A federal advisory committee has joined a coalition of environmental, labor, and other activist groups in urging the Obama Administration to require high-risk chemical facilities to switch to safer technologies to prevent disastrous accidents and deter terrorist attacks.
Specifically, the Environmental Protection Agency’s National Environmental Justice Advisory Council (NEJAC) wants EPA to use its authority under the Clean Air Act Amendments of 1990 to force thousands of facilities to switch to less hazardous chemicals and processes, where feasible.
Spurred by the 1984 chemical disaster that resulted in thousands of deaths in Bhopal, India, Congress included a “general duty clause” in Section 112(r)(1) of the clean air statute. The clause directs industry to design and maintain a safe facility to prevent accidental releases of highly toxic chemicals.
In a letter delivered to EPA Administrator Lisa P. Jackson last month, NEJAC formally recommended that EPA “fully implement” the Clean Air Act’s general duty clause to “reduce or eliminate” the danger posed by the manufacture of chemicals and the transport and storage of hazardous chemicals.
Echoing a view held by a broad coalition of activist groups, the NEJAC letter also says the federal government’s current regulatory regime for securing chemical facilities against potential terrorist attacks does not go far enough.
“Implementing the Clean Air Act’s prevention authority will not only eliminate accidental hazards but also will address fatal flaws in the current chemical security law administered by the Department of Homeland Security,” wrote Elizabeth C. Yeampierre. She is the chair of the EPA advisory panel, which consists of community leaders, academics, and state government officials. “DHS is prohibited from requiring the use of safer chemical processes at facilities,” she added.
An EPA spokeswoman says the agency is reviewing the letter, but she declined further comment. NEJAC, established in 1993, provides advice and recommendations to EPA on issues that affect minorities and low-income communities living near chemical plants and hazardous waste facilities.
The letter was generated after the 17-member advisory panel received testimony from environmental justice organizations during a public meeting last October in Albuquerque, N.M. “NEJAC’s recommendation recognizes that these chemical facilities are a huge threat to disadvantaged communities,” says Juan Parras, executive director of the Houston-based Texas Environmental Justice Advocacy Services. “EPA must do everything it can to protect us from the risk of a poison gas disaster.”
However, the chemical industry points out that it is already required to recognize hazards and prevent accidents. “It is not necessary for EPA to exercise the general duty clause authority in the fashion requested in the [NEJAC] letter since the agency already addresses chemical safety and the need to prevent accidental releases through the risk-management program,” the American Chemistry Council (ACC), which represents the nation’s largest chemical companies, said in a statement to C&EN.
Under EPA’s risk-management rule, companies of all sizes that use certain flammable and toxic substances must take steps to prevent and minimize the effects of accidental releases, as well as provide prompt emergency response to a release.
ACC spokesman Scott Jensen also points out that Congress followed the recommendations of security specialists and directed DHS to establish a stand-alone program to reduce the vulnerability of chemical plants to a terrorist attack or sabotage. “The whole point of creating DHS was to have an entity that deals specifically with security issues,” Jensen says.
NEJAC’s letter essentially endorses a campaign activists have been waging for decades to reduce or eliminate the production and use of dangerous chemicals in the interest of curbing pollution and preventing fatalities resulting from accidents.
Soon after the September 2001 terrorist attacks, environmental, labor, and public health organizations began arguing that replacing hazardous chemicals with safer alternatives could also help protect against terrorism by making chemical plants in populated areas safer and less attractive as targets.
With no mandatory federal security standards for chemical plants in place, EPA quickly filled the void by drafting a plan in early 2002 that provided guidance and some preliminary regulations. Agency officials had concluded that the Clean Air Act could be interpreted to provide authority to address site security at chemical facilities.
“The general duty clause addresses accidental releases, which the Clean Air Act defines as unanticipated releases,” states an internal document prepared by EPA staff in June 2002. “EPA believes that in light of the increased risk of terrorism, the general duty clause applies to unanticipated releases including releases caused by terrorists or other criminals.”
Under the draft plan, the agency intended to require chemical plant operators to make their facilities safer by “reducing quantities of hazardous chemicals handled or stored, substituting less hazardous chemicals for extremely hazardous ones, or otherwise modifying the design of processes to reduce or eliminate chemical hazards.”
However, EPA’s proposal was dropped after other officials in the George W. Bush Administration and some Republicans in Congress began to question whether the agency had sufficient legal authority to oversee chemical facility security based on a clause in the Clean Air Act.
White House and Justice Department lawyers were concerned that EPA’s proposal would be challenged in court and thrown out as regulatory overreach. By late 2002, the Bush White House had concluded that Congress would need to pass legislation authorizing a new regulatory regime for chemical security.
But the White House declined to ask Congress for the authority necessary to enact the plan already envisioned, notes Christine Todd Whitman, who led EPA from 2001 to 2003. “Unfortunately, there is still no national program to assess the feasibility or to require the use of safer alternatives at the highest risk facilities,” Whitman says in a letter sent to Jackson earlier this month. Consequently, Whitman urged the current EPA chief to use the Clean Air Act “to reduce these hazards before a tragedy of historic proportions occurs.”
