Open to Attack
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Since September 11, 2001, the nation has been on alert about the vulnerability of chemical facilities. And while the Bush Administration claims that homeland security is a priority, time after time it has opted to do nothing dramatic to improve the security of U.S. chemical facilities. All along, it has followed the wishes of the U.S. chemical industry -- at our peril.
The risk to the American people is great. According to the General Accounting Office, "123 chemical facilities located throughout the nation have toxic 'worst-case' scenarios where more than a million people in the surrounding area could be at risk of exposure to a cloud of toxic gas if a release occurred."
Approximately 700 other plants, says the GAO, "could each potentially threaten at least 100,000 people in the surrounding area, and about 3,000 facilities could each potentially threaten at least 10,000 people."
The Bush Administration knows there is a huge security risk. On February 6, 2002, George Tenet, the director of the Central Intelligence Agency, testified that Al Qaeda could be planning to target chemical facilities. In February 2003, the Bush Administration announced that terrorists "may attempt to launch conventional attacks against the U.S. nuclear/chemical industrial infrastructure to cause contamination, disruption, and terror. Based on information, nuclear power plants and industrial chemical plants remain viable targets."
The Administration refuses to do what is necessary to protect the American public from terrorist attacks on chemical plants. Instead, it is listening to what industry wants.
"We haven't even done the minimal things," says Gary Hart, the former Democratic Senator from Colorado and one-time Presidential candidate. "There has been zero leadership from either the White House or the new department" of Homeland Security.
Hart has a lot of credibility on this issue. As co-chair of the United States Commission on National Security in the Twenty-First Century, he helped author the commission's prescient report, "New World Coming: American Security in the 21st Century," published in September 1999. The report warned that, in the course of the next quarter century, terrorist acts involving weapons of mass destruction were likely to increase. "Americans will likely die on American soil, possibly in large numbers," it said.
Hart says that private industry won't spend what it takes to make adequate security changes. "I don't think many companies are going to disturb their bottom line," he says, "unless they are ordered to by the federal government, or if the President goes on national TV and tells them to do so." Those orders have not yet been given.
Bush has given primary responsibility for overseeing security improvements in the chemical industry to the EPA. At first, the EPA appeared eager to take on the task. In fact, then-EPA Administrator Christine Todd Whitman even prepared a speech announcing a new security initiative, according to papers Greenpeace obtained through an EPA leak and a Freedom of Information Act request.
A June 11, 2002, document labeled, "Draft--Pre-decisional--Do Not Cite or Quote," concerns a "Rollout Strategy for Chemical Facility Site Security." According to the documents, Whitman and Tom Ridge, head of Homeland Security, were to announce the new policy at the White House.
"I am pleased to join Governor Ridge today to announce a series of new initiatives by the Environmental Protection Agency to advance security at facilities that handle hazardous chemicals," Whitman's speech begins. "Particularly in the post-9/11 era, it should be clear to everyone that facilities handling the most dangerous chemicals must take reasonable precautions to protect themselves and their communities from the potential consequences of a criminal attack."
EPA was going to get right on it. "Starting in July, EPA representatives will begin visiting high priority chemical facilities to discuss their current and planned security efforts," the speech read. "These visits will allow EPA to survey security and, if appropriate, encourage security improvements at these facilities."
Despite the detailed preparations, Whitman never gave the speech, and the new policy was never issued.
Industry weighed in.
"We heard from industry," says a former EPA official who declines to be named. The chemical lobby insisted that the agency did not have authority to go after companies that did not adequately safeguard their plants, the official says.
Also hearing from industry was Bush's Council on Environmental Quality (CEQ), which has a sympathetic ear. The CEQ is located across the street from the White House and is headed by James Connaughton, who formerly worked as a lobbyist for power companies.
Industry lobbying groups such as the American Chemistry Council and the American Petroleum Institute were in repeated contact with the CEQ during the summer and fall of 2002, according to the documents Greenpeace obtained.
