Chemical Plant Risk Decisions Privatized in NJ

The Star Ledger editorial today “A Right to Chemical Security” begs many questions and poorly serves readers.

As discussed below, the editorial’s focus on the federal pre-emption issue obfuscates the real issues and reinforces misunderstandings about New Jersey’s’ state level chemical plant security rules.

The editorial also fails to hold Governor Corzine accountable for a voluntary chemical plant safety policy that directly contradicts the mandatory policy he advocated as a US Senator and as a candidate for governor.

Let’s take those issues on one by one:

In appropriately arguing in favor of the need for legislation to prohibit the federal Department of Homeland Security from pre-empting state laws, the editorial misleads readers about the nature of New Jersey rules:

“Pre-emption also would permit chemical firms to avoid rules that force them to comprehensively review whether they can switch to less dangerous technology or materials. New Jersey has such rules; the federal government does not.”
[…]

“For some six years, New Jersey has had the toughest chemical security rules in the nation, requiring high-risk facilities to work with the Department of Environmental Protection and other agencies to protect chemical plants and to analyze the potential for using safer alternatives to current chemicals or processes.”

The state Department of Environmental Protection (DEP) does in fact have rules that do require that certain chemical plants evaluate so called “inherently safer technologies.” These evaluations do provide industry with the opportunity to “switch to less dangerous technology or materials”.

But those DEP rules do not require that the plants actually implement safer alternatives, nor to they give DEP any power to require safety improvements. The chemical industry’s own spokespersons have stated that the NJ rules have not cost the industry any additional money or triggered any additional safeguards than those contemplated under the industry’s own voluntary “Responsible Care” code of conduct. The Responsible Care program has been exposed as a public relations effort:

(see: Responsible? Care?: As bad news mounts and polls head south, chemical companies spend millions on ‘public perception’
http://www.chemicalindustryarchives.org/dirtysecrets/responsiblecare/1.asp

Under DEP rules, the chemical plant is unilaterally allowed to reject technologically feasible safer alternatives based on their cost, no matter what the risks are to the public.

The rules do not even require a cost benefit type of analysis. The evaluations are based on the industry’s own “Responsible Care” engineering and safety protocols. The industry uses its own guidelines and standards to identify alternatives and then is given a free hand to chose whether to make safety changes.

Placing complete control in the chemical industry’s hands is exactly what they asked for. This policy approach essentially privatizes chemical plant security decisions and puts the chemical industry in charge of public safety.

As the editorial advocates, of course Congress must not pre-empt New Jersey’s ability to enact stronger chemical safety laws. But the real issues are whether New Jersey’s laws are mandatory; whether they allow economic considerations to trump public safety; and whether they put the chemical industry in charge.

On December 28, 2006, the New York Times quoted Corzine admitting that he bowed to the chemical industry and adopted a voluntary, economically driven policy:

“As a United States senator, Jon S. Corzine was relentless in warning that the nation’s chemical plants, and the railways that carry their potentially dangerous cargo, are vulnerable to a devastating terror attack.
But in the 11 months since he was sworn in as New Jersey’s governor, Mr. Corzine has taken a far more measured approach to the issue, disappointing some of the chemical security experts who helped him form his proposals in the Senate.
[…]

“…advocates say that the Corzine administration has made little tangible progress on increasing security at the 15 New Jersey chemical plants, and that each plant poses a threat to 100,000 people or more. They accuse the governor of being too intent on appeasing the chemical industry, which provides more than 80,000 jobs in the state.
[…]

Richard Canas, director of the New Jersey Office of Homeland Security and Preparedness, said the Corzine administration has had difficulty convincing businesses that switching to safer technology is worth the price, which can run into tens of millions of dollars at a single plant. “To the extent that replacing technology is going to break the bank, they’re not willing to go that far,” Mr. Canas said. “It’s always money that impedes what you’d like to do.”
[…]

“…the governor said that he did not believe it was necessary to further strengthen state laws by mandating a switch to safer technology.

“I think people in the industry are worried that if we don’t get results we may use the super hammer,” he said, referring to such a mandate. “So we’ve gotten much better response because we’ve done this in a sensible, realistic manner.”

see: Corzine’s Chemical Security Stance Draws Scrutiny a Year Into His New Job”
http://www.nytimes.com/2006/12/28/nyregion/28homeland.html?_r=1&oref=slogin>

This is an insane policy. It puts the chemical industry in charge of public safety and allows the chemical industry’s profits to outweigh public safety.

The real story here is that Corzine’s program puts industry profits before the public’s right to safety.

And that is exactly the opposite of the policy he advocated as a US Senator and Gubernatorial candidate.