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Sam Houston enters the chemical disclosure fray

From the inbox:

Sam Houston

Sam Houston

Sam Houston, Democratic Nominee for Texas Attorney General, today promised to reverse the current AG’s letter ruling on the release of the locations of dangerous chemicals, putting the safety of our families and children first.

“I have reviewed the law that General Abbott cited when his office upheld the state health department’s decision to withhold this vital information,” Houston said. “That opinion is wrong. Under the Texas Public Information Act, information is open to the public absent any specific exception. Federal and state statutes specifically make this information available to the public. General Abbott took a nonspecific statute and said it overrode the public right to know statutes. Legally, this is incorrect.

“Texans have the right to know whether their homes, schools or churches are located near facilities with dangerous chemicals,” Houston said. “As soon as I receive a request for an opinion on this issue , I will re-review the issue and, absent any new information, will reverse the decision.”

Houston noted that information on chemicals stored at corporate facilities has been available for decades under state and federal law. He said the suggestion that Texans could just “drive around” and ask these facilities what chemicals they have on site is insulting and leaves thousands of Texans vulnerable to another incident like the one that occurred in West. Additionally, Houston said General Abbott’s “drive around and ask” suggestion contradicts his claim that this information is confidential.

“Texans need to know that their attorney general will aggressively defend the rights of all Texans,” said Houston. “I will re-establish trust in the attorney general’s office.”

I’d been hoping Houston would jump on this, as it seemed to be an obvious opportunity to make some noise on an issue that’s already in the news and where he can boost his own candidacy while aiding that of Wendy Davis as well. It’s totally fair game for him to say that he disagrees with something the incumbent AG has done and that he would do it differently if he were in office, and given Abbott’s blinkered view of the law this is a pretty fat target. Houston has done this before, and honestly I wish he’d do it more often. It’s not like there’s a shortage of issues on which Abbott has been worthy of criticism as AG, and the news hook for Houston would be bigger when he aims up.

Speaking of which, Houston’s release did in fact make the news.

Kicking off a four-city tour to keep the issue on voters’ minds, Houston charged Abbott, the GOP front-runner for governor, with disregarding public right-to-know laws when he ruled the Texas Department of State Health Services does not have to disclose information about hazardous chemicals kept at private facilities, citing a 2003 anti-terrorism law.

“All that they’re relying on is a vague statute that’s not specific enough,” Houston said during a news conference at a union hall in Houston. “That’s not good enough.”

[…]

“Voters are always going to want to hear about it because it’s going to come home in the future if we don’t change this and they don’t find out about the information,” Houston told reporters, brushing off the idea that voters have heard enough about an issue that has dominated the governor’s race for most of the month so far.

It’s also an opportunity for a free shot at his actual opponent.

Houston speculated [Ken] Paxton has avoided speaking about the ruling because “he’s got his own issues about openness,” an apparent reference to Paxton’s violation of a a state securities law. He was fined $1,000 for not informing clients of his relationship with an investment adviser.

It’s okay to be a little less oblique about that, but otherwise, well done. More like this, please.

Close enough for Greg Abbott

What more do you need to know?

Attorney General Greg Abbott first stirred things up by saying the state would not release information about the locations and amounts of hazardous chemicals held by private companies, reversing nearly three decades of public disclosure.

The Republican front-runner for governor then suggested Texans could “drive around” to find companies and ask them for the information, prompting his Democratic opponent, Fort Worth Sen. Wendy Davis, to launch a seven-city “Texans Deserve to Know” tour lambasting Abbott.

Still battling criticism over his office’s ruling restricting the state release of information about hazardous chemical stockpiles – a position that Abbott said simply applies state homeland security law – the attorney general this week told Texans they can go to the state Department of Insurance website for “general” information about the storage of the volatile chemical ammonium nitrate.

That “general information,” it turns out, consists of little more than a yes or no answer to whether ammonium nitrate may be present in a ZIP code.

“It’s useless,” said Tom “Smitty” Smith, of watchdog group Public Citizen. “ZIP codes are by their nature relatively large geographic areas. The presence of ammonium nitrate on one side of the ZIP code or another doesn’t give you the information about how close it is so you can make a decision on whether you want to buy a house in the neighborhood, nor does it give you enough information to determine the relative risk based on the quantity of ammonium nitrate.”

The site has a disclaimer saying it is “for informational purposes and is not prepared for or suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the approximate relative location of property boundaries. … No warranty is made by TDI regarding specific accuracy or completeness. It is the user’s responsibility to verify all data represented in the maps.”

“I would think that it would be more informative to simply post a map of Texas with all of the storage sites identified by location,” said Wendy Wagner, an environmental law professor at the University of Texas at Austin.

The embedded image is included to give you an idea of what a ZIP code can look like in Texas. Doesn’t really tell you much, does it? But hey, at least it’s an answer.

Abbott’s justification for giving these increasingly convoluted non-answers is that he’s just interpreting state law. If we accept for the sake of argument that this is a reasonable interpretation of the law, then this must be a bad law. You’d think that the natural thing for a politician to do is say that maybe the law ought to be changed so that The People can have a better idea if they might be living next to a potential explosion. Greg Abbott hasn’t done that. I don’t think Greg Abbott is capable of doing that, because I don’t think Greg Abbott thinks this is a problem. Oh, he recognizes that there is a problem, because people keep asking him about this, but he thinks the problem is that people just won’t accept that they don’t need to know this information, that the corporate interest trumps theirs. So he’s going to keep saying the say thing, in however many different ways, and hope that the questions eventually stop. So I don’t think this is going away any time soon.

In the meantime, of course, this is a hanging curveball for the Davis campaign.

