The National Environmental Justice Advisory Council, a federally sanctioned group that provides guidance on issues expected to disproportionately affect low-income and minority communities, said EPA authority under the Clean Air Act would allow the agency to require facilities to prevent catastrophic chemical releases.
“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” Homeland Security Department, the panel said in a letter it sent on March 16 to EPA Administrator Lisa Jackson.
The panel, which consists of industry officials, academics and community leaders, said “DHS is prohibited from requiring the use of safer chemical processes at facilities,” creating a situation that is “particularly threatening to low-income and tribal communities and communities of color because they frequently reside near waste water treatment plants, refineries and port facilities.”
The letter notes that the agency proposed to use this authority under Section 112(r) of the law – also known as the “General Duty Clause” -- in 2002 but never followed through on the matter. Under that proposal, the agency would have required 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.”
Stacy Kika, an EPA spokeswoman, said the agency is reviewing the letter.
The panel’s call essentially endorses recommendations a coalition of labor and environmental groups made to Jackson earlier this year.
The air law’s “general duty clause … obligates chemical facilities to prevent catastrophic releases,” members of the so-called BlueGreen Alliance noted in a January letter. The agency could use the clause to create “new prevention standards [that] could eliminate catastrophic chemical hazards to millions of people living downwind of ultrahazardous chemical facilities,” according to the message, whose signatories included the United Steelworkers, the International Chemical Workers Union Council and Physicians for Social Responsibility.
Chemical industry officials, however, oppose stricter rules under which the government would require facilities to upgrade to so-called inherently safer technology by switching to less hazardous chemicals or otherwise altering their procedures. For example, while environmentalists have backed a pair of bills introduced by Senator Frank Lautenberg (D-N.J.) that would require such upgrades, industry officials favor two bills pending in the House that carry no corresponding mandate.
Efforts to move chemical security legislation through Congress in recent months are running out of steam, however, due to a legislative turf war on Capitol Hill and the emergence of an internal DHS memo raising concerns about the department’s current program, sources close to the issue have said.
The internal memo reportedly says the program has been plagued by a litany of management issues, including a failure by Homeland Security personnel to complete reviews of security plans submitted by plants. Congressional officials have cited it as a reason to slow consideration of chemical security legislation.
“This memo has raised some serious questions concerning the management of the program, therefore we feel it would [be] imprudent to move legislation without getting some answers first,” Charlotte Baker, a spokeswoman for the House Energy and Commerce Committee, told Global Security Newswire last month.
In order for any pending chemical security legislation to advance, it must receive the blessing of House Energy and Committee leadership.
Some lawmakers and industry officials have defended the DHS Chemical Facility Antiterrorism Standards program. Representative Dan Lungren (R-Calif.), chairman of the House Homeland Security infrastructure protection subcommittee, said at a hearing last month that the government has “already spent $100 million” and that the private sector has spent “billions” to secure chemical facilities under the program. The memo should “not be misread to [suggest] we wasted money,” Lungren said.
William Allmond, vice president for government relations at the Society of Chemical Manufacturers and Affiliates, told Lungren’s panel that the security initiative has led more than 2,000 facilities to voluntarily take steps to “reduce their risk profile sufficiently that they no longer warrant regulation under the program.”
Facilities covered by the DHS program must submit plans for dealing with 18 areas of risk including physical protections, control of access, materials security, insider attacks and computer infiltration. As of Jan. 6, the program covered more than 4,000 high-risk sites, many of them chemical manufacturing facilities.
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