Rules on chemical plants are not as strong as envisioned
During the 2008 presidential campaign, Barack Obama promised to establish regulations to secure chemical plants. The impetus was concern both about industrial accidents and the possibility of large-scale terrorist attacks.
After years of failed attempts to pass a new law and come up with new administrative regulations, a final regulation was released in December 2016.
That regulation has been attacked as not going far enough by activist groups.
The first attempt to enact changes came in an administration-backed chemical-security bill (H.R. 2868) that passed the House on Nov. 6, 2009, but died in the Senate in 2010.
Then, in 2013, following a fatal fertilizer explosion in West, Texas, Obama told EPA to produce new regulations on chemical facility safety. That process took more than three years.
On Dec. 21, 2016, EPA Administrator Gina McCarthy signed a final rule that modifies the agency's Risk Management Program. The new regulations focus on "coordination of emergency response efforts as well as local preparedness, but leave it up to companies to decide whether or not to implement safer alternatives in their practices, such as a using a less toxic chemical or a less dangerous industrial process," according to a Center for Public Integrity analysis.
"One of the key issues is to make sure that there's full knowledge between the facility operators and the local responding community to make sure that they understand who is responding and who has the responsibility to respond," said Mathy Stanislaus, who heads the EPA office of land and emergency management.
But those supporting Obama's initial push for tough regulations expressed disappointment.
"Both Obama's bill in the Senate and his administration set principles that would have required all chemical facilities to assess safer alternatives and require the highest risk plants to use the safest alternative wherever feasible," said Rick Hind, the legislative director for Greenpeace USA. By contrast, he said, the new EPA rule "only requires 12 percent of 12,500 facilities to assess safer alternatives, and it requires none to use safer alternatives, even if they're found to be feasible. And it doesn't even require the assessments to be submitted to EPA."
All told, in Hind's view, "This is not only a betrayal of Obama's own leadership and legacy, it's also a betrayal of the more than 100 million people living and working downwind in what EPA calls 'vulnerability zones.'"
Industry comment was muted in the immediate aftermath of EPA's announcement. The Center for Public Integrity report quoted Shannon Broome of the Chemical Safety Advocacy Group, an industry group, raising concerns about the EPA's process but not commenting on the substance of the rule.
Partly because of its passage so late in the Obama administration, the new rule will be vulnerable to being changed or overturned by the incoming Trump administration.
The rule is not final until it is published in the Federal Register, and then it would take effect in 60 days unless the Trump administration decides to amend it through new rule process. In addition, Congress could challenge it within 60 legislative days under the Congressional Review Act.
Separately, Obama signed a four-year reauthorization of Chemical Facility Anti-Terrorism Standards, but those had already been in place since 2007. And he also signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, but this law had less to do with plant security.
All told, the EPA rule is a tangible accomplishment by the Obama administration, but its reach is much narrower than the bill the administration itself had tried to enact earlier in Obama's tenure. We rate it a Compromise.
Center for Public Integrity, "EPA issues controversial rule designed to improve safety at chemical facilities," Dec. 22, 2016
White House, "Executive Order -- Improving Chemical Facility Safety and Security," Aug 1, 2013
Environmental Protection Agency, "EPA Amends its Risk Management Program for Chemical Facilities," Dec. 21, 2016
Environmental Protection Agency, summary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, accessed Dec. 23, 2016
The Hill, "EPA looks to mitigate chemical plant disasters," Dec. 21, 2016
National Law Review, "EPA Administrator Signs RMP Final Rule," Dec. 21, 2016
Email interview with Rick Hind, legislative director for Greenpeace USA, Dec. 22, 2016
Despite administration efforts, Congress still balking at new regulations
The Obama administration's proposal for tighter security standards at chemical plants as a way of deterring terrorist attacks has foundered in recent years.
During the 2008 campaign, Obama promised to "establish a clear set of federal regulations that all plants must follow, including improving barriers, containment, mitigation, and safety training, and, where possible, using safer technology, such as less toxic chemicals."
