Debate over exposing chemical risks Industry cites terror fears; environmentalists want word out By Ann Davis THE WALL STREET JOURNAL SOUTH KEARNY, N.J., May 30 C In the next two months, Greenpeace plans to post on the Internet a color map showing how a terrorist attack on the Kuehne Chemical Co. bleach plant here could unleash a lethal cloud of chlorine vapor over New York City. NOT LONG AGO the environmental group=s move would have marked just another round in almost two decades of dispute over how much the public should know about companies using hazardous materials. Then Sept. 11 transformed the debate. The chemical industry in recent months has successfully lobbied the government to limit access to previously public data about chemical accidents, arguing that it would give terrorists a blueprint to launch an attack. Federal agencies have also stripped government Web sites and reading rooms of materials that showed the location of drinking-water sources, hazardous-materials pipelines and chemical plants that store the most volatile substances. But environmentalists are determined to keep exposing the information, arguing that chemical companies are engaged in far riskier behavior by not adopting safer manufacturing methods after Sept. 11. Greenpeace=s posting of the Kuehne (pronounced kee-nee) map will coincide with a ARun for Your Life@ road race the environmental group is sponsoring at a nearby park to demonstrate that most people can=t outrun a spreading chlorine cloud. A serious incident could kill tens of thousands C even hundreds of thousands by some estimates C and damage the lungs of millions more. GIANT BULL=S-EYE Kuehne Chemical=s chief operating officer, Peter Kuehne Jr., says environmentalists might as well paint a giant bull=s-eye on his facility and pass out sniper rifles to terrorists. AI don=t think someone who wants to do us harm has a right to know this,@ he protests. AIn fact, we have a responsibility to make as little as possible available to them.@ But the question of which side might be taking greater chances with American lives remains unanswered. The $450 billion U.S. chemical industry has so far fended off efforts to require companies to cut their reliance on volatile, potentially lethal materials. A few facilities have switched to alternative chemicals or new technologies since Sept. 11, and the industry has lowered its resistance to alternative manufacturing methods. Yet the industry also has won growing support in law-enforcement circles to fight the terrorist threat with voluntary security improvements C and secrecy. C.T. AKip@ Howlett Jr., executive director of the Chlorine Chemistry Council, an affiliate of the American Chemistry Council trade group, says environmentalists= efforts to publish restricted data aren=t Athe way an adult would deal with a
national security challenge.@ Environmentalists concede that what they=re doing could make it easier for terrorists to pick their targets. But they contend that an industrial accident could be as devastating as a planned assault. Between 25,000 and 50,000 accidental releases of hazardous materials occur every year, injuring thousands and killing a hundred or more at refineries, chemical plants and other industrial sites, according to the Washington-based U.S. Public Interest Research Group. A chemical-industry spokesman says the numbers are based on federal accident reports that aren=t subsequently verified, but he says accidental releases havedeclined in recent years, and chemical makers have Acontinuously made our facilities and processes safer@ for workers and surrounding communities. AYou could hide the information, but the threat is still there,@ says Gary Bass, head of the Right-to-Know Network, part of an open-government advocacy group called OMB Watch based in Washington. AWhat=s shocking is how few people know about dangers in their own neighborhoods,@ he says. The debate is set to heat up further this summer. Republican Sen. Christopher AKit@ Bond of Missouri has secured Justice Department support for a bill C which he expects to announce Thursday in his home state C that would revoke the public=s right to view chemical-accident scenarios, except in a stripped-down form omitting a plant=s name and location. The bill would also make it a crime for anyone with access to the uncensored version to disclose details. In the opposing camp, Democratic Sen. Jon Corzine of New Jersey will soon submit a revised version of a bill that met resistance last fall. It would require chemical plants deemed most vulnerable to terrorist attacks to study alternative technologies. If they don=t adopt them, they will have to justify why the alternatives aren=t practical or risk penalties or even closure. Despite industry and government efforts, it=s almost impossible to eradicate sensitive information once it=s been publicized. The government=s censorship since Sept. 11 doesn=t affect private groups that came by the information legally before that date. The Right-to-Know Network still operates a Web site allowing anyone to search the Internet to determine where an attack on a chemical plant could inflict the most casualties. Environmental activists have collected information from many of the Environmental Protection Agency records describing potential catastrophic chemical releases at 15,000 industrial sites. The complete records remain available for inspection in the government reading rooms, although the industry wants to close those indefinitely. BHOPAL CATASTROPHE The push to require American companies to disclose hazardous-materials risks began after the early hours of Dec. 3, 1984, when more than 27 tons of methyl isocyanate leaked from a Union Carbide Corp. pesticide plant in Bhopal, India. The toxic cloud blanketed a region of 520,000 people, killing 4,000 or more and leaving thousands more with chronic disabilities.