The American Petroleum Institute vehemently opposed EPA regulation of plant security under the Clean Air Act. "EPA's existing authority to regulate 'accidental releases' from chemical facilities . . . does not encompass authority to address terrorist attacks," reads one document (bold in original) that the petroleum lobby submitted to the CEQ. The EPA's claim that it has the "authority to require plant operators to implement counter-terrorism measures goes far beyond the plain language of the statute and would impose new legal obligations without the proper legislative authority."
Aware of this argument, the EPA considered introducing legislation that would have explicitly expanded its authority under the Clean Air Act. Section 112(r) assigns chemical plants in this country the general duty of preventing dangerous accidents. The draft legislation would have broadened this responsibility to require the chemical industry to take measures to reduce the potential danger of criminal attacks, including terrorism.
A draft of the new general duty clause said, "All chemical facilities handling extremely hazardous chemicals have a general duty to identify hazards that may result from releases caused by terrorist or other criminal activity using appropriate assessment techniques, to design and maintain a secure facility, and to minimize the consequences of releases that do occur." EPA Deputy Administrator Linda Fisher discussed this draft in a May 2002 presentation entitled "Proposal for Chemical Security Legislation," according to the documents.
Fisher's presentation included a slideshow that revealed how dire the situation is. One slide, which explained why the legislation was necessary, asked, "Is industry safe? No way to answer under current law."
But the EPA backed off on the legislative route as well.
While the chemical and petroleum industries were busy putting the skids on the EPA, they also were working on Congress.
Senator Jon Corzine, Democrat of New Jersey, had attempted to attach an amendment to the Senate's Homeland Security bill that would have granted the EPA authority to regulate security at plants housing dangerous chemicals. It also would have required those facilities, when possible, to decrease the amounts of dangerous substances they store on site.
A modified version of Corzine's bill, the Chemical Security Act of 2001, had received unanimous approval from the Senate's Environment and Public Works Committee on July 25, 2002.
An alarmed chemical industry sprang into action, "mounting daily assaults on the Republican members of the [Environment and Public Works] committee throughout August," reported John Judis in The New Republic last January. An August 29, 2002, letter, signed by thirty members of the chemical and oil industry lobby and sent to Republican members of the committee, deplored the new bill, particularly its proposal to "grant sweeping new authority to EPA to oversee facility security." The lobbyists objected strongly to a particular provision that would have required plants to use "inherently safer technologies." This would "allow government micromanagement in mandating substitutions of all processes and substances," the letter stated, adding that it could "result in increased security risks."
By September 10, seven out of the nine Republican members on the committee bowed to the pressure, issuing a letter against the Corzine bill, claiming it "severely misses the mark" (emphasis in the original).
During that same summer, members of the American Chemistry Council (ACC) "gave more than $1 million in political contributions, most of it to Republicans. Eight Senators who were critical of the Corzine bill have received more than $850,000 from the ACC and its member companies," according to a Common Cause report dated January 27, 2003.
Frederick Webber, then head of the American Chemistry Council, was a prominent donor to President Bush's 2000 campaign, having agreed to raise $100,000 in funding for it and recruiting "more than twenty-five chemical industry executives to be Bush fundraisers," said Common Cause.
In addition to the industry efforts to lobby the Senators, the American Petroleum Institute was again in close contact with the CEQ, repeatedly sending copies of its "talking points" on the Corzine amendment to CEQ staff.
A September 6, 2002, fax from Red Cavaney, president and CEO of the American Petroleum Institute, to James Connaughton, chairman of the CEQ, includes a handwritten message, "Urgent--Please deliver. Hard copy to follow." The letter, which begins "Dear Jim," says that if the EPA gains authority to oversee the anti-terrorism measures of industry, "a year's worth of close cooperation and partnership between industry and a wide variety of qualified federal security experts may well be marginalized."
When Corzine attempted to introduce his legislation as an amendment to the Homeland Security bill, the Republican Senators blocked a vote, effectively killing the bill. On November 19, the Homeland Security bill passed the Senate. The bill did not include Corzine's amendment.
