EPA “Reconsiders” Whether to Protect Communities Surrounding Chemical Plants

But as the ….government has promoted the [chemical] sector’s rapid growth, it has struggled with its impact on the environment. The chemical industry has quashed calls to strengthen oversight and force companies to publicly disclose what substances they produce. Local environmental bureaus are often politically feeble and understaffed.

— New York Times, June 13, 2017

I would understand if you thought the quote above described the United States today — two days after the Scott Pruitt’s Environmental Protection Agency delayed improved protections for communities surrounding chemical plants.

But you would be wrong. The excerpt above actually describes a hopelessly desperate situation in China, where the government sides with the chemical industry against children and citizens who live in the shadow of chemical facilities.

Meanwhile, the US EPA announced earlier this week that it was bowing to the wishes of its chemical industry overlords, and would further delay implementation of the updated Risk Management Protection for an additional 20 months, until February 19, 2019. The delay is needed “to allow the agency to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment.”  The rule had already been delayed for four months, bringing the final delay to two years.  “We are seeking additional time to review the program, so that we can fully evaluate the public comments raised by multiple petitioners and consider other issues that may benefit from additional public input,” said Administrator Scott Pruitt.

Or to simplify: What the chemical industry wants, the chemical industry gets.

EPA’s Risk Management Program regulation, originally issued in 1992, is designed to protect communities surrounding chemical facilities from harmful explosions and chemical releases.  EPA had updated these protections in response to President Barack Obama’s 2013 Executive Order on “Improving Chemical Facility Safety and Security” following the catastrophic explosion at West Fertilizer that killed 15 people and wiped out part of the city of West, Texas.

To simplify: What the chemical industry wants, the chemical industry gets.

The new rule significantly improved communication between facilities and emergency responders, clarified information that emergency responders need to safely respond to incidents, required root cause analyses of chemical plant incidents and near misses, and required chemical facilities to consider “inherently safer” chemicals and production processes.

The most infuriating thing about this delay is not just that it caved into petitions from the chemical industry to weaken or repeal the rule, but that Pruitt’s justification for reconsidering the rule was  primarily based on the completely unsubstantiated 2016 allegation by the Bureau of Alcohol, Tobacco and Firearms (BATF) that the fire at West Fertilizer was caused by arson. ATF inappropriately based that conclusion on the fact that it couldn’t figure out how the fire had started, and concluded that it therefore must be arson.

And the industry (the RMP Coalition) picked up on the BATF allegation, stating in their Feb. 28, 2017, petition to EPA that  “Knowing that the incident was intentional would could have impacted the scope of the Executive Order, certainly have changed the comments EPA received, and likely would have caused EPA to construct its proposed and final rules differently had it known of these circumstances at the time of the proposed rulemaking.”

This statement is demonstrably false. Nevertheless, in a May 13 response to the industry’s petition, Pruitt noted that the Clean Air Act permits EPA to reconsider a rule if there were issues that “arose after the comment period or were impracticable to raise during the comment period,”  and Pruitt wrote that he had, in fact,  identified just such an issue:

Among the objections raised in the petition that meet the requirements for a petition for reconsideration …, we believe the timing of the BATF finding on the West, Texas incident, which was announced just before the close of the public comment period, made it impracticable for many commenters to meaningfully address the significance of this finding in their comments on this multi-faceted rule. Prior to this finding, many parties had assumed that the cause of the incident was accidental. Additionally, the prominence of the incident in the policy decisions underlying the rule makes the BATF finding regarding the cause of the incident of central relevance to the Risk Management Program Amendments.

Negative Corpus

Confined Space discussed earlier this year why the BATF’s arson findings and conclusion were wrong. To summarize:

1. ATF found no evidence of arson; they just couldn’t find any other source of ignition, and by process of elimination, concluded it must be arson
2. Even if the fire had been started deliberately, it was the unsafe Ammonium Nitrate storage procedures that caused the fire to lead to a catastrophic explosion.  As I wrote earlier, “Proper storage and management of flammable and explosive materials —  process safety management —  is the difference between a fire that makes the front page of the West, Texas News, and a catastrophic explosion that makes the front page of every newspaper in the world.”

