CSB's Merritt, NRDC's Devine discuss chemical security, hazmat freight transit

Recent train accidents highlight the danger of deadly toxic spills. Some cities want to ban hazmat freight trains. And most chemical plants lack strong safeguards against terrorist sabotage. Carolyn Merritt, chairwoman and chief executive officer of the U.S. Chemical Safety and Hazard Investigation Board, and Jon Devine, a senior attorney with the Natural Resources Defense Council, discuss the current state of plant and transportation security and what to do about it.


Ben Geman: Hello and welcome to OnPoint. I'm Ben Geman. Today's topic: chemical security. Joining us today is Carolyn Merritt, the chair of the U.S. Chemical Safety and Hazard Investigation Board, and Jon Devine, attorney with the Natural Resources Defense Council. Thank you very much both for being with us. Carolyn let me start with you. There's a lot of discussion right now about legislation to mandate new chemical security standards. I want to just step back for second though, EPA has existing risk management planning standards, as you work with industry, how good or bad is the level of compliance with existing EPA RMP plans?

Carolyn Merritt: Well, I think you've got three different ways that they've been implemented. You have some companies who have gone above and beyond what's required under the RMP in making plans and being coordinated with their communities. In a lot of places they've actually funded some the things that are necessary. You've got some companies who've only done what's been required and unfortunately, we've seen some of that has deteriorated. Then you've got some companies who've actually done nothing and it's very difficult. It's a very difficult plan to enforce, until something goes wrong.

Ben Geman: What would you say is the trajectory of that level of compliance right now, is it going up or going down? I mean, I think you mentioned in some of your recent congressional testimony, that some companies who had unfortunately had accidents were not even aware of the EPA RMP requirements.

Carolyn Merritt: Right, well, unfortunately I feel like it's deteriorating. And what makes me think that is in some of the things that we've investigated, even where there have been things in place in years past, those have deteriorated and that's a big concern to me. I think that if that is the trajectory then it's even more important for us to wake up and to be aware of what needs to be done and get started in the coordination of better implementation of these plans.

Ben Geman: Right. I wanted to actually get into that little bit further. You spoke before a Senate committee very recently and indicated you were really extremely concerned about the risk of a catastrophic terrorist attack or accident. What are some of the big gaps that you see right now in security planning and implementation?

Carolyn Merritt: I think there's, first of all, I'm concerned that communities, even where you have police and fire departments who independently are equipped and even have trained, have not coordinated. Then you've got a lot of communities where there's nothing that really has been done. You've got fire departments who are prepared to put out fires, but you really don't have any planning. I think that's the biggest, one of the biggest concerns. The other one is that, you know, companies have not kept up with the communication with communities and community notification has really deteriorated, even where there've been places where they've got plans. You know, demographics have changed in the neighborhoods and in some instances the call down systems don't work, people don't know what the sirens mean and when they're told to evacuate or shelter in place, they don't even know where to go or what that means. So I think all those things are things that are a really big concern to us.

Ben Geman: Jon, I wanted to bring you in here. Right now, does the industry and do regulators have the tools that they need, the legislative authority and the regulatory authority they need to ensure safety at chemical facilities? I suspect you believe the answer is no.

Jon Devine: Well, there aren't requirements that are sufficient to the task right now. We're 3-and-a-half years out from September 11 and though we've taken steps to secure airlines and ports and nuclear power plants, there hasn't been national legislation to require chemical plants to secure themselves.

Ben Geman: And what would you like to see happen?

Jon Devine: Well we think it needs to be national standards that are uniform and enforceable by the government and those should include both physical safety, physical security, pardon me, and safety in terms of using less dangerous chemicals where they're available or other safer processes.

Ben Geman: OK. Carolyn, right now do you feel that legislation is needed on chemical plant security or do you feel like the existing suite of tools and planning processes is sufficient?

