S 1781 Introduced – Accidental Release

Earlier this week I noted that Sen. Vitter (R,LA) introduced S 1781, General Duty Clarification Act of 2013. This is a much delayed companion bill to HR 888 which was introduced in the House last February. This bill (and its companion that has yet to be acted upon in the House) would restrict the ability of the Environmental Protection Agency to require, under the General Duty Clause of the Clean Air Act, the use of inherently safer technology as a security measure at chemical facilities with significant inventories of toxic inhalation hazard (TIH) chemicals.

This bill has no chance of being considered in either committee or on the floor of the Senate.

Reader Comment – 3-5-13 My Mistake on HR 888 Post

A sharp eyed reader caught me in a mistake on my blog post on HR 888 and the General Duty Clause. Anonymous wrote:

Not sure what you mean when you say "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."

The bill explicity states:

"Subparagraph (A) of section 112(r)(2) of the Clean Air Act(42 U.S.C. 7412(r)(2)) is amended"

and 112(r)(2)(A) is the definition of "accidental release," so it is that definition that is being amended. 

Anonymous is absolutely correct. In researching the amendment I looked just at the US Code reference in the parentheses and missed the “Subparagraph (A)” at the start of the sentence. This is one of the problems with the convoluted ways that legislation is written. You cannot find a current, up-to-date version of the Clean Air Act except by going to the US Code on the GPO web site.

To make matters more confusing there are always numbering differences between the legislation and the US Code; in this case §112(r)(2) vs §7412(r)(2). In this case the difference is minor and easily understood, but it can frequently get rather convoluted.

It would be so much easier if the amendments were made directly to the US Code and not the underlying legislation. It would make things so much simpler.

Having said that, this was clearly my mistake in reading the legislation, and I want to thank Anonymous for bringing the mistake to my attention so that I can correct the error. I have made an appropriate correction to the blog post.

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.

S 3529 Introduced – Clean Air Act General Duty Clause

Earlier this week Sen. Roberts (R,KS) introduced S 3529, the General Duty Clarification Act of 2012. This is essentially a companion bill to HR 6345; a bill that was introduced by Rep. Pompeo (R,KS). As I noted in that earlier blog post, these bills are intended to make it more difficult for the EPA Administrator from using the General Duty clause of the Clean Air Act to require high-risk chemical facilities to use substitute chemicals or processes as has been suggested by many activists.

A companion bill allows both branches of Congress to work on the same bill at the same time to potentially reduce how long it will take it to complete the consideration process. I called this ‘essentially a companion bill’ because the language in the two bills is not strictly identical. There are two minor, non-substantive wording changes; one in §2(a)(1)(B)(i) (some wording is moved into two new subparagraphs) and the other in §2(b) (a descriptive phrase is moved to the end of the sentence). Neither change should have any impact on the progress of these two bills.

Neither of these bills will receive any consideration before the election. If Romney wins, there will be no need for these bills to be considered; he would never allow his EPA to enforce such an action. If Obama wins there will be an attempt to pass these bills in the lame duck session as his EPA might consider such an attempt in his second term. Or it might not, there is certainly a mixed environmental agenda in the Obama Administration.

The House could certainly pass HR 6345, but the Senate will never see either bill make it to consideration by the Committee on Environment and Public Works, much less than to the floor for a vote. All of that could, of course, change next session depending on the results of the election.

HR 6345 Introduced – Clean Air Act General Duty Clause

On the last day that the House was in session, Rep. Pompeo (R,KS) introduced HR 6345, the General Duty Clarification Act of 2012. This bill is a legislative effort to address the recent petition to the EPA to have the EPA take actions under the ‘general duty’ clause of the Clean Air Act {42 USC 7412(r)(1)} to force chemical facilities with significant inventories of toxic inhalation hazard (TIH) chemicals to implement inherently safer technology (IST).

Amending Clean Air Act

This bill would not specifically prohibit the EPA from taking such enforcement action. Rather it takes a three pronged approach to making it difficult for the EPA to take such actions. First it would specifically require the EPA to promulgate regulations under which enforcement actions would be undertaken {§2(a)(2)(B)}.Second it would require the publish enforcement guidelines to ensure that the regulations were applied in a uniform manner in all EPA regional offices {§2(a)(2)(B)(iii)}. Finally it would modify the wording of the definition of ‘accidental release’ to eliminate releases resulting from an intentional act {§2(b)}.

General Duty Clause

The actual ‘general duty clause’ that everyone is talking about is actually a single sentence in 42 USC §7412(r)(1). That sentence reads:

“The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same extent as section 654 of title 29 to identify hazards which may result from such releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”

The key phrase in that sentence is “have a general duty in the same manner and to the same extent as section 654 of title 29”. Looking at that section of the US Code we see that each employer is required to provide “each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” {29 USC §654(a)(1)}. Since, based upon the historical record, neither terrorist attacks nor catastrophic releases are ‘likely’, the EPA would have a hard time justifying the use of this general duty clause to require IST implementation.

Of course, the ease of justification is not necessarily a controlling factor in political decisions.

Political Future

Given, however, the closeness of the presidential race, it is unlikely that the Obama administration would take action on the current petition before the election. Agreeing to the petitioners request would be used against the President on the campaign trail and ignoring the petition would have little effect on the support Obama would receive from the environmentalists.

As always, the election results could change everything. An Obama re-election coupled with a takeover of the House by Democrats might embolden EPA to favorably consider the general duty clause petition. This is especially true they do not get a super majority in the Senate as the Republicans could continue to block any IST legislation from being considered. An Obama loss would mean a virtual end to the general duty clause petition for the next four years, regardless of the results of Congressional elections.

In the meantime it is unlikely that this particular bill will go very far between now and the election. If it does come to the floor of the House it would likely be approved (okay highly likely). There is no way that Sen. Reid would bring it to the floor of the Senate in the short time between a House passage and the election; he would have an easy time justifying ignoring the bill (not that he needs any justification) because of the higher importance of other pending legislation.

We will certainly see this bill again in the 113^th Congress.