Former U.S. EPA Administrator Christine Todd Whitman is warning that the regulatory framework for preventing terrorist attacks and accidents at chemical facilities is "extremely limited."
Whitman -- who was President George W. Bush's first EPA administrator -- also urged the current administrator, Lisa Jackson, to use a little-known Clean Air Act clause to assert the agency's authority over these facilities "before a tragedy of historic proportions occurs."
Whitman's April 3 letter, first reported by the Center for Public Integrity, refers to a "general duty clause" to require chemical plants to prevent catastrophic chemical releases.
EPA's National Environmental Justice Advisory Council (NEJAC) last month recommended that the agency use that authority, arguing that there are 483 chemical facilities in 43 states that each put 100,000 more people at risk in the event of a chemical disaster. Those populations, the council argued, are disproportionately disadvantaged (E&ENews PM, March 29).
After the Sept. 11, 2001, terrorist attacks, Whitman wrote, EPA "seriously considered" using the general duty clause to extend its existing responsibilities for chemical facilities -- a sign that the agency recognized the threats posed by the sites.
However, she wrote, the agency ultimately pressed for a legislative action to enact the general duty clause, hoping that such a move would reduce the possibility of a court challenge.
After a year working with stakeholders and other agencies, Whitman says the Bush White House "decided not to submit the legislation we had drafted."
The White House's inaction, Whitman said, had significant consequences.
"I believed that this decision undermined EPA's ability to carry out its assignment as the lead federal agency in protecting the chemical industry and hazardous materials sector," Whitman wrote.
The general duty clause is also referred to as the "Bhopal amendment," referring to the 1984 accident at Union Carbide's facility in Bhopal, India, that killed thousands.
Whitman is especially critical of the Department of Homeland Security's Chemical Facility Anti-Terrorism Standards, or CFATS, program, which was implemented in 2006 and is designed to secure the sites.
The former administrator called CFATS "extremely limited" because it "exempts thousands of chemical facilities," including water and wastewater plants, as well as refineries located on navigable waters.
Robert Bostock, who served as Whitman's homeland security policy adviser at EPA, said the CFATS program has come up short.
"There are still vulnerability out there that need to be addressed," Bostock said in an interview. "EPA is in the best position to do it."
He added, "This whole issue is something that's been insufficiently addressed for more than 10 years."
Public health and environmental groups such as Greenpeace have long argued that CFATS leaves millions of U.S. citizens at risk. In particular, they argue that the program lacks an inherently safer technologies (IST) mandate, which would require facilities to consider switching to less-toxic alternative chemicals (Greenwire, Sept. 8, 2011).
Whitman's letter also comes as CFATS faces criticism for mismanagement. An internal memo reported by Fox News last December revealed that the program was far behind schedule. That led to harsh questioning on Capitol Hill, including some calls for resignations (Greenwire, Feb. 3).
Democrats have sought to add an IST mandate to the CFATS program, but current legislation on Capitol Hill seeks to reauthorize CFATS largely as it exists now. Those efforts appear to be stalled since controversy surrounding the internal memo unfolded.
Industry has strongly opposed any IST requirement and supports the bills currently on Capitol Hill.
Bill Allmond of the Society of Chemical Manufacturers and Affiliates (SOCMA), a trade group, also said regulating chemical sites under the Clean Air Act, as Whitman suggests, is unnecessary.
In particular, Allmond highlighted a 2003 Government Accountability Office report that noted EPA could use the general duty clause to regulate site security. Whitman omits where GAO also noted that such an action could pose legal hurdles.
Further, a 2006 GAO report on chemical facility security after CFATS was launched makes no mention of the general duty clause, Allmond said.
"After CFATS came out, EPA's relinquished their role," he said. "And DHS stepped in and developed comprehensive standards."
Allmond also suggested it is part of an "environmental agenda" among groups that are disappointed an IST mandate did not make it into CFATS.
The American Chemistry Council (ACC) also pointed out that EPA already addresses chemical safety through its risk management program, and therefore using the Clean Air Act is unnecessary.
Spokesmen for DHS and EPA did not return requests for comment in time for publication.
The environmental groups are also calling out President Obama on the issue.
Rick Hind of Greenpeace pointed to Obama's "Change We Can Believe In," his 2008 campaign platform. In it, Obama pledges to "secure our chemical plants by setting a clear set of federal regulations that all plants must follow, including ... where possible, using safer technology, such as less toxic chemicals."
Taking action under the general duty clause, Hind said, could earn Obama bipartisan support even in a tough election year.
"This is a rare opportunity for President Obama to forge a bipartisan policy on chemical disaster prevention," Hind said. "In doing so, it will eliminate disaster risks for millions of Americans."
Click here to read the letter.