On Dec. 9, U.S. Senator David Vitter (R-La.) introduced legislation, the General Duty Clarification Act of 2013, which would bar the U.S. Environmental Protection Agency (EPA) from regulating chemical facility security under the Clean Air Act's general duty clause to mandate installation of inherently safer technologies at chemical facilities. Sens. James Inhofe (R-Okla.) and Mike Crapo (R-Idaho) signed on as co-sponsors of the bill.
Vitter's bill is a companion to a House bill Rep. Mike Pompeo (R-Kan.) introduced last February, H.R. 888. ACA (American Coatings Association), along with a group of other trade associations and the U.S. Chamber of Commerce, issued statements supporting this legislation, pointing out that Congress explicitly assigned jurisdiction over chemical facility security to the Department of Homeland Security (DHS) in the Homeland Security Appropriations Act of 2007.
In 1990, Congress passed the Clean Air Act amendments, which codified section 112(r)(1), commonly known as the General Duty Clause. The General Duty Clause requires owners and operators of stationary sources to work to identify and prevent accidental releases of hazardous substances. The General Duty Clarification Act of 2013 would require U.S. EPA to issue a regulation within a year to clearly define facility obligations under the General Duty Clause of the Clean Air Act, and to ensure proper future application of the clause, based on Congressional intent. ACA and others have concerns 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.
"EPA has yet to issue any proposed rule detailing enforcement or compliance requirements. Regardless of these ambiguities and lack of guidance, in recent years, EPA has increasingly used the General Duty Clause to impose substantial penalties on facilities," ACA's letter stated. "This situation has created uncertainty for industry, leaving questions about how compliance is measured and when compliance has been achieved."
Both the Senate and House bills closely mirror legislation introduced by Rep. Pompeo in 2012. Pompeo drafted his bill in response to a petition filed by some 50 environmental and labor groups that asked EPA to develop new chemical security regulations. The environmentalist groups' petition, along with two separate editorials published in the New York Times, urged EPA to impose so-called "inherently safer technology" requirements on the chemical industry, using authorities that these groups contend the general duty clause of Section 112(r) of the Clean Air Act Amendments of 1990s provide the agency.
"Rules and regulations need to be uniformly applied and understandable in order to be effective, especially when it concerns safety," Vitter said in a statement accompanying the bill. "The General Duty Clarification Act will clarify outdated and vague language within the Clean Air Act, which the Agency inconsistently applies to penalize facilities across the country. As the General Duty clause stands right now, EPA is able to manipulate the law and could even bypass Congress to create duplicate, unnecessary, and often inappropriate regulations for facility security."
The bills affirm that chemical facility security would remain under the exclusive jurisdiction of the Department of Homeland Security (DHS), thus precluding EPA regulation.
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