Breaking the ‘Cycle’ on Chemical Safety Story

June 20, 2018

Backgrounder: Breaking the ‘Cycle’ on Chemical Safety Story

By Joseph A. Davis

Chemical safety is an easy story for media to ignore … until something blows up. Then, a spate of headlines is typically followed by another cycle of news neglect.

Two examples: When the Arkema chemical plant near Houston blew up after Hurricane Harvey in 2017, it was news … for a while. When the West, Texas, fertilizer depot killed 15 in 2013, that too was news … for a while.

But from the perspective of environmental reporters, chemical safety should be seen as a life-and-death issue that demands ongoing attention.

Burnt-out trailers at the Arkema facility in Crosby, Texas, in the aftermath of fires following flooding from Hurricane Harvey in 2017. The trailers contained dangerous organic peroxide products. Photo: U.S. Chemical Safety and Hazard Investigation Board

There’s much at stake right now: For instance, Congress faces a year-end deadline to reauthorize a key chemical safety program. Also, the Trump administration is now trying — unsuccessfully so far — to poleaxe the key chemical accident investigative agency. And U.S. Environmental Protection Agency Administrator Scott Pruitt wants to throw out another key chemical safety program that requires “risk management plans.”

Of note: There is virtually no federal regulatory regime in this country that requires chemical companies to implement specific safety measures. Even after Union Carbide’s chemical plant in Bhopal, India, leaked toxic gas and killed thousands in 1984, when some in Congress vowed to keep such a thing from happening in the United States, they didn’t.

Because the industry is politically strong, the best Congress and federal agencies have come up with has been a set of information and voluntary planning programs. Companies with hazardous facilities are required to tell the government — and, to a lesser extent, the public — what hazards they pose and what they are doing to minimize them.

This leaves the onus on the news media to tell the public about the danger. But do they?

When Hurricane Harvey hit Houston, one of the nation’s largest petroleum and chemical handling metroplexes, the explosive fire and chemical release at the Arkema plant was merely the event with the most suspense and best visuals.

But the disaster unleashed many less dramatic and visible chemical problems — witness the Associated Press’ coverage of releases from flooded Superfund hazardous waste sites.

Investigative board is key news angle

It was the U.S. Chemical Safety and Hazard Investigation Board, a purely investigative body designated to probe important chemical spills and accidents, that ultimately looked into the Arkema incident.

The CSB was first mandated by Congress back in 1990, although it didn’t start work until 1998. Some think politics, specifically resistance by the chemical industry, was involved in that delay. Yet with occasional dodgy spells, the CSB, a comparatively non-political body, has overcome politics for much of its two-decade history.

It does makes recommendations, however. And in issuing its final report on Arkema May 24, the CSB added what ought to be a non-controversial recommendation, calling for “more robust industry guidance to help hazardous chemical facilities better prepare for extreme weather events, like flooding, so that similar incidents can be avoided.”

Remember that as hurricane season begins and with storms frequently in the news these days.

Also keep in mind that President Donald Trump, in the dead-on-arrival budgets he submitted to Congress in 2017 and 2018, urged Congress to zero out the CSB and throw it in the trash. Congress, even the GOP-controlled Congress, ignored him and funded it. It seems public health and worker safety still have some political support.

But the agency’s perils are hardly over.

The CSB normally consists of five members appointed by the president and confirmed by the Senate. They are, by law, supposed to be chemical safety experts and are not supposed to be political. For the most part, this has been so — although not always. But board members serve five-year terms, and by not nominating new members, a president can depopulate the board.

Chairman Vanessa Allen Sutherland announced her resignation May 21, leaving only three sitting CSB board members. A quorum is three members when the full complement of five are sitting. But if fewer than three are in office, then a quorum consists of all the sitting members. Further erosion of the board’s membership could undermine its ability to function.

For various reasons, other parts of the CSB are already dwindling. Its staff of investigators, for instance, is down from the normal 20 to only 12. The Houston Chronicle’s ace chemicals reporter Matt Dempsey lays some of this out in a recent deep dive.

