A chemical plant in Corpus Christie, Texas. Photo via Jay Phagan/Flickr
Nearly four months after a tiny fertilizer factory in West, Texas exploded into a disaster of historic proportions, the Obama administration is finally taking steps to improve regulation of the thousands of plants housing deadly toxic chemicals in the US—or at least find out where those plants are in the first place.
In testimony to Congress August 1, a Department of Homeland Security official told a House panel that the agency is working on compiling a consolidated federal database of chemical facilities—a long-awaited move that would theoretically allow government agencies to share information about plants that make, sell, and store toxic and explosive chemicals.
Previous attempts to come up with a federal database, including initiatives by DHS in 2008 and 2009, failed, due largely to technological incompatibilities in the way the different federal agencies store data. But according to the official, DHS Director of Infrastructure Security Compliance Division David Wulf, the agency has already figured out how to cross-match its database with the Environmental Protection Agency’s Risk Management Plan records, and is working on consolidating information with the Occupational Safety and Health Administration (OSHA) and the Bureau of Alcohol, Tobacco, and Firearms (ATF).
That’s encouraging news in the wake of the West, Texas explosion, which killed at least 14 people and wounded more than 300 more. Although investigators still don’t know what caused the accident at West Fertilizer, we do know the plant was housing 540,000 pounds of ammonium nitrate, an explosive chemical compound that is used in fertilizer and is also really, really good for blowing stuff up (Timothy McVeigh used ammonium nitrate in Oklahoma City bombings).
The West, Texas disaster also pulled back the veil on a bureaucratic quagmire of chemical safety regulations that would have made Kafka shudder. DHS had no idea that the West Fertilizer factory even existed. The EPA knew that the plant existed, but doesn’t require facilities to list ammonium nitrate on their Risk Management Plans (RMPs). OSHA also doesn’t require facilities to list ammonium nitrate; its inspectors last visited the plant in 1985.
The factory had reported ammonium nitrate on its Tier II report, an annual record that the EPA requires plants to file with state and local emergency officials, but that information was never relayed back to federal agencies. And most people in West, Texas—including many of the first responders—had no idea that dangerous chemicals were being stored right in the middle of their town.
The problem isn’t limited to West, Texas: A Reuters analysis of Tier II reports from 29 states found that at least 800,000 people in the US live near one of the hundreds of sites that store ammonium nitrate; at least 12 of those sites have 10,000 people or more living within a mile radius.
A consolidated federal database of hazardous chemical facilities could be the first step toward fixing the bureaucratic morass that allows “outlier” plants like West Fertilizer to slip under the radar.
“If done well, this could be very useful to the federal government,” said Paul Orum, a chemical safety consultant who works with the left-leaning Center for American Progress. “What the federal government lacks is a standardized identification system for facilities that is used across all agencies... If it’s managed electronically and efficiently, theoretically they should be able to consolidate information, at the very least with public data.”
Unfortunately, the federal government isn’t known for its efficiency. In his testimony, Wulf admitted that matching of DHS and EPA databases was a one-time event, although he said agencies are working on a plan for repeating it more regularly. But the matching doesn’t include Tier II data, which is kept by state and local authorities, so plants that house ammonium nitrate, like West Fertilizer, will continue to go unnoticed by the feds unless they report themselves to DHS.
Even if DHS could manage to build a comprehensive database of chemical facilities, it’s unlikely that the public would have access to the information. Since 9/11, the government has kept a tight lid on information regarding hazardous chemical facilities, for fear that the data could fall into the hands of terrorists. DHS’s Chemical Facilities Anti-Terrorism Standards program (CFATS), which has been responsible for regulating security at hazardous chemical plants since 2007, keeps the information it gathers secret, giving other agencies and first responders limited, “as needed” access to details about chemical facilities.
Even Tier II reports, which require plants to inform the public where dangerous chemicals are stored nearby, are often tightly guarded by state officials; an investigation by the Associated Press found that more than six states wouldn’t provide Tier II reports, due to terrorism concerns.
In some of those states, people must prove that they need to know information about nearby chemical facilities, which assumes they even know to ask in the first place. The result is that many people living near toxic chemical facilities, including some first responders, have no idea if they are at risk of exposure to hazardous materials or explosions.
The bizarre distinction between safety and security underscores peculiarities of post-9/11 chemical safety policy that go way beyond the creation of a federal database.
And in Texas, DHS just cut funding for an E-Plan program that collects Tier II reports about chemical hazards and makes them available to first responders. If the first responders to the West Fertilizer plant had had access to E-Plan, for example, the program would have warned them of the ammonium-nitrate fire and told them to back away.
The bizarre distinction between safety and security underscores peculiarities of post-9/11 chemical safety policy that go way beyond the creation of a federal database: The EPA can enforce safety regulations, but it can’t force plants to make security changes. The DHS is supposed to regulate security, but the CFATS program is voluntary—plants aren’t required to file reports with DHS, and if a facility does show security risks, the law does not allow DHS to mandate any improvements.
“The Department [of Homeland Security] has a conventional security mindset, which makes it cumbersome and difficult to carry out risk based programs,” Orum told me. “The single biggest deficiency is that they have chosen not to treat the use of safer and more secure technologies as a security measure.”
To make matters worse, CFATS has been plagued by a management problems, including wasteful spending, a failure to conduct onsite inspections, and a flawed risk assessment methodology. In a letter sent to DHS last month, three leading Republican House committee chairmen warned that CFATS could lose its funding it it doesn’t come up with a way to address these deficiencies. It’s easy to see why chemical companies aren’t rushing to jump through regulatory hoops for a program that has no enforcement capabilities and may not even exist by the next fiscal year.
In response to this regulatory clusterfuck, President Barack Obama signed an executive order August 1 that calls on federal agencies to “improve security of chemical facilities and reduce the risks of hazardous chemicals to workers and communities." The order sets deadlines for federal agencies, including the DHS, the EPA, and OSHA, to improve coordination and information sharing, modernize regulations, and identify best practices.
Environmental and safety advocates hope that the executive order will prompt the EPA to implement more stringent chemical plant regulations, including comprehensive oversight of ammonium nitrate and new safety mandates, like requiring chemical formulations with lower explosive risks. In a petition sent to the EPA earlier this month, a coalition of environmental groups, led by Greenpeace, urged the agency to use its authority under the Clean Air Act to force chemical manufacturers to use safer alternatives, a step they argue would reduce the risk of terrorist attacks by eliminating the risk itself.
“To really get at the root causes, if safer technology was employed, many of these disasters could have been avoided,” John Deans, a policy analyst for Greenpeace’s Toxic Campaign, told me. “We imagine a world in which the EPA program forces companies to upgrade, and the disaster scenario would go away...The executive order makes that the clear choice.”
Unsurprisingly, the chemical industry—and Republican lawmakers—have long opposed any new chemical safety mandates by the EPA. In February, Republican representatives, led by Rep. Mike Pompeo (R-Kan.) and backed by 17 powerful industry groups, introduced a bill to preempt the EPA from taking these steps, and formalize DHS jurisdiction over chemical plant security regulations. It’s a neat trick, when you consider that the DHS can’t actually do anything to enforce plant security in the first place.