Crimes Against Nature

by Kennedy, Jr. Robert F.

  “As fiscal conservatives, we have to stand for something,” said Sununu. “This bill broke the budget caps for 2004 and busted budget caps over a five-year period. And the tax provisions were outrageous. The agreement had over $24 billion in tax breaks. There’s just no need to provide special consideration to the oil, gas, or coal industries or the nuclear power industry,” he continued. “These are healthy, robust, competitive industries, and they don’t need special treatment or a special tax break from the federal government. Certainly not beyond those that are already in place. Plus, the MTBE provision was outrageous!”

  Thank God for the MTBE waiver. That provision would have immunized the oil industry from liability for contaminating water supplies in Sununu’s home state of New Hampshire and across the country with methyl tertiary-butyl ether, a gasoline additive that was introduced in 1978 to prevent “knocking.”

  25 It was tacked onto the pork train by the right-wing oil-patch cabal of Tom DeLay, Billy Tauzin, and Texas Congressman Joe Barton, chairman of the Energy and Air Quality Subcommittee.

  26 The MTBE provision is a microcosm of all that was wrong with Dick Cheney’s energy bill, an emblem of greed that finally broke the bill’s momentum.

  I discovered the horrors of MTBE in 1999, when, with help and advice from actor Paul Newman, I launched a bottled-water company, Keeper Springs, which donates all profits to environmental activism. Keeper Springs water comes from a pristine spring in the Green Mountains of Vermont. I quickly learned, however, that every springwater company lives in perpetual fear of finding MTBE in its aquifers. MTBE, which leaks from underground gasoline storage tanks, causes kidney and liver cancer and possibly leukemia, lymphoma, and testicular tumors in laboratory animals.

  27 Even the minutest quantity renders water so foul-tasting that people can’t drink it.

  In 1978, ARCO Chemical submitted a request to the EPA for a waiver to use MTBE, an oxygenate, to replace lead in high-octane gasoline. MTBE is a by-product of the refining process, and the oil companies were eager to squeeze some profit from it. It wasn’t long before it was being added to nearly all gasoline. From the beginning, the industry knew there were problems. As early as 1984, an internal Exxon memo acknowledged, “we have ethical and environmental concerns” about using MTBE.

  28 Industry surveys as early as the 1980s suggested that between 15 and 40 percent of underground gasoline storage tanks at service stations were leaking.

  In June 1984, the American Petroleum Institute created the MTBE Task Force, which included representatives from Shell, ARCO, and Texaco, to strategize about the huge concentrations of the chemical being found in groundwater. It was often discovered in wells where there was no detectable gasoline, meaning that it was moving farther and faster through soils than other compounds. While other gasoline components bind to soils and tend to remain close to a spill, MTBE is soluble and moves with the water for greater distances. MTBE, the task force acknowledged, cannot be removed by conventional treatments like carbon absorption, making it extraordinarily difficult to remediate.

  In 1990, MTBE could be found in groundwater across the nation. In October of that year, Shell called its industry sisters to an MTBE environment meeting in The Hague to warn that MTBE “is not biodegradable in water” and that the oil industry should anticipate expensive regulations to redress damages.

  29 Shell executives joked in an internal document obtained in one of our recent court cases that MTBE stood for “Most Things Biodegrade Easier,” or “Menace Threatening our Bountiful Environment,” and, finally, “Major Threat to Better Earnings.”

  30

  Yet the oil companies actively concealed this information from state and federal regulators as they continued to promote MTBE’s use nationally. In 1991 the industry successfully pressured the EPA to allow the companies to use MTBE to meet new emissions standards in the Clean Air Act — despite the availability of safe, cheap alternatives like ethanol.

  A nationwide study conducted by the U.S. Geological Survey between 1993 and 1994 found MTBE in 27 percent of urban wells.

  31 By 1997, large MTBE concentrations had forced the closure of public and private wells in dozens of cities and towns across the United States. The costs of treating MTBE contamination in the country’s drinking water have been calculated to be $29 billion, with some researchers estimating as much as $46 billion — a bill that the oil industry is trying to dodge.

  32

  On the theory that it’s always cheaper to fix the law than the problem, the industry mobilized its powerful lobbyists to push the White House and Congress for protection.

  33 Their request ended up in the energy bill.

  The MTBE provision may rear its ugly head again, however. The big energy companies, as they watched their dream bill go down in defeat, had too much to lose to simply accept defeat on MTBE — or on anything else. “This fight isn’t over,” said John Adams, NRDC founder and president. “There are so many billions of dollars at stake that it’s kind of hard to believe they’re not going to find a way to make this happen.”