Nor did the bill include any other binding provisions for security at chemical plants.
The industry is proud of the role it played in nixing the plans for heightened security.
"The reason we're organized is to tell the government what would work well to take care of certain problems," says Bill Hickman, spokesman for the American Petroleum Institute, in response to questions about whether the organization pressured the government on security issues. "We always are talking to the government. We always are telling them what will work best. We're familiar with these issues and think we're pretty good advisers to the government."
When I approached the American Chemistry Council for comment, Kate McGloon, a spokeswoman for the organization, asked, "Is there anyone you need to talk to?" She instantly offers to put me in touch with people inside the Department of Homeland Security and the EPA.
Marty Durbin, director of federal relations and team leader for security at the American Chemistry Council, says his organization had some problems with Corzine's bill because it would have given primary jurisdiction over chemical plant security "to EPA rather than to the Department of Homeland Security." EPA officials, he says, "are not the right folks to be doing security."
Although Corzine reintroduced his bill this year, a bill by Senator James Inhofe, Republican of Oklahoma, is also under consideration. The Inhofe bill, which the American Chemistry Council says is more to its liking, would remove chemical plant security oversight from the EPA and place it in the hands of the Department of Homeland Security. Gary Hart has criticized the Inhofe bill for including "virtually no oversight or enforcement of safety requirements."
Corzine is incredulous at the lack of government oversight and the risk that entails. "Our chemical facilities represent a clear vulnerability in our war against terrorism," he says. "Yet, as common-sense security measures continue to stall in Congress, this appears to be a classic instance of the special interests trumping the public interest. More than two years after the attacks on the World Trade Center and the Pentagon, we have not taken the first step in setting national security standards for our chemical infrastructure." Corzine is blunt about who is at fault: "The Administration is putting the interests of industry ahead of the safety of the American people."
Chemical companies depend on the rails to transport hazardous chemicals, and the Department of Transportation has also buckled under industry pressure.
If chemical security is the weak link in homeland security, says Rick Hind, legislative director for the Greenpeace Toxics Campaign, "railroad shipping is the weak link within that. In order to make a dangerous chemical plant dangerous, you have to ship dangerous chemicals. And that goes right through the backyard of America."
Like the EPA, the Department of Transportation initially moved to tighten things up. On May 2, 2002, it issued notice that it was preparing a new rule governing security requirements for those who sell or transport hazardous materials. One requirement said, "Routes should minimize product exposures to populated areas and avoid tunnels and bridges, where possible."
The DOT's announcement resulted in almost 300 responses, nearly all of them from affected industries, particularly chemical, petroleum, and fertilizer companies, including the Chlorine Institute, Formosa Plastics, Monsanto, Phillips Petroleum, Dupont, Dow Chemical, BASF, the American Petroleum Institute, the American Chemistry Council, the Dangerous Goods Advisory Council, the Fertilizer Institute, and the Institute of Makers of Explosives.
"About ten to twenty" of the comments on the rulemaking asked that the language about routes "be removed because it would have locked them in or restricted what they could do in setting up their individual security plans," says Joe Delcambre, a public affairs representative in the Research and Special Programs Administration at the Department of Transportation. "To give the industry more latitude in how they were going to set up their security plans," he says, "we backed off on the wording."
The department's final rule, issued in March of this year, completely omits the language about preferable routes.
"There's nothing really in there that says anything about restricting transport at any time," says Hind. He expected the rule at least to require constraints on dangerous chemicals in heavily populated areas during orange alerts. "But they didn't even do that," he says.
In September, the Sierra Club photographed a rail tank car carrying chlorine near the U.S. Capitol. Greenpeace took notice. "We are formally requesting immediate action by the Secret Service to address a near and present danger to the President, Vice President, Speaker of the House, and all other national leaders living and working in Washington, D.C.," Hind wrote to the Secret Service. By the EPA's own worst-case estimates, a leak from one ninety-ton rail car of chlorine could kill or injure "people in the Congress, the White House, and any of 2.4 million local residents within fourteen miles," Hind wrote.