After several reporters tested the theory and were shown the door at various chemical facilities, Abbott acknowledged that citizens did not have easy access to the information and has since proposed a new law that would require fire departments to make the data available during normal business hours.

Although his campaign had earlier suggested that local fire departments already could give out that information, Abbott told The Texas Tribune in an interview Thursday that they were not allowed to disseminate the information.

“Right now they can’t,” he said. “That’s why my proposal is to make this information more conveniently accessible, is to allow people to seek and obtain the information from the fire marshals who already have this information.”

Abbott was asked what might prevent a terrorist from gaining access to the information through the fire marshals or the departments they work for. He said it would be up to those local officials to determine whether the people asking for it were up to no good.

“If this information can be obtained from a fire marshal, it can be done in a way where they’re going to know who it is seeking the information and they can make assessments about whether or not the people acquiring the information can pose any type of terroristic threat.”

Davis told reporters Saturday that Abbott’s proposal was “absurd.”

“He’s trying to have it both ways,” she said. “He’s trying to say that this information should not be disclosed to the public because of terrorist fears, and then on the other hand he wants to tell the public, ‘Look, here’s how you can find the information.’ It makes no sense.”

Abbott had previously claimed that making this information available to the public meant that terrorists could get it, too. Thus his plan to delegate the task of telling terrorists from ordinary folks to firefighters. I’m sure they’ll be delighted to take on that responsibility. Did I mention that there’s a much easier answer to this problem that would be obvious to a lot of people that aren’t Greg Abbott?

Davis takes her attack on Abbott’s chemical info obstruction on the road

Keeping it going.

Sen. Wendy Davis

Sen. Wendy Davis

Democratic Sen. Wendy Davis on Tuesday recalled the deadly explosion just up the road in West as she lambasted her GOP opponent for governor, Attorney General Greg Abbott, over his decision restricting disclosure of information about chemical facilities’ hazardous caches.

“Texans deserve to know where these chemicals are located,” Davis told supporters at the Waco building that houses the Democratic Party, her campaign and Battleground Texas, a group working to make the state competitive for Democrats.

“A candidate for governor should have more concern for the people of the state that she wants to run than to let them sleep next door to explosives and not only not say a word about it, but actively seek to hide that information from them,” said Davis, who has seized on the issue as part of her effort to paint Abbott as an insider who is not working for everyday Texans.

She launched a “Texans Deserve to Know” tour across Texas Tuesday to pound on the issue, starting in Fort Worth and traveling to Waco. The tour also will include San Antonio, Houston, Dallas, Austin and El Paso. Davis has said if elected, she will make disclosure of the information a priority.

There’s a lame explanation from one of Abbott’s spokespeople claiming that he’s just interpreting a law from 2003, which even if one is inclined to believe that still leaves one wondering why this information continued to be routinely disclosed in the 11 years since. What there still isn’t, as I noted yesterday, is anything resembling a counterattack from Abbott on this. It’s duck and cover all the way. That right there says more than anything Davis could say. Trail Blazers, which embeds a long video segment that Rachel Maddow did on this, has more.

UPDATE: I take it back. Abbott is now responding, and he’s playing the terrorist card. Perhaps someone should ask him 1) why didn’t he take this threat seriously before now, and 2) if homeowners can find out about dangerous chemicals by “just driving around” and asking, can’t the terrorists do that, too?

Davis presses the attack on Abbott’s obstruction on chemical info

I know, it’s a little lazy of me to do a post based on a campaign email, but this missive from the Wendy Davis campaign is the best roundup of the incendiary chemical disclosure issue and the potential fallout from it. So here it is, which will both serve to catch you up if you missed any of this last week and to keep it in the forefront for at least another day.

After weeks of backlash, Greg Abbott is in full-blown damage control mode. First, Greg Abbott said the location of dangerous chemicals shouldn’t be public, and then he says parents need to drive door to door in order to find them, which multiple news outlets have found is next to impossible.

Abbott is clearly scrambling to paper over his hugely unpopular decision any which way he can – especially after the Dallas Morning News reported that his ruling came after the Koch Industries Fertilizer Division – which own at least one dangerous chemical facility — gave tens of thousands of dollars to the Attorney General.

Take a look at two blistering editorials from this weekend.

Dallas Morning News Editorial, 7/5/14: Abbott Steps In It On Chemicals Issue: “Boy, did Attorney General Greg Abbott step in it. The occasion was Abbott’s explanation for how Texans could find out about volatile chemicals in their neighborhoods, in the wake of a ruling by his office restricting access to records on chemical inventories. “Drive around,” was the AG’s advice. “You can ask every facility whether or not they have chemicals or not.” That simple? To test Abbott’s “just ask” advice, a WFAA-TV news crew visited two Dallas plants to inquire about the chemicals on hand. The response from one place was the corporate runaround. The response from the other sounded like “get lost.'”

Austin American Statesmen, 7/6/14: Want to find out what chemical plants are storing inside? You must ask: “Particularly troubling are Abbott’s comments last week defending a ruling his office made blocking public access to state records specifying the location of dangerous chemicals… “You know where they are if you drive around,” the Tribune’s Jay Root reported Abbott as saying. “You can ask every facility whether or not they have chemicals or not. You can ask them if they do, and they can tell you, well, we do have chemicals or we don’t have chemicals, and if they do, they tell which ones they have.”

