Tuesday, March 21, 2006

Homeland Security To Turn Chemical Plant Security Over To Industry

There are 3,400 high-priority chemical facilities in this country where a worst-case release of toxic chemicals could sicken or kill more than 1,000 people, and 272 sites that could affect more than 50,000 people. Yet despite reports from government agencies and independent journalists since 9/11 that chemical plant security is seriously flawed, the Bush administration has refused to address the issue.

Now, however, with Iraq disintegrating into civil war, with the port fiasco barely behind us, and Congressional elections rapidly approaching, the Secretary of Homeland Security, Michael Chertoff, has finally decided that it might be time for the Bush administration to do something about chemical plant security.

And guess who's going to be running the show:
Chertoff, speaking at a forum hosted by the chemical industry, called on Congress to give his department authority to approve or reject security plans for an estimated 15,000 facilities nationwide. But he said the government would not set minimum standards for chemical companies to follow, allowing the industry to tailor its own "so we can go about the objective of raising our security in a way that doesn't destroy the businesses we're trying to protect."

"There are a lot of ways to skin a cat, and we're going to let chemical operators figure out the right way, as long as the cat gets skinned," Chertoff said.
He also said private-sector, "third party" inspectors could check on compliance, unlike the way OSHA or EPA currently enforce the law.

Oh, and in case individual states decide that federal laws are not good enough to protect their citizens or that it might make sense to require chemical plants to use "inherently safer" technologies to reduce the target,
Chertoff generally backed an industry push to preempt state and local governments from enacting tougher rules. He said inconsistent rules that expose businesses to "ruinous liability" would create "a regulatory regime that is doomed to failure." He criticized as "interference with business" a proposal backed by environmental groups that would require industry to substitute "inherently safer" chemicals and processes.
Chertoff's aversion to states developing their own rules is aimed at New Jersey, which became the first state to issue regulations requiring chemical plants to take measures to reduce their vulnerability to catastrophes resulting from terrorist attacks. The best part is that 43 (of the state's 140 plants) using the most hazardous chemicals are required to review the potential for adopting inherently safer technologies.

Although the NY Times calls Chertoff's proposal "unusual turnabout by the Bush administration," this whole debate is following a familiar pattern:
  1. Industry opposes any government regulation.
  2. States that have given up hope of federal action begin to issue their own regulations.
  3. Industry, suddenly facing the prospect of being forced to comply with multiple different state regulations, turns around and advocates for a weak federal regulation that pre-empts the states.
This debate has been going on since shortly after 9/11, initially with legislation introduced by former New Jersey Senator Jon Corzine that would have forced the chemical industry to implement, where possible, inherently safer technologies (e.g. substituting safer chemicals, storing smaller amounts of hazardous chemicals, etc.), along with increased traditional security measures. The American Chemistry Council (formerly the Chemical Manufacturers Association) and their clients in Congress managed to kill Corzine's bill and instead suggested an approach that focusses almost entirely on traditional security (guns, guards and gates), and relies on compliance with voluntary guidelines -- developed by the American Chemistry Council.

Some experts aren't quite so confident about the ACC's program as Chertoff is. According to an article in US News and World Report earlier this year,
The American Chemistry Council, the leading industry group, says its 2,000 chemical facilities have invested nearly $3 billion in security since 9/11 to adhere to an industry-developed set of voluntary security measures. But Sal DePasquale, a former security official with Georgia-Pacific Corp., who helped craft the code, calls it "window dressing." He says investments in cameras, fencing, and network security are "a sorry joke" compared with the highly armed teams that guard nuclear plants. DHS estimates 20 percent of the roughly 300 highest-risk plants aren't even signed up for a voluntary program.

In addition to the discussion over whether standards should be madatory or voluntary, the most contentious part of the debate was whether to require the chemical industry to seriously consider inherently safer technologies. For example, immediately after September 11, Washington D.C.’s Blue Plains Wastewater Treatment Plant changed from chlorine to sodium hypochlorite, essentially a strong version of bleach, but much safer than liquid chlorine. The change cost about $1 million, which translates into about 50 cents per customer more annually for sewage treatment.

One of the main advantages to inherently safer technologies is that they not only protect against a terrorist attack, but also against the every-day run-of-the-mill domestic chemical accident. 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.

Chertoff clearly doesn't get it:

Clearly a lot of chemical companies on their own, in meeting performance standards, will want to look at inherently safer technology as a means to reduce the risk, and therefore achieve what they need to achieve. But we have to be careful not to move from what is a security-based focus, as part of the type of regulation I'm describing, into one that tries to broaden into achieving environmental ends that are unrelated to security. There is an Environmental Protection Administration. They deal with environmental matters that are distinct from security. And I want to make sure that we don't allow our focus on security to become a surrogate for achieving ends that may very well be worthwhile but ought to be pursued in a debate in another forum. (emphasis added)

Another point of sharp disagreement is whether DHS or the Environmental Protection Agency should handle chemical plant security. The chemical industry feared that the EPA may end up being too hard to control (in future administrations, not this one). Senator James Inhofe (R-OK), who has introduced industry favored legislation that resembles Chertoff's plan, has opposed giving EPA the responsibility for chemical plant security, despite their obvious expertise in chemical plant safety: "Whom would you trust to protect chemical plants against terrorists, former Navy Seals or Greenpeace?," Inhofe asked

Most recently Senators Susan Collins (R-ME) and Joseph Lieberman (D-CT) have proposed a compromise legislation. The Collins/Lieberman bill addresses one of those problems (pre-emption, by allowing states to set their own standards), ignores another (inherently safer technologies), and apparently admits defeat on the third (Homeland Security wins, EPA loses).

Although Collins praised Chertoff's speech, environmentalists and others were not so pleased:

Andy Igrejas, a program director at the National Environmental Trust, which is frequently critical of the administration's environmental policies, said of the speech: "It was lame. It reflects pandering to the industry. And it means this could end up being more of a paperwork exercise instead of something that really protects people."

Dan Katz, chief counsel to Senator Frank R. Lautenberg, Democrat of New Jersey, joined the criticism.

"That is the Enron mentality: trust industry and put the public at risk," Mr. Katz said. "But unlike Enron, the risk here is not that people will lose some of their stock savings. It is that we could have a catastrophic terrorist event."

Rick Hind of the Greenpeace Toxics Campaign said there were sewage treatment plants in 45 urban areas, as well as power plants and refineries in a number of states, that used extremely dangerous chemicals like chlorine gas and hydrofluoric acid and that could replace those chemicals with alternatives widely used elsewhere and without excessive cost.

"With guards, fences, cameras, lights and gates, we are still gambling with people's lives," Mr. Hind said.

The irony is that, after sitting on their bony behinds for the past several years, the administration is suddenly in quite a hurry to look like it's doing something:
Mr. Chertoff said he expected vigorous debate on any legislation. But the fact that this is an election year should not prevent Congress from acting, he said.

"The terrorists aren't planning to take this year off," Mr. Chertoff said. "I refuse to simply abdicate the field this year and say, 'Well, we're going to have to wait until after the election to get serious again.' "

Well certainly not, after abdicating the field for the past three years.

The full text of Chertoff's speech is here.

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