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Article Excerpt
I. INTRODUCTION
II. CHEMISTRY IS BIG BUSINESS III. THE VULNERABILITY IS REAL AND CREDITABLE A. Terror Attacks on Chemical Facilities Are Rare B. The Big Bang 1. A Lack of Imagination 2. The Impact Could Be Catastrophic IV. EXISTING REGULATIONS DO NOT ENCOURAGE INHERENTLY SAFER TECHNOLOGY A. Clean Air Act B. Emergency Response and Community Right to Know C. Voluntary Efforts by Industry Fall Short D. Current Legislative Attempts Do Not Address the Problem 1. Chemical Security Act of 2003 2. Proposed Chemical Facility Security Act of 2004 3. Proposed Legislation Falls Short V. INHERENTLY SAFER TECHNOLOGY CAN IMPROVE CHEMICAL FACILITY SECURITY A. What Is Inherently Safer Technology? 1. Intensification 2. Substitution 3. Moderation 4. Simplification B. Cost Benefits of Inherently Safer Technology VI. ENCOURAGING INHERENTLY SAFER TECHNOLOGY A. Strengthening the CWC 1. History and Development of the CWC B. Tax Policies Encourage Investment 1. Taxes Increase Cost of Toxic Chemicals 2. Tax Incentives Encourage Investment C. Limited Liability Encourages Risk Reduction VII. CONCLUSION
I. INTRODUCTION
On December 8, 1941, President Roosevelt, in a speech requesting Congress to declare war on the Empire of Japan, proclaimed December 7, 1941 to be "a date which will live in infamy." (1) The deadly surprise attack at Pearl Harbor may be fading from the living memory of most Americans. However, the events of September 11, 2001 will be another day in American history that will surely live in infamy.
The attacks on September 11, 2001 were shocking to the American public. (2) Yet, they should not have been a surprise. (3) Evidence of Islamic extremists' intent to kill Americans was widely known. (4) Bombings of U.S. Embassies, the attack on the U.S.S. Cole, the downing of U.S. helicopters in Somalia, and the bombing of the World Trade Center should have put the United States on notice. (5)
Since the attacks on September 11, Americans live in a changed world--a world with yellow, orange, and red security alerts, (6) less information, and fewer freedoms. While many changes have been made to address the vulnerabilities of the United States, many challenges remain. One that has contributed to much debate, even prior to 2001, is how to protect the thousands of chemical facilities that pose a threat due to the possibility of the hazardous chemicals they produce or store being released.
This Comment will discuss ways to encourage chemical manufacturing and storage facilities to embrace inherently safer technologies. These technologies, based on what is called "green chemistry," (7) are necessary to eliminate the risk associated with hazardous chemical production, transportation, storage, and use.
As an alternative to using the traditional regulatory approach to implement the use of new technology, economic incentives could be used to encourage the switch to inherently safer technology. (8) Due to the complex nature of the chemical industry, a single program will not likely be successful. (9) This Comment suggests several incentives to encourage implementation of inherently safer technology, including strengthening the Chemical Weapons Convention (CWC), new tax policies, and limited liability for users of inherently safer technology.
Part II of this Comment will give an overview of the chemical industry. In Part III, this Comment will examine the vulnerabilities of hazardous chemical facilities. Part IV will review the existing regulatory landscape in the United States and discuss proposed legislation following September 11, 2001. Part V will introduce inherently safer technology, and Part VI will propose methods to encourage the proliferation of inherently safer technology.
