Senate prepares for new battle over chemical plant security

Introduction

Although he left his stressful job with the Environmental Protection Agency nearly seven years ago, Bob Bostock says there’s one scenario that still keeps him awake at night: A terrorist breaches a chemical plant’s chlorine storage tank in, say, northern New Jersey, unleashing a toxic cloud that kills thousands.

“It’s not that hard to do,” said Bostock, the EPA’s top homeland security policy adviser from 2001 to 2003. “It doesn’t require a high level of sophistication and in some cases doesn’t even require access to the facility. It’s something that could be done from off site.”

Bostock’s recurring nightmare is at the center of a seemingly interminable argument over chemical plant security on Capitol Hill that could be re-engaged in the coming weeks. Legislation passed by the House last fall would require major manufacturers and users of such deadly gases as chlorine to consider converting to safer substitutes and submit to stricter oversight by the Department of Homeland Security. In some cases, DHS could force the highest-risk facilities to switch to alternative substances. Sen. Frank Lautenberg, D-N.J., has said he will introduce a bill at least as rigorous as the House version in the near future.

The current law, which was enacted in 2006 and expires in October, is weak, claims Rick Hind, legislative director for Greenpeace. “The standards are, for the most part, voluntary,” Hind said. “They’re very industry-friendly. The House bill is much more enforceable.”

But the chemical lobby is pushing back.

At a March 3 hearing held by the Senate Homeland Security and Governmental Affairs Committee, representatives of the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates argued for the status quo, saying they have taken steps to prevent accidental or terrorist-induced releases of dangerous compounds. If they are forced to stop using such substances as chlorine, they said, there would be job losses and even plant closures. Sen. Susan Collins, R-Maine, is sympathetic to their position and has introduced legislation that would extend existing regulations for five years.

“Our track record is very, very good on this front,” American Chemistry Council President and CEO Cal Dooley, a former Democratic congressman from California, said in an interview. “When we see congressional proposals that would give the Department of Homeland Security and the bureaucrats the authority to mandate certain technologies, we find that inappropriate.” What is now a collaborative relationship between DHS and the industry would become adversarial, Dooley said. “That’s not in anyone’s interest.”

Industry Clout

The chemical industry has considerable pull in Washington, having spent more than $45 million on lobbying in 2009, according to the Center for Responsive Politics. The chemistry council spent the most — $7 million — among individual trade groups and companies. Dow Chemical spent nearly $6 million, and DuPont shelled out $3.75 million.

In 2007 and 2008, the industry as a whole donated $9.3 million to federal candidates, almost two-thirds to Republicans. But the mix has changed for the 2010 cycle, with only about 55 percent of its $3.1 million in contributions so far going to members of the GOP.

In a report last August, Greenpeace charged that industry lobbying “has derailed or crippled comprehensive legislation” to tighten chemical plant security in every Congress since the 9/11 attacks. “We respectfully disagree,” the chemistry council said in a statement, “and would say that deeds speak louder than words.” The group says its 140 member companies have invested more than $8 billion in security enhancements — guards, perimeter fencing, video surveillance equipment — since 2001. The current law, it says, has “teeth and bite for those who fail to take security seriously. Any facility that fails to act can be fined and/or shut down by DHS.” (A DHS spokesman confirmed that the department has yet to take either of these actions)

In a statement, Sue Armstrong, DHS’s acting deputy assistant secretary for infrastructure protection, said the department has acquired basic information on some 38,000 chemical sites, about 5,800 of which have been deemed high-risk. These sites must turn in security plans and are subject to DHS inspections. “The department’s current focus is on working with industry to ensure compliance with this relatively new and first-of-its-kind security regulatory program,” Armstrong said.

But Hind said the law is deficient in that it bars DHS from requiring specific security fixes. Moreover, the nation’s 2,400 drinking water and wastewater treatment plants, some of which use large quantities of chlorine for disinfection, are exempted altogether. Senate Homeland Security Committee Chairman Joseph Lieberman, I-Conn., has called this a “troublesome security gap.” Both types of operations would be covered under the 2009 House bill.

Clark Kent Ervin, a former DHS inspector general who now heads the Aspen Institute’s Homeland Security Program, said in an e-mail that he dislikes the “voluntary nature of the present regime. I do think there should be regulation of critical infrastructure sectors/industries where experience shows the private sector to be unwilling adequately to regulate itself.” But Ervin said he sees no need for DHS to require the use of “inherently safer technologies,” which Hind and others maintain is the only sure way to lessen the threat of a catastrophic chemical release. In a report released in February, the Congressional Research Service said it can be difficult “to unequivocally state that one technology is inherently safer than the other.” Eliminating hydrogen fluoride and using sulfuric acid for refinery processing, for example, “would replace a more toxic chemical with a less toxic one.” But it takes 25 times more sulfuric acid to do the job. “Thus,” the CRS said, “more chemical storage facilities and transportation would be required, potentially posing different dangers than atmospheric release to the surrounding community.”

Failed EPA effort

Not long after 9/11, the EPA, in consultation with DHS’s predecessor, the White House Office of Homeland Security, drafted legislation that would have required chemical companies to develop security plans using industry best practices and to consider safer technologies. The EPA “didn’t define in excruciating detail what steps were to be taken,” said Bostock, then-Administrator Christine Whitman’s homeland security adviser. The EPA, already working with the industry to prevent accidental toxic releases, would have been the lead regulator.

At the last minute, Bostock said, the Office of Management and Budget nixed the plan.

Now a freelance writer in New Jersey, Bostock said, “It’s enormously frustrating that we still have to deal with this. This should have been put to bed a long time ago.”

In arguing for the continuation of DHS’s current Chemical Facility Anti-Terrorism Standards, industry representatives say they know best how to assess security risks and, if necessary, modify processes. At last month’s hearing, Stephen Poorman, a Fujifilm manager speaking on behalf of the Society of Chemical Manufacturers and Affiliates, warned that companies strong-armed into changing technologies could shed jobs. “There isn’t much available capital these days for manufacturers to take on new regulations aimed at their very livelihood, especially small manufacturers,” Poorman said.

Hind, however, said the 2009 House bill was the product of significant compromise. During negotiations, he said, the number of facilities that would have had to consider safer technologies and report their findings to DHS was cut by about 80 percent. Under the final version of the bill, only the 107 plants posing the greatest risk of a poison gas release in a densely populated area would have to go through the exercise, Hind said, and DHS would have to seek expert opinions before forcing any plant to make process changes. But these concessions weren’t enough to win chemistry council support. The bill passed by a 230 to 193 vote.

As the debate rages on, operators of some high-risk facilities have acted on their own. Last November, the Clorox Co. announced that it would phase out chlorine gas at its seven U.S. plants and start using high-strength bleach. “This decision was driven by our commitment to strengthen our operations and add another layer of security,” Chairman and CEO Don Knauss said in a press release. The Blue Plains wastewater treatment plant in Washington, D.C., made a similar switch two months after 9/11, obviating the need for as many as six 90-ton chlorine tank cars on site.

Hind estimates that more than 600 facilities have made such transitions over the past decade. But “there’s no rhyme or reason to voluntary conversion,” he said, “and no guarantee that it will continue tomorrow.”