Carolyn Merritt: Well I think if it was sufficient we wouldn't be seeing the things that we're seeing in our own investigations, so I think there does need to be an overarching authority that can put some of these things in place. But along with that there has to be an enforcement strategy, because you're going to have some companies who will do it whether it's required or not and you're going to have other countries who won't do it even though it is required without an enforcement strategy that makes it happened. That leaves the American public vulnerable.

Ben Geman: I mean this issue has been very tied up on Capitol Hill for a number of years now. There have been competing GOP bills and Democratic bills. Where do you see this going? Do you think finally, this session, we're going to see some, Jon, do you think we're going to see some chemical security legislation?

Jon Devine: I think there's a good possibility. The Senate has started work on it and Chairman Merritt testified last week at a hearing. I think they're serious about getting something done and we're hopeful that it will include enforceable standards for the industry.

Ben Geman: What do you think, I mean one of the issues that's been a bit of a sticking point, maybe even the biggest sticking point in fact, is either mandating use of so-called inherently safer technologies and processes or making that a sort of more voluntary suggestion if you will. What do you think would be more appropriate if either?

Carolyn Merritt: Well, I think the industry stands behind the security issue with regard to mandating security measures. I think there are some really good things that have been going on in the chemical industry with regard to inherent safety. I don't think you're ever going to have it inherently safe, just because there are chemicals that because of their properties they are useful to us, but there are a lot of things that have to be looked at. I think industry really has done a lot of things that make this a reality, such as reducing inventories. Some of the on the spot chemical generation that some of the companies have gone to is a really great technology. So I think they can talk about some technologies that are out there. I do think that there are going to be a certain group of chemical industry owners who are really not going to do much of anything unless it's required and for that reason I would think that leveling the playing field was some necessary baseline regulations is probably what it's going to take.

Ben Geman: Up to and including a mandate for so-called inherently safer technologies?

Carolyn Merritt: Well I think there's some things that can be done such as inventory levels and there's some things that can be done with on the spots, but every industry, based on the chemicals that it's using and what their inherent hazard is, as well as if there is a technology that can be changed, then I think those have to be done independently. I don't think you can set a blanket rule for every company, but I do think evaluating what technology is there and whether or not that technology actually reduces the risk there and doesn't shift it somewhere else, that's the other thing that has to be looked at. So I don't think a blanket rule helps, but I do think some rule is going have to happen and there has to be a look at, you know, all these different industries individually.

Jon Devine: I mean, let's be clear, these are, these techniques are security measures. They reduce the vulnerability of facilities to attack and so it's important the Department of Homeland security be able to enforce the requirements when a facility chooses not to take a step that is available, cost effective and reduce the vulnerability of that plan.

Ben Geman: What are some other things you would like to see, more specifically, in chemical security legislation? Would it be just guns, gates and guards, so to speak, or what are some of the other things you'd like to see?

Jon Devine: Well certainly not just that and I don't want to say that that isn't important, it is and frankly, sources ought to have been doing that since September 11, but it is important that chemical security legislation also include safer technologies, looking at alternative chemicals when they're available, looking at smaller storage when that's necessary or lower process volumes or pressures, all these things make the plant less of a terrorist target and that ought to be something that the Department of Homeland security, in its judgment, ought to be able to require at individual plants.

Carolyn Merritt: You know there are some really interesting cost justifications. When I was in industry one of the facilities that we owned had an anhydrous ammonia storage tank that could be seen for miles offshore and what we did is, you know, we recognized what the vulnerability was, in that that tank in a total failure full could have impacted almost a million people.

Ben Geman: Yeah, some of the numbers are just terrifying.