  National Security

  On March 2, 2004, President Bush gave a speech to mark the first anniversary of the creation of the Department of Homeland Security. With a gunslinger’s bravado, he noted that the crack experts in his cabinet had taken “unprecedented measures to protect the American people here at home,” noting that his staff deserves “a gold star for a job well done.”

  1

  Just across the Hudson from New York City, a few miles from Ground Zero, is the Kuehne Chemical Company of Kearney, New Jersey, one of the country’s largest producers of chlorine products.

  2 In 1999, Kuehne filed a risk-management plan with the EPA. In accordance with the Clean Air Act, every company that uses or stores extremely hazardous chemicals is required to file these safety reports at least every five years. The Kuehne report offered a chilling assessment of a worst-case scenario at one of these plants: “Fully loaded railroad tank car releases all its chlorine within ten minutes. The resulting cloud of chlorine vapor would be immediately dangerous to both life and health for a distance exceeding fourteen miles. The total population in this radius is approximately twelve million.”

  3 There are 15,000 such facilities in the United States, including an estimated 111 that, if attacked, could each put a million or more people at risk of death or injury.

  4 Eight of these are in New Jersey.

  And what “unprecedented measures” has Bush enacted to prevent this horror from occurring? Next to none. Before September 11, there was almost no government oversight of the security precautions taken by these industries — and there still isn’t today. Since September 11, the White House has done nothing to require better security at those 15,000 chemical manufacturing facilities, oil tank farms, pesticide plants, and other repositories of deadly chemicals. Nor has it forced the nuclear industry to beef up security adequately at its 103 nuclear power plants. Three years after employees watched plumes of smoke pouring from the Trade Towers just across the river, there has been little verifiable change in the safety measures at the Kuehne Chemical Plant.

  5

  While the Bush White House is engaged in a foreign policy seemingly designed to recruit terrorists and encourage more attacks against our nation, it is doing little to require corporations to protect Americans from those attacks.

  The risks associated with the nation’s many chemical facilities are disputed by no one. “The impact of a terrorist attack on a chemical facility could overshadow the human and economic costs of the World Trade Center attack,” says Rand Beers, President Bush’s former director for combating terrorism and a White House counterterrorism adviser for 30 years.

  6 Troy Morgan, the FBI’s specialist in weapons of mass destruction, calls chemical tank farms the “poor man’s atomic bomb.”

  7 The Homeland Security Department, the Justice Department, the GAO, and the U.S. Army surgeon general, as well as a host of independent organizations,
all conclude that chemical plants are attractive terrorist targets and potential weapons of mass destruction. In February 2003, the National Infrastructure Protection Center, now part of the Department of Homeland Security, warned that Al Qaeda or other terrorist groups might “launch conventional attacks against the U.S. nuclear/chemical-industrial infrastructures to cause contamination, disruption and terror.”

  8

  Seven weeks after the September 11 attacks, Senator Jon Corzine of New Jersey introduced the Chemical Security Act, a bill that would require chemical plants to reduce toxic chemical inventories where practical and switch to less toxic chemicals when it was economically feasible.

  9 In many cases, Corzine told me, a plant manager could store a 30-day inventory of toxic chemicals rather than a full six months’ worth. “Simple, sensible economic reforms of that kind could save a lot of lives in a catastrophic event.”

  10 The bill passed the Environment and Public Works Committee in a 19–0 vote.

  But then the chemical lobbyists went to work. During the following August recess, before the bill went up for a Senate vote, the chemical-industry trade associations began flooding senators’ offices with requests to kill the Corzine bill. Leading the fight was the American Chemistry Council. The ACC’s counsel, James Conrad, served on President Bush’s EPA transition team. Fred Webber, ACC’s former president, is a Bush Pioneer and old friend from Texas who helped recruit 25 other chemical industry executives to be Bush fundraisers. According to Common Cause, the ACC and its member companies contributed more than $38 million to Republicans between 1995 and June 2002 and spent another $30.2 million on lobbying during the same period. In July, August, and September 2002, while they were actively fighting the Corzine bill, members gave an additional $1.3 million in PAC contributions to soften up our public servants.

  11

  The chemical industry’s furious lobbying included ads in Capitol Hill newspapers and op-eds branding the Corzine bill as a subversive plot against American industry. The National Propane Gas Association called it “Stalinesque.”

  12 Conservative think tanks marched in lockstep with the trade associations; the Heritage Foundation said that the supporters of Corzine’s bill were not really intent on fighting terror, but “have a different agenda: taking a large step toward their goal of a chemical-free world.”

  13 Angela Logomasini of the Competitive Enterprise Institute said that Corzine’s bill was “designed to serve a radical environmental agenda that targets chemicals.”