The disaster spurred passage in the U.S. of the Emergency Planning and Community Right-to-Know Act in 1986, which established a checklist of hazardous chemicals and required industries to reveal how much of each one they were releasing into the environment. A 1990 amendment to the Clean Air Act further required a broad range of sites C from oil refineries and water-treatment facilities to electric utilities and food-storage warehouses C to outline the worst accidents they could foresee and steps to prevent them. The EPA announced in the late 1990s that it planned to post the highly detailed filings on the Internet, arguing that the more widely available such data are, the greater the incentive for companies to act responsibly. By then, the World Trade Center had been bombed for the first time and Internet use had taken off. Chemical giants such as DuPont Co. moved quickly to limit what went online. The Chemical Manufacturers Association C now the American Chemistry Council C issued a report in 1998 warning of Athe dark side of the Internet.@ It accused the EPA of allying with Aprofessional environmentalists@ to provide Aone-stop shopping@ for terrorists. Law-enforcement agencies sided with the chemical companies, convincing Congress in 1999 to pass a law that effectively kept the most sensitive part of the plans, including toxic-gas dispersion models and casualty figures, off the Internet. But the EPA soon began posting company-written summaries of the scenarios online C many of them nearly as detailed as the complete filing. The unabridged plans became available when the reading rooms opened in December 2000. Even before those rooms opened, the Right-to-Know Network, adept at using freedom-of-information laws, obtained and posted its own copy of the detailed summaries. In March 2001, Greenpeace posted a report titled ABhopal in the Bayou@ about Louisiana vinyl and petrochemical factories. Included was a chart with 50 plants= worst-case scenarios and maps with circles showing danger zones. >A SMOKE SCREEN= Rick Hind, legislative director of the Greenpeace Toxics Campaign, played down terrorism concerns at the time as Aa smoke screen@ to discredit right-to-know groups. He pointed to towns such as Norco, La., where the mostly African-American residents have experienced so many accidents that many sleep with clothes on and suitcases packed. Sept. 11 left many people unclear about which should worry them more: recalcitrant chemical companies or loose-lipped environmentalists. The EPA quietly stopped producing its worst-case scenario summaries on Sept. 20, citing concerns that terrorists could use them to stage an attack. Soon after that, a backlash against the greens= tactics started building.
A pro-industry opinion article in the Baltimore Sun called the environmental groups= Web sites Aterrorism for dummies.@ Readers who noticed their hometown papers had started using Greenpeace and Right-to-Know Network data to document local terrorism hazards began sending hate mail to the groups. AWhat is your problem?@ one said in an e-mail to Mr. Bass, head of the Right-to-Know Network, on Oct. 4. AThis proves that you are Anti-American when you are more concerned with your >agenda= than the welfare of millions of American citizens.@ The Sept. 11 attacks prompted some soul-searching at the Right-to-Know Network. Mr. Bass, a fixture in the nonprofit world since he established OMB Watch to track the federal budget in 1983, says the crisis Acreated an enormous challenge to the principles we believe in.@ He saw hits to his Web site rocket to 10,000 a week in October, from the usual 100. At a meeting on Oct. 22, Right-to-Know Network staffers brainstormed about how to keep the site from being exploited for evil purposes. In the end, they concluded that the database had probably been copied and stored elsewhere by automated Web search engines and other Internet users. The board of OMB Watch met later that afternoon. AIf any law-enforcement agency asks us to take this [Internet site] down, we should do it immediately and debate it afterwards,@ board chairman Mark Rosenman recalls saying. No one seriously objected, according to board members. Mr. Bass noted that the Right-to-Know Network took the unusual step of arranging focus groups to gauge reaction to its position. But the government made no moves against the environmental groups, and they grew emboldened as the following months brought a slew of censorship actions in the name of fighting terrorism. Mr. Bass began publishing an inventory on his OMB Watch Web site of all the records made secret after Sept. 11, from the Federal Aviation Administration=s enforcement database to the Transportation Department=s Web site maps of oil and gas pipelines. He included links to private groups that still had a copy of records, such as a government report citing weak security at chemical plants C which the industry disputes. NEW WORST-CASE MAPS In December, Greenpeace published on the Internet and circulated to local reporters in Michigan new worst-case maps and the number of people at risk for three Dow Chemical Co. facilities: one in Michigan C a joint venture with Dow Corning Corp. C with 330,000 at risk; one in Texas with 105,000; and one in West Virginia with 155,000. It says its next goal is to publicize worst-case scenarios for the Kuehne plant, along with two other DuPont chemical plants near Philadelphia and Wilmington, Del. and a plant that produces detergent ingredients in Baltimore. Then it says it will publish a directory of the 123 plants that could each jeopardize one million people or more. Both DuPont and Dow say they disagree with the group=s approach. Earlier this year, a coalition of right-to-know activists put together a manual called AThe Safe Hometowns Guide.@ Posted online and sent to at least 40 community groups, the guide supplies directions on how to use the Right-to-Know Network and other sources to compile information on terrorism risks. It also urged readers to use the information to pressure companies to change