FIRST ABBOTT RULES THAT TEXAS CHEMICAL FACILITIES CAN KEEP SECRET THE CONTENTS OF THEIR PLANTS

  • WFAA reports on Greg Abbott’s ruling to keep dangerous chemical storage locations secret from parents: “Hazardous chemical lists no longer public record in Texas” [WFAA, 6/12/14]
  • DMN: Want to know about chemicals stored near you? Don’t expect Texas to tell you anymore: “The AG’s Office, which rules on open-records matters, said the department did have to keep the information from the public, according to a May 22 letter. WFAA-TV (Channel 8) first reported on the ruling Thursday night. As a result, the state health department will no longer release its inventory reports unless told otherwise by the AG, a spokeswoman told The News Friday.” [Dallas Morning News, 6.13.14]

COMMUNITIES START EXPRESSING OUTRAGE

  • Houston Chronicle, 6.15.14: “I have no clue what they’re doing over there,” West Mayor Tommy Muska said, referring to the office of Texas Attorney General Greg Abbott.”
  • KXXV (Waco), 6.17.14: Local officials won’t change procedures on chemical reports, despite state changes
  • Waco Tribune Editorial: Attorney general decision hinders public from readily learning of chemical threats: “That’s why we have trouble understanding the reasoning behind state Attorney General Greg Abbott’s abrupt decision to refuse to give the public key information about where plants stockpiling ammonium nitrate are located…The attorney general’s decision is definitely at odds with growing efforts to prevent another West…” [Waco Tribune, 6.19.14]
  • Houston Chronicle Editorial: Coming clean: “Texans have a right to know what dangers to our health and safety we are being exposed to – especially now, when Texas, and particularly Houston, is riding high, with a vibrant and welcoming economy that is the envy of the nation. If we are to continue to attract the best and the brightest, it is essential that we intelligently address quality-of-life issues on which we base our choices of where to live and raise our children – such as clean air, clean water and a safe environment.” [Houston Chronicle, 6.20.14]

ABBOTT THEN TELLS PARENTS TO “JUST DRIVE AROUND” AND “ASK EVERY FACILITY” IF THEY HAVE DANGEROUS CHEMICALS

Abbott Said, “You Know Where They Are If You Drive Around.” The Texas Tribune reported, “[Abbott] said Texans still have a right to find out where the substances are stored – as long as they know which companies to ask. ‘You know where they are if you drive around,’ Abbott told reporters Tuesday. ‘You can ask every facility whether or not they have chemicals or not. You can ask them if they do, and they can tell you, well, we do have chemicals or we don’t have chemicals, and if they do, they tell which ones they have.'” [The Texas Tribune, 7/01/14]

Abbott Tells Parents to

MEDIA OUTLETS TRY TO “JUST DRIVE AROUND” TO NO AVAIL

July 2: WFAA Reporter Brett Shipp @brett_shipp

Abbott refuses to release chemical inventory lists…tells citizens to get their own. We tried. We failed. What now?

  • WFAA Was Not Able To Obtain Information On Dangerous Chemicals From Private Companies. On July 2, 2014, WFAA reported, “Abbott says the public can still go knock on chemical company doors and ask…So, WFAA attempted to do just that…First up was Oxy Chemical…WFAA left empty handed. Next stop was Buckley Oil Company just down the road…Not only did they not give hand over their Tier II report, they said not to record images of their chemical inventory stored on site, which was clearly visible through an open gate.” [WFAA, 7/02/14]

Fact Checking Abbott, Houston Chronicle Proved The Public Cannot Get Information On Dangerous Chemicals From Any Private Company. [Houston Chronicle, 7/03/14]

WFAA once again denied access to chemical lists by state officials: “At issue was the Texas Attorney General’s decision to deny public access to chemical inventory lists called Tier II. Those lists were mandated by Congress in the mid 80s and are supposed to be available to the public to alert citizens of dangers posed by the handling of hazardous chemicals by local businesses. They were public records in Texas until two months ago when Attorney General Greg Abbott ruled they were off limits.” [WFAA, 7/03/14]

DALLAS MORNING NEWS REPORTS ABBOTT HAS RECEIVED THOUSANDS FROM KOCH INDUSTRIES, WHICH OWN AT LEAST ONE DANGEROUS CHEMICAL FACILITY

Abbott Received More Than $75,000 After The April 2013 Explosion in West From Koch Interests, Who Own the Georgia-Pacific Gypsum Plant in Sweetwater.The Dallas Morning News reported this week that five months after the April 2013 ammonium nitrate explosion in West, the president of Koch’s fertilizer division sent Abbott a $25,000 campaign donation. Koch’s chief and the Koch political committee also gave Abbott $25,000 checks. And Abbott rode on a company jet to a Koch-related retreat last year in New Mexico that introduced political candidates to wealthy donors.” [The Dallas Morning News, 7/02/14; 7/03/14]

  • Koch Owns at Least One Fertilizer Plant in Texas. The Georgia-Pacific Gypsum plant in Sweetwater is a Koch subsidiary. “The subsidiary now makes a nitrogen fertilizer.”[The Dallas Morning News, 7/02/14]

Koch Industries “and its subsidiaries are collectively one of the world’s largest producers and marketers of fertilizers.” The Dallas Morning News reported, “According to its website, Koch “and its subsidiaries are collectively one of the world’s largest producers and marketers of fertilizers … Koch Fertilizer’s expanded product portfolio includes ammonia, urea, UAN, phosphate, potash, and sulfur-based products, in addition to a variety of high-performance” nitrogen fertilizers.” [The Dallas Morning News,7/03/14]

Scrambling, Abbott Says That Getting Information About Dangerous Chemicals Is “Challenging.” [AP, 7/02/14]

ABBOTT TRIES TO ESCAPE CULPABILITY OF HIS RULING

Abbott Claimed He Wasn’t Aware That His Office Made A Ruling On Dangerous Chemicals Until The Decision Made Headlines…[AP, 7/02/14]

…Despite having taken credit for it previously. “That statement to the AP – that the ruling was “not a law or conclusion that I created” – was different from the “I ruled” phrase Abbott used on Tuesday, where he seemed to take credit for the decision.” [Texas Tribune, 7/03/14]

So there you have it. The one thing I will add is that if Abbott had any response to any of this yesterday, I didn’t see it in the news. I’m not sure what there is for him to say at this point – he’s already contradicted himself and made himself look more than a little foolish – so perhaps he’s just lying low and hoping it will blow over or some other shiny object will pop up. Good luck with that.

