HR 888 and the General Duty Clause

As I noted earlier HR 888, the General Duty Clarification Act of 2013, was introduced this week by, Rep. Pompeo (R,KS). I reported that it was probably based upon HR 6345 from the 112^th Congress that was also introduced by Pompeo. While ‘based upon’ is correct, there are some significant differences between the two bills.

Purpose of HR 888

While not specifically stated in the proposed legislation, this bill was crafted in response to efforts by many in the environmental activist community, including former EPA Administrator Whitman, to have the EPA utilize the Clean Air Act General Duty Clause {42 USC 7412(r)} to require high-risk chemical facilities with significant inventories of toxic inhalation hazard (TIH) chemicals of interest (COI) to use inherently safer technologies (ISTs) to prevent the release of such TIH chemicals in the event of a terrorist attack.

The chemical industry has successfully convinced enough Senators that IST is not an effective method of regulating chemical facility security that legislative attempts to impose such requirements have not been successful. The current House leadership and Republican majority also oppose the government imposition of IST requirements. This is an attempt by IST as-a-security-measure opponents to stop an administrative bypass of the legislative log jam preventing IST imposition.

Changes in Current Bill

This bill, like its predecessor, modifies the provisions of the Clean Air Act found at The removed section was found in 42 USC 7412(r). There are four significant changes in HR 788 as compared to HR 6345; one paragraph was removed, two were modified and one was added.

The removed section was found in the §2(a) where it would have (in HR 6345) added 42 USC 7412(r)(1)(i) that provided a limitation of the authority of the General Duty clause that read:

“No entity may be found to be in violation of this paragraph until the Administrator promulgates final regulations under clause (ii) and issues internal enforcement guidelines under clause (iii).”

Not including this section allows the EPA to continue to use the General Duty Clause in the limited way that it has been to this point. It would also not stop the EPA from expanding those actions to include the imposition of IST provisions while the regulatory process put into place by the additions made by this bill.

The two additions in this new version of the bill would add time limits for the Administrator to complete regulatory actions under a new 42 USC 7412(r)(1)(B). The first would require regulations to be developed within 12 months of the enactment of the bill that would establish criteria for defining certain key terms used in the General Duty Clause:

• ‘Extremely hazardous substance;

• ‘Appropriate hazard assessment techniques; and

• ‘Design and maintain a safe facility’.

The second addition would add an 18 month time limit to the new paragraph that requires the Administrator to “issue guidelines to ensure that enforcement of this paragraph is handled by the regional offices of the Environmental Protection Agency in a uniform and appropriate manner across all regions of the United States”. This is being added to address the appearance of significantly different interpretations of the General Duty Clause as it is being used now and to ensure that any subsequent IST provisions provided for in the regulations would be equally applied across the country.

This single new item found in this version of the bill (as opposed to HR 6345) would be the addition of §2(c) which would add 42 USC 7412(r)(12):

“In exercising any authority under this subsection, the Administrator shall not, directly or indirectly, impose any obligation on any owner or operator of any stationary source to consider or implement particular designs, approaches, or technologies relating to manufacturing, processing, handling, or storage.”

Without the addition of this language there was nothing in the earlier bill that would have stopped the Administration from writing regulations that would have allowed the Administrator to require some sort of IST requirement for high-risk chemical facilities. Even under this wording an IST regulatory provision similar to the one found in S 68 could be included as long as the wording was generic enough to avoid the ‘particular [emphasis added] designs, approaches, or technologies’ standard.

General Duty Clause and CFATS

As I noted earlier, as soon as this bill was introduced a letter was sent to the authors of this bill (and the Committee Chair that would deal with the legislation) supporting the bill. The final sentence in the letter reads:

“Finally, the bill would also ensure proper application of the clause by affirming that jurisdiction of chemical facility security remains with the Department of Homeland Security, as Congress intended.”

While that may be what the various chemical associations signing the bill believe to be its intent, there is nothing in the wording of HR 888 that I see that makes that declaration. In fact, even if it did so state, an IST application of the General Duty clause could still be made (subject to the ‘particular’ restriction I have already noted) to prevent an accidental release of these chemicals as opposed to a deliberate release caused by terrorists.

In fact, there is one provision of this bill (both versions) that would reinforce this idea. Section 2(b) would amend 42 USC 7412(r)(2) by “inserting before the period at the end the following: “, other than such an emission resulting from an act intended to cause harm”.” Unfortunately the referenced paragraph consists solely of four separate definitions and, as worded, this change cannot modify any of the definitions except perhaps for the one for ‘retail facility’ (the final definition), but that would make no regulatory or factual sense. It more probably should have been appended to 42 USC 7412(r)(1) or possibly 42 USC 7412(r)(2)(A).

NOTE: The previous paragraph contained a major mistake as pointed out by Anonymous in the comment below. The paragraph should have read:

In fact, there is one provision of this bill (both versions) that would reinforce this idea. Section 2(b) would amend 42 USC 7412(r)(2)(A) by “inserting before the period at the end the following: “, other than such an emission resulting from an act intended to cause harm”.” This would still allow EPA to require an IST review to prevent a potential accidental release. [3-5-13 17:20 CST]

Moving Forward

This bill will be considered by the House Energy and Commerce Committee where it will certainly pass, hopefully with the poorly crafted §2(b) corrected in a party line vote. The same will happen if/when this bill is brought to the floor of the House for a vote. IST proponents in the Senate will ensure that it receives no consideration in Committee or on the floor of the Senate.