The Government Accountability Office (GAO), the nonpartisan investigation arm of Congress, examined the issue in March 2003 and concluded that EPA “could reasonably interpret its Clean Air Act authority to cover chemical security.”
EPA would not have to make any regulatory changes because it currently implements the general duty clause through guidance, GAO noted in its report. “Thus, EPA could revise its existing guidance or issue new guidance to include managing the risk of terrorism as within owners and operators’ responsibility under the general duty clause.”
But GAO added that if EPA chose to use the general duty clause to address terrorist threats to facilities, the agency would face some limitations. Facility owners and operators must demonstrate safe practices at their sites, but facilities have no specific standards to meet.
“Since the general duty clause is not implemented by regulations, there are no EPA standards specifically defining the duty,” GAO said. “Instead, EPA generally looks to industry and other standards to indicate what facilities should do to prevent and mitigate accidental releases.”
There are also a number of “practical and legal arguments against this interpretation,” GAO noted, including the fact that “a release due to a terrorist attack is not entirely unanticipated, as it is an intentional act.”
GAO recommended that a legislative proposal be developed to require chemical facilities to “expeditiously assess their vulnerability to terrorist attacks and, where necessary, require these facilities to take corrective action.”
Despite the widespread perception that chemical plants could be an attractive target for future attacks, lawmakers were divided on the question of whether to require these facilities to minimize their use of hazardous chemicals.
After several years of contentious debate, Congress, in October 2006, attached a brief amendment to the fiscal 2007 DHS appropriations bill, directing the department to establish a program to enhance security at high-risk chemical facilities.
DHS subsequently created the Chemical Facility Anti-Terrorism Standards (CFATS) program, which requires chemical plants and other industrial facilities to conduct vulnerability assessments and develop site security plans that are submitted to the department for review and approval. As of Feb. 14, CFATS covers 4,464 high-risk facilities nationwide.
However, the environmental and labor coalition maintains that CFATS is inadequate because the underlying legislation prohibits DHS from requiring any specific security measure, including the use of less hazardous chemicals and safer processes.
The activists support legislation (S. 709) introduced by Sen. Frank R. Lautenberg (D-N.J.) that would require all high-risk chemical facilities to assess the feasibility of adopting so-called inherently safer technology (IST). Under the heading of “methods to reduce the consequences of a terrorist attack,” the bill would also give DHS authority to order the riskiest facilities to switch to safer chemicals or processes, as long as the alternative technology is technically and economically feasible.
That proposal is strongly opposed by the chemical industry and congressional Republicans. They assert that decisions regarding chemical substitution should continue to be left in the hands of facility operators and industry security officials, and not turned over to the federal government.
They also argue that CFATS already provides an incentive to reduce risks. More than 2,000 facilities have voluntarily taken action to “reduce their risk profile sufficiently that they no longer warrant regulation under the program,” William E. Allmond IV, vice president of government relations at the Society of Chemical Manufacturers & Affiliates, an industry trade group, told a panel of the House of Representatives’ Homeland Security Committee last month.
Although CFATS’s implementation has been slowed by management problems at DHS (C&EN, March 5, page 28), the program has “unquestionably improved the security of our chemical industry,” Rep. Daniel E. Lungren (R-Calif.) declared at the March 6 hearing.
The chemical industry backs two Republican-drafted bills pending in the House—H.R. 901 and H.R. 908—each of which would continue CFATS for seven more years without making any substantial changes to the program. Industry groups have also endorsed a bill (S. 473) sponsored by Sen. Susan M. Collins (R-Maine) that would extend the existing chemical security rules until October 2015.
Rick Hind, legislative director of the environmental groupGreenpeace, argues that the only “foolproof way” to protect communities around high-risk facilities is to require the use of safer processes that remove the possibility of a catastrophic chemical release. He notes that the Obama Administration has repeatedly asked Congress to include mandatory IST requirements in legislation to reauthorize CFATS.
EPA needs to act, Hind says, because “the Administration’s agenda on preventing chemical disasters is being blocked” by Republicans on Capitol Hill. “Until Congress acts responsibly, the only way to ensure that disaster prevention is implemented is to enforce the Clean Air Act’s general duty clause through guidance or rule-making,” he declares. “Our priority is to make these plants safe. That’s what the public wants and what the employees want.”
Addressing chemical facility security through regulation—not legislation—is something President Barack Obama promised when he was campaigning in 2008, Hind adds. In his book “Change We Can Believe In,” Obama states: “An Obama administration will: 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.”
Hind also says EPA could implement a new set of safety standards based on accident prevention without even mentioning security. “Accident prevention is the most likely benefit to most communities. But the agency could also cite the significant security benefits to chemical plants that switch to safer chemical processes because they will no longer be an attractive terrorist target,” he remarks.
NEJAC’s request to EPA, according to Allmond, “finally demonstrates the true motive behind environmentalists’ calls for IST. Their efforts haven’t been about securing chemical plants, as they have argued, but rather about protecting the environment.”