U.S. Attorney General John Ashcroft announced plans this month for stepped up inspections focusing on companies that fail to protect against possible terrorist attacks on pipelines, fuel storage tanks, chemical plants and drinking water facilities. The Attorney General made it clear that failure to comply with environmental, safety and security requirements will result in aggressive civil and criminal enforcement by the federal government.
Expressly linking homeland security and environmental laws, Ashcroft cited laws and regulations governing storage, treatment and disposal of hazardous waste and chemicals, pipeline safety standards, water supply regulations, and facility emergency response plans. According to Ashcroft, “Compliance with and enforcement of these laws makes a real difference in our level of national preparedness.”
To identify and minimize vulnerability of such facilities, U.S. EPA, the Department of Transportation and other federal agencies have reassigned personnel to security-related duties and increased the focus on security at facilities they inspect. EPA Region 9 Administrator Wayne Nastri has stated that the terrorist threat has profoundly changed EPA: shortly after September 11, the agency removed from its website certain information concerning specific quantities and locations of chemicals at regulated facilities. According to Regional Administrator Nastri, EPA also has new responsibilities, including helping to ensure water supply safety and dealing with chemical and biological terrorism threats. Environmental enforcement actions can be key, he said, not only to encouraging compliance, but also to encouraging businesses to make facilities less vulnerable to potential acts of terrorism.
EPA recently completed a nationwide security review of over 30 chemical facilities that agency officials determined pose the greatest risk to population centers. EPA’s findings were straightforward: many high-risk chemical facilities have not adopted adequate security measures. EPA is also using financial grants and existing environmental laws to address security risks, and is now in the final stages of awarding $53 million in grants to municipal and private water suppliers to analyze and upgrade security measures.
Congress is also responding to chemical facility security risk. Legislation introduced by Senator Jon S. Corzine (D-N.J.) would force industry to submit terrorism vulnerability assessments to EPA. This legislation faces opposition as competing interests wrestle over whether chemical facility security should be handled by EPA or by other agencies.
Some Congressional action appears likely. Following the Attorney General’s recent announcement, Congress’ General Accounting Office released a report stating that industry’s voluntary security efforts are inadequate, and recommending that the Department of Homeland Security and EPA jointly develop a comprehensive national security strategy to assess vulnerabilities and enhance security.
Even under current law, however, EPA can address facility security. Inspections can be unannounced, and can focus on numerous environmental, health and safety compliance issues. EPA’s Risk Management Program, for example, has long been recognized as a means of proactively addressing security risks through inspections authorized under the federal Clean Air Act. Under many environmental laws, if a facility is found to be out of compliance, significant civil penalties, injunctions restricting continued business operations, and even criminal fines and prison terms can be imposed. This was dramatically illustrated this month when the Justice Department reported, as part of the Attorney General’s facility security announcement, that EPA enforcement actions have secured more than $7.9 billion in penalties and injunctive relief in the last two years. As an example, the Justice Department cited a recent settlement under which Lion Oil Company will spend nearly $22 million for pollution control measures and pay a $348,000 civil penalty for alleged non-compliance at a refinery.
Owners and operators of pipelines, fuel storage tanks, chemical plants and drinking water supplies can minimize both the vulnerability of their facilities and risk of severe fines and other penalties for non-compliance by conducting internal facility audits to identify deficiencies, and by taking prompt corrective action when they are found. Compliance audits can be efficiently and effectively coordinated by experienced environmental counsel working with technical and engineering professionals, and the results of the audits can be protected from unwarranted disclosure under the attorney-client privilege, the attorney work product doctrine, and (in some jurisdictions) the self-evaluative privilege.