21 May 2003
Manufacturers Elude Crackdown on Toxic Materials
Sen. Corzine Pushed for Rules to Reduce Terror Threats, but Political
Jacob M Schlesinger and Thaddeus Herrick
-- In the wake of Sept. 11, 2001, the nation's leaders considered
drastic measures to combat terrorism. High on their list: Prod the
chemical industry to cut production of its most toxic materials.
files listed more than 100 factories where a terrorist attack could
create a poisonous cloud that would kill or sicken more than a million
people. Lawmakers proposed legislation authorizing the Attorney
General to order factories near big cities to bolster security immediately.
Defiant executives could be jailed. In 2002, a Senate committee
unanimously passed a tough bill.
the campaign bogged down. A smart, well-timed lobbying drive by
the chemical industry played a role. So did a pronounced shift in
the debate over homeland security. For months after the terrorist
attacks, the impassioned desire to protect Americans led even a
Republican administration to crack down on important industries.
Once those emotions subsided, Washington reverted to the traditional
partisan debate over how deeply government should be involved in
the market. Congress is once again weighing chemical security this
year, but any law that passes will be much more business-friendly
than first envisioned.
not that the terrorist threat has disappeared. Tuesday, the Department
of Homeland Security raised its color-coded assessment of the risk
of an attack to orange, the second-highest level on the scale. But
many policy makers now seem more comfortable with voluntary industry
responses, such as the chemical industry's code urging companies
to beef up security whenever the government raises the threat level.
wanted to use the tragedy of Sept. 11 as an excuse to regulate more,"
says Oklahoma Sen. James Inhofe, the lead Republican legislator
on chemical security.
tone was very different immediately after Sept. 11. Republicans
and Democrats worked together to identify the country's most vulnerable
targets and decide how to protect them. Beyond airlines, Congress
acted to secure ports, drinking water and food.
also drew instant attention. Within two months of the terrorist
attacks, Sen. Jon Corzine, a New Jersey Democrat, introduced the
Chemical Security Act. The bill was designed to give the government
new powers to track chemicals from production through transportation
to storage by users. Mr. Corzine said he had concluded during his
frequent flights to Newark that the unguarded oil tanks and refineries
he saw below were as vulnerable to air attack as the Pentagon had
early discussions of chemical security were based on an assumption
that manufacturers wouldn't do enough without strong government
direction. Backers of the legislation also asserted that it wasn't
sufficient for companies simply to add guards and build higher fences.
The government, they said, should pressure chemical makers and customers
to move away from making or using certain products that could cause
the greatest destruction, so long as the costs weren't extreme.
state and local governments already had tried that approach. A 1999
Contra Costa County, Calif., ordinance, for instance, led refiners
such as ChevronTexaco Corp. and Tesoro Petroleum Corp. to replace
chlorine with alternative disinfectants and ammonia with a safer,
roots of this "inherently safer technology" concept lay
in the environmental movement. For two decades, activists had pushed
to phase out hazardous compounds, from a failed campaign to make
paper companies "chlorine free by '93" to modest successes
prodding makers of toys, medical devices and cars to stop using
polyvinyl chloride, a type of plastic.
campaigns were aimed at reducing pollution and limiting the danger
of accidents such as the 1984 Union Carbide Corp. disaster, which
killed more than 3,000 in Bhopal, India. In the spring of 2001,
Greenpeace sailed its Arctic Sunrise ship on the Mississippi River
for a "Bhopals on the Bayou" tour of chemical plants that
the group said could be vulnerable to similar catastrophes.
then, terrorism wasn't the primary focus. The environmentalists
sometimes played down the terror threat when industry complained
that Greenpeace was courting attacks by spotlighting potential hazards.
soon after the Sept. 11 attacks, the activists made terrorism the
new centerpiece of their old crusade. That fall, Rena Steinzor of
the Natural Resources Defense Council told Congress: "Human
error ... killed several thousand people in Bhopal. What price will
we pay for deliberate sabotage at such a facility?"
logic won influential converts. Mr. Corzine's legislation set as
one goal "reducing usage and storage of chemicals by changing
production methods and processes." President Bush's Environmental
Protection Agency drafted its own bill -- for internal administration
debate -- with similar goals.
the start, critics said the Corzine bill would put "government
in the position of making business decisions," as New Hampshire
Republican Sen. Bob Smith complained at a November 2001 hearing.
