Stewart M. Powell and Charles J. Lewis – 2013-05-02 01:08:42

http://www.houstonchronicle.com/news/houston-texas/houston/article/Regulation-of-chemical-industry-haphazard-4469725.php

Regulation of Chemical Industry Haphazard, Toothless
Stewart M. Powell and Charles J. Lewis

WASHINGTON (April 28, 2013) — Eighteen years after a domestic terrorist murdered 168 people in Oklahoma City with an ammonium nitrate bomb, the federal government and the chemical industry are still jockeying over how to regulate a volatile and plentiful fertilizer that contributed to the devastating plant explosion in West, Texas.

It’s a typical example of the federal government’s haphazard, toothless regulation of the chemical industry.

The roots of the problem are disturbingly evident: For many years, behind-the-scenes, lobbyist-influenced maneuvering has created a cumbersome patchwork of overlapping and sometimes conflicting regulation of chemical plants by at least five different federal agencies. The system is reliant on voluntary reporting by industry, and by nature is largely reactive to complaints or catastrophes.

Historically, individual industrial accidents and explosions have provoked narrowly targeted changes in federal laws or regulations — but not the comprehensive overhaul favored by safety activists and opposed by industry.

Chemical-industry lobbying on Capitol Hill has slowed down and dispersed regulatory oversight across various federal agencies that often don’t share plant-by-plant information.

And Congress itself has contributed to the inertia by preserving the narrow, legislative jurisdiction of various House and Senate committees rather than assigning exclusive oversight to a single entity.

“The patchwork of regulation that we have in place has evolved by default, not by design,” says Rep. Bill Flores, R-Bryan, the House member who represents West. “Most of these statutes were passed in response to some sort of incident without Congress and the regulatory community ever stepping back to take a more holistic approach.”

Federal, state and local Investigators are still unraveling the sequence of events on April 17 that transformed a fire at the West Fertilizer Co. plant into a massive explosion that engulfed a school, a nursing home and private homes. The fire and explosion claimed at least 14 lives, at least 10 of them first responders.

Many Inquiries
An investigative team from the U.S. Chemical Safety Board has begun an on-site investigation.

The 32-member House Committee on Homeland Security is “thoroughly examining any gaps in oversight of security and will take appropriate action,” says Rep. Michael McCaul, R-Austin, chairman of the panel.

The Department of Homeland Security, tasked in 2006 with tracking chemicals useful to terrorists, “was not even aware of this plant,” McCaul says. The department “clearly has to do a better job identifying facilities that store and sell massive quantities of dangerous chemicals that could be used as weapons of mass destruction.”

Two Democratic lawmakers also have asked Congress’ watchdog Government Accountability Office to determine why the Occupational Health and Safety Administration had not conducted a full-fledged worker safety inspection of the plant since 1985 and why the Environmental Protection Agency had not carried out an on-site visit since 2006.

“Regulatory gaps … leave workers and nearby communities inadequately protected,” Reps. George Miller, D-Calif., and Joe Courtney, D-Conn., told the accountability office in their request.

Underlying the nation’s ad hoc federal regulatory framework is a long-standing practice by U.S. officials to revise laws or promulgate rules in response to specific incidents.

Damage from the explosion of the West Fertilizer Co. plant is seen in an aerial view of the city on April 18, one day after the blast killed at least 14 people in West, Texas. The plant is a the bottom of the photo. An apartment complex is at center. A nursing home is at top.

Accidents, Attacks
For example, the accidental release of a deadly cloud of methyl isocyanate gas by the Union Carbide plant in Bhopal, India, in 1984 that killed at least 3,787 residents prompted Congress to adopt the landmark Emergency Planning and Community Right to Know Act in 1986 to require U.S. industrial facilities to alert surrounding communities about hazardous materials on site.

Similarly, Congress sought tighter controls on ammonium nitrate after Timothy McVeigh used a fertilizer and fuel oil bomb to destroy the Alfred P. Murrah federal office building in Oklahoma City in 1995.

Fertilizer-related compounds also were found in al-Qaida’s truck bomb attack on New York’s World Trade Center in 1993 that killed six and injured more than 1,000, as well as a defused car bomb in Times Square in 2010 set by a naturalized U.S. citizen from Pakistan trained at a Pakistani terrorist training camp.

At least five federal agencies currently have a piece of regulating fertilizer plants such as the one in West: the Department of Transportation’s Pipeline and Hazardous Material Safety Administration, the U.S. Coast Guard’s Maritime Transportation Security Administration, the Occupational Safety and Health Administration, the Environmental Protection Agency and the Department of Homeland Security.

Critics Blame Lobbyists
The West plant was not being regulated by Homeland Security at the time of the explosion because it had not voluntarily reported that it was handling or storing more than the threshold amounts, explained department spokesman Peter Boogaard.