their manufacturing, switch to just-in-time delivery of materials to reduce storage of toxic materials and create buffer zones around their plants. Mr. Howlett of the Chlorine Chemistry Council calls AThe Safe Hometowns Guide@ an Aadvocacy propaganda tool@ with a misleading name. ABy publishing this kind of information, they actually increase the threat,@ he says. AIt=s as though the world didn=t change on 9/11.@ Chlorine in particular has become a focus of the debate C for its grave threats and many uses. The highly reactive chemical is both a cost-effective way to disinfect most of the world=s water and a key component in a range of products including PVC piping, medical supplies and car parts. Stored as a pressurized liquid, chlorine vaporizes into a sharp-smelling green gas when released, and then an invisible gas heavy enough to hang in city streets between buildings C as it did in World War I trenches, when Germans used it to kill thousands of British troops. The rupture of a 90-ton railcar of chlorine could kill anyone exposed to open air within the first two to three miles of the gas plume. For those as far as 10 miles away, it could cause fluid to collect in the lungs, permanently reducing breathing capacity, according to data from the Chlorine Institute, the industry=s safety council, and U.S. Army engineers. The chemical was high on the list of concerns in a classified report to be released next month within the government. A health and emergency-planning arm of the U.S. Army warns that tens of thousands of people could die in a single attack on a chemical plant in an urban area, and as many as two million could flood hospitals for treatment. In January, the chemical companies responded with their own promotional campaign for chlorine. Calling it AAmerica=s Essential Element,@ Chlorine Chemistry Council ads and brochures display a rippling pool of blue water with the American Flag floating underneath. The industry notes that chlorine is used in everything from fire-resistant protective gear to drugs, including the anthrax antibiotic, Cipro. Improvements in valves and steel tanks have greatly reduced risks of accidents, the industry says. Army chemical engineer David A. Reed, who helped draft the classified report, says that until alternative technologies are more widely accepted, the country Acan=t do without chlorine.@ He adds that in a natural disaster, Aif we lost our ability to disinfect the water, the number of cholera cases would dwarf the numbers we=re coming up with@ in terrorism scenarios. INDUSTRY OPPOSITION The chemical industry has opposed efforts to force companies to find substitutes for or reduce the chlorine or other chemicals they use. Robert Smerko, the Chlorine Institute=s president, says, AWe=re not doing research on different processes. . Whether companies can or should change is a business decision on their part.@ Janet Flynn, spokeswoman for the Chlorine Chemistry Council, adds that worst-case scenarios aren=t predictive of what would actually happen. But the industry has also made some concessions. The American Chemistry Council has agreed to require companies to conduct assessments of their plants= vulnerabilities to terrorism as a
condition of membership. The ACC has pledged to use an assessment model that the Department of Energy=s Sandia National Laboratories is developing for the Department of Justice. It has indicated it would let a third party C such as an insurance company or a state or federal agency C audit assessments to verify that members are making improvements. The EPA is circulating guidelines with the Office of Homeland Security and other agencies that would, for the first time, include guidelines encouraging companies to consider safer technologies and a requirement that they assess their vulnerability to Acriminal@ attack. Though the EPA is still reluctant to make such changes mandatory, an agency official involved in the new proposal says, Athe world changed on 9/11 and everybody is looking at things in ways they may not have looked at them before.@ The push for safer technologies got a boost in December, when Washington=s Blue Plains waste-water treatment plant completed its conversion from chlorine-gas disinfection to much safer liquid chlorine bleach a year ahead of schedule. Jerry Johnson, the general manager of the D.C. Water and Sewer Authority, said the plant=s stockpile of chlorine and sulfur dioxide put the capital in a Aparticularly critical situation@ and Awe decided the best course of action would be elimination of the threat.@ Jeremiah Baumann, an environmental health advocate with the Public Interest Research Group, points out that dozens of other water utilities have switched to ultraviolet light and ozone. AIt=s not just activists who think the better solution is to use an alternative chemical,@ he says. But a few conversions C especially those that still require industrial strength bleach C don=t eliminate the problem of the chlorine stockpiles at bleach suppliers like Kuehne Chemical, which provides bleach to cities across the Eastern seaboard. The South Kearny plant sits about three miles from Newark International Airport and less than five miles from Lower Manhattan. Mr. Kuehne says he has taken a number of precautions since Sept. 11 to lower risks, including storing much less chlorine on the South Kearny site than New Jersey has licensed him to keep. But he is in no hurry to redesign his plant. Technology exists to make chlorine on site from a pile of salt and immediately consume it in the bleach-making process, reducing his chlorine inventory to just 100 pounds. In fact, his company just built such a plant in Delaware City, Del. But Mr. Kuehne estimates that it would cost $30 million, more than half the company=s $50 million in annual revenues, to build the same facility in New Jersey. He says the Federal Bureau of Investigation and the Coast Guard both made urgent visits in recent months to advise him on security, but he says he can=t disclose the steps he is taking.
EUROPEAN COURT OF JUSTICE ISSUES FURTHER GUIDANCE ON SUPPLEMENTARY PROTECTION CERTIFICATES In three judgements released on 12 December 2013 (C-493/12 Eli Lilly v HGS, C- 443/12 Actavis v Sanofi, C-484/12 Georgetown v Octrooicentrum), the Court of Justice of the European Union (CJ-EU) gave further guidance on the interpretation of Regulation (EC) No 469/2009 (the SPC Regulation). Their gui
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