II. CHEMISTRY IS BIG BUSINESS
The chemical industry is big business, both in the United States and the European Union (EU). (10) In the United States, the chemical industry is a $450 billion business, one of the largest sectors in the economy. (11) The more than 66,000 chemical facilities (12) across the nation employ more than one million workers. (13) Over five million jobs in the United States are related to the chemical industry, which impacts the health care, agricultural, construction, and automotive industries. (14)
The European chemical industry is a global force, controlling 28 percent of global output. (15) Employing some 1.7 million people, it is one of the top industries in most EU member states. (16) In the EU, three million jobs are dependent on it. (17) Worldwide, the chemical industry produces four hundred million tons worth 1,244 billion [euro] (approximately $1.6 trillion). (18) Because of the sheer size of the chemical industry, a vulnerable chemical facility could be a terrorist target that could lead to disruption to one of the engines of world economy. (19)
The complexity of the chemical industry will make a generic, one-size-fits-all regulation inappropriate. (20) The differences among chemical producers and the varied and intricate processes they incorporate contribute to this complexity. (21) Thus, because the modifications necessary to implement inherently safer technology present many complications, prescriptive regulation will not work for both large and small corporations. (22)
While the chemical industry has significantly reduced emissions, it remains a major source of pollution. (23) The industry is also a leading producer of toxic products and a contributor to ozone layer depletion. (24) The threat of damage to the environment by accident or explosion also exists at chemical facilities. (25) An accidental release of chemicals could result in serious damage to the local community, the environment, and even the national and global economy. (26)
III. THE VULNERABILITY IS REAL AND CREDITABLE
The United States has acknowledged that terrorists may be targeting soft targets (27) such as chemical plants. (28) The Department of Homeland Security has issued warnings of potential attacks on chemical facilities. (29) In addition, after reviewing trends in terrorism, the Department of Justice (30) concluded "the risk of terrorists attempting in the foreseeable future to cause an industrial chemical release is both real and credible." (31)
Terrorists may attack chemical facilities in two different methods: direct attacks on the facility or through efforts to gain access to hazardous chemicals. (32) A direct attack on a chemical production or storage facility may utilize conventional and unconventional weapons to cause a release. (33) Indirect attacks are used to gain access to chemicals to use as a weapon or to make weapons. (34) This Comment will focus on the vulnerabilities of direct attacks. However, the proposed solutions will also reduce the vulnerabilities of indirect attacks.
A. Terror Attacks on Chemical Facilities Are Rare
There is little evidence of prior terrorist incidents (35) involving chemical facilities. (36) Most of the prior attempts occurred in war zones, for example, in Croatia during the 1990s. (37) In the United States, while not successful, there have been reported attempts to cause releases from facilities. (38)
While direct attacks on chemical facilities have been rare, "[t]he ubiquitousness of industrial facilities possessing toxic chemicals and their proximity to population centers also make them attractive targets." (39) In fact, evidence of al Qaeda terrorist interest in targeting chemical facilities can be inferred from documents found in suspected al Qaeda hideouts. (40)
Although terrorist attacks on chemical facilities have been rare, terrorist attempts to use a chemical facility as a weapon of mass destruction should not be swept aside as unlikely. Risk is the likelihood of the event happening multiplied by the potential severity of the event's harm. (41) When the potential impact of an attack on a chemical facility is high, the risk will remain elevated, and a coordinated effort to minimize or eliminate the harm must be taken.
B. The Big Bang
"If they're looking for the big bang, obviously you don't have to go far in your imagination to think about what the possibilities are."--Fred Webber, President of the American Chemical Association. (42)
There have been several "dramatic and highly publicized chemical accidents" (43) that can be used to estimate the potential harm of an accidental release of hazardous chemicals. Combining the consequences of these accidents with other estimates, such as worst-case release scenarios, illustrates the threat.
This Part will first discuss some of the imaginative ways a terrorist might attack a chemical facility, followed by a discussion of the chemical accidents, worst case scenarios, and other reports illustrating the potential enormity of a successful attack on a vulnerable chemical facility.
1. A Lack of Imagination
"The most important failure was one of imagination. We do not believe leaders understood the gravity of the threat." (44)
The 9/11 Commission criticized the U.S. Government for its failure of imagination to foresee the attacks on the World Trade Center and the Pentagon. (45) While the impact of such an attack may be well known, the methods that could be employed to carry out an attack on a chemical facility are limited only by a terrorist's imagination.