Ingredients for an explosive story

It may be stating the obvious, but a great way to do a chemical disaster story is ahead of time. Arkema officials, for instance, were warned of flood risks well ahead of Harvey, the Houston Chronicle’s Alex Stuckey reported.

An exaggerated fear of terrorism

has been leveraged by industry and government

to promote a secrecy about these hazards

that helps dampen public awareness.

There is a lot to report about preventing and planning for chemical disasters.

First off, chemical plants can blow up all by themselves, or as a result of natural disaster, company neglect, bad engineering, rusty pipes or operator error.

It is also important to distinguish between chemical safety and chemical security, which are commonly conflated. Safety involves training operators and fixing rusty valves. Security involves preventing attacks by vandals or terrorists.

But you may have noticed that none of the reasons plants can blow up cited above, nor the examples of Bhopal, West or Arkema, actually involve terrorists. In fact, there have been virtually no successful attacks in the United States on chemical plants by terrorists who might wish to use them as weapons of mass destruction (which they could be).

Still, an exaggerated fear of terrorism has been leveraged by industry and government to promote a secrecy about these hazards that helps dampen both public awareness and any public pressure to regulate them.

It is worth recognizing, too, that the hazards come from more than just chemical plants, and from more than just explosions. Many chemicals used by industry pose hazards — whether from acute toxicity, explosion or fire. The points of hazard go beyond plants themselves to include storage, transportation and disposal facilities.

Also think beyond chemical plants. Chlorine gas may be present at sewage and drinking water plants. Deadly ammonia gas may be present in large refrigeration plants. Propane, aka LP gas, may be present in large quantities at distribution depots. Flammable ethanol crosses the nation’s railroads in huge quantities. Ammonium nitrate and anhydrous ammonia may be stored in large amounts at your local feed and seed store.

There may well be a string of 90-ton tank cars, parked on a railroad siding near your town, filled with chlorine — one of the first chemical weapons ever used (and one still being used to horrific effect in Syria’s civil war). It has the potential to kill hundreds of thousands of people. Very likely, it is unguarded.

Understand the basics of regulation

A fabric of laws and regulations in the United States tries to address these various concerns. If you are going to report on chemical hazards, you should know these basics:

EPCRA. The Emergency Planning and Community Right-to-Know Act was passed in 1986 in response to the 1984 Bhopal disaster. Congress added it when it reauthorized the 1980 Superfund law. This law set up the Toxics Release Inventory, or TRI, a database of major toxic chemical use that has been useful to journalists over the years — although which the George W. Bush administration, with industry cheering them on, seriously hamstrung for a while.

EPCRA set up a list of toxic chemicals and then required local governments to set up emergency response plans for facilities using them in more than certain quantities. It also set up a network of Local Emergency Planning Committees, or LEPCs, and State Emergency Response Commissions, or SERCs. It required covered facilities experiencing a spill or release to immediately notify the LEPC and the National Response Center (run by the U.S. Coast Guard). It gives the public a right to know what hazardous chemicals are being handled at a covered facility, and requires facilities to give out a “Material Safety Data Sheet” indicating the dangers of each chemical and how to respond to spills.

Aerial photo of a West, Texas fertilizer depot that exploded in 2013, killing 15. Photo: Mark Wingard/U.S. Chemical Safety and Hazard Investigation Board

RMP Program. When Congress updated the Clean Air Act in 1990, it added a section (190(r)) requiring major hazardous chemical facilities to formulate “Risk Management Plans,” or RMPs. EPA did not finalize its rule for implementing the RMP requirements until 1996, and the plans weren’t due until 1999 (the delay the result of industry pushback).

Under the RMP program, covered facilities must identify the potential effects of an accident, identify the steps the facility is taking to prevent an accident and spell out emergency response procedures in case an accident should occur. Facilities are ranked in three “tiers,” with Tier 1 being those least likely to cause public harm and Tier 3 being subject to the most stringent requirements.

