Despite a slew of regulations, major gaps remain in the government’s ability to protect the public against the release of toxic chemicals, a Dayton Daily News investigation found.
No one agency is responsible for ensuring that companies report the chemicals they have on hand, or to regularly inspect their equipment to make sure it is well-maintained and operating safely. Budget constraints also limit the number of inspections agencies can accomplish.
In fact, companies with extremely hazardous chemicals can go years without safety inspections and some have never had one, according to reports filed with the U.S. Environmental Protection Agency.
“I think the public thinks that dangerous chemicals are well-regulated and that information about those dangers is easily available,” said Ellis Jacobs, senior attorney for Advocates for Basic Legal Equality, a public interest law firm serving low-income people. “Nothing could be further from the truth.”
More than 1,000 facilities in nine area counties use or store threshold quantities of extremely hazardous chemicals that require reporting under Tier II rules to the state, which shares the information with local emergency planning agencies. Sixty area companies have toxic and flammable materials deemed so dangerous they must file Risk Management Plans with the U.S. EPA outlining safety measures, risk factors, and a “worst-case” scenario for a release of one container — sometimes as large as a rail car — of the chemical.
But obtaining information on what dangers these chemicals pose is difficult, and well beyond the reach of most members of the public. The newspaper obtained a database of Risk Management Plans for more than 12,700 RMP companies nationwide through the Freedom of Information Act, but federal rules largely shield the companies’ worst-case scenario information that includes the radius of danger and number of people who could be hurt in an accident.
Finding out that information required an appointment-only trip to the EPA reading room in Cincinnati, where just 10 reports can be read a month — restrictions officials say are necessary to protect against terrorism. Notes must be taken by hand and copying the reports is prohibited.
Stocks of hazardous chemicals can endanger the public because of accidents, terrorist attacks and extreme weather events such as tornadoes. Critics of the current regulatory system say there is a lack of transparency and poor communication between government entities, putting the public and first responders at risk when accidents or catastrophic events happen.
Firefighters who responded last year to a fire at a fertilizer plant in West, Texas, did not know it contained up to 270 tons of ammonium nitrate. Fifteen people died, including 12 first responders, when the chemicals exploded.
Chemical regulations shrouded in secrecy
Even though Tier II chemicals are regulated under a law called the “Community Right to Know Act,” members of the public cannot see that information without first knowing the name of specific companies and requesting those documents, according to Richard Brouder, Ohio EPA public records manager, who cited federal law for the secrecy rule. If residents don’t know the names of the companies in their area, they can’t get the information.
In Ohio, 7,647 companies report hazardous chemicals to the state under the Tier II rules, including 412 that file RMP plans. Most are private companies, but public water treatment and wastewater plants also are on the list because they use chlorine to sanitize water.
The newspaper analyzed RMP data for facilities in Montgomery, Greene, Warren, Butler, Clark, Champaign, Miami, Preble and Darke counties, which together have 16.7 million pounds of hazardous chemicals, including chlorine, anhydrous ammonia, hydrogen fluoride, butane, sulfur dioxide and sulfur trioxide.
Butler County has the most in the region — 18 facilities with 8.2 million pounds of chemicals, including Univar USA Inc. of West Chester, where a worst-case release of a 180,000-pound cylinder of chlorine at the chemical facility could impact 995,424 people in a 14-mile radius. Univar officials did not respond to a request for comment.
Clark County has the second highest amount of chemicals — 2.3 million pounds at eight facilities, all using either chlorine or anhydrous ammonia, which are among the most common hazardous chemicals nationwide.
Despite its industrial base, Montgomery County ranks eighth with 265,741 pounds of chemicals at eight facilities. The 2012 end of paper production at Appvion Inc., formerly Appleton Papers in West Carrollton, cut Montgomery County’s total by more than half with the elimination of 360,000 tons of chlorine used to make paper.
