Environmental Justice and Chemical Security: Why EPA Should Use the General Duty Clause to Protect Vulnerable Communities

Around the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day.  According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster.  Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills.

In March, EPA’s National Environmental Justice Advisory Council (NEJAC) formally recommended that the agency expand its use of a little-known, and even lesser-used, part of the Clean Air Act called the General Duty Clause (GDC), which was passed in the wake of the Bhopal disaster.  The GDC states that “owners and operators of stationary sources producing, processing, handling, or storing chemicals listed under 40 C.F.R Part 68 or any other extremely hazardous substances have a general duty to:

1. identify hazards which may result from chemical releases using appropriate hazard assessment techniques,
2. to design and maintain a safe facility taking such steps as are necessary to prevent releases, and
3. to minimize the consequences of accidental releases which do occur.

This is a powerful legal standard—and a rather unique one as well—requiring owners and operators of facilities to take proactive steps usually reserved for regulators.  The strength of a statute that demands avoidance rather than reaction should not be understated.  Furthermore, the GDC not only requires proactive behavior, it also gives regulators a proven tool with which to punish violators, including penalties and injunctive relief.

NEJAC’s recommendation, in a letter to Administrator Lisa Jackson, lists a litany of chemical releases, train derailments, explosions, and fires that have created life-threatening conditions for poor and minority communities around the country in just the past few years.  Because facilities like ports, refineries, and other chemical processing facilities tend to be located in poor, minority, and tribal communities, those communities are more likely to suffer when accidental releases do occur.  As NEJAC points out, EPA does not need expanded authority to address this problem.  It need only use the authority it has under the GDC to begin reducing and eliminating unwanted and potentially catastrophic risks.

Former EPA administrator Christine Todd Whitman echoed NEJAC’s concerns in a separate letter to Lisa Jackson in April, noting the remarkable security vacuum created by Congress’ unwillingness to properly regulate facilities that use hazardous chemicals.  In her letter, Whitman highlighted her frustration when in 2002, just months after the September11^th attacks, EPA sought legislative authority to address security risks posed by facilities using hazardous chemicals.  Predictably, Whitman was rebuffed by the Bush White House and saw her mission further undermined when Congress passed a watered down Homeland Security appropriations bill four years later.  Whitman closed her letter by calling for EPA to begin using the GDC to address security risks, rather than wait for Congress to act.

Indeed, because of the national security risk posed by hazardous chemicals, the astute reader would assume that the Department of Homeland Security (DHS) has strong oversight authority over facilities that produce, store, handle, and process hazardous chemicals.  In fact, although it has some power to regulate in this area, DHS is prohibited by statute from requiring safer chemicals at certain facilities.  After years of “recognizing” the problem, but doing nothing about it, Congress passed a temporary chemical security law in 2006 as part of a DHS Appropriations Bill.  Sadly, but predictably, that bill—written with the help of chemical industry lobbyists—is incredibly weak and actually exempts thousands of water treatment plants and port facilities from being required to use safer chemicals in their processes.  Years later, the situation is unimproved:  in 2009, Congressional inaction continued when the Senate companion to a comprehensive House chemical security bill died in committee.

For years, environmental justice advocates have pointed out the grave threat posed by facilities that use hazardous chemicals.  Voices within both the Bush and Obama administrations have also argued for better chemical security, only to be ignored or silenced by intransigent politicians.  Nevertheless, while DHS has its hands tied by weak legislation and a lack of authority, EPA, with the GDC, does not.  Using the GDC in the way it was meant to be used would be a meaningful step toward avoiding the unnecessary deaths and injuries caused by chemical releases.

I know a little about the GDC.  As an attorney at EPA, I helped bring the first administrative case under the GDC in Region 9.  In our case, a company that used liquefied ammonia as a refrigerant for storing and processing its food products failed to take necessary steps to prevent accidental releases.  Because of the company’s negligence, it experienced two ammonia leaks, the second of which sent a cloud of ammonia gas onto the property of the adjacent company, resulting in injuries to dozens of employees.  One man was trapped in the gas cloud, falling unconscious and ending up in the hospital for several days.  Rescuers were unable to approach the man because of the intensity of the gas, so, after he came to several minutes later, the man ran for cover and treatment. 

In that case, the first accidental release indicated clear equipment and facility design problems—using incompatible materials, failing to identify clear hazards—that posed a potential hazard not only to the employees of that company, but to the community surrounding the facility, which includes several childcare facilities.  When the second accidental release occurred, EPA required several immediate steps to mitigate potential hazards, and later settled with the company for a substantial penalty and an agreement by the company to change their refrigeration system to use less hazardous materials.  Although the effort was responsive rather than preventive, the community is much safer after EPA actively used its GDC authority.

Federal environmental regulation of hazardous chemicals usually falls into two categories: responsive authority for accidents, under such statutes as CERCLA and RCRA, and reporting requirements under those and other statutes.  However, reporting requirements and related inspection demands often create a high workload problem that, in combination with relatively weak penalties for reporting violations, can render that prong of regulation relatively toothless.  Meanwhile, responsive authority is greatly beneficial but extraordinarily expensive.  Once hazardous materials are spilled or disposed of improperly, cleaning them up and mitigating the harm can cost the agency, and any responsible parties it can successfully identify and pursue, tens, sometimes hundreds, of millions of dollars.  Between the dwindling coffers in the Superfund and cuts to EPA’s budget, waiting until after accidents happen can often be too little too late.

The GDC provides EPA with a tool that it can use to take a more proactive approach to preventing chemical disasters, whether they are caused by corporate negligence, terrorism, or other causes.  It places the onus on companies themselves to identify potential hazards, to take steps to both minimize those hazards, and to mitigate any consequences if accidents do occur.  It also requires fewer governmental resources than responding to chemical disasters and accidental releases requires.  NEJAC and former Administrator Whitman are right in calling for EPA to use the authority it already has to address the serious risks posed by facilities that are using extremely hazardous substances in what amounts to a regulatory vacuum.