Regulations of this sort do exist -- they're known as the Chemical Facility Anti-Terrorism Standards and were enacted before Obama took office -- but critics argue that these rules are inadequate. Obama sought to strengthen the federal government's authority by requiring chemical manufacturers to use safer processes and eliminate disaster risks.
This approach was floated, briefly, as policymakers responded to the September 11, 2001, terrorist attacks. Christine Todd Whitman, the Environmental Protection Agency director under President George W. Bush and a former governor of chemical-plant-heavy New Jersey, has written that she considered using "existing authority in the Clean Air Act” that would legally obligate chemical facilities to design and operate in ways that prevent catastrophic releases.
But the administration decided to seek legislative approval rather than have EPA do it unilaterally. "Unfortunately, and much to my frustration, after a long, multiagency effort, the White House declined to endorse a draft bill, and Congress did not act on its own,” Whitman wrote.
According to Greenpeace, one of the groups pushing for tougher standards, the existing rules explicitly exempt thousands of chemical and port facilities, including approximately 2,400 water treatment facilities and an estimated 400 facilities located on navigable waters, including a majority of U.S. oil refineries. It also prohibits DHS from requiring any specific "security measure.”
The closest the federal government has come to strengthening EPA's authority was the House's passage of H.R. 2868, which passed the House in 2009 on a 230-193 vote but died in the Senate. Concerns by Republicans and industry centered on potential job losses spawned by additional federal requirements.
Bills sponsored by Sen. Frank Lautenberg, D-N.J., to require upgrades to "inherently safer technology” remain stalled in the Senate.
Rick Hind, Greenpeace's legislative director, said Obama's promise hasn't been fulfilled yet. "They are working on a new policy, but we have not been given any details about what they are considering,” Hind said.
We recognize that the administration has been working on this issue and has largely been stymied by Congress. For now, we rate it a Promise Broken.
Text of H.R. 2868
Congressional Budget Office, "Continuing Chemical Facilities Antiterrorism Security Act of 2010 (H.R. 2868) Cost Estimate," Nov. 16, 2010
Christine Todd Whitman, "The Chemical Threat to America" (New York Times op-ed), Aug. 29, 2012
Global Security Newswire, "Chemical Security Legislation Effort Deflates, Advocates Eye EPA," March 16, 2012
Email interview with Rick Hind, legislative director for Greenpeace, Dec. 6, 2012
House passed bill to regulate chemical plants
On Nov. 6, 2009, the House passed the Chemical Facility Anti-Terrorism Act of 2009 by a vote of 230 to 193. Among other things, the bill establishes regulations of security practices at chemical, wastewater and drinking water facilities. It authorizes the secretary of Homeland Security to designate any chemical substance as a substance of concern and sets the threshold quantity for each such substance based on the risks that could result from a terrorist incident. It also includes a number of other provisions that would satisfy the details of President Obama's campaign promise.
In addition, the bill would also make permanent the DHS' Chemical Facility Anti-Terrorism Standards for chemical facilities, wastewater treatment plants and drinking water systems.
The bill has the support of both Obama and the Department of Homeland Security, but has been opposed by a number of Republicans who say the bill would impose burdensome regulations on many small businesses, costing some up to hundreds of thousands of dollars to switch to "inherently safer" technologies that some claim are not always proven to be safer.
In the meantime, the existing Chemical Facilities Anti-Terrorism Standards Act, which allows the Department of Homeland Security to regulate the security measures at high-risk chemical facilities, was extended to 2010.
The ball is now in the Senate's court. We move this one to In the Works.
Library of Congress, H.R. 2868, To amend the Homeland Security Act of 2002 to enhance security and protect against acts of terrorism against chemical facilities
GOP.gov (the Web site of Republicans in Congress), The Chemical Facility Anti-Terrorism Act of 2009
New York Times, "Opinion: You Don"t Want to Be Downwind," Nov. 9, 2009