As last week’s Senate Environment and Public Works Committee hearing made abundantly clear, communities throughout the United States are at ongoing risk from potentially disastrous incidents involving hazardous chemicals. A new Congressional Research Service report released concurrently by Senator Edward J. Markey (D-MA), details how thousands of facilities across the country that store and use hazardous chemicals are located in communities, putting millions of Americans at risk. Yet this list of facilities, Senator Markey’s office points out, may not be complete. The report analyzes US Environmental Protection Agency (EPA) data on locations where at least one of 140 different extremely hazardous materials are stored. But this EPA list does not include the highly explosive substance ammonium nitrate – the chemical involved in the April 2013 West, Texas fertilizer plant explosion that killed 15 people and injured approximately 200.

What has happened – or more precisely, not happened – since that incident was the focus of the December 11^th Senate hearing. The hearing, convened jointly with the Senate Health, Education, Labor and Pensions Committee, was held to review progress made in implementing President Obama’s Executive Order 13650 issued in August 2013 in the wake of the West, Texas disaster.

“In the 602 days since the West, Texas tragedy there have been 355 chemical accidents resulting in 79 deaths and 1500 hospitalizations,” said Committee Chair Senator Barbara Boxer (D-CA) opening the hearing. “Essentially,” said Boxer, since the West, Texas accident, there’s been a U.S. incident involving hazardous chemicals every other day. “This,” she said, “is absolutely outrageous.”

Executive Order 13650 directed federal agencies to improve the safety and security of facilities that use and store hazardous chemicals to reduce risks to workers, communities and first responders, beginning by establishing a working group led by the EPA, Department of Labor and Department of Homeland Security. In June of this year, that working group released a report with recommendations for improving policies, practices and coordination between industry, state, local and federal authorities, community and other public interest groups. What it did not do is call for any new requirements for facilities where hazardous chemicals are used.

“I’m concerned that despite clear risks posed by the nation’s chemical facilities, very little progress has been made,” said Boxer. Only four of the 15 actions the Executive Order directs federal agencies to undertake have been completed, she noted. “Six,” she said, “are not due to be completed until 2015 or later and five have no time-line.”

“No agency,” she continued ,“has proposed changes to its chemical safety program and not a single facility faces new federal requirements to adopt safety precautions to reduce chemical hazards.”

“This is unacceptable,” said Boxer.

OSHA Secretary Michaels says “regulatory system is broken” and calls for higher penalties

In their testimony, the hearing’s two witnesses, Assistant Secretary of Labor for Occupational Safety and Health (OSHA) David Michaels and EPA Assistant Administrator for Solid Waste and Emergency Response, Mathy Stanislaus, outlined their agencies’ work related to Executive Order 13650. Asked by a clearly impatient Boxer, for a date by which the agencies would commit to completing the Executive Order directives, Michaels replied, “Our regulatory system is broken.”

What is the single most important thing OSHA could do to better protect workers from the next chemical incident, Senator Al Franken (D-MN) asked Michaels. The answer: Address OSHA’s weak penalty structure, said Michaels. The cap on OSHA’s fine for a serious violation, Michaels explained, is $7000; for a willful violation, $70,000. “To a small company that’s a significant deterrent,” said Michaels. “But to large employers, especially petrochemical plants, that’s not even the cost of doing business.” OSHA’s criminal penalties, are “virtually meaningless.” said Michaels. “We would be very grateful,” said Michaels, “if Congress would allow us to issue penalties at a much greater level.” OSHA’s penalties have not been amended by Congress since 1990 and only once since OSHA was established.

Ammonium nitrate

While the EPA, OSHA and various industry groups have issued new guidance on the use of ammonium nitrate since Executive Order 13650 was issued, the EPA has not updated its list of chemicals that require a company using or storing the compound to develop what’s called a risk management plan. At the December 11^th hearing, Senator John Barrasso (R-WY) suggested that such a requirement would be detrimentally costly to industry. If EPA were to require risk management plans for ammonium nitrate that “would do nothing to protect workers from companies not in compliance,” said Barasso. Further, said Barrasso, such over-regulation of what he called an “essential” chemical could result in “lost jobs for already struggling communities.”

“Barasso is right that it’s essential. But he’s dead wrong on the expense of storing and handling it safely,” says Mike Wright, United Steelworkers Director of Health, Safety and Environment. There are inexpensive measures that can greatly reduce risks of storing and using ammonium nitrate, some that include basic fire safety practices, says Wright.

When it comes to enforcing hazardous material safety practices, Greenpeace Legislative Director Rick Hind points out that the Clean Air Act already gives the EPA the authority to ask companies to improve handling and storage of hazardous substances including those – like ammonium nitrate – for which risk management plans are not required. The EPA, says, Hind, could already require companies to use inherently safer technologies.

The EPA has received nearly 101,000 comments on its proposal – made under Executive Order 13650 – to add ammonium nitrate to its list of risk management plan chemicals. A number of industry groups, including the American Chemistry Council and the Fertilizer Institute have expressed objections to the EPA proposal. Among these is that the EPA’s rule – if enacted – could become effective sooner than what OSHA might propose. The industry groups say they prefer to let the OSHA process play out,suggesting that additional EPA requirements will be duplicative and won’t necessarily improve safety.

Thinking upstream

Meanwhile, a new report from the United Nations Environment Programme (UNEP) offers a distinctly different view from that of industries objecting to EPA’s proposal and Senator Barrasso’s suggestion that a risk management plan requirement would adversely affect businesses. The report, released on Monday December 15^th found proactive management of hazardous chemicals – switching to safer alternatives and eliminating toxics from supply chains – to be less costly and more profitable than reacting to adverse outcomes. The report shows how companies that do not actively address these hazards can face large fines, loss of market share and damaged reputations.

The report focuses on chemicals in products rather than in manufacturing processes but the potential costs of not being proactive would apply to the latter as well. Among those listed: higher compliance, legal and crisis management costs, lost customer trust, government fines, damaged brand reputation and vulnerability to advocacy campaigns.

Companies obviously do not want to be told how to manufacture products or conduct business. But the UNEP report illustrates that proactively choosing safer technologies can improve company bottom-lines – not to mention improve worker and community safety. Without such a shift in the US, one in three American children will continue to attend schools that lie within the vulnerability zone of a hazardous chemical facility and 10 million, a school located within two such zones.

“If I had a kid living in a hazard zone, I’d be pulling my hair out,” said Senator Boxer.

[This hearing was Senator Boxer’s last as Chair of the Environment and Public Works Committee before Senate leadership shifts to the Republicans when the 114th Congress convenes in January.]

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Washington Post, Salon and The Nation.