Why would you want to regulate that?

I mean, what are a few fiery explosions among friends?

Members of the state House Homeland Security and Public Safety Committee have been struggling for several months over how to respond to last year’s massive explosion at the West Fertilizer Co. that killed 15 and devastated the nearby city of West.

On Tuesday, committee Chairman Joe Pickett, D-El Paso, unveiled a draft bill that would require businesses to store ammonium nitrate, a chemical compound used in fertilizer, in noncombustible buildings or in buildings equipped with a sprinkler system.

Affected businesses would have three years to comply, though new facilities would have to meet the heightened standard immediately, Pickett said.

The bill also would open the facilities to inspections by all certified firefighters to verify safe storage and to create a strategy on fighting potential fires. Pickett said the provision was in response to a state law that allows inspections only by paid firefighters.

“Over 70 percent of firefighters in Texas are volunteers … so 70 percent of our first responders do not have that authority,” he said.

Most controversially, Pickett’s proposal would require storage facilities to meet standards developed by the National Fire Protection Association, a nonprofit that develops research-based fire codes.

Rep. Tim Kleinschmidt, R-Lexington, said the bill includes fire standards that are too complex for small businesses to navigate.

“I count no less than 10 different state and federal codes, standards and regulations listed in this bill, some of which I have a problem with,” he said. “We may be making things a little too complex.”

Rep. George Lavender, R-Texarkana, said the proposal was overkill, and he recommended letting businesses opt out of bill’s provisions if they agree to store ammonium nitrate in a noncombustible building and allow fire inspectors to conduct periodic checks.

“I think the bill as written would put a lot of people out of business,” he said. “I recognize the tragedies that we’ve had, and we certainly need to avoid that in the future, but there is a lot of stuff in here that is bad for the industry.”

Rep. Dan Flynn, R-Canton, said he was concerned about shifting unaffordable costs onto an industry “that has operated safely for decades.”

“It seems like we’re out there with kind of a power grab,” Flynn said.

Pickett replied that he could not live with himself if he didn’t try to improve safety around the facilities.

“I think, Dan, that if we do nothing, we’ll have another West disaster,” Pickett said. “I’m not going to sugarcoat it. If I have an ammonium nitrate facility, with the possibility of a catastrophic situation, I am going to be asking them to spend some money.”

The Chron story has more of the same in this vein. I mean, come on, who in their right minds could possibly think that requiring highly combustible materials to be stored in non-combustible buildings is a good idea? How could these poor businesses possibly be expected to survive if we made them do that?

Well, at least we have the right to know where the hazardous material is, right? Surely the government will require that the places that could blow sky high any minute tell us about that possibility, right? Wrong.

You want to be the boss, you get to deal with boss problems

Republican Attorney General Greg Abbott, under fire for blocking public access to state records documenting the location of dangerous chemicals, said Texans still have a right to find out where the substances are stored — as long as they know which companies to ask.

“You know where they are if you drive around,” Abbott told reporters Tuesday. “You can ask every facility whether or not they have chemicals or not. You can ask them if they do, and they can tell you, well, we do have chemicals or we don’t have chemicals, and if they do, they tell which ones they have.”

In a recently released decision by his office, Abbott, the Republican candidate for governor, said government entities can withhold the state records — in so-called Tier II reports — of dangerous chemical locations. The reports contain an inventory of hazardous chemicals.

But Abbott 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.

Collected under the federal Community Right to Know Act, the information was made available upon request by the state for decades to homeowners, the media or anyone else who wanted to know where dangerous chemicals were stored. But, as WFAA-TV recently reported, the Texas Department of State Health Services will no longer release the information because of the attorney general’s ruling.

I don’t know about you, but I’ve got plenty of spare time in my day to drive around to every chemical facility in Houston and ask them about what hazardous and explosive materials they have, which I’m sure they’ll be delighted to tell me all about. Why, I’ve got so much free time I may just drive around to chemical plants that aren’t in my area and ask them about this. Thanks for the great suggestion for how to spend my time, Greg Abbott! I’m sure the terrorists that you’re hoping to hide this information from are thinking the same thing, too.

Of course, you know the real reason why Greg Abbott issued this opinion:

The story.

Five months after an ammonium nitrate explosion that killed 15 people in West, Attorney General Greg Abbott received a $25,000 contribution from a first-time donor to his political campaigns — the head of Koch Industries’ fertilizer division.

The donor, Chase Koch, is the son of one of the billionaire brothers atop Koch Industries’ politically influential business empire.

Abbott, who has since been criticized for allowing Texas chemical facilities to keep secret the contents of their plants, received more than $75,000 from Koch interests after the April 2013 explosion at the West Fertilizer Co. storage and distribution facility, campaign finance records filed with the state showed.

[…]

For decades, Texans wanting to know about companies keeping such chemicals could find out from the state.

But Abbott has said that those records are closed. And the state agency that collects and maintains information on large chemical supplies has stopped sharing it with the public.

Abbott contends his opinion, issued in May, strikes a balance. On Tuesday, he called it a “win-win” that keeps information about large chemical inventories off the website of the Department of State Health Services but doesn’t forbid homeowners from asking companies in their neighborhoods what they store.

He said companies should respond within 10 days, but it’s not clear what penalties, if any, private companies face if they decline to tell a member of the public what chemicals are on site.

In blocking public access to the information, Abbott cited a state security statute passed after the Sept. 11 terrorist attacks.

