Republican lawmakers and chemical industry officials say they will oppose any move by the Environmental Protection Agency to regulate security at U.S. manufacturing facilities.
“The worst thing we could do is get EPA involved in this,” Rep. John M. Shimkus (R-Ill.) asserted last month at a House of Representatives hearing. “EPA would come in and require inherently safer technologies, which would drive manufacturing businesses overseas” by imposing significant new costs, he said.
Shimkus, chairman of the House Energy & Commerce Subcommittee on Environment & the Economy, was commenting on legislation that would prohibit EPA from using a provision in the Clean Air Act to regulate chemical facility security.
The bill (H.R. 6345) was introduced on Aug. 2 by Rep. Michael R. Pompeo (R-Kan.) to preempt a call by environmental groups, labor unions, and other activists for new regulations to ensure that facilities that handle the most dangerous chemicals take steps to prevent potentially catastrophic releases in the event of an accident or terrorist attack.
H.R. 6345 is the latest salvo in an ongoing battle over what security regulations at high-risk chemical facilities should be required to follow. Industry has long opposed measures that it contends would infringe on how it makes products and conducts business; activists have sought controls that they argue would make the plants safer by limiting the amount of toxic chemicals used at the facilities.
A coalition of more than 50 organizations, including Greenpeace and United Steelworkers, petitioned EPA on July 25 to use its authority under the general duty clause of the Clean Air Act Amendments of 1990 to require the use of safer alternative chemicals and processes, where feasible, at facilities that produce, use, or store hazardous chemicals.
The general duty clause obligates chemical facility owners and operators to “design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”
An accidental release, by definition, is unanticipated, stresses Scott Nelson, an attorney with Public Citizen Litigation Group. “From the standpoint of the public and the operator of the facility, an accidental release caused by terrorism is as unanticipated, if not more unanticipated, as process-related accidents,” he says. “Inherently safer technology is an effective way of dealing with process-related accidents, accidents that are the result of forces of nature, as well as accidents that result from human intervention.”
Security at thousands of chemical facilities across the U.S. is currently regulated at the federal level by the Department of Homeland Security through its five-year-old Chemical Facility Anti-Terrorism Standards program, or CFATS. But that program is deeply flawed, the activists contend, because DHS does not have the authority to require any particular security measure, such as ordering a facility to use less hazardous chemicals.
“Defending facilities as they currently exist against attack is not a substitute for designing them to be inherently safer,” the petition states. “DHS has not required safer chemical processes that would prevent chemical releases that can occur not only as a result of security breaches, but also because of process accidents or natural disasters.”
Christine Todd Whitman, who led EPA from 2001 to 2003 under President George W. Bush, has also urged the agency to use its existing authority under the clean air statute to reduce or eliminate catastrophic risks at chemical plants. “I cannot get my mind around why we haven’t seen some action when the consequences of something happening at a chemical facility are so potentially devastating,” she remarked at a news conference in June (C&EN, June 18, page 11).
But Pompeo argues that such a move by EPA would be a clear encroachment on DHS’s jurisdiction over security issues. His legislation would amend the Clean Air Act to clarify that an accidental release of a substance does not include releases stemming from an intentional act, such as a terrorist attack on a facility.
The aim of the bill, according to a background document, is to reinforce that DHS has exclusive jurisdiction and to “clarify that EPA’s mission is environmental protection, not homeland security, by prohibiting EPA from regulating chemical facility security under the general duty clause.”
The legislation would also require EPA to issue regulations detailing compliance requirements before finding any facility in violation of the general duty clause as it relates to accidental releases. The agency, Pompeo says, has fined “numerous facilities” after accidents for violating the clause, even though EPA has yet to define the provision in any detail.
“I’m taking a proactive and commonsense step to provide greater clarity to our nation’s chemical safety laws by resolving the confusion surrounding the general duty clause,” Pompeo says. “This legislation will provide companies that use chemicals in their operations with the certainty needed to comply with this law.” Sen. Pat Roberts (R-Kan.) introduced an identical bill (S. 3529) in the Senate on Sept. 11.
The Pompeo-Roberts legislation has been endorsed by 17 business organizations, including the American Chemistry Council (ACC), which represents the largest U.S. chemical companies, and the Society of Chemical Manufacturers & Affiliates (SOCMA), a trade association for specialty chemical makers.
In a recent letter to members of Congress, the business groups expressed concern about EPA’s “arbitrary application of the general duty clause as well as the potential for future expansion of the general duty clause to regulate the security of chemical facilities.” Passage of the legislation would “ensure proper application of the clause by affirming that jurisdiction of chemical facility security remains with DHS, as Congress intended,” the letter states.
The chemical industry also voiced support for the proposal last month at the House Energy & Commerce Subcommittee hearing, which focused on the difficulties that DHS has had in getting CFATS off the ground (C&EN, Sept. 17, page 6).
