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U.S. Panel: No Decision on Tougher Chemical Security Rules Until 2016

By Douglas P. Guarino

Global Security Newswire

The remains of an apartment complex next to the fertilizer plant that exploded on April 18, 2013, in West, Texas. A final decision on whether to issue tougher chemical security and safety rules likely will not be made until at least 2016, according to a federal report issued Friday. The remains of an apartment complex next to the fertilizer plant that exploded on April 18, 2013, in West, Texas. A final decision on whether to issue tougher chemical security and safety rules likely will not be made until at least 2016, according to a federal report issued Friday. (Erich Schlegel/Getty Images)

A final decision on whether to issue tougher chemical security and safety rules likely will not be made until at least 2016 -- three years after the tragic explosion of a fertilizer plant in Texas, a federal working group says.

The interagency panel, which is acting under an executive order President Obama issued after the April 2013 disaster killed 14 people and leveled homes in the small city of West, issued its final report to the president on Friday.

The report says the U.S. Environmental Protection Agency will issue a formal "request for information" this summer, at which point stakeholders will be able to propose recommendations on how to improve the agency's Risk Management Program.

The agency would then propose any potential changes to the program next year, according to the report. The document leaves open the possibility that final decisions will not be made until after Obama leaves office. There is "intent to finalize such amendments in 2016, subject to any timing adjustments that may be necessitated by new information," the report says.

So far, the agency is considering whether reactive and explosive chemicals -- such as those that were to blame for the Texas accident -- should be added to the list of substances regulated by the program. The agency, along with the Occupational Safety and Health Administration, could also require companies to conduct risk analyses aimed at determining whether they should switch to using safer technologies or substances at their chemical facilities, the report says.

"EPA or OSHA would not, however, determine specific technology, design, or process selection by chemical facility owners or operators," the group adds.

The statement could hint at a potential compromise between a coalition of labor and environmental groups, who have long called for the federal government to issue rules requiring companies to switch to safer technologies, and industry groups, who have lobbied against the idea.

House Democrats recently attempted to insert a risk-assessment requirement similar to the one suggested by the interagency report into a bill that would extend the life of the Homeland Security Department's chemical security program. The Republican majority rejected the amendment, however.

Indeed, in a statement Friday, the American Chemistry Council expressed concerns about the prospect of such a requirement. The industry group said it "could have the potential for creating an unnecessary layer of duplicative requirements that would only serve to create confusion for the regulated community and stretch agency resources."

The Environmental Justice and Health Alliance for Chemical Policy Reform, meanwhile, expressed cautious optimism toward the report's recommendations.

"It's clear that the [interagency group] listened to the voices of the communities and workers most at risk of chemical disasters," said Richard Moore, co-coordinator of the activist group. "There are recommendations in their report that can help prevent disasters if they are enacted. … The administration now has to turn those words into … regulations that are adopted within the next 18 months."

Last month, Moore's group released an analysis asserting that communities hosting chemical facilities "are disproportionately African American or Latino, have higher rates of poverty than the United States as a whole and have lower housing values, incomes and education levels than the national average."

In addition the possible changes to EPA and OSHA rules, the Homeland Security Department is considering changes to its Chemical Facility Anti-Terrorism Standards. In recent months the department has been looking at the possibility of adding additional chemicals to the list of those regulated by the program, according to the interagency group's report. The department will propose these and other potential changes in a preliminary rulemaking notice, the report says, but it does not specify when this would happen.

The report also recommends that Congress take several actions it says would improve the DHS program, including streamlining the "multi-step enforcement process" the department must follow before it can fine or shut down a facility.

"It is important that, in extreme circumstances, DHS has the ability to immediately issue orders to assess civil penalties or to close down a facility for violations, without having to first issue an order calling for correction of the violation," the report says.

Congress should also remove an exemption that prevents water treatment facilities from being regulated by the DHS program, the report says.

"Many water and wastewater treatment facilities may present attractive terrorist targets due to their large stores of potentially high-risk chemicals and their proximities to population centers," according to the report.

Industry groups have long favored the exemption, but House Republicans in April did allow an amendment to the CFATS reauthorization bill that calls for a third-party study that would assess whether the clause creates a security gap.

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