About fifteen miles west of New York City’s Times Square, tanker cars filled with highly toxic chemicals labeled “Hazardous Material” sit unguarded outside a chemical plant in New Jersey. A few yards away, traffic on the New Jersey Turnpike zooms by. A terrorist attack that detonated even one of these cars would release a 90-ton plume of toxic gas that could – depending on the weather – drift over Manhattan killing people by the thousands. (For a hint of what happened during a similar disaster, see sidebar, right.)
It doesn’t take much imagination, post 9/11, to imagine how a dedicated band of terrorists could mount such an attack. It doesn’t, in fact, require any imagination at all: in recent years, newspaper reporters and television crews have documented, filmed and photographed similar breaches in the nation’s lax-to-non-existent chemical security system dozens of times in recent years.
What defies imagination is that, five years after 9/11, so little has been done to protect American citizens from potential chemical catastrophes at thousands of sites across the United States. Neither the Department of Homeland Security nor any other federal agency is currently empowered to enforce security practices at chemical plants, railroads, ports or off-site storage facilities. And at temporary rail storage sites like the one near New York, neither the companies that own the adjacent plants nor the railroads that deliver the tanker cars is responsible for protecting them from terrorism.
Who’s really in charge of preventing chemical catastrophes? An examination by News21 of public policy steps that led to the current impasse required interviews with dozens of government officials, scientists, industry executives, environmentalists, first responders and citizens. The inquiry also involved reviewing hundred of pages of government documents, internal industry correspondence and scientific data.
Lawmakers in Washington have been revising legislation that would give the Department of Homeland Security authority to enforce security norms for the chemical industry, and are expected to resume debate in September. But the industry has successfully beaten back every similar effort in recent years. At best, any legislation likely to emerge will impose only a modicum of national rules to govern chemical plant security; at worst, one version – favored by the industry – would preempt states like New Jersey from enacting more stringent regulations of their own. Finally, none of the proposed laws being debated would do anything to protect against the transport and storage risks that exist today at rail yards like the one near New York.
“Business as Usual” in the Chemical Business
How is it that so little has been done to protect the nation’s chemical infrastructure from terrorists? The chemical industry argues that a lot has been done, and – to their credit – many chemical companies have already begun updating security. They have spent an estimated $3 billion in the past five years, according to Marty Durbin, a lobbyist with the American Chemistry Council, the industry’s leading trade group.
Yet the chemical industry has steadfastly opposed federal legislative and regulatory attempts to impose uniform nationwide security standards or to grant regulatory agencies meaningful enforcement powers. The industry has also lobbied against legislation that would require companies to use less combustible chemicals or processing technologies wherever possible – a practice known in the industry as “inherently safer technologies.” In sewage treatment plants, for example, ultraviolet light can substitute for chemicals like chlorine – a changeover that’s already been made at many facilities. One is the Blue Plains Waste Treatment Plant in Washington, D.C., situated about four miles from the Capitol building and the White House. Over the eight weeks following 9/11, a three-year, $20 million plan was put into place to rid the plant of liquid chlorine and sulfur dioxide, obviating the need for tanker cars full of toxic chemicals in such close proximity to elected officials.
The ACC’s Marty Durbin insists that the industry “literally” wrote the book on inherently safer technologies. “We’re not shying away from having government regulation in this area, in fact it’s what we’ve been calling for,” he said. But Durbin also says that implementing safer technologies should be left to “process-safety professionals,” rather than to environmentalists, whom he accuses of advancing their own agenda.
The chemical industry opposes federal regulation and legislation largely because the companies have a deep-rooted aversion to government interference in their affairs, according to homeland security analysts such as P.J. Crowley of the Center for American Progress, a Washington-based liberal think tank. And with combined annual revenues of $500 billion, hundreds of plants and some 900,000 workers spread across most Congressional districts, the chemical industry has both the money and the political muscle to make that case forcefully in Washington.
The industry has one of the best-oiled lobbying machines in Washington, spending $135 million since 2002, and it can count on the reflexive support of many key Senators and Congressmen, who received at least $8 million in campaign contributions from the industry over the same period. And – since 2000 – it has also been able to count on the support of highly placed allies inside the Bush administration, who share its philosophical aversion to increasing the size and scope of government.