But why should a violation of the scientific method stand in the way of eliminating protections for people living in the shadow of a chemical plant?

Since I wrote that piece, I’ve also come across additional evidence detailing why BATF conclusion that the fire was started by arson was in error. The process that BATF used — eliminating every other ignition source and then concluding that arson must be the only cause — is called “negative corpus.” And the world’s leading authority on fire investigation, the National Fire Protection Association (NFPA), has declared “negative corpus” to be a violation of scientific method:

The process of determining the ignition source for a fire, by eliminating all ignition sources found, known, or believed to have been present in the area of origin, and then claiming such methodology is proof of an ignition source for which there is no supporting evidence of its existence, is referred to by some investigators as negative corpus. . . [Negative corpus] is not consistent with the scientific method, is inappropriate, and should not be used because it generates untestable hypotheses, and may result in incorrect determinations of the ignition source and first fuel ignited. (NFPA 921 (2014), 19.6.5, at 203)

But why should a violation of the scientific method stand in the way of eliminating protections for people living in the shadow of a chemical plant?

Guns, Guards and Dogs vs. Inherently Safer Technology

It’s bad enough that Scott Pruitt would use a false allegation of arson as an excuse to reconsider this rule. Even worse, however, is that the arson allegations are also likely to provide ammunition to those who focus more on the terrorist threat to chemical plant safety, over a process safety and “inherently safer” approach which the RMP rule encourages. The rule requires companies to prioritize inherently safer technology
or design and determine their  practicability as part of its Process Hazard Analysis.

The debate over inherently safer technologies boils down to this:  There are two basic “theories” of chemical plant security, one historically associated with the Department of Homeland Security (DHS), and the other historically associated with the Environmental Protection Agency. (I say “historically,” because these days, down is up, and up is down.)  This debate between the “security” people vs. the “inherently safer” people has been raging since 9/11, and continues to rage today.

DHS (along with their supporters in the chemical industry and “security establishment”) tend to focus on higher gates, more guards, bigger guns and ferocious dogs to protect America from terrorist attacks on chemical facilities that could impact large numbers of workers and nearby citizens.

The EPA, on the other hand (supported by  labor and  more environmentally inclined organizations) has traditionally tended to approach the chemical security problem by  completely eliminating or reducing the target  through “inherently safer” approaches, rather by just guarding the target better. For example, a wastewater treatment plant might get rid of their tank-cars full of chlorine, and replace them with highly concentrated bleach. Chlorine, if released into the air, creates a highly toxic gas, that can kill people if inhaled.

If you look at the history of chemical facility catastrophes affecting workers and citizens in this country, you’ll find that faulty plant management is much more effective than terrorism in killing Americans in chemical incidents.. 

An tragic example of what can happen to innocent bystanders occurred on January 6th, 2005 when a freight train carrying chlorine gas near Graniteville, South Carolina, struck a parked train, puncturing the chlorine tanker. Nine workers died of chlorine inhalation: the train’s engineer and eight workers in an adjacent factory. 5,400 people within a 1-mile radius were evacuated and 75 were admitted to a hospital for treatment. And we wrote recently about a near-miss at a Southern California refinery that could have killed or injured thousands of nearby residents.

“Inherently safer” advocates argue that eliminating the hazardous material provides the best safety and security from terrorists. With no target that can kill thousands of surrounding residents, why even bother attacking a chemical facility?  And inherently safer production has the added advantage of preventing “home made” catastrophes — those caused not be terrorists, but by failures of chemical process safety.  And if you look at the history of chemical facility catastrophes affecting workers and citizens in this country, you’ll find that faulty plant management is much more effective than terrorism (or arson) in killing Americans in chemical incidents.

And, of course, if the terrorism threat appears much bigger than the much more common threat of breakdowns in chemical process management, you probably don’t need the Chemical Safety Board any more either.

Let Them Eat Summaries 

Selling the story that the West explosion was a result of arson (or terrorism) doesn’t just feed the guns, guards, dogs and fences argument, it also threatens to endanger emergency responders and communities. Twelve emergency responders died responding to the West fire. They didn’t know exactly what was burning in the facility, how a fire involving ammonium nitrate can turn into a catastrophic explosion or how to confront a fire like that.  That kind of deadly ignorance among those sent in to respond to these emergencies is unfortunately more the rule than the exception.