The legislation is a step in the right direction because it would clarify roles and responsibilities, said Timothy J. Scott, Dow Chemical’s chief security officer. “The general duty clause is specifically designed for environmental protection, and EPA does a good job in that regard,” said Scott, who testified on behalf of ACC. “But security is not EPA’s area of expertise, and that’s exactly the reason why chemical security was put under DHS. So the expertise and the foundation for the CFATS program lie with DHS, not EPA,” he asserted.
Scott acknowledged, however, that there have been missteps since DHS established CFATS in 2007. Problems with the program came to light at the end of last year, when an internal memorandum detailing an array of management failures and implementation flaws was leaked to the press (C&EN, Jan. 9, page 6).
Despite difficulties, the CFATS concept is “fundamentally sound,” Scott said. “We can make the necessary corrections and achieve successful results.” Under CFATS, he explained, companies have the flexibility to apply customized security solutions to each site and situation. DHS inspectors then verify that each facility’s security plan meets risk-based standards set by the department.
“We should not return to square one with DHS or change course in midstream,” Scott testified. “We need to move forward with DHS.”
But Anna Fendley of United Steelworkers disagreed. “Some security measures have been implemented, but CFATS is not and never will be the comprehensive program that we need to protect against an unforeseen terrorist attack or an accidental release that could be equally devastating,” she said. United Steelworkers represents the majority of unionized workers in the chemical industry.
Some companies, she noted, have shifted to safer processes or reduced their inventory of hazardous chemicals to avoid CFATS regulation. Clorox, for example, switched from chlorine gas to high-strength bleach in its household bleach manufacturing process, Fendley said.
“But many companies will never even look into innovating with safer chemical processes without a legal requirement to do so. Those are the facilities that put American workers and their families at risk during a terrorist attack,” she said.“If EPA could work to reduce the presence and quantities of hazardous chemicals at these sites, we would be incredibly supportive of that.”
Rep. Gene Green (D-Texas), whose Houston-area district includes many petrochemical plants, has tried to find a middle ground. “We have enough trouble now with DHS doing their job. But EPA does have statutory authority already on certain things,” such as ensuring that chemical plants are operated in a safe manner, Green said. “I would hope our federal agencies would work together so that companies don’t have to jump through two hoops. These agencies should be on the same page.”
EPA says it is evaluating the activists’ petition but has not provided a timeframe for making a decision. In a letter to Rick Hind, legislative director of Greenpeace, the agency says its focus is on preventing chemical disasters caused by natural disasters and technological failure, and DHS is focused on acts of terrorism or other security-related causes.
“Other agencies, such as the Occupational Safety & Health Administration, also have a role in preventing chemical disasters,” wrote Lawrence M. Stanton, director of EPA’s Office of Emergency Management. “We will respect the roles and expertise of each agency in preventing chemical disasters under these different causal scenarios,” he said. “Accordingly, we are working in cooperation with DHS and the other agencies to promote prevention and response programs, and we will continue to look for opportunities to reduce the likelihood of chemical disasters.”
Hind tells C&EN that he is encouraged by EPA’s response because it correctly acknowledges that the agency has broad authority under the Clean Air Act to prevent the catastrophic release of toxic chemicals. “EPA can help take targets away from terrorists and prevent tragedies in our major cities,” he says.
Even if EPA restricts its role to limiting the impact of a natural disaster, such as an earthquake, or a technology failure that causes an accident, “that would also result in eliminating the consequences of a terrorist attack and the attractiveness of a facility as a target in the first place,” Hind observes.
Congress, he notes, gave DHS “very little direction or authority” when it passed legislation in October 2006 that required the department to create a security program for chemical facilities. “Instead, it tied the hands of DHS by not allowing the department to require the use of safer chemical processes or any specific security measure, and it explicitly exempted thousands of potentially high risk facilities from the program,” Hind says.
For instance, water treatment plants, which often store large quantities of chlorine and other chemicals, fall outside the scope of CFATS. Oil refineries and petrochemical plants situated at ports are also exempt, although they are regulated by the Coast Guard under the Maritime Transportation Security Act.
“The Obama Administration has an enormous opportunity for EPA and DHS to work together using EPA’s prevention authorities in the Clean Air Act to eliminate unnecessary hazards and to reduce the number of targets at which DHS has to rely on conventional security,” Hind says. Echoing Rep. Green, Hind says the missions of both agencies are “completely compatible.”
But William E. Allmond IV, SOCMA’s vice president for government relations, says it’s not necessary to have EPA involved in chemical security because CFATS “is a very comprehensive program.” High-risk chemical facilities are required to implement measurable security standards by a specified time, or they can be shut down by DHS for noncompliance. “I don’t know how much stronger a regulatory program can get than that,” he says.
And although EPA continues to review the activists’ petition, Allmond notes, the agency “has essentially reiterated the fact that there are statutory requirements to address chemical security and that authority resides with DHS, not EPA.”