Inside the Legislative Sausage Factory
The federal government’s inability to respond to the chemical threat is a cautionary tale of regulatory turf battles, behind-the-scenes lobbying, influence-peddling, and legislative knife-fighting, but the end result is that it has consistently and effectively resisted coordinated government oversight, and the Bush Administration, along with key members of Congress, has bowed to its demands.
In the immediate aftermath of the Sept. 11 terrorist attacks on New York and Washington, the government seemed poised to act quickly and decisively. The Chemical Security Act of 2001 was introduced by Jon Corzine (then the democratic senator from New Jersey) on October 31, 2001. It contained tough security guidelines, mandated that plants adopt safer technologies, and put chemical security under the control of the Environmental Protection Agency (EPA).
Ten days later, the Bush Administration unveiled a different approach when Tom Ridge, newly appointed as director of the Office of Homeland Security Director, Christine Todd Whitman, then head of the EPA, and White House press secretary Ari Fleischer addressed the media in the West Wing. Whitman took the lead, telling the American people that officials from the country’s chemical facilities were in close contact with the federal government and were taking adequate measures to address their existing vulnerabilities in the post-9/11 world.
The EPA had long had the legal authority to take inventories of the hazardous chemicals produced and stored by 15,000 facilities around the country. Companies were required to file detailed scenarios of how the many people in the surrounding area would be affected if the largest hazardous material container on site catastrophically released its contents, irrespective of whether the release were accidental or intentional.
Whitman went on to detail what she called “a very real and aggressive outreach” to industry organizations, particularly the ACC, which she believed would cement cooperation between the EPA and America’s hazardous chemical producers and consumers. “I've had several meetings with the leaders of the chemical industry and the councils,” she said, “and I think it's probably the first time in EPA's history where we were all in the same room together and we agreed.” Her next line – in retrospect – seems especially prescient: “It's probably not going to happen again.”
With the apparent blessing of the White House, Robert Bostock, Whitman’s chief of homeland security at the EPA, spent the next 10 months developing a plan for chemical plant security. It relied heavily on the “best practices” the industry had itself devised in response to the 1984 Bhopal chemical explosion that had killed more than 5,000 people in India. In effect, the plan would give the EPA the authority to enforce the industry association’s own security procedures. The Bush Administration approved the plan in one position paper in July 2002, and reaffirmed its support in another in February 2003.
Revenge of the Lobbyists
A month later, however, Bostock was blindsided during a meeting with administration officials, ostensibly to discuss language the EPA wanted to add to the legislation that would enact its plan into law. Philip J. Perry, general counsel of the Office of Management and Budget (now general counsel at the Department of Homeland Security and the son-in-law of Vice President Cheney) arrived unexpectedly, and, said Bostock, announced that the plan would be “dead on arrival” on Capitol Hill because the White House no longer supported it. (Perry declined several requests for comment from News21.)
“That came as quite a surprise,” said Bostock, who had been working closely with administration officials and said he had never received mixed messages prior to that day, even as final touches were applied to the EPA plan. “We thought we were pretty far down the road with this when the rug got pulled out from under us.”
Perry offered no alternative to the EPA plan, said Bostock, and both he and Whitman told News21 they considered the White House’s decision final. Whitman, who announced her resignation from the EPA two months later, believes the sudden change resulted from heavy industry lobbying and the opposition of key Senators with close ties to chemical companies. “It suddenly became very problematic when it got up to the Hill,” said Whitman.
Several letters sent from chemical industry officials and lobbyists, obtained and published by the environmental group Greenpeace, confirm Whitman’s suspicions that the industry had found a sympathetic ear in the White House. One letter, faxed on September 6, 2002 by Red Cavaney, President of the American Petroleum Institute, to James L. Connaughton, the President’s Chairman of the Council on Environmental Quality, assailed the EPA for having “neither experience nor resources and questionable authority” when it came to security at chemical facilities.
