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ACA Cheers Plan to Pre-empt EPA Rules

Saturday, August 11, 2012

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Coatings manufacturers, chemical makers and other business groups are cheering a new federal bill that would bar the U.S. Environmental Protection Agency from regulating chemical facility security.

Introduced Aug. 2 by Rep. Mike Pompeo (R-KS), the General Duty Clarification Act (H.R. 634) comes in response to a recent petition by dozens of environmental and labor groups that are seeking new rules by EPA.

 Rep. Mike Pompeo
Rep. Mike Pompeo (R-KS) says EPA has been too aggressive in enforcing a regulation that it has not adequately defined.

The 50 groups had asked EPA to use its authority under the federal Clean Air Act’s General Duty Clause to develop new chemical security regulations for facilities that handle chemicals. The rules would impose so-called “inherently safer technology” requirements on the facilities.

‘Broad and Confusing’

Pompeo’s 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 bill targets the General Duty Clause in the Clean Air Act’s section on Accidental Release. The clause states that facilities using or possessing chemicals have a “general duty” to identify hazards that may result from a chemical release and to take “necessary steps” to prevent such releases.

The directive, which Pompeo calls “broad and confusing,” applies to coating and chemical manufacturers, oil and gas producers,  refineries and other manufacturers.

Violations Cited

“EPA has found numerous facilities in violation of the Clean Air Act’s General Duty Clause, even though EPA has yet to define this provision in any detail or issue a regulation under it,” said a statement by Pompeo.



Environmental groups had asked the EPA to develop new chemical security regulations. Coating makers called the plan “heavy-handed.”

“In addition, environmental special-interest groups have urged EPA to utilize the General Duty Clause to regulate chemical site security—a clear encroachment on the Department of Homeland Security’s jurisdiction.”

Pompeo says EPA’s Region 6 (AR, LA, TX, OK and NM) issued 23 Administrative Orders in 2011 related to the General Duty Clause, with fines totaling $108,743. The same year, EPA’s Region 1 (New England) fined two manufacturing facilities a total of $179,000 for violations of the clause.

Bill Highlights

Pompeo’s bill would require EPA to complete a rulemaking process before finding any facility in violation of the General Duty Clause related to accidental releases. It would also:

• Require EPA to define “extremely hazardous substance,” “appropriate hazard assessment techniques,” and “design and maintain a safe facility” in any General Duty Clause regulation.

• Require EPA to issue guidelines to ensure that its enforcement procedures are uniform nationwide; and

• Prohibit EPA from regulating chemical facility security under the General Duty Clause, reinforcing exclusive jurisdiction under the Department of Homeland Security.

Pompeo called the proposal “a proactive and commonsense step” to clarifying chemical safety laws.

On July 31, the U.S. Chamber of Commerce, American Chemistry Council, National Association of Manufacturers and 14 other industry trade associations sent a letter  to members of the U.S. House of Representatives endorsing Pompeo’s bill.

In recent years, the groups wrote, "EPA has increasingly used the General Duty Clause to impose substantial penalties on facilities,” despite the provision’s “ambiguities and lack of guidance.”

“This situation has created uncertainty for industry, leaving questions about how compliance is measured and when compliance has been achieved.”

‘Heavy-Handed Approach’

The American Coatings Association, which represents coating manufacturers, did not sign that letter, but it strongly favors Pompeo’s proposal.

Coincidentally, the issue arose just after ACA wrote to Congress, detailing the coating makers’ wish list for lightening the regulatory load on business.

Congress had asked business groups to identify regulatory impediments to business innovation and competitiveness. ACA responded in June with a number of concerns, including the issue of chemical facility security.

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.”

The letter said that DHS’s Chemical Facility Anti-Terrorism Standards (CFATS), already authorized and reauthorized by Congress, “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,” ACA said.

Information Gathering Criticized

In the same correspondence, ACA also expressed concern about an Information Collection Request (ICR) that DHS issued last year under CFATS. Coating makers said the request was too broad, too onerous, too rigid, and would not improve chemical security.

ACA and other organizations had asked that the Office of Management and Budget (OMB) to block the ICR, and DHS announced last week that it had withdrawn the plan.


Tagged categories: American Coatings Association (ACA); Certifications and standards; Coatings manufacturers; EPA; Regulations

Comment from James Johnson, (8/13/2012, 11:05 AM)

Considering that each of the 50 states has their own Environmental Agency, and the radical over reach of the federal EPA, I believe it is time the federal EPA become an advisory agency only with no enforcement powers at all. There may have been good intentions when the agency was formed, but today they have turned into a radical left wing detriment to the welfare of the nation. It is time this be brought to a halt, particularly in light of the fact that the enumerated powers of the Constitution does not give this power to the federal government. The very existence of the agency itself is an over reach of power.

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