WASHINGTON — Wading into a decade-old controversy, former Environmental Protection Agency chief Christine Todd Whitman has urged current EPA administrator Lisa Jackson to close loopholes in a 2006 chemical security law "before a tragedy of historic proportions occurs."
Whitman, who led the EPA under George W. Bush, suggests the agency use its authority to seal gaps in "extremely limited" Department of Homeland Security rules designed to prevent releases of toxic chemicals, according to an April 3 letter she wrote to Jackson that was obtained by the Center for Public Integrity.
Those 2007 rules, Whitman wrote, bar DHS from requiring industry to take specific measures to prevent accidental or terrorism-related toxic releases. The rules exempt "thousands of chemical facilities, including all water treatment plants and hundreds of other potentially high-risk facilities, such as refineries located on navigable waters," she wrote.
The EPA has the power to regulate chemical security under 1990 amendments to the Clean Air Act, Whitman noted, writing that that the act's "general duty" clause "obligates chemical facilities handling the most dangerous chemicals to prevent potentially catastrophic releases to surrounding communities.
"Facilities with the largest quantities...should assess their operations to identify safer cost-effective processes that will reduce or eliminate hazards in the event of a terrorist attack or accident," Whitman wrote. "This has never been required and today hundreds of these facilities continue to put millions of Americans at risk."
According to DHS testimony this year, there are 4,458 high-risk facilities nationwide.
Whitman sent her letter just weeks after the EPA's National Environmental Justice Advisory Council also recommended that Jackson use the Clean Air Act to overcome "fatal flaws" in the current law.
An EPA spokeswoman did not respond to requests for comment.
In the months after the Sept. 11 terrorist attacks, then-EPA administrator Whitman "seriously considered" using the Clean Air Act to shore up chemical security, she wrote Jackson. "After careful consideration, I decided that our best alternative was to pursue legislative action to achieve this goal."
The Bush White House chose not to back such legislation. The Office of Management and Budget "torpedoed it," said Bob Bostock, then Whitman's homeland security adviser. Some industry leaders had recoiled at the prospect of EPA regulation and made their feelings known to the White House.
In 2006, then-Sen. Barack Obama co-sponsored legislation that would have required high-hazard plants — which Obama called "stationary weapons of mass destruction" — to consider using safer technologies and enhance security. The bill failed.
What did emerge from Congress was a law that exempts thousands of facilities from DHS rules and requires those that are covered merely to submit security plans to the department. DHS must approve the plans but can't dictate specific security measures — such as asking a plant to switch from chlorine, which can be deadly in gaseous form, to a safer alternative such as sodium hypochlorite, a high-strength bleach.
"More than 10 years have passed since the attacks of 9/11, and the chemical industry still remains vulnerable to terrorist attacks," said Bostock, now a speechwriter in New Jersey who remains in contact with Whitman, a former Republican governor of the state.
"The fact that Gov. Whitman has gone on the record advocating a position we explored 10 years ago but did not take is an indication of how urgent this issue remains. It reflects the fact that national security trumps party affiliation."
In a written statement to the Center for Public Integrity, the American Chemistry Council, the chemical industry's main trade association, said there is no need for the EPA to invoke the Clean Air Act's general duty clause.
"ACC and its members support a host of federal programs that regulate chemical safety and security to help safeguard all of their employees and communities," the group said. The EPA, it said, "already addresses chemical safety and the need to prevent accidental releases" through its Risk Management Program, which requires makers and users of dangerous chemicals to identify hazards, develop accident-prevention plans and prepare for worst-case scenarios.
The DHS rules that grew out of the 2006 law, the chemical council said, have "improved security for thousands of facilities."
Rick Hind, legislative director for Greenpeace, calls this "wishful thinking."
Greenpeace estimates that the law covers only a third of the U.S. facilities that could have catastrophic chemical releases. Whitman "has come full circle, back to her original proposal, at a critical time," Hind said. "The most logical way to prevent disasters is to use this (Clean Air Act) authority."
The Government Accountability Office concluded in 2003 that the EPA could "interpret the Clean Air Act's general duty clause to address chemical facility security from terrorism." That never happened.
"In the absence of any legislative fix to this problem, we should just go ahead and do it," Bostock said.
(The Center for Public Integrity is an independent non-profit investigative news outlet.)
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