Greenpeace isn't the only one raising alarms. On June 20, FBI Special Agent Troy Morgan, a specialist on weapons of mass destruction, addressed a chemical security summit in Philadelphia. "You've heard about sarin and other chemical weapons in the news," he said, according to the Pittsburgh Tribune-Review. "But it's far easier to attack a rail car full of toxic industrial chemicals than it is to compromise the security of a military base and obtain these materials."
Jerry Poje is a member of the U.S. Chemical Safety and Hazard Investigation Board. This government organization was formed in the wake of the December 2, 1984, Union Carbide disaster that killed thousands of people in Bhopal, India. He, too, is worried about chlorine. "It's a chemical whose use is very common in the country," says Poje. "There are many, many, many rail cars" filled with it.
Industry says it can adequately monitor itself. The American Chemistry Council, for one, has adopted a "Security Code of Management Practices." Member companies are supposed to conduct vulnerability assessments using methodologies designed by approved organizations, implement a security plan, and submit their security measures to outside verification.
However, the organization is not specific in its security requirements. For instance, it doesn't require background checks on guards. It doesn't require companies to minimize the dangerous chemicals they store on site. It doesn't require companies to fix holes in their fences. "You can't really have a cookie-cutter approach" to different plants, says Durbin. He also says that each chemical facility gets to choose the person who verifies that it has actually carried out a security plan.
The GAO studied industry's voluntary efforts. Its March 2003 report is entitled "Voluntary Initiatives Are Under Way at Chemical Facilities but the Extent of Security Preparedness Is Unknown." The title pretty much sums up the problem with security in the chemical industry. We don't know what's going on.
"To date, no one has comprehensively assessed the security of chemical facilities. No federal laws explicitly require that chemical facilities assess vulnerabilities or take security actions to safeguard their facilities against terrorist attack," says the report. "No agency monitors or documents the extent to which chemical facilities have implemented security measures. Consequently, federal, state, and local entities lack comprehensive information on the vulnerabilities facing the industry."
The GAO report reveals that the EPA is worried about the voluntary initiatives, which "raise an issue of accountability, since the extent that industry group members are implementing voluntary initiatives is unknown."
In the end, voluntary security initiatives collide with the need to save money. "According to industry officials, chemical companies face a challenge in achieving cost-effective security solutions, noting that companies must weigh the cost of implementing countermeasures against the perceived reduction in risk," the GAO report says.
The GAO's observation that money is getting in the way of security at our chemical plants is borne out by a research report by the Conference Board, a business organization. Entitled "Corporate Security Management: Organization and Spending Since 9/11," the research found that "the median increase [from October 2002 to February 2003] in total security spending is only 4 percent."
The reason for the overall lack of spending on security, concluded the Conference Board, was economics. "The perceived need to upgrade corporate security has clashed with the perceived need to control expenses until the economy recovers," it reported.
The American Chemistry Council says it does not yet have figures on what its member companies are spending on security.
Gary Hart has not stopped issuing warnings. In 2002, he co-chaired another report, this one sponsored by the Council on Foreign Relations. Entitled "America Still Unprepared--America Still in Danger," the report cautioned, "A year after September 11, 2001, America remains dangerously unprepared to prevent and respond to a catastrophic terrorist attack on U.S. soil. In all likelihood, the next attack will result in even greater casualties and widespread disruption to American lives and the economy."
On August 11, Hart published an op-ed in The Washington Post. "The government has failed to plug a gaping hole in homeland security: our vulnerable chemical plants," he wrote. Those plants "are among the potentially most dangerous components of our critical infrastructure. Securing them requires urgent action."
Hart blames the Administration's inaction on "coziness with the private sector, their campaign contributions, their political alliances." This Administration, he tells The Progressive, has a tendency to "put those political alliances ahead of national security."
Saying he is "very frustrated" at the Bush Administration's negligence, Hart warns: "We will be attacked again."
Anne-Marie Cusac is an investigative reporter for The Progressive.