EPA Accidental Release Rule and CFATS

When I first started scanning through the final rule that the EPA published on Monday on “Accidental Release Prevention Requirements” two items caught my attention in the List of Abbreviations and Acronyms: CFATS and CVI. Given my interest in chemical security issues, I had to investigate.

Both terms were used multiple times in the discussion about comments on the EPA’s proposed change to 40 CFR 68.210 to require in a new paragraph (d) that “the owner or operator of a stationary source to provide, upon request by any member of the public residing within six miles of the stationary source, certain chemical hazard information for all regulated processes in the language requested”. Apparently a number of commentors thought that this requirement would violate provisions of the Chemical Facility Anti-Terrorism Standards (CFATS) program, specifically requiring them to disclose information classified as Chemical-terrorism Vulnerability Information (CVI).

While the CFATS program was terminated on July 28^th, 2023 because of the failure of the Senate to consider/approve HR 4470, the EPA in addressing these comments did not take the easy way out and simply note that the program no longer existed, effectively negating the potential legal concerns of the commentors. Instead, the preamble treats the comments as if the program were still in force.

The EPA staff notes that the issue for the CFATS program in general and for the CVI provisions specifically were addressed in the interim final rule that established the CFATS program in 2007. In discussing the potential conflict between community right to laws and the new CFATS program the IFR preamble noted that:

“To the extent that this approach conflicts with existing state “right to know” or “sunshine” laws, we believe that such laws are preempted by this IFR. At this time, we do not intend to displace or otherwise affect any provisions of Federal statutes [emphasis added], including the Emergency Planning and Community Right to Know Act, 42 U.S.C. 11001 et seq., or section 112(r) [emphasis added] and 114 of the Clean Air Act of 1990, as amended, 42 U.S.C. 7412(r), 7414, sections 308 and 402 of the Clean Water Act, 33 U.S.C. 1318, 1342, and section 104(e)(7) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9604.”

There is always going to be some tension between security concerns of high-risk chemical facilities and the needs of neighbors of those facilities to be aware of the potential local danger posed by those facilities. That knowledge would be a fundamental tool for the neighborhood and communities to plan for responses to accidental (or deliberately caused) chemical releases. Such planning is fundamental to risk management and thus reinforces chemical security mitigation.