In the hope of getting the bill through Congress, Mr. Corzine responded
to Republican and industry complaints by slashing the list of chemicals
to be regulated from several thousand to 120. He also dropped plans
to oversee rail cars that transport chemicals, concentrating instead
just on factories making them.
Sen. Corzine clung to his core principles of strong government standards,
including a federal role pushing "inherently safer technologies."
With Sept. 11 memories still fresh, Sen. Corzine figured few politicians
would oppose any homeland security measure. Under his proposal,
companies would have to file reports to the government showing how
they were at least exploring the use of less-toxic products or manufacturing
processes; if regulators weren't satisfied, they could order companies
to take specific steps.
July 25, the Senate Environment and Public Works Committee voted
on the Corzine bill. Conservatives still had concerns. Sen. Inhofe,
the Oklahoma Republican, complained about "a new army of EPA
officials." But he praised Sen. Corzine's compromises and expressed
confidence that an accord could be worked out.
bill passed 19-0. There seemed to be enough momentum to win full
Congressional approval when legislators returned from the August
chemical industry's two big lobbying groups -- the American Chemistry
Council, or ACC, and the American Petroleum Institute, or API --
had lain low, thinking the bill might get lost amid the welter of
homeland-security legislation. But the unanimous committee vote
set off alarms in a slumping industry wary of new regulatory costs.
Chemical makers were especially worried about the prospect of regulators
demanding "inherently safer technologies."
companies aren't very enthusiastic about the Contra Costa County
experiment, for example. Dow Chemical Co. says it can replace chlorine
only on a limited basis. The chemical accounts for a third of Dow's
annual revenue and has a huge array of uses, including pharmaceuticals
and crop protection.
not just what it would cost Dow," says spokeswoman Terri McNeill.
"It's what it would cost society."
lawmakers went on vacation, the chemical lobby went to work. The
ACC and the API called on other business groups to gin up broad-based
resistance. When the new coalition met at the API's Washington offices
in early August, Kendra Martin, the petroleum institute's director
of security, says she asked them: "Are you aware of the Chemical
Security Act and how onerous it might be?" On Aug. 29, 30 groups
-- from truckers to paint makers -- signed a letter to all senators
urging them to oppose the legislation.
by the Fertilizer Institute, farm lobbyists wrote a letter expressing
concern about a ban on "chemicals responsibly used and needed
by agriculture" such as ammonia, a vital ingredient in fertilizers.
The 3,700-member National Propane Gas Association generated 8,500
letters warning of the demise of the backyard gas grill. The Chlorine
Chemistry Council raised the specter of massive economic disruption,
calculating in position papers that "chlorine products and
their derivatives account for 45% of the nation's gross domestic
Corzine bill didn't actually call for banning any of those materials,
but opponents nevertheless warned of unintended consequences.
Corzine insisted that his bill was about homeland security, not
environmentalism. The push for less-toxic chemicals would make manufacturing
plants less-tempting, destructive targets, he argued. But the idea
was closely associated with the green movement. So the chemical
industry was able to shift the debate away from whether companies
could reduce the risks of terrorist attacks and onto their critics.
Sowers, a lobbyist at the Agricultural Retailers Association, says
he made sure to tell members and legislators that Greenpeace backed
the Corzine bill. The Ohio Chemistry Technology Council rallied
companies to contact the state's senators to offset an "aggressive
grassroots campaign" by "Greenpeace, the Sierra Club,
and other environmental activist groups."
