By Dr. Phyllis Cassano
Posted: Friday, October 25, 2002

ARTICLES
Publication Date: October 25, 2002

The Biological Chemical Attack bill, also known as the Chemical Security Act of 2001, was introduced a year ago in the wake of the attacks on New York and D.C. The bill, sponsored by Senators Corzine, Jeffords, Clinton, and Boxer, was intended to protect the public against the threat of an attack by terrorists using industrial chemicals as poisons or explosives — chemicals that, in the words of the bill, "pose a serious threat to public health, safety, and welfare; critical infrastructure; national security; and the environment." The Environmental Protection Agency would be put in charge of regulating all such threats. Critics charged that while the EPA has little expertise in security matters, it could easily use the broad language of the bill to micromanage the production, storage, and reporting of any chemicals suspected of posing a minute, long-term health threat, rather than just large stores of chemicals posing an immediate security risk.

A coalition of activist groups criticized the bill, including Americans for Tax Reform, Citizens for a Sound Economy, the Competitive Enterprise Institute, and the American Conservative Union, according to the ACU's communications director, Ian Walters, who calls the bill "excessive regulation." Walters argues that "farmers and chemical manufacturers have understood the potential for terrorists to exploit their industries" and have already built new security fences, hired more guards, and eliminated large stockpiles of chlorine. However, the bill would require companies to conduct reviews of all potential vulnerabilities and hazardous chemicals in their production process and devise EPA-approved ways of eliminating them when possible.

Trade associations, including the American Chemistry Council, the American Petroleum Institute, the National Association of Manufacturers, the U.S. Chamber of Commerce, and Edison Electric Institute signed a letter to Congress protesting the increased regulatory costs the bill would impose on their industries and arguing that the bill would "splinter security responsibility away from...Homeland Security and grant the EPA extensive new authority that may be detrimental to advancing our nation's critical infrastructure security." Chris VandenHeuvel, spokesman for the American Chemistry Council, a Washington, D.C.-based group representing 180 chemical companies, charges "that the bill would put the EPA in the position of determining which chemicals plants may use, how they use them, and what products they may produce." VandenHeuvel says that his group recognizes a need for some government agency to have authority over security at chemical plants but that "we just don't think it belongs at EPA," which has traditionally been quick to label chemicals threats at almost any exposure level.

Though the bill calls for the appropriation of new funds to oversee the project, much of the cost would likely be transferred from EPA to the chemical producers themselves — through regulations mandating costly compliance measures — and ultimately to consumers, in the form of higher prices. The legal rationale for extending EPA's power is its enforcement role under the Clean Air Act, though the bill would apply EPA oversight not just to chemicals purported to pose a current human health threat but to any chemicals that in EPA's estimation could be turned, deliberately or accidentally, into human health threats.

For the time being, a watered-down version of the bill exists in limbo as part of the stalled legislation that would create a Department of Homeland Security. The Bush administration has been criticized by environmental groups for letting stricter chemical security measures be contingent upon passage of Homeland Security legislation. Jeremiah Baumann of the U.S. Public Interest Research Group called the administration's approach "political stalling that is likely to lead to further delay on public safety," while Rick Hind, a "toxic chemicals expert" with Greenpeace, declared the White House's voluntary approach to increased security "an unbelievable nothing-burger."

Ironically, the imminent mid-term Congressional elections, by deciding who controls Congress, may determine the scope of EPA's regulatory power at the same time that they determine the fate of the Department of Homeland Security.