Carolyn Merritt: They're terrifying. And you look at, well how would you, if you had an instantaneous release of 1,000,000 gallons of anhydrous ammonia what would you be able to do? The answer is, there's only one answer and that is reduce the volumes, we built a secondary containment around that tank that would protect it from projectiles and protect it in the event of a hurricane and other things. So there are things that can be done and we found that it was quite cost effective when you look at the consequences to culpa ration of having a major disaster like that. I think, you know, the infrastructure of the United States chemical industry was never built with terrorism in mind. It was, you know, protecting from the ordinary releases, but now things have changed and I think there has to be a concerted effort taken by government and industry. You know you just drive up the New Jersey Turnpike and you can realize how difficult it would be in order to try to protect that from a terrorist who had in mind the destruction of millions of people.

Ben Geman: Right or if you take the train for that matter, on a related topic, one thing that's been very much in the news lately are efforts by the D.C. government to ban the shipment of hazardous fuels, or excuse me, hazardous materials on railway cars. Just this week an appellate court prevented that ban from going into effect. Jon, where do you weigh in on this issue? I mean, if that type of ban were to be allowed doesn't that just shift the risk around to different communities or is it a good idea?

Jon Devine: Well, we supported legislation to allow the Department of Homeland security to look at rerouting among other things, but it's important to look at these things as a whole it seems to me, that the more that chemical plants can get out of reliance on large quantities of highly toxic materials, the more you are also reducing the risk on the transportation side.

Ben Geman: Carolyn, where do you weigh in on this issue? I mean I know your organization, your board has jurisdiction not over the transit piece of it, but rather when the cars are essentially parked. The type of ban that D.C. is trying to get through, at this point, trying to get through the courts, and I think other cities are watching this very, very carefully. How would that effect what your organization and what it does vis-a-vis the location of the materials in parked rail cars?

Carolyn Merritt: Well, I don't think that it would impact what we do. I think what it does is, just like Jon said, is you have to look at whether you're shifting the risk. One of the things that we are concerned about is it's not just industrial chemical facilities, but rail cars with toxic materials parked at sightings, parked at industrial facilities, but you've got many sidings around the country where cars sit and they're unattended, waiting to be picked up by other trains and moved throughout this country and communities just don't seem to be prepared for that. One example is Dalton, Georgia. We had a release down there that we investigated. The fire department was well prepared to address a fire, but the toxic material was not only flammable, but toxic. They had no protective clothing. They had no equipment to be able to respond to a toxic release of a chemical. I think that's not unusual and the community was not prepared whether to shelter in place or whether to evacuate and we've seen many instances where communities have chosen, because they haven't planned, to evacuate. Well how do you evacuate a community when you have a gas release that extends 10 miles and is four miles wide? You know, you just, there has to be some planning and there has to be, like you said, some coordinated thinking about where are these cars? Where are they located? Where do they travel and who needs to be prepared in an event? It doesn't have to be a terrorist attack. It can just be an accident like in Graniteville, South Carolina, where that little community, 10 people died within a very short period of time because they didn't know where to go and what to do and they were, in some instances, ran right into the cloud and died. So we're just not ready and there has to be an overall concerted effort to understand where our hazards are and they may not just be in your big facilities. They may also be in rail sidings and other things and communities have to make the decision, how do we make this work in the overall picture?

Ben Geman: On that line, Jon, are you getting a sense that the existing chemical security proposals, right now on Capitol Hill, would sufficiently take those issues into account or would there have to be subsequent legislation?

Jon Devine: I think that it's likely that Congress will take up both plant security and chemicals in transit. I'm not sure if they'll do it together or separately, but I think it's important, like I said, to realize how integrated the two are and to take the tragedy in Graniteville, for example, that's a gaseous form of chlorine and that is an example of a very available safer technology. Right around here, we are lucky that our wastewater treatment plant, the Blue Plains facility, right in the wake of September 11, got out of the business of using gaseous chlorine and really reduced, eliminated the risk of a terrorist attack, the vulnerability, for this area.

Ben Geman: Your organization has been pressing for the Democratic version of the chemical security bill or at least been in favor of it as far as I can tell, for several years now.

Jon Devine: Sure.

