Security advocates see new opening to rework Bush-era rules

Since its Deepwater Horizon rig went up in flames nearly two months ago, BP PLC has seen its relationship with the White House steadily deteriorate. But in the months following the Sept. 11, 2001, terrorist attacks, when industry groups were beginning what remains a vocal pushback against Democratic chemical security proposals, the beleaguered oil company found a much more hospitable audience in the George W. Bush administration.

When Michael Graff, then-chairman of BP's American chemicals division, wrote Bush adviser Karl Rove in October 2002 to blast U.S. EPA's plan to take the lead on guarding against a potential terrorist assault on chemical facilities, he called for an industry-driven process routed through the Department of Homeland Security. "We have a similar set of concerns" about the prospects of EPA involvement in chemical security oversight, Rove replied, promising to pass on BP's concerns to others.

Industry won that early clash over EPA's role, as the agency's effort got axed before the plan was released. But the intense scrutiny of BP and other oil companies' preference for self-regulation in the wake of the Gulf of Mexico oil spill is giving advocates for stronger chemical security rules a new opening to warn that the private sector cannot prepare for disastrous events -- whether deliberate or accidental -- without a harder nudge from the government.

"The BP spill in the Gulf shows undeniably that worst-case scenarios can and do happen, and they can and do overwhelm any emergency response capacity," said Center for American Progress consultant Paul Orum, who has researched high-risk chemical facilities for nearly two decades. "Oil in the water is really bad. Chemicals in a big city could be even worse."

U.S. PIRG public health advocate Elizabeth Hitchcock, noting that BP opposed last year's House-passed chemical security bill through its membership in the American Petroleum Institute (API), described the company's stance as "ill-advised, tragic and holding up progress" in light of the fatal 2005 explosion at its refinery in Texas City, Texas.


"One of the most dangerous types of facilities is an oil refinery" using hydrofluoric acid, Hitchcock added. An ingredient in the alkylation that turns crude oil into gasoline, the acid can be highly toxic to humans and is deemed a chemical terrorism risk by the Centers for Disease Control and Prevention.

Hydrofluoric acid stored at BP's Texas City facility could put as many as 550,000 people at risk within a 25-mile vulnerability zone in the event of a chemical release, according to the company's most recent federal disclosures.

Groups such as U.S. PIRG and Greenpeace support the "inherently safer technology" provision in the House-passed chemical security bill, which would require the highest-risk facilities to plan for a transition to safer chemicals and handling procedures. In the case of hydrofluoric acid, that could mean requiring refineries to transition to the less hazardous sulfuric acid.

However, what environmental groups view as narrow and potentially cost-effective language for inherently safer technology in the House bill is one of the central factors behind the opposition of chemical and oil companies.

"We're very concerned about giving the final word and authority to DHS" when it comes to requiring companies to make a switch for security reasons, American Chemistry Council spokesman Scott Jensen said, questioning whether an agency with a security mandate could appropriately weigh cost and feasibility burdens facing private firms.

API was more direct in its criticism, issuing a statement after the House approved its chemical security bill with no GOP votes in November 2009. The measure "would go beyond the current protection requirements and endanger jobs and increase the risk of our operations," the oil trade group said.

BP has no directly registered chemical security lobbyists, but API's K Street team on the issue includes all 13 partners at the high-powered shop Mehlman Vogel Castagnetti.

"They have learned nothing" from the Gulf crisis, Greenpeace legislative director Rick Hind said. "The jury is still out as to whether Congress is going to be ahead of this curve or bogged down with industry propaganda."

Another look at chemical security

Former senior Bush EPA official Marianne Horinko, who helped craft the chemical security proposal that sparked BP's pushback in 2002, said Congress will "definitely revisit" chemical security as part of its search for a response to the Gulf oil spill crisis.

"Sometimes it's not good policy" to let future policy be shaped by an unforeseen event, added Horinko, who now consults on energy and sustainability issues. "I could see [the need] if you were having catastrophic oil spills all over the place. Otherwise ... I'd hesitate to rush into regulating and legislating without a more thorough examination of what went wrong."

Bob Bostock, another senior EPA aide during the agency's aborted attempt to take charge of high-risk chemical facilities, described the still-uncertain federal framework as "kind of mindblowing to me" given the ongoing risk of a terrorist attack.

As Bostock put it, oil and chemical interests digging in their heels to oppose congressional action on the issue cannot say they were not warned by lawmakers' response to the Gulf spill.

"Industry has got to recognize that if there were a successful attack on one of their facilities, God forbid ... no one's going to say company B didn't do the right thing, therefore company B is bad," said Bostock, now a freelance writer in New Jersey.

"They're going to say, 'the industry is bad,' and [businesses] are going to end up with far more restrictive laws and regulations than they can contemplate."

Running out the clock?

The House chemical security bill faces uncertain prospects in the Senate, despite the looming October expiration of DHS's existing regulatory system.

Senate Homeland Security and Governmental Affairs Chairman Joe Lieberman (I-Conn.) has spoken favorably of a requirement for inherently safer technology, but the panel's ranking member, Sen. Susan Collins (R-Maine), has snagged two Democratic co-sponsors for a five-year authorization of the existing DHS program.

Public-health and watchdog groups oppose Collins' approach, which OMB Watch policy analyst Brian Turnbaugh called "a real abdication of Congress' responsibilities." Still, Senate critics of the House approach could win the day by running out the clock on DHS's rule, officially known as the Chemical Facilities Anti-Terrorism Standards.

A DHS source said the permanent implementation of chemical security rules is a priority for the agency, suggesting that another one-year extension of the Chemical Facilities Anti-Terrorism Standards would be less preferable.

In the meantime, advocates plan to continue drawing the lines between BP's warm reception in 2002 and its struggle to manage the ongoing Gulf spill.

"I think legislators really need to see the connection between the spill and the consequences of a terrorist attack on chemical facilities," Turnbaugh said. "Although the [House] legislation focuses on terrorism, it does go beyond that ... this could also have a huge impact in preventing accidents from happening or reducing the consequences of an accident."

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