security.

The Government Accounting Office is not amused. A recent GAO report on chemical plant security found that “''Chemical facilities may be attractive targets for terrorists intent on causing massive damage,'' yet “despite all efforts since the events of Sept. 11, 2001, to protect the nation from terrorism, the extent of security preparedness at U.S. chemical facilities is unknown,"

The GAO report also went after the EPA, charging that the agency had backed off of regulating chemical plant security because of a threatened lawsuit by the ACC.

Even the chemical industry is finally resigned to some sort of legislation. But not the Corzine bill with its talk of inherently safer technology and giving the EPA any authority over chemical plant security.

The ACC has announced that it would favor legislation that will: “Require facilities to conduct vulnerability assessments and address deficiencies, provide oversight and inspection authority by the Department of Homeland Security, and create strong enforcement authority to ensure facilities are secure against the threat of terrorism.”

The Journal and the ACC think that a bill being drafted by Senator James Inhofe, (D-OK), chairman of the Senate Environment & Public Works Committee, is a “good start.” Inhofe’s bill subjects sites to oversight by the Department of Homeland Security (and not EPA) and gives Homeland Security (and not EPA) the power to set standards and then fine any site that doesn’t comply.

There are several problems with this. First, critics charge that it essentially lets the industry decide for itself what those standards will be and so far, the chemical industry’s strategy is confined to increased patrols, vehicle inspections and biochemical training for local emergency personnel. Second, of course, it ignores the whole concept of inherently safer technologies. Third, it ignores EPA, with its obvious expertise in making plants safer, as opposed to just guarding them. Finally, although the bill may require plants to conduct vulnerability assessments, it is unclear if anyone at Homeland Security would ever be looking at them. It is likely that they plan to trust the ACC to monitor compliance.

Inhofe's staff released a two-page memo explaining that Homeland Security should be solely responsible because

"security is separate and distinct from safety at chemical plants, which is the province of EPA and OSHA," the Labor Department's Occupational Safety & Health Administration.

Environmental activists had complained about being excluded from Inhofe's consultations with military experts in the administration and the private sector. "Whom would you trust to protect chemical plants against terrorists, former Navy Seals or Greenpeace?" Inhofe's staff said in the memo.

The bottom line, of course, is that ACC members don’t want anyone telling them how to run their businesses if they can get away with a few higher fences and a few more guards. But it is becoming increasingly clear that communities that live around these plants do not trust the chemical industry to patrol itself, nor do they necessarily have faith that more guards really mean more security. Nor, finally do they have faith that they would be safe even in the absence of terrorism. That's why, according to the National Journal, the ACC is preparing to spend at least $50 million on a "massive media campaign" this year to defeat the Corzine bill. And they'll try to keep it secret. As one chemical industry veteran told the National Journal In some ways, for the chemical industry to be recognized as a powerful lobby would be a disaster for relations with federal regulators and environmentalists."

The Wall St. Journal does finally get one thing right:

Nowadays the first refuge of political scoundrels is “homeland security.”

Hear that Mr. John “Who needs the Bill of Rights” Ashcroft, Mr. Tom “Unions are a Security Threat” Ridge and Mr. George W. “Let’s hold the Republican Convention as Close to September 11 as Possible” Bush?