American Coatings Association

On Aug. 2, Rep. Mike Pompeo (R-Kan.) introduced a bill that would bar the U.S. Environmental Protection Agency (EPA) from regulating chemical facility security under the Clean Air Act's general duty clause. The General Duty Clarification Act (H.R. 634) comes in response to a petition filed last month by some 50 environmental and labor groups asking EPA to develop new chemical security regulations that would impose so-called “inherently safer technology” requirements, using what these groups contend is authority provided the agency under the general duty clause of Section 112(r) of the Clean Air Act Amendments of 1990.

According to Rep. Pompeo, the bill would leave chemical facility security under the exclusive jurisdiction of the Department of Homeland Security (DHS), not EPA. The bill has been referred to House Energy and Commerce Committee for consideration.

The legislation would require EPA to complete a rulemaking process before finding any facility in violation of the general duty clause related to accidental releases and require EPA to set definitions of several terms, including “extremely hazardous substance” and “appropriate hazard assessment techniques” in any related regulation.

In June, ACA responded to Congressional outreach to the industry and their trade associations to identify regulatory impediments to business innovation and competitiveness, and ACA voiced concern about this particular issue. ACA expressed concern that the heavy-handed approach that EPA is being urged to consider has been thoroughly considered by several Congresses and consistently rejected. ACA went on record in its letter stating that: “the program that Congress has developed and reauthorized on several occasions, the Chemical Facility Anti-Terrorism Standards (CFATS), while not yet fully implemented by DHS, has already accomplished many of the goals that the environmental advocacy groups claim to seek, including the fact that approximately 3,000 sites have reduced risk by voluntarily changing their ingredients or processes. The entry of EPA into this homeland security area will not improve security, but will create overlapping and duplicative requirements that will impose heavy new burdens on industry without improving security.”

In the same correspondence to Congress, ACA had also expressed concern about an Information Collection Request (ICR) entitled “Chemical Facility Anti-Terrorist Standards (CFATS) Personnel Surety Program (PSP),” which had been recently submitted by the U.S. Department of Homeland Security (DHS) last year. The ICR is a step in the creation of a regulatory standard for access into CFATS facilities, but instead of complying with the risk-based framework mandated by CFATS, as ACA pointed out, DHS deviated from Congress’ risk-based approach by prescribing a rigid program based on information gathering instead of a system that focuses on making a facility more secure.

Due to the major impacts the ICR has, along with the absence of any tangible security value this program will have on affected industries, ACA and other organizations had asked that the Office of Management and Budget (OMB) not allow this ICR to move forward, and DHS announced last week that it had withdrawn the ICR. 

The department indicated that it would re-evaluate its approach to the PSP requirement and would resubmit a new proposal at some future date

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