Ben Geman: Given that there's been this logjam on the Hill, if the legislation stays stuck or comes out in such a way that you think it's just toothless, is your organization planning any other types of steps? Perhaps litigation or to order see stronger efforts at chemical plants.

Jon Devine: Well, I mean, well first of all, we remain hopeful about what's going to happen in this Congress. I think the folks in the Homeland Security and Government Affairs committee are taking this seriously and I think, heard very dramatically from Chairman Merritt and others, that this is a real problem. I mean, we do need to realize that what we're talking about here are people, millions of people at risk, that's one thing we haven't yet talked about is that there are thousands of facilities that each pose a risk to many thousands of people and so given that, I think that there is going to be chemical security legislation in this Congress and I think it's, I'm hopeful that it will be positive. If that's not the case, I think we're going to need to look in the states and see what more aggressive things can be done, because there are places that are simply posing an intolerable risk.

Ben Geman: One of the types of facilities that we saw a really unfortunate accident at recently was the BP refinery and I know, Carolyn, that the CSB has been investigating that issue.

Carolyn Merritt: Right.

Ben Geman: Are refineries especially vulnerable to either accident or attack? I mean, where do you put them in the spectrum of other types of facilities that store large quantities of hazardous materials?

Carolyn Merritt: Well, refineries in the U.S. and anywhere else in the world were not bill for the potential for a terrorist attack or a criminal act. So we have large storage tanks, above ground with hazardous and flammable and toxic materials that are being stored there because that wasn't how we were planning. That isn't what the planning was. Now I think there has to be another look at this. Remember, we just finished bringing all the gasoline storage tanks above ground because of ground water contamination, now everybody is saying, holy cow, in all of these buildings we've got 500 gallon or bigger oil storage and whatnot in our basements and this isn't very safe. So it requires an overall look. I mean, how would you build a bubble over our refineries? What they do is they manufacture flammable materials and so there's an inherent problem that isn't going to go away if we're going to have cars that burn gasoline.

Ben Geman: Right.

Carolyn Merritt: So, you know, it really is going to have to be looked at from a very large perspective and decide what has to happen. In some ways, it's probably a higher fences and meaner dogs is going to be part of it, but I think there also have got to be other ways that we have put our genius minds together to figure out how do we make these plants less of a target?

Ben Geman: Well the, the president actually very recently proposed building, you know, we haven't had a refinery in the country built in 30 years, approximately, and the president very recently proposed building refineries on military bases that have been closed. I mean, do you see sort of a chance to get a right this time and what would have to happen to ensure that if there are to be more refineries built that there are firm standards on security specifications and safety specifications?

Carolyn Merritt: Well, the CSB really hasn't looked at that and I'm not sure that it would be appropriate for me to speculate about that. I just think that we've got brilliant minds in this country who've solved all kinds of problems and this one could be solved too by getting industry, government, military and Department of Homeland Security, EPA, everybody together to try to figure out what is the best plan for making these things happen? Many of our refineries are very old. We know that and what's happening is a lot of our refinery capacity is moving offshore. I don't know that that's the answer either. There again, you know, you still have a refinery that is still vulnerable and the world's gasoline and fuel supply is at risk. So I do think it's going to take somebody cleverer than me to give you an answer to that question.

Ben Geman: Well Jon, I wanted to turn to you for the last comment here. What type of new pressure can NRDC or the environmental community bring to bear to ensure that there are firmer standards or new actions that you would deem sufficient taken at chemical plants?

Jon Devine: Well, I think frankly the pressure is there and I think that people realize the time to act is now. We know that terrorists have targeted chemical facilities. We know that these plants, if targeted, could pose an enormous danger. I think that people realize the immediacy of this. We're now 3-and-a-half years out from September 11. I think we are going to something soon.

Ben Geman: Great. Well, I think we've run short on time. I'd like to thank you both very much for joining us today.

Carolyn Merritt: Thank you.

Ben Geman: Sure. My name is Ben Geman. Join us next time for another edition of OnPoint.

[End of Audio]



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