Congressional researchers are suggesting that EPA has always had the authority under the Clean Air Act and other statutes needed to force the chemical industry to shore up security vulnerabilities, even though the Bush administration has downgraded the agency's role on the issue in favor of the Department of Homeland Security (DHS).
The issue of whether EPA can secure the industry may reemerge if an upcoming legislative push in the Senate fails to gain traction, particularly because the administration recently testified to Congress that voluntary programs fail to account for some of the nation's riskiest chemical plants.
The administration and industry have long supported giving DHS a lead role on the issue, and have relied on voluntary security measures since the department lacks the needed regulatory authority and Congress has failed to enact legislation expanding that authority.
The non-partisan Congressional Research Service (CRS), which provides confidential advice to members of Congress, says in a new report that EPA "arguably has sufficient authority" under the Clean Air Act and Emergency Planning & Community Right-to-Know Act (EPCRA) "to more strongly encourage facilities to reduce their vulnerability to terrorists."
EPA officials say the agency's statutory authority is unclear since the laws are not intended to reduce terrorism risks, and any agency rules on the matter could be subject to litigation from industry.
But the report, which lays out an array of policy options, also says Congress could provide the agency with additional resources to accomplish this task and clarify its role to expand the reach of potential security rules under the existing statutes.
"Congress could expand existing environmental planning requirements for chemical facilities to require consideration of terrorism," the report says. "DHS could be directed to oversee security enhancement at potentially dangerous facilities. Or, Congress might enact legislation to reduce risks, either by 'hardening' defenses against terrorists . . . or by requiring industries to consider use of safer chemicals, procedures or processes." Relevant documents are available on InsideEPA.com.
The study acknowledges the shortcomings of relying on the statutes, suggesting that EPA's limited resources might undermine any new security authority, and that the Clean Air Act's risk management planning requirements only apply to "accidental" releases, and excludes explosives and certain flammable substances.
The report, issued just prior to Congress' August recess, comes at a crucial time, as Sen. Susan Collins (R-ME), who is taking the lead on the issue in Congress, is drafting legislation this month that would impose new federal rules on industry. Collins chairs the Senate Homeland Security & Governmental Affairs Committee.
Aides to Collins declined to comment on possible bill provisions or the CRS report. "This legislation will be comprehensive and bipartisan," one aide says. "Specific details of her legislation will be released when the bill is introduced next month."
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