39% of the U.S. population lives within three miles of “high-risk” chemical facilities, which is 124 million Americans. There are 12,000 of these facilities in the country, many of which are not subjected to regulations meant to prevent such disasters. This number comes from a report by Coming Clean Inc., an environmental non-profit, and lends some insight into the scope of the problem. The Conyers, GA chemical fire that occurred in September has received the most recent coverage, but a chemical fire, leak, or explosion happens every 1.2 days in the U.S.

The Lever News reported last month about this “toxic loophole,” which was confirmed by documents that were obtained via open records request. The report states that chemical lobbyists have worked to prevent these regulations from being enforced upon facilities that hold toxic chemicals. There have been “hundreds of chemical accidents at facilities that are not covered by these regulations” within the last five years.

There have been over 100 so far this year, and last year, there were 184 chemical disasters that could potentially have been prevented if the facilities were subject to these regulations. The EPA Risk Management Plan was created as part of the 1990 Clean Air Act and “requires facilities that use extremely hazardous substances to develop a Risk Management Plan.”

The problem is that “reactive hazards” are a class of potentially dangerous chemicals that are not considered “extremely hazardous” according to the EPA. These chemicals that may be considered generally safe as an individual substance become hazardous when combined with other substances in the facility. Independent evaluator Scott Smith was critical of the EPA’s testing methods in East Palestine because they didn’t test for the hazardous byproducts that are created when multiple chemicals interact.

The HighWire reported the aftermath of the East Palestine train derailment, alleged EPA coverup, and the latest news on the Conyers BioLab fire. BioLab had a fire at a Louisiana facility in 2020. The U.S. Chemical Safety Board released a report in 2023 stating that the facility “could have prevented the incident” if they were subject to the EPA Risk Management Plan regulations. Seventeen months following the release of this report, the BioLab facility in Conyers went up in flames and spread a toxic chemical plume throughout the region near Atlanta.

The open records request shows that BioLab is not “Subject to Emergency Planning under Section 302 of EPCRA (40 CFR part 355)” or “Chemical Accident Prevention under Section 112(r) of CAA (40 CFR part 68, Risk Management Program).” The obtained documents show over 70 chemicals are housed at the facility,

Some of these chemicals are flammable, while some are labeled as oxidizers or combustible dust. Two chemicals are considered “classified.” Seven of the chemicals are toxic to organs, 23 are “acutely toxic via any route of exposure,” and 43 are seriously damaging or irritating to the eyes. 37 can cause skin corrosion or irritation, eight can cause respiratory or skin sensitization problems, and three are toxic to the reproductive system.

The chemical industry spent over $65 million on lobbying in 2023 and over $57 million so far in 2024. Peer.org reported in June about a communication “backchannel” between chemical companies and the EPA. Scott Smith said the EPA has effectively been the public relations arm of Norfolk Southern since the East Palestine train derailment in February 2023.

The EPA finalized a rule that strengthened the regulatory framework of the Risk Management Program and required facilities to consider, map, and prepare for potential risks associated with climate change. They have until March 2027 to submit response plans to the EPA. The new rule change does not change the regulatory loophole for “reactive chemicals,” and has no impact on BioLab facilities.

According to the EPA website, the agency responds to “thousands of emergencies involving oil spills or the release (or threatened release) of hazardous substances are reported.” This includes small oil or chemical spills up to massive environmental hazards that require the evacuation of homes in the nearby area. The website states, “EPA provides support when requested or when state and local first responder capabilities have been exceeded.”

EPA does send agents to the more significant chemical disasters that happen, such as Conyers and East Palestine, but frequently the corporation that is responsible for the chemical exposure is also responsible for hiring contractors to conduct the safety tests in the area. Norfolk Southern hired their own contractors to conduct testing and provided the information to the EPA. The HighWire reported on a chemical fire in Akron, OH at SMB Products two months ago, during which the company was tasked with evaluating the toxicity in areas near the facility.

Coming Clean celebrated the EPA’s new guidelines for the Risk Management Program, but stressed that there are still several regulatory gaps that the federal agency should address. The latest amendments to the RMP do not expand the list of chemicals or reduce the thresholds that would require a facility to be regulated with additional safeguards.

BioLab and other facilities remain free from important regulatory guidelines that would prevent chemical disasters from occurring in the future. Over two decades ago, The U.S. Chemical Safety and Hazard Investigation Board sounded the alarm about the dangers of reactive chemicals and offered 18 recommendations to protect from future harms. The report references 167 serious chemical accidents over 22 years involving “uncontrolled chemical reactions,” resulting in the death of 108 people and hundreds of millions of dollars in property damage.

According to Adam Kron, a senior attorney for Earth Justice, the EPA is required to review the list of toxic substances regulated in the RMP, but it hasn’t reviewed the list since 2000. Kron said the EPA has not added any new chemicals to the list in the last 20 years.