Montgomery County was the site of two of the area’s most prominent industrial accidents in recent years — one in 2003 at the chemical company Isotec, now known as Sigma-Aldrich, in Miami Twp. The other one occurred in 2009 at the organic waste recycler, Veolia Environmental Services, in West Carrollton, which sent flames soaring into the night sky and damaged a major portion of the plant.
Neither were RMP companies, however. Isotec did use nitric oxide, a regulated chemical that exploded, but did not have the threshold quantity requiring a risk management plan.
Reform efforts are launched
Advocates for reform say the inability to access information on the amount of chemicals stored in the community and gaps in enforcement put the public at risk. They point to last year’s fire and explosion of ammonium nitrate at the West Texas Fertilizer Co. as proof of the danger. In addition to the deaths, part of the town of West was destroyed.
In response, President Barack Obama last August issued an executive order for federal agencies to recommend chemical safety and security improvements to him by May 1. A federal working group has since been holding listening sessions and taking comment.
“Workers, emergency responders, and the public continue to die and suffer injuries in horrendous explosions and fires,” said Rafael Moure-Eraso, chairperson of the government’s chemical accident investigator, the U.S. Chemical Safety and Hazard Investigation Board (CSB).
“We want to get something done, something with teeth,” Moure-Eraso said in his March testimony to the Senate Environment and Public Works Committee. “And I believe what we need is comprehensive regulatory reform.”
Proposals advocated by reformers so far include mandating the use of safer chemicals and processes — such as switching from chlorine gas to sodium hypochlorite, a high-strength bleach — adding chemicals such as ammonium nitrate to the RMP list, and reducing the amount of hazardous materials that can be kept on site.
But industry officials counter that there are already enough regulations. They say companies answer to multiple regulatory agencies, run their businesses as safely as possible and should not be forced by the government to switch to safer chemicals, materials and processes.
Elizabeth O’Neal, senior manager of government relations for the Society of Chemical Manufacturers and Affiliates, said government needs to focus on enforcing existing laws, not creating new ones.
“We believe that what is already on the books are laws that can be really effectively utilized if they’re properly administered,” O’Neal said. “There’s just no point in creating new law if people really aren’t doing what existing authorities require.”
Credit: Andre Ali Siyahi
Credit: Andre Ali Siyahi
The newspaper investigation found that a patchwork of laws and regulators govern companies that use hazardous chemicals. Of the 60,000 chemicals used by industry, several hundred are regulated as extremely hazardous. They are regulated by different agencies using at least five different, and sometimes overlapping, lists of chemicals.
Reporting requirements kick in when chemical quantities reach threshold amounts, but exemptions in some cases allow businesses like retail fuel establishments or farmers to avoid regulations. At least one business owner told the newspaper he didn’t know who would inspect him.
“The regulations are there. What’s not there is the mechanism to make sure the regulations are being followed,” said Denny Bristow, coordinator for the Dayton Regional Hazardous Materials Team. “It would be great to have an agency at either state or federal level which is tasked with inspecting industries with hazardous chemical processes and ensuring that the regulations are followed.”
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With so many agencies governing varying lists of chemicals and thresholds for reporting, the Congressional Research Service found “no central overview of facility chemical holdings exists, and may create the potential for inefficient regulation,” according to a July 2013 report released in the wake of the West, Texas, accident.
“The key really is the lack of any one place that has enforcement capability,” said Christine Todd Whitman, a Republican former governor of New Jersey and U.S. EPA administrator who now heads a New Jersey-based energy and environmental consulting company, Whitman Strategy Group.
“And that’s why if you really want to get it done, the president has got to ensure that his executive order gets carried out in a way that is truly protective.”
Budget constraints keep enforcement limited
State and federal regulators — from the EPA to Homeland Security — oversee facilities that use hazardous chemicals, but a scorecard is needed to keep straight who does what.
The EPA does periodic paperwork audits of RMP companies but is not empowered to do safety inspections of equipment and processes, according to Dina Pierce, spokeswoman for the Ohio EPA, which administers the RMP program for the feds. And the federal agency that is empowered to do safety inspections — the Occupational Safety and Health Administration — says it is hampered in its efforts by budget constraints.