  14 Amy Ridenour of the National Center for Public Policy Research said that Corzine and his radical environmental friends have mounted a “jihad against the chemical companies.”

  15 Then there were the predictable knee-jerk ideological denunciations of the EPA by the Wise Use crowd: “Our experience with the EPA [is],” said Rebeckah Freeman of the American Farm Bureau, “if you give them an inch, they take 10,000 miles.”

  16

  A baffled Corzine argued that his bill wasn’t even about environmental protection: “This is a safety and public protection issue that is no different than making sure people don’t take guns on airplanes.”

  Eight Republican senators, including Senator James Inhofe of Oklahoma, who became chairman of the Environment and Public Works Committee when his party took control of the Senate, announced objections to the measure in letters to their colleagues.

  17 Their rationales parroted the chemical industry’s arguments that Corzine’s bill “may not adequately build on” the chemical industry’s existing “initiatives…that form a sound foundation to improve security.” These eight senators, by the way, had received more than $750,000 from ACC members and their PACs since 1995.

  18 By the autumn, Corzine’s bill was dead.

  Meanwhile, EPA Administrator Whitman was attempting to respond to the public outcry over lax security at chemical plants. The Clean Air Act empowers the EPA to force companies to safeguard the public from accidental chemical releases. But the agency had never issued regulations requiring precautions against a terrorist attack. After September 11, while Corzine was trying to push his bill through the Senate, the EPA staff developed a plan to use the agency’s authority to require improvements in chemical plant security. The suggested reforms echoed Corzine’s; facilities ought to reduce toxic inventories and use less dangerous chemicals where feasible. If plants can convert to safer chemicals or processes that cannot be used as weapons of mass destruction, it obviously lessens the daunting task of guarding those facilities. The late Jim Makris, then-chief of the EPA’s Chemical Emergency Preparedness and Prevention Office, said the goal would be to make it habitual among company management to think about ways to make their plants safer.

  19

  The chemical lobby also opposed the notion of requiring plants to use safer technologies. Greg Lebedev, then-president of the ACC, took a stab at explaining industry fears about regulations in an interview with New Jersey’s Bergen Record. “Chemical companies make dangerous things. Getting into the technology of what you make and how you make it is a subject for an environmental or technology context, not security. I don’t want to wander down an exotic path here.”

  20

  Whitman was caught in the squeeze between the public clamor for action and her reluctance to confront the chemical industry and powerful White House friends. So instead of using its existing authority, the EPA worked with the White House for a year trying to hammer out a regulatory proposal that wouldn’t anger industry. That effort finally died due to White House intransigence.

  Still, Whitman was under pressure to do something — there was too much noise in the press about the threat from chemical plants. So she decided to beef up inspections. The EPA has the authority to inspect chemical plants at will, without permission or advance notice. But Whitman wasn’t prepared to antagonize the White House. So with the confidence that marked her tenure at the EPA, she boldly asked permission of the nation’s 30 highest-risk chemical plants to allow inspectors to visit their facilities.

  21 Some companies refused outright, and the chemical moguls called in their White House chits to end the EPA’s meddling once and for all. In early 2003, under industry pressure, the White House yanked the EPA’s authority over chemical security and transferred oversight to the Department of Homeland Security.

  22 From the industry’s perspective, the DHS was the perfect overseer. A fledgling department with no expertise to inspect chemical plants or legal authority to require the chemical industry to implement tougher security standards, the DHS was unlikely to impose new burdens. Since then, the federal government has not troubled the industry about security.

  “There are currently no federal security standards for chemical facilities,” Corzine told me. “None at all. The industry does what it desires or what it thinks it can afford — and millions of Americans are at risk.”

  23

  The argument advanced by the chemical companies after September 11 — and the one that the Bush administration apparently swallowed — is that, left alone, producers will take voluntary measures sufficient to protect the public. The ACC claimed that its own chemical security code, which is mandatory for its members, would lead to tighter chemical security than would Corzine’s bill. Yet only 7 percent of the 15,000 chemical facilities in the United States are members of the ACC.

  24 Moreover, the voluntary plans that do exist are anything but stringent. Sal DePasquale, a former Georgia Pacific official who helped write the ACC’s security plan, wrote in a letter to the U.S. PIRG that voluntary standards are “a smoke and mirrors exercise to make it appear that it is issuing bona fide standards…. Across the country there are huge storage tanks with highly dangerous materials that are far from adequately secured.”

  25 Even Homeland Security Secretary Tom Ridge has stated that “voluntary efforts alone are not sufficient.”

  26

  You can say that again. In April 2002, a Pittsburgh Tribune Review reporter named Carl Prine w
rote of how he was able to enter 60 dangerous chemical plants virtually unchallenged.