Post-explosion reports said the firm had as much as 540,000 pounds of the material on site in recent months.

In Congress, more than a dozen House and Senate committees and subcommittees have jurisdiction over various aspects of chemical plant safety, including hazardous materials, workplace safety, releases of toxic gases and security.

Critics trace the far-flung oversight to years of lobbying of Congress and enforcement agencies by the chemical industry, focusing on funding as well as rules for implementation of legislation.

Congressional funding for Department of Homeland Security oversight of chemical plants has varied widely over the past six years, from as little as $50 million for 21 federal employees in 2008 to as much as $105 million for 257 employees in 2011. Currently the department has $96 million to cover the activities of 242 federal employees responsible for overseeing chemical plant security.

“The business community discovered a long time ago that the best way to achieve regulatory relief is to starve the agencies’ budgets while maintaining the appearance of a protective regime,” says Thomas McGarity, a professor at University of Texas law school who wrote “Freedom to Harm: The Lasting Legacy of the Laissez Faire Revival.”

The nation’s agriculture, chemical and food industries are richly represented by K Street lobbying firms that marshal a 12,389-strong army of registered lobbyists who charged $3.30 billion for services last year, according to the Center for Responsive Politics.

The Fertilizer Institute, the industry’s lobbying arm in Washington, aggressively advocates fertilizer interests, working to sway federal agencies that have a hand in regulation such as the Department of Homeland Security.

The Adair Grains Co., owner of the West facility, is not a member of the trade association.

Slow to Review Plants
According to the Center for Responsive Politics, the Fertilizer Institute ranked sixth among agriculture service and products enterprises in the amount of money devoted to lobbying last year. The institute chipped in $1.2 million of the $34 million spent by 98 clients in that sector, according to data compiled by the nonpartisan research group.

Arcane federal rule-making increasingly draws the attention of lobbyists. Interest groups, for example, have forced the Department of Homeland Security to resort to issuing an “interim final rule” to implement a program created by Congress in 2006 to oversee chemical plants for possible exposure to terrorism.

Ongoing uncertainty over regulations and budgets apparently has slowed Homeland Security efforts to review and approve plant security plans. Of 44,000 facilities handling any of the 322 so-called “chemicals of interest” including ammonium nitrate, the department had authorized anti-terrorism security plans at only 280 high-risk plants by the time the West explosion took place. The sprawling department had carried out on-site inspections and approved final security plans at only 53 plants.

Similarly, the department has still not approved final rules to implement an industry-backed law approved by Congress in 2007 to require registration of purchasers and sellers of ammonium nitrate as an alternative to deeper federal regulations.

So far, the nation’s latest industrial explosion is stirring discussion on Capitol Hill, but not provoking immediate calls for hearings or legislative remedies.

“We’ll see from the investigation whether there were mistakes made or not,” said Republican Sen. John Cornyn, Texas’ senior senator. “For my part the federal government is going to be doing its own review and making sure that we learn from this and do everything we can to stop it from happening again.”

Little lLkely to Change
Outside experts foresee few changes to regulations that appear to have been only partially enforced at the West plant.

Neither Congress nor state legislatures are prepared to finance the number of federal and state inspectors that would be needed to replace the voluntary reporting system that lies at the heart of chemical-plant regulation, said Victor Flatt, a professor at the University of North Carolina law school as well as University of Houston’s business school.

“The hodgepodge of regulation gives businesses a way to slip through the cracks,” said Flatt. “Sadly, we’ll have to wait for after-the-fact violations and just hope those violations aren’t fatal.”

Patchwork of Regulation
Five federal agencies currently are responsible for the regulation of ammonium nitrate.

Department of Transportation’s Pipeline and Hazardous Material Safety Administration: regulates the movement of ammonium nitrate by rail or truck. It fined the West Fertilizer Co. $5,200 in 2011 for infractions that included failing to prepare a plan for safe transport of canisters of pressurized anhydrous ammonia.

U.S. Coast Guard’s Maritime Transportation Security Administration: regulates waterfront facilities handling ammonium nitrate.

Occupational Safety and Health Administration: keeps an eye out for worker safety, relying on reports by employers and inspections by overstretched OSHA inspectors.

Environmental Protection Agency: requires chemical plants to submit annual safety reports to state and local emergency response agencies. EPA inspectors had not visited the West facility since 2006 — the year the agency fined the enterprise $2,300 for failing to update a required risk management plan. The plant filed a report in 2011 that declared there was no risk of fire or explosion at the facility.

Department of Homeland Security: administers the Chemical Facility Anti-terrorism Standards program that requires plants to voluntarily report more than 400 pounds of ammonium nitrate or more than 2,000 pounds of agricultural-grade ammonium nitrate. Homeland Security also requires voluntary reports by plants handling more than 10,000 pounds of anhydrous ammonia.

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