With no near-term prospects for advancing legislation to allow the federal government to mandate the use of so-called “inherently safer technologies” (IST) at chemical facilities and water utilities, some green groups have instead begun to urge EPA to force chemical substitutions through what they claim is the agency’s existing authority under the Clean Air Act.
The effort began in earnest in March, when EPA’s National Environmental Justice Advisory Council (NEJAC) wrote to EPA Administrator Lisa Jackson arguing that the “General Duty Clause” of the 1990 Clean Air Act Amendments, Section 112(r), provides EPA with broad authority to prevent potentially catastrophic releases of chemicals for which a risk management plan (RMP) is required. According to NEJAC, this authority allows EPA to direct a facility to eliminate the storage and use of covered chemicals such as gaseous chlorine. Under this interpretation, EPA would need no further authorization from Congress to begin policing the use of chemicals such as gaseous chlorine by drinking water systems. Greenpeace and several other pro- “IST” advocacy organizations quickly endorsed NEJAC’s position, and are now urging their supporters to petition President Obama in support of this new method to impose an “IST” mandate.
Somewhat surprisingly, Christine Todd Whitman, a former EPA administrator in the Bush Administration, also endorsed this approach in her own April 3 letter to Administrator Jackson. Todd Whitman wrote that under her leadership EPA “seriously considered” using the general duty clause to increase its regulatory coverage of chemical facilities following the September 11 terrorist attacks, and that the CFATS legislation eventually passed by Congress in 2006 “is extremely limited” because it does not allow the government to impose “IST” mandates on chemical facilities, and does not include coverage of water treatment plants. For these reasons, Todd Whitman wrote that she “fully support[s]” EPA’s use of the general duty clause to “reduce these hazards before a tragedy of historic proportions occurs.”
Despite the growing interest in using Section 112(r) as a backdoor path to imposing “IST” mandates, the EPA has yet to signal any openness to the idea. Congressional Democrats, who have supported “IST” mandates in the past, have also remained mum on the matter. But Republican congressional staff have privately said that they are keeping an eye on the issue, and pledged that GOP members would strongly oppose such a use of the general duty clause should EPA take any steps in that direction.
Similarly, consistent with its established position on federal “IST” mandates for drinking water systems, AMWA would oppose any attempt by EPA to use Section 112(r) to circumvent Congress on this matter. But in the absence of any firm proposal from EPA, AMWA staff will continue to monitor the issue and provide updates to member utilities as necessary.