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Enviroterrorism, Part I. (Rules & Regulations).

Environmental protection and regulation are on the front line of the so-called war on terrorism. The deliberate release of biological, chemical and radiological agents turns the environment itself into a weapon of mass destruction. Such acts are referred to as enviroterrorism. Measures and technology aimed at preventing or mitigating enviroterrorism could become a standard part of the national pollution control strategy, required by federal regulation.

Environmental Permit and Performance Standards

Air quality, water quality and waste management permits and programs often include prudent management practices and emergency plans. Future permit writers or agency enforcement officers could require permitted facilities and other regulated entities to evaluate risks to workers and the public posed by potential terrorist activities. As part of the permit application process, these organizations may have to design practices or equipment that will serve to prevent or minimize human and environmental impacts caused by the uncontrolled release of, and exposure to, toxic or hazardous substances, contamination or interruption of water supplies and pollution control equipment outages.

Worker Safety and Health

The general duty clause of the federal Occupational Safety and Health Act could expose employers to liability for failure to protect workers from foreseeable acts of terrorism (e.g., anthrax contamination), even in the absence of specific regulations. This clause requires employers to furnish a workplace that is free from recognized hazards that are likely to cause death or serious physical harm to employees. Thus, antiterrorist evaluations or audits may prove beneficial, as may participating in industry consensus groups to develop antiterrorism practices for the workplace.

Superfund

Could facility owners or operators be liable for the cleanup of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (Superfund) even if a terrorist--a third party with whom the owner or operator has no contractual relationship--is responsible? If the organization cannot establish by a preponderance of evidence that it "took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions," it may be liable. The trend toward tighter regulatory oversight related to the new threats is well underway in the nuclear power industry. Only an "act of war" would exclude such responsibility.

Clean Water and Air Act Liability

The federal Clean Water Act presents similar liability and defense issues in connection with the release of oil or hazardous substances into waters of the United States. Thus, antiterrorist measures could be incorporated into technology-based pollution control standards under the Clean Water Act as well as the Clean Air Act.

In addition, similar to the Occupational Safety and Health Act, the federal Clean Air Act imposes a general duty on regulated owners and operators to identify and prevent potential accidental releases of designated hazardous substances; to design and maintain a safe facility; and to minimize the consequences of releases that do occur. Moreover, it imposes, under certain circumstances, criminal liability for the negligent release of designated hazardous air pollutants or other extremely dangerous substances.

Could industrial facility operators become civilly or criminally liable for catastrophic releases of hazardous substances caused by terrorist actions? Not likely. But if mass injuries were caused by a terrorist action that could have easily been anticipated and prevented, who wants to be the test case?

Joseph F. Guida is the managing shareholder of Guida, Slavich & Flores, P.C.

Joseph F. Guida is the managing shareholder with Guida, Slavich & Flores, P.C. in Dallas. He has practiced environmental law since 1979. (guida@guidaslavichflores.com)
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Comment:Enviroterrorism, Part I. (Rules & Regulations).
Author:Guida, Joseph F.
Publication:Risk Management
Article Type:Brief Article
Geographic Code:1USA
Date:Aug 1, 2002
Words:580
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