A Davis aide rebuked Abbott for the remarks.

“The only thing more outrageous than Greg Abbott keeping the location of chemical facilities secret is telling Texas parents they literally need to go door to door in order to find out if their child’s school is in the blast radius of dangerous explosives,” said spokesman Zac Petkanas. “Parents have a right to know whether their kids are playing hopscotch next door to the type of facility that exploded in West.”

[…]

Chase Koch donated $25,000 in September, shortly after his father, Koch board chairman Charles Koch, also gave $25,000. The Koch Industries political committee sent Abbott $25,000 in November.

In addition, the company flew Abbott on a company jet in August to an invitation-only gathering in New Mexico that offered wealthy donors an opportunity to meet and mingle with GOP elected officials and leaders of conservative groups supporting the Koch agenda of less government regulation and disclosure.

In the Texas Legislature, Koch lobbyists are on record advocating repeal of notification requirements regarding company pipeline construction and discontinuing the Texas Commission on Environmental Quality’s compliance history program.

Remember when Greg Abbott made ethics reform a key component of his campaign? Boy, those were the days. Burka has more.

UPDATE: Looks like Abbott realized he stepped in it.

Attorney General Greg Abbott this week said private companies must release information about their hazardous chemical stockpiles, weeks after his office ruled the same information no longer would be available from state agencies.

“Homeowners who think they might live near stores of dangerous chemicals would simply ask the companies what substances are kept on site,” Abbott told reporters Tuesday, adding, “And if they do, they tell which ones they have.”

Not everyone agrees with Abbott’s reading of the law, however.

Requests by the Houston Chronicle to 20 companies and local emergency response agencies last month produced mixed results: Half of the companies and agencies sent extensive data on the hazardous chemicals they held on site, known as Tier II reports; five sent basic chemical inventories that often did not include amounts or other details; one asked for more information; two refused to release any data; and two did not respond.

[…]

Tom “Smitty” Smith, the Texas head of consumer advocacy group Public Citizen, said “this is a huge campaign issue and should be.”

“Other former attorneys general would have stood up for the citizens,” Smith said. “The process Abbott has now created is almost impossible for the average citizen that doesn’t have the Houston Chronicle’s name to back them up.”

Abbott acknowledged to the Associated Press on Wednesday that the process may be more difficult than he originally had proposed, calling it “challenging” to get chemical facility information.

Abbott’s statements also could encounter opposition from the business community.

Attorney General spokesman Jerry Strickland said any private company that denied the Chronicle’s requests was providing the public with “misinformation” and could face unspecified “penalties.”

“Chemical companies have an obligation under the Community Right-to-Know Act to disclose that information to the general public within 10 days,” Strickland said in a statement to the Chronicle. “Private companies are required to provide the information. Any failure (to) do to so carries with it penalties to be assessed by the Department of State Health Services.”

Strickland said Abbott’s office was reaching out to the Texas Ag Industries Association, a trade group to which Orica does not belong, to ensure its members understand the law. TAIA President Donnie Dippel said he would urge his members to comply with the law.

Strickland reiterated that the refused information requests were not Abbott’s choice, but what was required under state law.”

Industry lawyer and lobbyist Pam Giblin said the issue was not that cut and dried.

“If the government doesn’t have to release it, how in the world does a private company get this disclosure obligation thrust on it?” Giblin asked, adding she sees possible litigation on the horizon. “There are a lot of homeland security issues. … I think you’re bound to see some court tests because this just doesn’t make sense.”

What would make sense would be for the state’s top law enforcement official to ensure that this information is made available to the public by the government. Too bad Greg Abbott is answering to a higher power than that.

A Greg Abbott threefer

Trail Blazers: Dallas appeals court rules fired prosecutor can pursue whistleblowing case against Greg Abbott’s office

You want to be the boss, you get to deal with boss problems

In May 2009, a former assistant attorney general in Greg Abbott’s office sued the Office of the Attorney General in Dallas County court, claiming she’d been fired for refusing to lie under oath about a Dallas County judge. Five years later, the Dallas-based Fifth Court of Appeals has ruled that Ginger Weatherspoon can go forward with her lawsuit.

The AG’s office has spent years trying to get the suit tossed, claiming, among other things, that Weatherspoon didn’t make a “good faith” effort to blow the whistle to the right links in the chain of command. A three-justice panel disagreed, and issued an opinion Monday written by Justice David Evans that said Dallas County Judge Martin Hoffman did the right thing last year when he refused to grant the AG’s office its request for summary judgment.

Weatherspoon’s initial filing in 2009 garnered media attention because of its explosive content: She claimed she refused to sign a “false affidavit” filled with “a number of misrepresentations and mischaracterizations” about David Hanschen, who, at the time, was a Dallas County family court judge involved in a pretty nasty tussle with the Abbott’s office over child support.

Long story short: Hanschen was letting men take DNA tests to determine whether kids at the center of child-support battles were actually theirs. As the judge told the Dallas Observer in April 2008, “In my court, the truth does not have a statute of limitations.” But Abbott’s office disagreed, and would file emergency court orders in attempts to stop the DNA tests. Megan Feldman wrote that “supervising attorneys within the office’s Child Support Division launched a concerted campaign to collect affidavits from nearly a dozen staff lawyers — in some cases exerting pressure on them — with the apparent goal of filing a complaint alleging judicial misconduct against Hanschen” and another family court judge.

Weatherspoon said she was among those being pressured into signing an affidavit critical of Hanschen. The problem was, she “never witnessed Judge Hanschen treat an AAG adversely in court or issue a prejudicial ruling against an AAG,” said her lawsuit. She also said that “Judge Hanschen never threatened the AG’s office,” despite what the affidavit alleged.