Companies with permits under other EPA programs — such as air pollution control — are subject to compliance inspections by the EPA, and Pierce said local emergency planning committees can do inspections or site visits of Tier II companies. But only a small fraction of those companies undergo such inspections. Of the 7,647 Tier II facilities statewide, emergency planning committees reported doing inspections on 186, or a little more than 2 percent of the companies on the list.
OSHA does no more than three or four thorough inspections a year at facilities using extremely hazardous chemicals in the 20-county region that includes the Dayton-Cincinnati area, said Bill Wilkerson, area director.
“OSHA itself has said many times they don’t have the resources to go around inspecting all of the places that need inspecting,” said Sandy Gilmour of the Chemical Safety Board.
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OSHA has its hands tied in other ways, according to Wilkerson. Companies regulated by OSHA’s workplace rules do not have to report to the agency what their hazardous chemicals are. In monitoring local companies, OSHA looks at the EPA’s lists and guesses what chemicals may be present based on the type of business, Wilkerson said. Then, during site visits, the companies must provide documentation to OSHA of their hazardous chemicals and safety plans.
Even the Department of Homeland Security lacks certain clout over the companies it regulates. The department, which is charged with approving safety plans for companies that use chemicals that are at risk for terrorism, cannot force companies to use safer materials or processes. The agency also has continually missed its own deadlines for securing high-risk chemical facilities, according to a January report by the Congressional Research Service. It could be years before the security plan approval and inspection process is complete, the report said.
Homeland Security’s list of 4,266 companies possessing about 325 dangerous chemicals that are deemed a particular risk for terrorism is not public.
Safety improvements recommended by the Chemical Safety Board — including a mandate to use “inherently safer technology” — have languished amid industry opposition. As a result, companies are asked to voluntarily use best practices instead of being required to switch to IST, an industry label that encompasses the mandated use of safer chemicals and processes where possible and a reduction of hazardous chemical stockpiles.
“If you don’t have the stuff there, it can’t be released,” Moure-Eraso said in support of a stricter mandate.
Major industrial accidents such as those occurring at the Chevron refinery in Richmond, Calif., in August 2012 and the April 2010 explosion and fire at the Tesoro refinery in Anacortes, Wash., could have been avoided by the use of available inherently safer methods, according to a January draft report by the CSB on the Tesora accident, which killed seven workers.
Greenpeace and the Yellow Springs-based Green Environmental Coalition have called for a Fairborn pool chemical company to switch to sodium hypochlorite, a high-strength bleach — which is safer than chlorine gas — a change adopted by Clorox in 2009. The company, Miami Products and Chemical Co., is allowed to have up to four 90-ton rail cars full of chlorine gas on a private rail spur, although its owner says he typically has one or two.
A worst-case release of the contents from one rail car — 180,000 pounds of deadly chlorine gas — would endanger 581,240 people in a 14-mile radius around the company, according to the company’s RMP report.
Heavier than air, chlorine gas hugs the ground in a release. It is a deadly inhalation hazard that also burns eyes and skin. In 2005, a train engineer and eight others died of chlorine inhalation when a Norfolk Southern Railway Co. train derailed, causing a rail car carrying chlorine to be breached and leak near Graniteville, S.C. The accident injured 554 people and caused the evacuation of 5,400 people.
“These things are just scary and dangerous things,” said Vickie Hennessy, president of the Green Environmental Coalition.
‘I don’t know who would inspect it’
Miami Products and Chemical Co. owner and president Roger Kayser said his facility has multiple safety mechanisms built to industry standards and has not had a chlorine release from a rail car since moving to the new facility from Dayton in 2002.
“We have equipment and procedures to handle minor stuff. We’ve never used it,” said Kayser. “If somebody punched a hole in the side, I don’t know what you’d do. Evacuate.”
While the regional hazmat team and fire department conduct training sessions at his site and he does in-house safety inspections, Kayser said there has never been a government safety inspection of the facility.
“I don’t know who would inspect it,” Kayser said.