Another letter, sent by Michael J. Graff of the BP Amoco Chemical Company to presidential adviser Karl Rove, revealed that Rove met directly with the American Chemistry Council on September 17, 2002 . This meeting concerned the White House’s stance toward the Corzine chemical security bill, and whether the EPA should be in charge of the hazardous chemical beat. Rove’s response states that the White House had a “similar set of concerns” to the ACC’s .
Whitman singled out Senator James M. Inhofe (R-OK) as a leader of the opposition in the Senate. Inhofe, famously quoted in 1994 as a freshman senator calling the EPA a “Gestapo Bureaucracy,” has a “deep and abiding distrust” of the agency, she said. Senator Inhofe did not return several requests for comment from News21.
Meanwhile, Senator Inhofe and six other Republicans circulated a “Dear Colleague” letter in the Senate, arguing that the Corzine Chemical Security Act bill “severely misses the mark” – effectively killing it. Some of the signers had received substantial contributions from the chemical industry that same year. Corzine, now the Governor of New Jersey, believes this counter-campaign helped to derail his bill, noting in a recent interview with News21 that “initially it was passed out of the environmental protection committee with overwhelming support.”
Thus on a single day the chemical lobby had defeated serious plans for enhanced regulation of its industry from two of the three branches of the U.S. government.
Fighting for an Industry Bill, Industry’s Way
Fed up with the federal logjam, on November 29, 2005, then-acting New Jersey Governor Richard J. Codey announced that his state would take the steps that Congress refused to take. Under amendments to a state law called the Toxic Catastrophe Prevention Act, Codey mandated that 43 plants that made or stored “extraordinary hazardous substances” not only assess their security and harden their perimeter security, but also explore ways to reduce onsite use of these chemicals by implementing inherently safer technologies.
The Codey mandate produced a swift reaction at the federal level: New Jersey had kicked a sleeping giant. Only two weeks after its announcement, OMB Watch, a government watchdog group, put out a press release analyzing a leaked draft of a new chemical security bill circulated by Senator Susan Collins (R-ME). The draft included language that would give the Department of Homeland Security authority for chemical safety – minus any mention of inherently safer technologies. In addition, it would preempt any state laws that included such provisions, potentially cutting the teeth out of New Jersey’s tougher new law.
“You rarely see such a clear cause and effect,” said Sean Moulton, Director of Federal Information Policy for OMB Watch.
Alerted by OMB Watch’s leak, the pro-environmental community rallied, launched a heavy lobbying effort against the preemption provision and succeeded in getting it removed from the bill before it was introduced in December 2005 as the Collins-Lieberman bill.
How the chemical industry would react to the Collins-Lieberman bill was initially an open question, but one that was answered quickly when Senators Frank Lautenberg (D-NJ) and Barrack Obama (D-IL) introduced a far tougher bill in March, 30, 2006. Adopting some of same language as Senator Corzine’s original 2001, bill, it put EPA back on the chemical case, protecting state authority to craft stronger protections, and requiring plants to adopt safer technologies and chemicals when feasible. The same day, the American Chemistry Council released a statement endorsing the less-stringent Collins-Lieberman measure.
The chemical industry has continued trying to bend the Collins-Lieberman bill more toward its liking, and has allies at the Senate Homeland Security and Governmental Affairs Committee, which maintains jurisdiction over the bill. Senator George Voinovich (R-OH) offered three amendments to the bill in June 2006: One institutes secrecy provisions so strict that the DHS Secretary himself would be unable to reveal details about chemical security to the public; a second bans the consideration of any amendment mandating inherently safer technologies, and the third re-inserts federal pre-emption of potentially stronger state regulations.
These seemed the legislative equivalent of an ACC press release issued six weeks earlier, which read, in part: “ACC broadly supports the direction of the Collins-Lieberman bill but has asked the Committee to modify certain provisions, including those related to protecting security information, government intrusion into process safety decisions and the role of states.”