“A managing attorney with the OAG, Paula Crockett, told her they intended to use the affidavit as evidence to have the judge recused from hearing cases involving the OAG,” says the recap issued by the appeals court Monday. “The affidavit was also going to be used to support a judicial misconduct complaint against the judge. Weatherspoon refused to sign the affidavit stating that she believed it misrepresented various facts regarding her conversation with the judge and mischaracterized the tone and nature of the conversation.”

Weatherspoon continued to refuse to sign the affidavit, despite mounting pressure from regional attorneys in the AG’s office. And in the end, she says, that’s why she was fired.

You can see the full opinion at the link above. Gotta admit, I hadn’t heard of this before, but it sure doesn’t sound good for Abbott, especially when he’s made a big deal about ethics and transparency.

Waco Tribune editorial: Attorney general decision hinders public from readily learning of chemical threats

We can think of lots of good reasons why everyday, ordinary Texans should know whether a plant in their neighborhood has stockpiled enough chemicals to blow out a crater and flatten homes and schools. Topping the list: the decided allergy that state leaders have about regulating industry — even when such industry poses a possible threat to the lives of state leaders’ own constituents.

That’s why we have trouble understanding the reasoning behind state Attorney General Greg Abbott’s abrupt decision to refuse to give the public key information about where plants stockpiling ammonium nitrate are located. More than a year after fire at the West Fertilizer Co. ignited a huge supply of ammonium nitrate that killed 15 people, injured hundreds and destroyed homes, schools and a nursing home, the attorney general suddenly says the Texas Homeland Security Act forbids the state’s health agency from any longer releasing inventory reports on such facilities because the fertilizer might be used to make bombs.

Supposedly, this will deter terrorists such as Timothy McVeigh, who legally got ahold of some 5,000 pounds of ammonium nitrate, which he detonated in front of the Alfred P. Murrah Federal Building in Oklahoma City in 1995, killing 168 people and destroying the structure, payback for the federal government’s role in the Branch Davidian siege near Waco in 1993.

Ordinarily, we’d agree with the attorney general’s logic on why the location and amount of such explosives should be kept secret. The problem is the state’s dread of regulating and enforcing regulations ensuring people are safe. Even now, our state lawmakers hem and haw over whether they should regulate dangerous chemicals where people live, work and play. Amazing.

Not surprisingly, all this undermines the intent of the federal Emergency Planning and Community Right to Know Act of 1986, which allows citizens to access information on what chemicals are stored and used in their neighborhoods. The act — signed into law by President Ronald Reagan — was designed to help the public be proactive after a deadly mix of gases escaped a pesticide plant in Bhopal, India, killing thousands. Happily, for the moment federal trumps state, allowing local residents to gain such relevant information from the Waco-McLennan County Office of Emergency Management.

[…]

The attorney general’s decision is definitely at odds with growing efforts to prevent another West, including last month’s federal task force report, prompted by the 2013 explosion. It concludes that “communities need to know where hazardous chemicals are used and stored, how to assess the risks associated with those chemicals and how to ensure community preparedness for incidents that may occur.” If the state of Texas continues to balk at ensuring such plants are safe, the public needs to know more, not less, to better protect itself from devastating possibilities.

Did I say something about transparency? Yeah, maybe not. And if you think that Governor Greg Abbott would support stronger regulations on fertilizer plants, well, I’ve got a load of fertilizer to sell you.

Statesman: Texas must pay legal fees in redistricting case, judge rules

In a scolding order, a federal judge in Washington, D.C., told the state of Texas on Wednesday to pay almost $1.1 million in legal fees to lawyers who represented Democratic state Sen. Wendy Davis and several minority rights groups in a case challenging district boundaries drawn by the Republican-led Legislature.

U.S. District Judge Rosemary Collyer’s order criticized lawyers in state Attorney General Greg Abbott’s office for submitting a legal brief that devoted more effort to complaining than it did to answering the legal issues in the fight over lawyer fees.

“Texas basically ignores the arguments supporting an award of fees and costs,” Collyer wrote, noting that state lawyers instead presumed the request to be frivolous and expressed “indignation at having to respond at all.”

“This matter presents a case study in how not to respond to a motion for attorney fees and costs,” said Collyer, who was appointed by President George W. Bush.

In her order, Collyer found that lawyers’ fees are “uncontested and reasonable,” and Davis’ attorneys are entitled to $466,680 and other lawyers should get more than $600,000.

Not been a great week for Greg Abbott, has it? PDiddie and Rick Hasen have more.

The explosion in West will change nothing

That’s just how we roll around here.

A year after the blast killed 15 people and injured hundreds, Texas lawmakers have yet to propose or put into action any major reforms in an attempt to prevent future industrial accidents, whether it’s at a small, rural fertilizer retailer or a petrochemical plant along the Houston Ship Channel.

The disconnect reflects a state famously wary of government regulations. Even in West, about 120 miles north of Austin, some residents sound more concerned about the length of freight trains rolling through town than the absence of new rules for chemical plants.

It’s impossible to know whether stricter rules would have prevented the disaster, but some say the lack of action is putting lives in jeopardy.

“The bottom line is, there hasn’t been any effort to do things that would prevent such a tragedy in the future,” said Elena Craft, a Texas-based health scientist for the Environmental Defense Fund. “It seems wrong that lives were lost in vain.”

Key lawmakers say changes are coming, but any new regulations likely will be tailored to improve safety at the 82 facilities permitted to store and sell ammonium nitrate, the nitrogen-rich compound that was involved in the devastating blast. It’s unlikely the yet-unseen agenda will involve sweeping legislation that alters the handling of hazardous materials at all chemical plants.

