U.S. Panel: No Decision on Tougher Chemical Security Rules Until 2016

The remains of an apartment complex next to the fertilizer plant that exploded on April 18, 2013, in West, Texas. A final decision on whether to issue tougher chemical security and safety rules likely will not be made until at least 2016, according to a federal report issued Friday.
National Journal
Douglas P. Guarino
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Douglas P. Guarino
June 9, 2014, 10:17 a.m.

A fi­nal de­cision on wheth­er to is­sue tough­er chem­ic­al se­cur­ity and safety rules likely will not be made un­til at least 2016 — three years after the tra­gic ex­plo­sion of a fer­til­izer plant in Texas, a fed­er­al work­ing group says.

The in­ter­agency pan­el, which is act­ing un­der an ex­ec­ut­ive or­der Pres­id­ent Obama is­sued after the April 2013 dis­aster killed 14 people and leveled homes in the small city of West, is­sued its fi­nal re­port to the pres­id­ent on Fri­day.

The re­port says the U.S. En­vir­on­ment­al Pro­tec­tion Agency will is­sue a form­al “re­quest for in­form­a­tion” this sum­mer, at which point stake­hold­ers will be able to pro­pose re­com­mend­a­tions on how to im­prove the agency’s Risk Man­age­ment Pro­gram.

The agency would then pro­pose any po­ten­tial changes to the pro­gram next year, ac­cord­ing to the re­port. The doc­u­ment leaves open the pos­sib­il­ity that fi­nal de­cisions will not be made un­til after Obama leaves of­fice. There is “in­tent to fi­nal­ize such amend­ments in 2016, sub­ject to any tim­ing ad­just­ments that may be ne­ces­sit­ated by new in­form­a­tion,” the re­port says.

So far, the agency is con­sid­er­ing wheth­er re­act­ive and ex­plos­ive chem­ic­als — such as those that were to blame for the Texas ac­ci­dent — should be ad­ded to the list of sub­stances reg­u­lated by the pro­gram. The agency, along with the Oc­cu­pa­tion­al Safety and Health Ad­min­is­tra­tion, could also re­quire com­pan­ies to con­duct risk ana­lyses aimed at de­term­in­ing wheth­er they should switch to us­ing safer tech­no­lo­gies or sub­stances at their chem­ic­al fa­cil­it­ies, the re­port says.

“EPA or OSHA would not, however, de­term­ine spe­cif­ic tech­no­logy, design, or pro­cess se­lec­tion by chem­ic­al fa­cil­ity own­ers or op­er­at­ors,” the group adds.

The state­ment could hint at a po­ten­tial com­prom­ise between a co­ali­tion of labor and en­vir­on­ment­al groups, who have long called for the fed­er­al gov­ern­ment to is­sue rules re­quir­ing com­pan­ies to switch to safer tech­no­lo­gies, and in­dustry groups, who have lob­bied against the idea.

House Demo­crats re­cently at­temp­ted to in­sert a risk-as­sess­ment re­quire­ment sim­il­ar to the one sug­ges­ted by the in­ter­agency re­port in­to a bill that would ex­tend the life of the Home­land Se­cur­ity De­part­ment’s chem­ic­al se­cur­ity pro­gram. The Re­pub­lic­an ma­jor­ity re­jec­ted the amend­ment, however.

In­deed, in a state­ment Fri­day, the Amer­ic­an Chem­istry Coun­cil ex­pressed con­cerns about the pro­spect of such a re­quire­ment. The in­dustry group said it “could have the po­ten­tial for cre­at­ing an un­ne­ces­sary lay­er of du­plic­at­ive re­quire­ments that would only serve to cre­ate con­fu­sion for the reg­u­lated com­munity and stretch agency re­sources.”

The En­vir­on­ment­al Justice and Health Al­li­ance for Chem­ic­al Policy Re­form, mean­while, ex­pressed cau­tious op­tim­ism to­ward the re­port’s re­com­mend­a­tions.

“It’s clear that the [in­ter­agency group] listened to the voices of the com­munit­ies and work­ers most at risk of chem­ic­al dis­asters,” said Richard Moore, co-co­ordin­at­or of the act­iv­ist group. “There are re­com­mend­a­tions in their re­port that can help pre­vent dis­asters if they are en­acted. “¦ The ad­min­is­tra­tion now has to turn those words in­to “¦ reg­u­la­tions that are ad­op­ted with­in the next 18 months.”

Last month, Moore’s group re­leased an ana­lys­is as­sert­ing that com­munit­ies host­ing chem­ic­al fa­cil­it­ies “are dis­pro­por­tion­ately Afric­an Amer­ic­an or Latino, have high­er rates of poverty than the United States as a whole and have lower hous­ing val­ues, in­comes and edu­ca­tion levels than the na­tion­al av­er­age.”

In ad­di­tion the pos­sible changes to EPA and OSHA rules, the Home­land Se­cur­ity De­part­ment is con­sid­er­ing changes to its Chem­ic­al Fa­cil­ity Anti-Ter­ror­ism Stand­ards. In re­cent months the de­part­ment has been look­ing at the pos­sib­il­ity of adding ad­di­tion­al chem­ic­als to the list of those reg­u­lated by the pro­gram, ac­cord­ing to the in­ter­agency group’s re­port. The de­part­ment will pro­pose these and oth­er po­ten­tial changes in a pre­lim­in­ary rule­mak­ing no­tice, the re­port says, but it does not spe­cify when this would hap­pen.

The re­port also re­com­mends that Con­gress take sev­er­al ac­tions it says would im­prove the DHS pro­gram, in­clud­ing stream­lin­ing the “multi-step en­force­ment pro­cess” the de­part­ment must fol­low be­fore it can fine or shut down a fa­cil­ity.

“It is im­port­ant that, in ex­treme cir­cum­stances, DHS has the abil­ity to im­me­di­ately is­sue or­ders to as­sess civil pen­al­ties or to close down a fa­cil­ity for vi­ol­a­tions, without hav­ing to first is­sue an or­der call­ing for cor­rec­tion of the vi­ol­a­tion,” the re­port says.

Con­gress should also re­move an ex­emp­tion that pre­vents wa­ter treat­ment fa­cil­it­ies from be­ing reg­u­lated by the DHS pro­gram, the re­port says.

“Many wa­ter and wastewa­ter treat­ment fa­cil­it­ies may present at­tract­ive ter­ror­ist tar­gets due to their large stores of po­ten­tially high-risk chem­ic­als and their prox­im­it­ies to pop­u­la­tion cen­ters,” ac­cord­ing to the re­port.

In­dustry groups have long favored the ex­emp­tion, but House Re­pub­lic­ans in April did al­low an amend­ment to the CFATS reau­thor­iz­a­tion bill that calls for a third-party study that would as­sess wheth­er the clause cre­ates a se­cur­ity gap.

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