Legislators on the House Homeland Security subcommittee are currently considering the bill and will most likely debate it further this fall. Environmental activists are unenthusiastic because it still puts the Department of Homeland Security in charge of chemical security. They argue that such a move favors the chemical industry because they fear that DHS lacks the personnel, expertise and resources necessary to maintain a strong enforcement presence. The chemical industry, said Moulton of OMB Watch, would “benefit the most from keeping the states out of this and leaving this squarely at the feet of DHS.”
In fact, DHS has been working with the chemical industry all along. Recently the department released a plan to assess the vulnerability of chemical plants and connect them (and other areas of national infrastructure) with local, state and federal first responders on a shared Web-based network. The network was created with input from the chemical lobby. Robert Stephen, the assistant secretary for infrastructure protection at DHS, says that the plan is a major step forward in chemical security, and notes that DHS “has been working with the chemical industry very intensely over the last several years.” But even he concedes that without a law, DHS is powerless to enforce security measures.
The chemical industry, however, may find DHS oversight to be less of a cakewalk than industry officials originally imagined. Michael Chertoff, who succeeded Tom Ridge as the DHS Secretary in January, 2005, talked tough when he discussed the Collins-Lieberman Bill at a forum sponsored by the ACC on March 21, 2006. “The fact of the matter,” he said, “is we are four years after 9/11, and the time to wait on volunteerism as the sole solution I think has begun to pass.”
Even if the Collins-Lieberman bill does get passed without crippling amendments and DHS is formally tasked with overseeing chemical plant security, trains and rail yards will remain under the jurisdiction of the Department of Transportation through the Federal Railroad Administration (FRA), which operates on its own security standards. This creates a “no man’s land” of regulation over the few feet between a plant’s gates and the railroad tracks that bring hazardous chemicals into and out of the plant. Where DHS authority ends and FRA begins, according to both government officials and independent security experts, is anyone’s guess. Such a gap in jurisdiction is especially troubling because every day tank cars containing hazardous chemicals still roll through or are stored beside major cities and small towns throughout the country.
This reality makes train security an important part of DHS’s mission, according to Stephen. The recent train bombings in Bombay and the July 2005 train attacks in London show that terrorists see trains as attractive targets. “These folks like the drama, they like the very explosive, violent event on international television with the maximum loss of human life,” Stephen said.
New Jersey Take the Lead
New Jersey Governor Corzine vows to shore up railroad security as part of his efforts to promote better chemical security, and has begun allocating state funds towards improving railroad security practices and assessing rail vulnerability. “We see terrorist attacks all across the globe on rail, which has high concentrations of passenger travel and the movement of highly dangerous materials,” Corzine said. “So, it doesn’t make any sense that we are spending so little on rail transport safety and homeland security. If the federal government isn’t going to take the steps that are necessary, I think the states have to act, and we will.”
Still, such efforts will be voluntary and won’t transfer control over rail security to the state DHS office. Further, neither this nor any other current legislative initiative will address the gaps between rail yards and plants, as it’s unclear who would be responsible for security at those sites—the rail yards that house the cars, or the plants that lease them.
Generally, Corzine and other New Jersey state officials are taking the lead in improving chemical security practices. About 90 percent of plants across the state have participated in a survey to assess vulnerability, which Corzine attributes to the memory of 9/11 and the very real concern plant owners have of another terrorist attack. "I’ve been concerned because New Jersey is the most densely populated state in the nation,” he said. “We have the most dangerous two miles in the country, according to the FBI, between Elizabeth Port and Newark Airport, with a number of chemical plants located in that area. All of those practical facts make it important for a United States Senator and Governor to pay attention.”
It’s hard to think of a more clear and present danger in the age of terrorism than the woeful state of chemical security in the U.S. Terrorists can read this article – as they can read the thousands of other articles, editorials, position papers and technical papers that have been generated on the subject over the last five years. They can also access databases that neatly list the locations of chemical plants and storage facilities, study Google maps of the surrounding areas, and zoom in on crisp satellite photos of buildings and rail yards. In countless commentaries about the federal government’s inaction, one question is asked so repeatedly that it’s already cliché: Will it take a successful terrorist attack on a chemical facility to force the government to act?
Unfortunately, the answer seems to be yes.
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