“We just cannot do business the same way,” said state Rep. Joe Pickett, D-El Paso, who chairs the House Committee on Homeland Security and Public Safety. “I want to turn the ought-to-dos into statute. But I want something that even the staunchest anti-regulation people say it’s a good idea.”

[…]

Pickett said he would like to assign authority for overseeing the handling and storage of fertilizer to one agency, most likely the state fire marshal’s office. There were eight state agencies with some oversight of the West plant or the explosion, and critics believe the patchwork regulatory approach allowed the West plant to slip through bureaucratic cracks.

For example, plant managers submitted to state and local agencies a document, known as a Tier II report, that shows how much ammonium nitrate is stored on site for sale to farmers. But no one flagged the large stockpile at the West facility, which reported in 2012 that it had at least 270 tons of the dangerously combustible chemical.

Pickett said he wants the Tier II reports to go directly to the state fire marshal’s office, which also would be responsible for inspecting facilities and instructing plant personnel on best safety practices. He also wants additional funding for training firefighters.

[…]

The Environmental Defense Fund’s Craft is skeptical about the Legislature’s willingness to produce significant reforms.

“I don’t think they see what happened in West as a real problem,” she said. “They kind of think of it as a one-off event and that it probably won’t happen again.”

Until the next one, that is. Can we at least agree that this is a problem?

Pickett also indicated a willingness to consider strengthening rules on the storage of ammonium nitrate. Connealy, the State Fire Marshal, said today that 46, nearly half, of the state’s 96 ammonium nitrate plants are housing the fertilizer in combustible wood-frame structures—just like in the West disaster. At the West fertilizer plant, the fire originated in the seed room and spread rapidly to consume the wood structure and the wood fertilizer bins.

“We have to keep fire away from ammonium nitrate,” he said. Connealy said requiring sprinkler systems or, alternatively, mandating that ammonium nitrate be stored in non-combustible storage bins made of concrete, stone or metal could go a long way toward avoiding another West-like disaster.

“I still worry about the 46 that are dangerous wood structures and we have no authority right now to go in and say change ‘em,” Pickett said.

Please tell me this isn’t too much to ask. I really didn’t expect much, but surely this is doable. Right? The DMN has more.

Monday House action

The main action on Monday in the House was the House Redistricting Committee hearing. Where there’s a redistricting hearing, there’s Greg with a liveblogging session. Pay close attention to the stuff Greg writes about the questions that the Dems, in particular Rep. Trey Martinez-Fischer (TMF) are asking, because they’re all about the future court fights. A big part of this has to do with who is advising the committee on legal matters, and why the Attorney General is not being made to testify before the committee.

Rep. Trey Martinez-Fischer

TMF turns his attention to [David] Archer [of the Texas Legislative Council], asking if there are legal issues seen in [Rep. Yvonne] Davis’ map. Archer notes that the plan is within the committee’s “discretion.” This is pretty much what TMF wants to hear. [Rep.] Senfronia [Thompson] has some questions for Archer, affirming his redistricting bona fides, which leads TMF to follow up with questions to affirm his legal bona fides re: redistricting. He then turns his back & forth with a point that it is the Att. General that ultimately defines those legal points on behalf of the state. He’s trying to back Archer up to a point where Archer can’t offer the answer TMF is fishing for. Archer says he’s “not trying to pass the buck …”, but he seems to realize the corner TMF is trying to paint him into. TMF notes that there is a limit to the advice that Lege Council can give, which builds from Archer’s own statements. He’s building the new court case for MALC pretty well. There are points in this line of questioning that are pure genius to observe. Archer is doing his best to just not break down and say: “Yeah, you need to talk to the Att. General’s office about that.”

TMF is done with Archer for now. Davis follows up by asking Archer about Sec. 2. This is going to be her strongest case for her plan being “legally required.” Ultimately, that definition comes down to the mood of the chair, the barometric pressure, and a number of other issues having nothing to do with law. But it’s a good marker for her to put down on this plan. Davis is exasperated with his analysis, saying he’s not being helpful to the committee by not giving any solid yesses and nos. The nut of this is that Archer’s position with the Lege Council isn’t an advocacy position, it’s a non-partisan role. With that, Davis picks up on TMF’s bigger argument – that this isn’t helping the committee determine what is legally required. It’s coming across as picking on Archer a little (something that TMF avoids in his questioning). But this is aimed at the court, not [David] Archer.

[…]

TMF picks up his opening from [Rep. Jason] Villalba’s questioning, asking again whether Archer is the best person to testify. Let me repeat: Villalba not only extracted testimony from Archer that wasn’t helpful to his side, but he also allows TMF to work in a further point about the inadequacy of Lege Council to be the ones offering legal advice to the committee. He also asks whether Archer would advise that there should be more minority-opportunity districts. Archer begins by answering that he “sees opportunities” but concludes with a “no.” TMF is also asking more questions that sidestep whether or not he thinks Lege Council is the appropriate resource for the committee. This is some more impressive TMF-ery. If the state wants to make the case that Lege Council is perfectly valid and fine, then expect comments like “sees opportunities” to come back around in the courts. This is the grand pitfall of the Lege Council not being in a position to advocate for anything – Archer is obviously trying to be neutral to all sides, but the flipside of that approach is that they aren’t going to say that the interim map is a solid slam dunk that doesn’t need tweaking. It gives TMF the ability to take Archer’s comments to court and get some kind of win (major or minor) regardless of whether the Att. General’s unwillingness to testify is ruled significant. Seriously, this is better than Perry Mason reruns. Along the same lines as above, TMF asks Archer to clarify his comment about “minimizing risk” and “insulation of risk” by taking more legislative action on the map. This won’t be the last time we hear those terms.

