An editorial appearing in the New York Times last week reads more like a teaser to an action movie – overblown and out of touch (“The Risk From Chemical Plants,” May 3, 2012). All one needs to do is take a closer look at the facts to get an accurate picture of the progress that has been made in securing chemical facilities and safeguarding our communities.
Risk Management, Accident Prevention
The Clean Air Act Amendments of 1990 required EPA to develop a program to address chemical accident prevention at facilities using extremely hazardous substances. The Risk Management Plan Rule (RMP Rule) required companies of all sizes that use certain flammable and toxic substances to develop a comprehensive Risk Management Program. This program encompasses hazard assessments, rapid responses to worst case scenarios, accident prevention and emergency response, and public notification procedures.
For years, the information provided by facilities to EPA has assisted local fire, police, and emergency response personnel to prepare for and respond to chemical accidents in a way that protects the communities in which they serve.
After 9/11, Congress gave the Department of Homeland Security (DHS) the authority to regulate chemical security in order to address the threat of a potential terrorist attack on a facility. The Chemical Facility Anti-Terrorism Standards (CFATS) provides DHS with the full authority to fine or shut-down a facility that fails to act.
When it comes to CFATS, here’s what the New York Times really missed. Out of the initial group of more than 7,000 high risk chemical facilities identified by DHS, approximately 1,600 facilities are no longer deemed high risk under the CFATS regime because of the strong actions taken to enhance security at these facilities.
And CFATS is by no means the only program that addresses security at facilities that manufacture or utilize chemicals. In fact, there are several others that specifically address water systems and port facilities.
Further Legislation Remains Unnecessary
Despite this progress, it appears that others still think EPA should proceed by inappropriately using the Clean Air Act to create another program. That idea, as the editorial states, was floated once before.
However, at that time, the Department of Justice was opposed to the idea, the Department of Labor believed it was illegal, and even EPA staff conceded at the time that doing such raised a host of legal and policy issues that made pursuing this strategy inefficient and not worthwhile. Only the enactment and implementation of programs that specifically address security have been changed since then.
To help clarify these issues, the House Committee on Energy and Commerce recently sent a letter to the EPA outlining the legal challenges and pointing out that Congress has already enacted legislation to specifically address security at chemical facilities.
The fact is sensible federal regulation to control risks at chemical facilities is already in place. The “clear and present danger” that may still exist comes from the severe economic impacts that would result from duplicative and unnecessary regulations.