A decades-long battle to improve chemical plant safety has stalled despite an Executive Order that has created the greatest recent opportunity to issue strong regulations.
In May 2014, an inter-agency working group that includes the Environmental Protection Agency (EPA) released a report to the president as directed by the 2013 Executive Order. The report proposed a three-step process to improve chemical plant safety: 1) an alert to industry within a year 2) voluntary guidance to chemical operators and 3) the consideration of regulations before the end of fiscal year 2016.
The painstakingly slow timeline outlined in the report creates unnecessary delays, and the vow to merely consider regulations is not sufficient to ensure that new prevention requirements will be adopted. Section 6 of the Executive Order establishes tasks for the working group “in order to enhance safety and security in chemical facilities by modernizing key policies, regulations, and standards.” Modernizing such procedures will require more than “considering” regulations; it will require finalizing and implementing new requirements that reduce hazards and protect workers and communities.
The inadequate plan laid out in the report is consistent with the EPA’s historical unwillingness to exert its authority on chemical safety. The Clean Air Act (CAA) amendments of 1990 grant the agency clear authority to issue regulations requiring safer processes, yet the EPA has failed to pursue this route. Now the agency appears reluctant to act on the open invitation presented by the President’s Executive Order.
On June 8, the EPA released an alert to the petro-chemical industry promoting the use of safer processes, just missing the report’s first deadline and demonstrating why the three-step plan jeopardizes the enactment of chemical safety policies before President Obama leaves office. This would be a lost opportunity given the President’s longstanding support of chemical safety improvements.
Now that the alert has been released, the next two steps—voluntary guidance and the consideration of regulations—should follow immediately and simultaneously. During a June 19th Inter-Agency webinar update, the only information regarding a timeline for the release of the guidance was that it would be issued before the fall of 2016—dangerously close to the end of this administration.
In terms of regulations, the EPA has pledged to issue proposed rules in September of this year. Typically it takes 12-15 months to finalize rules due to public comment periods, revisions, deliberations, etc. Even if the EPA does follow its current timeline, the earliest that rules could be finalized is September 2016 when they will predictably face more hurdles. The Congressional Review Act (CRA) passed in 1996 by Newt Gingrich’s Congress allows for a 60-day period to issue a resolution of disapproval on passed legislation. However, those are 60 days that Congress is in session, which translates to several months (Congress was in session for only 112 days in 2014). If such a resolution of disapproval is passed after President Obama leaves office in January 2017, then a new President could sign a CRA bill and dissolve the new rules.
The lengthy, bureaucratic road ahead for chemical plant safety rules is well understood by executive agencies, yet they have been dragging their feet for almost two years since the Executive Order was issued. Their glacial pace is needless, particularly since Bush EPA administrator Christine Todd Whitman drafted chemical plant safety rules in 2002, giving the current EPA a very generous outline to work from.
Last week’s attack on a U.S.-owned chemical facility in France is a stark reminder of the security vulnerabilities at chemical facilities. This intentional use of chemicals to cause harm is not isolated and follows reports earlier this year of chlorine gas attacks in Iraq. Eliminating the use of poison gases and other inherently dangerous processes would prevent catastrophic consequences of attacks that exploit current gaps in safety and security practices at chemical facilities.
Beginning next week, there will be a four-part series leading up to the second anniversary of Executive Order 13650 “Improving Chemical Facility Safety and Security” issued by President Obama on August 1, 2013.