In 1986, Congress passed the Emergency Planning and Community Right To Know Act (EPCRA) in order to promote better emergency response and  more community participation in coordinating that response. Under this law, EPA was supposed to encourage the establishment of Local Emergency Planning Committees (LEPCs) in communities to develop emergency response plans and coordinate their implementation. EPCRA is generally considered to be a failure in most parts of the country.  While some LEPCs are actively functioning, most, especially those in smaller communities either don’t exist or don’t have enough resourcses to function effectively.

To address this problem, the revised (and now delayed) RMP significantly improved coordination between chemical facilities and emergency planners and responders, including annual meetings and exercises. Also, an emergency response program that spells out emergency health care, employee training measures and procedures for informing the public and response agencies (e.g the fire department) should an incident occur. The RMP also improves public access to information in order to help the public understand the risks at RMP facilities and how to protect their families if there is an uncontrolled chemical release.

But the chemical industry hates the idea of communities — even those member in charge of emergency response — knowing what hazardous chemicals are being used in their plants. Relying on the security argument, the industry petition complains that the final regulation contains “a new provision for disclosures to LEPC’s, requiring facilities to provide information that could severely compromise security.” Specifically, they object to language that requires facilities to provide to emergency responders  “any other information that local emergency planning and response organizations identify as relevant to local emergency planning upon request of an LEPC.”

 Can anyone out there tell me why an emergency responder would want to know chemicals what they’re responding to?

They’re not even crazy about giving LEPC’s summaries of chemical information: “where the Proposed Rule only required facilities to provide summaries of information on hazardous chemicals — itself objectionable on security grounds, the Final Rule requires facilities to release any relevant information that an LEPC might request, potentially including full documents with extensive details of security vulnerabilities.” (emphasis added.) Red Herring alert: There is nothing in the regulation that requires facilities to give LEPC’s ” documents with extensive details of security vulnerabilities.”  But it sure sounds scary.

And really, can anyone out there tell me why an emergency responder would want to know chemicals what they’re responding to?

The emergency response requirements in the RMP was largely in response to data showing serious problems with communities’ emergency response capacity, as well as demand from communities and emergency responders. While government agencies are often criticized by Republicans as a bunch of bureaucrats who sit in their offices thinking up regulations for businesses without any knowledge of what goes on in the “real world,” the development of this rule was far from that myth.  For a year following issuance of the Executive Order, high level officials form EPA, OSHA and the Department of Homeland Security organized public meetings around the country  to listen to thousands of chemical plant owners, workers and people living near the plants.   The clear message that came from workers and people living near the plants was they needed far more information about the chemicals that were being used in the plants, better information on what had caused chemical releases or near misses,  improved emergency response procedures, and better communication between responders and the chemical facilities.

What’s it All About?

As I’ve said before, industry opposition to the EPA’s updated RMP regulation has little to do with how the fire may have started at the West Fertilizer facility, and more to do with the traditional reasons that industry opposes health, safety and environmental protections: they don’t want to pay for the safeguards that are needed and they don’t want  government agencies telling them how to do their business — especially if government actions give more power to workers and surrounding communities.

Millions of people live and work in the shadow of high-risk chemical plants that store and use highly hazardous chemicals. A 2012 Congressional Research Service report found that more than 2,500 chemical facilities estimate that their worst-case scenarios could affect between 10,000 and 1 million people. 4.6 million children at nearly 10,000 schools across the country are within a mile of a facility that reports to the EPA. The West explosion and other recent chemical industry disasters have highlighted the fact that there are significant gaps in our chemical facility oversight processes. Near misses that warn of narrowly avoided disasters happen with frightening frequency — potential disasters that could make the West Texas tragedy look like a minor incident.

Modernization of safety oversight of US chemical facilities is needed and President Obama’s Executive Order and the RMP regulation moved the federal government further down the road to making these facilities safe for the workers who operate the plants, and the people who live near the plants.  Using the BATF allegations of how the fire started in the West facility is nothing but an excuse to stoke the public’s fear of chemical terrorism and weaken community protections.