By Emma Platoff and Jim Malewitz
The Texas Tribune
Originally published Sept. 1, 2017
Residents of Crosby, Texas woke Thursday morning to a 40-foot plume of black smoke darkening their sky.
Don’t worry, said both government officials and personnel from Arkema, the owner of the plant emitting the fumes — there’s nothing toxic in your air.
Locals had little choice but to take them at their word.
That’s because in recent years, state leaders have made it increasingly difficult for communities to learn what, exactly, sits inside the chemical plants in their neighborhoods — and just how dangerous it might be. The implications of such efforts came into focus this week, after Hurricane Harvey battered, drowned and endangered such facilities along the Texas coast.
On Thursday, after the first of the explosions that are expected to continue at Crosby’s Arkema plant, the company refused to voluntarily release two documents critical for assessing the potential fallout. One such document was widely available for years before then-Texas Attorney General Greg Abbott — now the state’s governor — threw up a roadblock in 2014. And the state has successfully lobbied the federal government to keep the other document out of the public eye.
In the past, information contained in such filings has proved critical to helping journalists and outside experts assess public health risks at refineries and chemical plants, or discover what went wrong in the wake of a disaster.
“It’s a great illustration of the kinds of problems these sorts of boneheaded rulings result in,” Joe Larsen, an open government attorney who also serves on the board of the Freedom of Information Foundation of Texas, said of the episode in Crosby.
The two documents — a federally-mandated risk management plan and a detailed accounting of the chemicals on site, called a “Tier-II inventory” — are technically considered public records. But current laws and policies make them incredibly difficult to access; to see a risk management plan, for example, you must set up an appointment at one of only a handful of federal reading rooms, a process that proves onerous or impossible even for experts and lawyers. By law, companies must provide Tier-II inventories within 10 days of a formal request — a long wait in an emergency scenario — and it’s not clear whether any government agency penalizes companies who refuse.
State leaders argue such restrictions are needed to prevent terrorists from targeting volatile plants.
In 2014, Abbott said “ongoing terroristic activity” in Central Texas necessitated his ruling.
“And anyone is mistaken to think that these are the only examples of terrorism — these are just the most recent examples of terrorists working actively here in Texas,” Abbott said at the time.
Health and environmental advocates counter that restricting the public’s right to know carries its own safety risks.
Releasing more information broadly and immediately “is really a matter of life or death,” said Bakeyah Nelson, executive director of the environmental group Air Alliance Houston.
“It informs your decision-making about how to proceed — whether you decide to stay in your home, whether you decide to leave,” Nelson said. “It’s a public safety issue and not knowing what is stored at these plants is really a threat to public safety.”
Rich Rowe, Arkema’s CEO, cited the need “to balance the public’s right to know with the public’s right to be secure” in his decision to keep some information on the Crosby plant secret. The company has released a list of the chemicals used at the site, but not their quantities or on-site locations — crucial data points for assessing the plant’s vulnerability in a still-unfolding episode. More than 12 hours after the initial explosions, the EPA on Thursday provided reporters who asked with a partial version of Arkema’s Crosby risk management plan.
Arkema, which lost power after Harvey struck, expects more fire and smoke in the coming days. Without electricity to power refrigeration, the plant’s organic peroxides will continue to degrade, likely causing more chemical eruptions. Company officials have said there is nothing they can do to prevent further incidents.
Seeking to ease public concerns, company and government officials have compared billowing smoke from the site to the gas that escapes a campfire. But outside experts aren’t so sure, and they argue the public needs tools to scrutinize such statements.
“I’d be very concerned about the smoke particles,” said Neil Carman, clean air director for the Sierra Club’s Lone Star State chapter. “The public has a right to know what they might be killed by or exposed to.”
Until recently, the public had wider access to such information.
Federal law requires companies to inventory certain hazardous chemicals on site and submit them to state and local officials in a Tier II report. For decades, the state made these reports available upon request to homeowners, the media or anyone else who wanted to know where dangerous chemicals were stored. But in 2014, Abbott ruled that state agencies could withhold such information, setting a precedent that has continued under current Attorney General Ken Paxton.
Abbott issued the decision while running for governor, less than 14 months after a fertilizer plant exploded and killed 15 people in the small town of West, north of Waco. Information from Tier II inventories had been crucial to helping media figure out how much volatile ammonium nitrate was stored in West and other sites across Texas.
In his 2014 decision, Abbott contended that the state was required to withhold the data under Texas homeland security exemptions, because evildoers could use it to gain access to the chemicals and terrorize communities. He also said homeowners who think they might live near stores of dangerous chemicals could simply ask the companies near their homes what substances are kept on site.
“You know where they are if you drive around,” Abbott said in 2014. “You can ask every facility whether or not they have chemicals or not.”
A spokesman for Abbott did not respond to messages seeking comment for this story.
Requestors have since gotten mixed results from asking individual companies for their Tier II reports. State law still says companies must produce the reports within 10 days of a request, but it’s not clear whether any state agency intervenes if they don’t. An attorney in the AG’s office, which usually referees public records disputes, said Paxton has no authority to force a private company to turn over records.
A recent open records ruling out of Paxton’s office says ignored requestors may complain to the Texas Commission on Environmental Quality, but it’s not clear whether the commission has ever penalized a company for withholding chemical inventories.
Texas leaders have pushed for more chemical secrecy on another front.
Following the West explosion, the EPA began drafting a rule that would have, among other provisions, eased public access to chemical plants’ risk management plans for worst-case scenarios. But Scott Pruitt, the EPA chief under President Donald Trump, scrapped the rule earlier this year, at the request of the state of Texas and manufacturing companies including Arkema.
Texas and 10 other states complained that the rule would have required “unprecedented public disclosure of facility information that will threaten local communities and homeland security.”
Ilan Levin, Texas director for the Environmental Integrity Project, a watchdog group based in Washington, D.C., said industry shouldn’t take advantage of lax policies in times of emergency.
“It doesn’t matter if there are rules that allow companies to hide some of this information… This is an extenuating circumstance,” Levin said. “This is a time when the company has an obligation and owes a duty to the public and to the neighbors, the people who live nearby that facility, to be completely transparent, and make sure that if there’s a danger to the public that they get people out of there.”