The most hair-raising part of the RMP requirements is an “offsite consequence analysis” enumerating how many people might be harmed in a “worst-case scenario.” In 1999, Congress passed a law (the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act) sharply restricting public access to this worst-case information. It also exempted propane. Such information can only be seen in secure government reading rooms. Some of the information was collected and made easier to use by a nonprofit group called RTK Net. After RTK Net disbanded, the database was taken over as a public service by the Houston Chronicle, and is still online and searchable, although not very up-to-date.

One bright spot in a world of blacked-out data is EPA’s Vulnerability Zone Indicator System. It is online, and it allows you to put in your physical address. Then you will get an email about any dangerous facilities near you. But it is still not very informative.

CFATS and Revisions. After 9/11, some in government started to take the threat of terrorist attack on chemical facilities as more than just rhetoric. The Department of Homeland Security issued its Chemical Facility Anti-Terrorism Standards back in 2007. The CFATS in some ways duplicated or overlapped the existing legal and regulatory structure, but focused primarily on security rather than safety. In 2014, Congress explicitly authorized the CFATS program, with a proviso that it be reauthorized every four years. That means it expires in December 2018. It is not clear whether Congress can complete legislation on CFATS, or what will happen if it does not.

The old program is not perfect, according to the congressional watchdog Government Accountability Office, or GAO. Many industry groups want it reauthorized. One reason some like CFATS is that it gives jurisdiction to Homeland Security (which the GAO suggests is lenient to industry) rather than to the EPA, which some have historically viewed as less friendly to industry. A large portion of facilities covered under CFATS handles agricultural products like ammonium nitrate and anhydrous ammonia. There is some evidence Congress will try to reauthorize CFATS, though less evidence that it will succeed in an election year.

The House Energy Subcommittee on the Environment held a hearing June 14 on reauthorization, and a look at some of the published testimony may give you a better feel for the political dynamics.

Obama Executive Order 13650. Following the West, Texas, fertilizer explosion in 2013, the Obama administration wanted to pull up the evidently sagging socks of the chemical safety program. The result was Executive Order 13650, issued on August 1, 2013. It set up a task force — including EPA, the Occupational Safety and Health Administration, and the Department of Homeland Security — to look at regulations in hope of improving coordination with state and local agencies. One goal was more effective information-sharing.

RMP Rule Amendment. One upshot of Obama’s executive order was a proposed update of the RMP rule that had been on the books at EPA. The Obama EPA did not publish this rule until Jan. 13, 2017, the final days of its tenure. Incoming Administrator Pruitt had opposed it even before he took office. In March 2017, he delayed the date the Obama rule would take effect — starting a rulemaking process that is still going on. The old rule will stay in effect until at least 2019.

The problem is the the Pruitt-Trump administration wants to pretty much repeal the whole RMP program. EPA proposed a rule May 17, 2018, that would “reduce unnecessary regulatory burdens.” Industry applauded, and environmental health groups, for their part, sounded alarms. The opinions were heard at a June 14 hearing in Washington, D.C. Others with a stake in keeping a serious RMP program include labor groups, for whom it is an occupational safety issue, and first responders, who need to know what sort of fire they are racing toward. Of the 15 dead at the West, Texas, disaster, 10 were first responders. Voices opposing the Pruitt RMP repeal are likely to include members of Congress and local governments.

OSHA Process Safety Management Standard. If there is any regulation actually requiring hazardous chemical plants to take safety steps, it may be the Occupational Safety and Health Administration’s Process Safety Management Standard. It is aimed at worker safety and is limited in scope.

Key sources and players

The chemical industry is powerful, rich, multifaceted, well organized and good at lobbying. Some of the groups likely to have a view on chemical safety and security issues include the following:

Many of the major chemical companies have as much clout as the lobby groups. You can find a pretty good list of those active in lobbying here.

The number of environmental health and public interest groups active on chemical safety issues is smaller, and over the years some good ones have faded for lack of funds. Possible sources include:

Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's Issue Backgrounders and TipSheet columns, directs SEJ's WatchDog Project and writes WatchDog Tipsheet and also compiles SEJ's daily news headlines, EJToday.

* From the weekly news magazine SEJournal Online, Vol. 3, No. 25. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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