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 Department of Homeland Security rules adopted in 2007, according to her April 3 letter to Jackson, obtained by the Center for Public Integrity.
Those rules are “extremely limited,” Whitman wrote, barring DHS from requiring industry to take specific measures to prevent accidental or terrorism-related toxic releases. The rules, she wrote, 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.”
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.
The flaws “are particularly threatening to low-income and tribal communities and communities of color because they frequently reside near waste water treatment plants, refineries, and port facilities,” council chair Elizabeth Yeampierre wrote March 14. The council includes industry representatives, academics and environmental and community development advocates.
An EPA spokeswoman did not respond to requests for comment.
‘Torpedoed’ by the White House
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 had 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. “We cannot allow chemical industry lobbyists to dictate the terms of this debate,” Obama said. “We cannot allow our security to be hijacked by corporate interests.” 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 to merely submit security plans to the department. DHS must approve the plans but can’t dictate specific security measures — say, 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. (The Blue Plains Wastewater Treatment Plant in Washington, D.C., did so voluntarily not long after 9/11; the Clorox Co. began phasing out chlorine at its production facilities in 2009.)
“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 stays 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, 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 — such as hydrofluoric acid, found at about 50 U.S. oil refineries — 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. The law is worse than nothing; it gives the impression that there’s a broad security program in place.”
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.