[Rep. Richard] Raymond follows that up with some clarity on whether a plan passed by the Lege would have to get preclearance from the DOJ (Yes, it will). Raymond then replays some history by noting that the AG’s office took the preclearance route of the DC Circuit court rather than DOJ last time. Archer notes that the AG has the same discretion of where to take preclearance this time around. Bottom line: I think we can expect this to go back through the DC court.

Texas Redistricting has a more concise wrapup. Both note that HB3, the bill for the House, passed 9-5 when motioned to a vote, but that’s not a majority of the committee and thus technically can’t be brought to the full floor. Instead, HB1 – the bill that does all of three of the affected bodies – was brought up and passed along part lines, despite objections that it brings up the same measure, since HB2 (the Senate bill) had already been approved. It’s getting wild around here, so be on high alert for shenanigans and points of order. I suspect that in the end the House will be as pro forma as the Senate was, and will do whatever it needs to do to get the maps approved.

There were other items of business in the House as well. The possibilities for the Public Integrity Unit warranted their own post. On the matter of the recent items added to the session call, these are the words of a House Speaker who has to deal with wingnut abortion legislation but isn’t exactly thrilled about it.

The House State Affairs Committee is expected to have a hearing on abortion bills Thursday, with consideration by the full chamber possible this weekend.

[…]

“I haven’t seen a bill come from the Senate yet, but I would assume that there would be support in the House, yes,” House Speaker Joe Straus, R-San Antonio, said Monday.

Asked about Perry adding the abortion issue to the agenda, Straus said, “It’s the governor’s prerogative to add issues to a special session. He controls the agenda during a special session. It’s certainly a right he exercises freely.”

The Senate is expected to approve the bill that was voted out of committee on Friday today. The session ends on the 25th, and while Perry can call more sessions till the cows come home, if this or any other bill hasn’t passed by then, it would have to start over from scratch in a new session.

Finally, a panel of House members will join Perry and Abbott in calling on President Obama to reconsider the denial of federal emergency aid to West. I don’t have any issue with that, though you’d thin that the Congressional delegation, including our two Senators, would be the ones to take the lead on this.

“An accident waiting to happen”

I don’t even know what to say.

There were no sprinklers. No firewalls. No water deluge systems. Safety inspections were rare at the fertilizer company in West, Texas, that exploded and killed at least 14 people this week.

This is not unusual.

Small fertilizer plants nationwide fall under the purview of several government agencies, each with a specific concern and none required to coordinate with others on what they have found.

The small distributors — there are as many of 1,150 in Texas alone — are part of a regulatory system that focuses on large installations and industries, though many of the small plants contain enough agricultural chemicals to fuel a major explosion.

The plant in West had ammonium nitrate, the chemical used to build the bomb that blew up the Alfred P. Murrah federal building in Oklahoma City in 1995, killing 168 people. According to a document filed in 2012 with the Texas Department of State Health Services, the maximum amount of this “extremely hazardous substance” the plant could store in one container was 90 tons, and the most it could have on site was 270 tons. It is unknown how much was onsite at any given time, or at the time of the explosion.

It was also authorized to handle up to 54,000 pounds of anhydrous ammonia, a substance the Texas environmental agency considers flammable and potentially toxic.

“This type of facility is a minor source of air emissions,” Ramiro Garcia, the head of enforcement and compliance at the Texas Commission on Environmental Quality, told The Associated Press.

“So the inspections are complaint driven. We usually look at more of the major facilities.”

No federal agency determines how close a facility handling potentially dangerous substances can be to population centers, and in many states, including Texas, many of these decisions are left up to local zoning authorities. And in Texas, the state’s minimal approach to zoning puts plants just yards away from schools, houses and other populated areas, as was the case in West.

That plant received a special permit because it was less than 3,000 feet from a school. The damage from the blast destroyed an apartment complex, nursing home and houses in a four-block area.

In the city of Houston, sexually oriented businesses are forbidden to be within 1,500 feet of a school. Say what you want about strip clubs, they are generally not prone to exploding. From a safety perspective, it’s no contest.

It’s pretty simple. We can simply accept that this sort of thing will happen from time to time, and chalk up the death and destruction as one of the costs of our society, or we can decide that’s not acceptable, and be willing to pay some amount of money to mitigate those risks. I’m pretty sure I know which one we’re going to choose – we already have chosen it, we’re just going to reaffirm that choice – I just wanted to be clear about that fact that it is a choice. It doesn’t have to be like this, we want it to be like this.

Saturday video break: For Boston

This is how you sing the national anthem:

And switching sports, but with the same sentiment:

Three cheers for Boston’s hospitals as well as their first responders. You are all amazing. For anyone who wants to help, here’s what you can do.

I wish I had a song for Waco as well, but I can’t think of one. If you can, by all means please suggest it. In the meantime, here are some ways you can help with that disaster.

How you can help West, TX

Horrible.

A massive explosion ripped through a fertilizer plant in the town of West, Texas, Wednesday night, sending scores of injured to area hospitals, sparking fires and triggering evacuations.

WHAT’S NEW

— “It was like a nuclear bomb went off,” West Mayor Tommy Muska said.

— Some 10 to 15 buildings have been “totally demolished” and “probably 50 homes (were) heavily damaged,” said George Smith, community emergency medical services director.

— The fertilizer plant was near an apartment complex and a nursing home, authorities said.

— Some people might be trapped in collapsed buildings, Smith said.

— “I expect there’s going to be many fatalities and many more injured people,” he added.

If you live in the area, you can go to the Capitol Area Blood Bank of Central Texas to give blood. You can also make a contribution to the American Red Cross Heart of Texas or the American Red Cross of Central Texas. Visit either of their Facebook pages – Heart of Texas, Central Texas – for up to date information and more ways to help. Here’s a West, TX people search and news page. There’s lots you can do, so please do something to help.