Lessons of Bhopal: 25 Years Later, U.S. Chemical Laws Need Strengthening

Dec. 3 marks the 25th anniversary [1] of the most catastrophic industrial accident in history: the leak of poisonous gas from a chemical plant in the Indian city of Bhopal. A similar accident some months later in West Virginia drove Congress to pass legislation intended to protect citizens from such disasters by requiring emergency planning and public disclosure of chemical releases. Twenty-five years after the Bhopal tragedy, much progress has been made, but much remains to be done to provide a minimum level of protection against chemical releases.

In the early morning of Dec. 3, 1984, in the central Indian city of Bhopal, 40 tons of highly toxic methyl isocyanate [2] (MIC) leaked from a pesticide manufacturing plant owned by an American company, Union Carbide. In addition to the thousands killed in the immediate aftermath, an Amnesty International report [3] published in 2004 calculated that an additional 15,000 people died in the years following the accident due to long-term gas-related effects, and 100,000 people continue to suffer from "chronic and debilitating illnesses for which treatment is largely ineffective."

In August 1985, another Union Carbide plant experienced a toxic gas leak [4], this time in Institute, WV. More than 100 residents living near the facility were injured.

In response to the accidents, in 1986, Congress passed the Emergency Planning and Community Right to Know Act [5] (EPCRA), a major advance in the right-to-know movement. As its name suggests, the law focuses on two main areas: emergency planning for chemical releases and public disclosure of threats from toxic chemicals.

Emergency Planning

The emergency planning sections of EPCRA required local governments to develop plans for sudden chemical releases resulting from spills, fires, or explosions. The law is intended to ensure that facilities quickly notify emergency response officials when releases occur and that they know what hazardous chemicals might be involved.

State governments are required to oversee and coordinate local planning efforts. The law outlines the formation of State Emergency Response Commissions (SERCs) and Local Emergency Planning Committees (LEPCs) for designated emergency planning districts. The LEPCs work with facilities to create emergency plans, such as evacuation routes and first responder training programs. Facilities must report releases of certain hazardous substances to the appropriate local, state, and federal authorities. Information about accidental chemical releases must be available to the public.

Right to Know

EPCRA also established several reporting requirements to ensure that citizens, especially those living near plants using hazardous chemicals, have the information they need to protect themselves and hold businesses accountable. The law requires material safety data sheets (MSDS) be provided to the local emergency planners and the public upon request. An MSDS provides important information on the health risks and proper handling of hazardous chemicals. Additional information on the types and quantities of hazardous chemicals stored at facilities must also be made available to emergency planners and the public.

The law also established the required reporting of releases of toxic chemicals. The U.S. Environmental Protection Agency (EPA) created the Toxics Release Inventory (TRI) to catalog the reports and provide easy public access to the information. (TRI data are available through OMB Watch's Right to Know Network [6] and on EPA's website [7].)

The planning and reporting aspects of EPCRA do not regulate hazardous substances. The law demands no changes to the way a facility operates and sets no limits on how much of a substance can be released. Yet EPCRA is credited with driving significant improvements in the chemicals industry by making companies more aware of the dangers and inefficiencies at their plants and generating public pressure to reduce pollution and other health threats.

Attempts to weaken EPCRA over the years have repeatedly threatened the public protections and right-to-know measures provided by the law and its regulations. A "midnight regulation [8]" put forth in the last months of the George W. Bush administration exempted factory farms [9] from the EPCRA requirement to report emissions of toxic gases from the vast quantities of animal waste produced at these facilities. Such emissions can pose a serious threat [10] to public and environmental health. The rule is still the subject of legal actions from both environmental organizations and operators of concentrated animal feeding operations.

The Bush administration also pushed through a controversial rule [11] that dramatically raised the reporting threshold of the TRI program. Despite overwhelming public opposition to the proposal, the Bush rule survived two years before Congress and the Obama administration reversed the rule [12] in March 2009, restoring the reporting rules that had been in place before the weakening changes.

Despite that restoration, TRI grows weaker every year as new chemicals are introduced and new industries begin releasing chemicals, none of which are covered by TRI. The list of covered chemicals and industries has not been significantly expanded since the late 1990s, allowing thousands of new chemical creations to enter commerce without letting the public know about their releases.

Chemical Security

In August 2008, an explosion and fire killed two people at the same Institute, WV, plant where the 1985 accident helped push Congress to pass EPCRA. The explosion occurred very close to a storage tank holding 40,000 pounds of MIC, the same chemical that was released in Bhopal. Subsequent investigations [13] have shown the ongoing weaknesses in community right to know and the safety of chemical facilities.

A congressional investigation determined [14] that the operator of the plant, Bayer CropScience, "engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by attempting to marginalize news outlets and citizen groups concerned about the dangers posed by Bayer's activities; and by providing inaccurate and misleading information to the public." Bayer sought to exploit a national security law to hide information by inappropriately labeling it as sensitive security information.

Despite the historic milestone established by EPCRA, a static unrevised law can only accomplish so much. The incident at the Bayer plant in West Virginia exposes the risk to the public's right to know posed by excessive secrecy in the name of "national security" and the need for safer technologies to replace unnecessarily dangerous processes at chemical plants across the country. Legislation that recently passed the House [15] aims to reduce the risks and consequences of a terrorist attack on a chemical plant. The bill would drive adoption of safer technologies that would eliminate the risks of poisonous releases from chemical plants in the event of a terrorist attack. Such safer alternatives, which are already in use [16] at plants across the country, are the best option for protecting the public and plant workers from the next Bhopal.

Image in teaser from flickr user Picture_taking_fool [17], used under a Creative Commons license