Source: USAToday.com, January 29, 2014
Posted on: http://envfpn.advisen.com

Tammy Miser and Katherine Rodriguez share a heartbreaking bond. They’ve each lost a loved one — a brother, a father — to chemical accidents a decade ago that burned at least 80% of the men’s bodies.

The U.S. government, after investigating the tragedies in Indiana and Texas, recommended changes in federal rules so more such industrial explosions wouldn’t happen.

But more have happened, and the two women are still waiting for Washington to deliver.

“I’m extremely frustrated. Almost all the families (of victims) are,” says Miser, whose brother Shawn Boone was killed at age 33 in an aluminum dust explosion at the former Hayes Lemmerz factory in Huntington, Ind., in October 2003.

Their stories reveal glaring gaps in the nation’s web of laws that govern the use of hazardous chemicals — a cautionary tale as West Virginia tries to clean up a massive chemical spill begun earlier this month.

Federal officials know little about the health risks of the two potentially toxic chemicals that Freedom Industries’ storage tank leaked into the Elk River near Charleston, W.V., contaminating the local water supply of 300,000 residents.

That’s not unusual. The primary U.S. law on chemical use, the 38-year-old Toxic Substances Control Act, doesn’t require manufacturers to test for toxicity. It barely covers most chemicals on the market, because their use preceded the law and is largely exempt. The legislation can’t be fixed without action by Congress.

At the same time, the independent federal agency that’s investigating the West Virginia spill — along with the explosions that killed Boone and Rodriguez’s father, Ray Gonzalez — has no enforcement power. So the Chemical Safety Board’s probes, which sometimes take years, lead to recommendations that too often are ignored.

The CSB has more than 160 pending recommendations, including some a decade old and 12 from three prior accidents in West Virginia since 2007. It says companies and government officials have given “unacceptable” responses to 31, and it’s closed the book on 18 of them.

“At some point, you have to deal with reality,” says the CSB’s managing director, Daniel Horowitz,adding his tiny staff tracks 700 recommendations and needs to weed out those least likely to be carried out. It has stopped pushing, for example, for Indiana to train fire inspectors about aluminum dust explosion hazards — which killed Boone — or for Houston to adopt new safety rules for storage containers holding pressurized gases after a tank exploded at a Marcus Oil facility in the city in 2004.

“There’s a lot that’s not covered,” Horowitz says of the “patchwork” of U.S. laws on chemical use. He says Congress had “big intentions” when it created his agency and passed environmental laws including the Clear Air Act and the Clean Water Act in the early 1990s. But major gaps remain. Many worker-safety rules date from the 1960s.

“It’s just a mess. … The whole process has been a total failure, and we’re facing the consequences now,” says Noah Sachs, director of the University of Richmond School of Law’s Center for Environmental Studies. He published a report this month that finds Virginia has more than 65 companies storing more than a million pounds of chemicals — many near rivers. He says it faces many of the same risks as its neighbor to the west.

No one knows how often chemical accidents occur, because there’s no reliable and robust database. The National Response Center, a hotline run by the Coast Guard, takes reports of such accidents but doesn’t verify the details. So its data is wrong 90% of the time, according to an analysis of 750,000 federal records last year by the Dallas Morning News.

Horowitz says chemical accidents are “certainly not showing a downward trend,” based on his agency’s limited count — 334 “high-consequence” incidents causing death, injuries or $500,000-plus in property damage in 2012, up from 282 in 2011. For one investigation, it looked at 167 accidents involving uncontrolled chemical reactions that caused 108 deaths and hundreds of millions in property damages over a 22-year period. It’s studied multiple fatal explosions caused by combustible dust.

“My father had burns to 80% of his body and endured multiple skin graft surgeries and painful daily cleaning of his skin,” Rodriguez told the CSB in July, saying he suffered in the hospital more than two months before dying at age 54 in Nov. 2004. Six months later at the same BP refinery in Texas City, Texas, another blast killed 15 other workers and injured 180.

Miser’s brother lost his eyesight from the Indiana blast, and doctors said the third- and fourth-degree burns that covered at least 90% of his body destroyed his internal organs. The hospital’s pastor told Miser he hadn’t seen anything that bad since wartime. She says her brother’s last words haunt her: “I’m in a world of hurt.”

Multiple weak spots

“The West Virginia spill shows our policies have failed,” says Andy Igrejas, national campaign director of Safer Chemicals, Healthy Families, a coalition advocating for tougher rules.

The coal-cleaning chemical that was spilled — 4-methyl-cyclohexane-methanol (MCHM) — has a material safety data sheet that lists “no data available” on carcinogenicity, reproductive toxicity and more than 100 other items. The manufacturer, Eastman Chemical Company, says it’s “harmful if swallowed.” Federal officials largely based their decision on its likely safe level in drinking water on a single, non-peer-reviewed study on rats.

Several federal laws address the use of chemicals, including separate ones for pesticides and cosmetics. Together, though, they cover only a small share of the total.

The main law, TSCA, grandfathered in about 62,000 of the 80,000-plus chemicals now in use — including MCHM — when it was passed in 1976. Unlike the European Union’s approach, it doesn’t require companies to prove their chemicals are safe, instead putting the onus on government to prove they’re not. In essence, Igrejas says, chemicals are “innocent until proven guilty.”