One can pick up any magazine or search the Internet and find numerous examples of how the recently upgraded security at chemical plants could easily be compromised. (46) In one suggested scenario, terrorists utilize Soviet-era antiship mines loaded in a shipping container. (47) The ship carrying the container is allowed to proceed into the Houston Ship Channel because U.S. Customs only inspects some ten percent of entering containers. (48) When the ship reaches a major refinery, a global positioning system detonator initiates the blast. (49) This blast sets off chain reaction explosions at nearby facilities, leveling area buildings and releasing highly flammable chemicals. (50)
Others caution against the potential terrorist use of a weapon that often stirs contentious debate: the gun. (51) Using a fifty-caliber sniper rifle, a terrorist would be able to strike from a distance. (52) The capability of the fifty-caliber sniper rifle can easily circumvent traditional security measures such as guns, guards, and fences. (53) With an accuracy of up to two thousand meters and the power to shoot down a helicopter, a terrorist could release toxic chemicals by attacking hazardous storage facilities from relative seclusion. (54)
With increasing frequency, terrorists have attempted to gain access to weapons of mass destruction. (55) Treaties such as the CWC and other regulations make access to such weapons difficult. Terrorists may thus be forced to look to the release of toxic chemicals to achieve their goal of massive damage to property and life. (56) While chemical weapons are considered the least lethal of the weapons of mass destruction, a release of toxic chemicals from a chemical production or storage facility could be catastrophic. (57)
2. The Impact Could Be Catastrophic
"Put in the right place, bombs can deliver the equivalent destructive power of a weapon of mass destruction." (58)
A 1998 report estimated that 41 million Americans live in "vulnerable zones" or geographic areas that could be seriously affected by the worst possible accident at a chemical production or storage facility. (59) Further evaluation of risk management plans add to the concern over vulnerable zones. (60) Many commonly used toxic chemicals have vulnerable zones extending up to 25 miles from the facility. (61)
The Environmental Protection Agency (EPA) reports that 123 chemical facilities have worst-case accidental release scenarios, which could expose more than one million people to a cloud of toxic gas. (62) The number grows to seven hundred facilities that could each expose at least one hundred thousand people and approximately three thousand facilities that could each threaten at least ten thousand people. (63)
U.S. Army estimates are even more alarming. In a now classified report, the Army Office of the Surgeon General estimated that damage as a result of a toxic chemical release could be staggering. (64) Based on generic estimates, the Surgeon General put casualties upwards of 2.4 million. (65) If a release of chemicals of this magnitude were to occur, the impact on the national psyche, not to mention economy, would be cataclysmic.
While there have been no successful attacks on a chemical facility, several accidental chemical releases can be used to estimate the potential impact of a chemical facility attack. (66) Incidents at Texas City, (67) Seveso, (68) and Bhopal (69) caused massive damage, death, and destruction. While these industrial accidents changed the regulatory landscape both in the United States and Europe, they also illustrate the potential of death and destruction that can occur. (70)
IV. EXISTING REGULATIONS DO NOT ENCOURAGE INHERENTLY SAFER TECHNOLOGY
Currently there are two main federal laws that attempt to reduce the risk associated with accidental release of hazardous chemicals. (71) The Clean Air Act and the Emergency Response and Community Right to Know Act will be briefly discussed, followed by an overview of voluntary efforts by industry to improve the safety of chemical facilities.
A. Clean Air Act
Congress has attempted to protect people from exposure to toxic or hazardous chemicals through many legislative acts. (72) Congress delegated to the EPA the task of promulgating standards for two leading pieces of legislation, the Clean Air Act (CAA) and the Clean Water Act (CWA). (73) For security of chemical facilities, the main source of power for the EPA is the CAA. (74) Specifically, [section] 7412(r) of the CAA requires the owners and operators of chemical facilities to implement...
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