Congress returned in early September, bipartisan support for the
legislation unraveled. Seven Republican senators who had voted for
the bill in committee now issued a statement saying the proposal
"misses the mark." They declared: "We feel compelled
to offer amendments to address concerns ... that have arisen from
scores of stakeholders."
aides, too, had grown cool to the stricter rules. White House economic
officials argued that the private sector would fix many of the security
gaps exposed by Sept. 11 more quickly and efficiently than regulators
could. These officials cited a new "Security Code" drafted
by the ACC and announced under the press-release headline: "Chemical
Industry Commits to Mandatory Enhanced Security."
plan's details were fuzzy. Its "mandatory" steps included
pledges to conduct "internal audit and continuous improvement
processes," but they avoided giving companies detailed instructions
on how to carry those out. The trade group urged companies to consider
safer technologies but didn't want the government involved.
officials thought the ACC guidelines showed the free market repairing
itself. "It was very reassuring, very refreshing that such
significant economic players recognized they should do something
to minimize the risk," says Tom Ridge, the homeland security
federal government took no action on chemical security in 2002.
The issue wouldn't die, though. Early this year, as fears spread
of terrorist retaliation for the Iraq war, an FBI bulletin warned
that "al Qaeda operatives" may "launch conventional
attacks against the U.S. nuclear/chemical-industrial infrastructure."
has continued to taunt the industry by penetrating factory defenses.
Two activists paddled a kayak alongside the docks just south of
Houston where Dow Chemical loads and unloads chemicals. A Dow spokeswoman
says the company works closely with authorities, including the U.S.
Coast Guard, to ensure security.
have struggled to balance security and profits. DuPont Co. says
that since Sept. 11 it has spent $20 million to bolster security,
but the company is hesitant to undertake much more. "There
is an endless amount of money we can spend on security," Charles
O. Holliday Jr., DuPont's chief executive officer, says in an interview.
"The question is: How do we have enough security and stay competitive?"
worry that many companies are more focused on the latter. Some of
these critics, including Greenpeace, cite as one example an Atofina
Chemicals Inc. plant in Houston's working-class east side just off
Interstate 10. The plant makes chemicals for pesticides, pharmaceuticals
and rubber, with carbon disulfide as a byproduct. A carbon disulfide
leak could cause headaches, unconsciousness or even death for 1.2
million people within a 16-mile radius, according to company filings
with the EPA.
manager Wendal Turley says his company, a subsidiary of France's
Total SA, has closed gaps in the surrounding chain-link fence and
expanded a closed-circuit-television monitoring system. But Mr.
Turley says there's no cost-effective way to replace his toxic chemicals
with "inherently safer" ones. He hasn't hired more guards.
Train cars carrying as much as 192,000 pounds of carbon disulfide
sit at times in a rail yard outside the plant gates. The tracks
run across the plant's driveway, also outside the gate. "When
it leaves the plant, it's kind of out of our control," Mr.
continuing concerns about chemical security, there's still strong
bipartisan support for some kind of legislation. The ACC itself
has issued a statement endorsing new federal rules. But the Republican
Senate takeover in last year's elections -- aided by $5.5 million
in chemical industry donations -- means that Sen. Corzine's approach
is all but dead. To make sure, about 20 industry leaders, including
top executives of Exxon Mobil Chemical Co. and Occidental Chemical
Corp., spent a day last month on Capitol Hill meeting legislators,
according to the ACC.
industry message: Many companies are doing the right thing, and
the proper role for government is to make sure all companies follow
the industry standards -- but to meddle as little as possible in
debate now focuses on legislation drafted in April by the White
House and Sen. Inhofe, the new chairman of the Senate Environment
and Public Works committee. This version would remove the EPA from
control, giving authority instead to the Department of Homeland
Security. The new version also would give companies more credit
for actions taken on their own. It would give the government little,
if any, authority to promote inherently safer technologies. While
Mr. Inhofe has been pushing for a committee vote this month, attempts
to get broad bipartisan support so far have failed.
if a bill does pass the Senate, action now appears highly unlikely
in the House, where conservative Republicans have even greater control.
"I think what the administration and private sector have done
so far appears to be adequate," says Texas Republican Rep.
Joe Barton, chairman of a key subcommittee handling the issue. "I
don't personally see a need for legislation of any kind."