The law allows the Environmental Protection Agency to require safety data or testing of newer chemicals only if it can justify the requirement. Problem is: EPA is rarely given the data to make its case.

“It’s a circular problem. … It puts EPA in a tight spot,” says Jennifer Sass, senior scientist at the Natural Resources Defense Council, an environmental group. “The entire system is rigged to favor the chemical companies and the users of these chemicals,” she says, adding many spills and explosions are really not “accidents” but preventable “incidents.”

The chemical industry says TSCA has provided protections but needs to be updated. “The regulatory laws do need to be enhanced,” says Anne Kolton, spokeswoman of the American Chemistry Council, saying scientists have learned a lot since 1976 about how chemicals can affect human health.

Her group welcomes a bipartisan update proposed in May by Sens. David Vitter, R-La., and the late Frank Lautenberg, D-N.J. She says it would allow EPA to identify priority chemicals for additional safety information. She says not all chemicals need to tested, because many have similar properties and the EPA has “sophisticated tools” to assess those with potential hazards.

But David Rosenberg, a chemical safety expert at the NRDC, says the measure isn’t strong enough: “It’s a deeply flawed bill and should not move forward without extensive revisions,” he says.

“I understand what they’re saying, but you have to start somewhere,” says Sen. Joe Manchin, D-W.Va. He says Lautenberg, who passed away in early June after spending years trying to update TSCA, asked him to help craft a b-partisan bill.

Manchin, a governor for six years before arriving in Congress in 2010, says some people accuse the industry of writing the bill and others accuse the
environmentalists of doing so. “They’re all good people,” he says, “but I’ve never seen anything like this in my life.”

“We continue to work toward finding consensus,” Sen. Barbara Boxer, D-Calif., who chairs the Senate Committee on Environment and Public Works, said in a statement. She said the proposed update needs to be “stronger than current law” so “negotiations are continuing.”

Manchin and Boxer teamed up on a new spill-prevention bill, introduced on Monday, to strengthen the Safe Water Drinking Act. The legislation wouldn’t update TSCA but would require emergency response plans and regular state inspections of above-ground chemical storage facilities. Manchin says he expects GOP support.

Not everyone agrees Congress needs to act. “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people,” House Speaker John Boehner, R-Ohio, said at a press conference after the West Virginia spill. He added: “Someone needs to be held accountable here.”

The EPA is partly to blame, according to several reports by the Government Accountability Office, the investigative arm of Congress. The GAO says the EPA has been too slow in updating or completing safety reviews of chemicals in its limited database — the Integrated Risk Information System. Sass and other environmentalists say the EPA lacks sufficient resources.

The Chemical Safety Board, hailed by victims’ families for its thorough investigations, has also received criticism. Its number of accident reports, case studies and safety bulletins have dropped considerably since 2006, according to an analysis last year by The Center for Public Integrity, a nonpartisan research group. Of its 13 ongoing investigations, three are of accidents that happened in 2009.

“The CSB is drastically overburdened,” Horowitz says, noting it has a $10 million annual budget and only 20 investigators He says it had a 22-case backlog when Congress asked it to investigate the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, which is not yet complete. “We don’t have the manpower to finish everything as quickly as we’d like.”

Changes sought

For nearly a decade, the CSB has repeatedly recommended that the Occupational Safety and Health Administration issue new rules to prevent explosions from metal and other types of dust, which can combust when they are left on surfaces and exposed to other chemicals.

OSHA has yet to do so. The House passed a bill in 2008 that would have required the agency to issue a final standard within 18 months, but the legislation died in the Senate. In a 2012 report, the GAO said it takes an average of nearly 8 years for OSHA to finalize safety standards.

“Writing a combustible dust standard continues to be a priority,” Jordan Barab, deputy assistant secretary of Labor for OSHA, said in a statement. “The realities of the regulatory process don’t allow that to happen overnight, but we continue to work toward that end.”

The United States is “further behind much of the world, and not just the developed world” in tackling chemical safety, says Richard Denison, senior scientist at the non-profit Environmental Defense Fund. In recent years, he says China has adopted rules that are stricter than U.S. ones, the European Union consolidated about 40 laws into one and Canada finished a systematic review of 20,000-plus chemicals in use.

President Obama is pushing for progress. He issued an executive order in August that tasks federal agencies with improving the security and safety of facilities that make, store or use chemicals. A “working group” has held “listening sessions” across the country to solicit ideas for modernizing rules, developing best practices and bolstering coordination with state and local officials.

“The federal government is examining the need to improve safety,” says Mathy Stanislaus, who heads EPA’s Office of Solid Waste and Emergency Response. By the end of May, he says officials will submit a plan to fill the gaps in U.S. laws that deal with preventing and responding to chemical incidents.

Families of workers killed by them say progress isn’t coming fast enough.

“There’s so much more that can be done,” says Rodriguez, a Houston-area certified public accountant who has become an advocate for chemical safety. She says OSHA’s $102,500 fine on BP for the explosion that killed her father is “not a very persuasive motivator” for large corporations.

“He was a great dad. He always made sure his family was taken care of,” she says, noting he quit his job as a butcher when she was a toddler so he could earn more money as a BP worker and better support his wife and four daughters. She says her three young children will never know him — the man who never failed to ask how she was doing. “I just miss sitting and talking to him and hearing him say, ‘I’m proud of you.’ “