The EPA’s Pierce, in response from queries by the newspaper, said the agency called Kayser and asked who has done any type of inspection of his facility. She said Kayser told the agency that he had had visitors from the fire department, U.S. Air Force, Homeland Security, the railroad and others.
“So it’s not like this company is not on anybody’s radar,” Pierce said.
Kayser said Miami Products in 2010 also began using sodium hypochlorite, a high-strength bleach, but he won’t say how much that has reduced his chlorine gas usage. Kayser said he is studying renovating the plant to handle more of the alternative material.
“We have considered a switch, but the technology and logistics aren’t quite there for our company,” he said. “Being solely reliant upon a single source of product isn’t feasible for our business at this time.”
Therese Cirone, vice president for health, environment, safety and security at the Chlorine Institute trade group, opposes mandated inherently safer technology.
“Specific processes and needs should be left to the operating companies,” Cirone said. “A mandated IST, we believe, is not in the best interests of all.”
O’Neal, of the industry’s Society of Chemical Manufacturers and Affiliates, said companies already practice “inherent safety.” Switching to different chemicals or reducing the amount on hand is not an option for many companies, she said.
When Whitman was EPA administrator during the George W. Bush administration, she supported an IST mandate, which was blocked by industry interests.
“It is a question of the big money guys saying, ‘We don’t want to have to spend this money.’” Whitman said. “But what they have to spend when disaster hits is far greater than any preventative.”
Whitman believes that limiting the type and amount of extremely hazardous chemicals at companies is a matter of national security.
“Terrorists are not going to attack a nuclear reactor,” she said. “It doesn’t blow up in the way people think it blows up. It’s not going to be what they want. They’ll go after a chemical site.”
Notification here strong
While the government has made robust emergency planning processes a priority — particularly in the years since 9/11 — Bristow said there is no seamless system of informing first responders of what chemical hazards they may face in responding to a fire, explosion or other release of toxic chemicals. The West, Texas, fertilizer plant explosion is often used as exhibit A for tragic outcomes when firefighters rush in without the information needed to protect them.
To that end, Bristow and emergency planning officials in Montgomery, Clark and Butler counties all said the notification systems in the Dayton region are strong. They use the U.S. EPA’s computerized system, known as CAMEO, to keep track of chemical hazards that have been reported and to plan emergency responses.
They all said they communicate with the companies in their areas and hold on-site training sessions for handling emergencies at some facilities. Local fire departments also have the authority to do fire inspections.
But Bristow, who trains first responders across the state, said emergency response systems are not as organized and active everywhere. And he said fire departments often don’t have the money for specialized training in chemical hazards. That is a nationwide problem, according to April 2 testimony to a House subcommittee by Elizabeth M. Harman, assistant to the general president of the International Association of Fire Fighters.
“Unfortunately, the lack of adequately trained personnel in the fire service means that there are significant portions of the country where first responders are not prepared for an incident involving hazardous material,” said Harman. “That can have serious real-world implications including property loss, death and injury to both private citizens and responding firefighters.”
The chemical group’s O’Neal said companies report their hazardous chemicals to various government entities and it is up to government to share that information down the line to the fire departments and other first responders.
“We are all on board with sorrow for the loss of life in West, Texas,” O’Neal said. “In our opinion that could possibly be a failure of government speaking to government.”
‘I have nightmares’
Most of the current laws governing chemical hazards came in the wake 1984 Bhopal, India, gas leak at a Union Carbide pesticide plant, which killed nearly 4,000 people immediately and injured hundreds of thousands. The Homeland Security laws were adopted after 9/11.
Michael Wright, director of health, safety and environment for the United Steelworkers, said it is a shame that it takes a catastrophe to spark reform.
He is holding out hope that changes will come before another catastrophe occurs.
Wright was part of a response team after the Bhopal accident, and remembers walking through the neighborhood hearing the coughs of people whose lungs were badly damaged from breathing the methyl isocyanate that leaked from the plant.
“I have nightmares about that,” Wright said. “You’d see kids without parents and parents who had lost their kids.”
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