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Letter to Senator Boxer on Chemical Facilities

February 24, 2014

Dear Senator Boxer,

Following the West, Texas disaster last April, President Obama issued a broad Executive Order (EO), “Improving Chemical Facility Safety and Security” (#13650). On January 3rd, the multi-agency Working Group implementing this EO issued a “Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernization.” Our organizations were impressed by the EO and were especially encouraged to see the Working Group include inherently safer technologies, safer alternatives and best practices among the policy options they are considering. Because you have been a leader on disaster prevention in general and have championed these specific policies we are writing to you for your support of those policies during the current 90 day comment period which ends March 31st.

The usual industry lobby groups oppose new federal requirements, especially those that could actually prevent disasters, insisting on the same voluntary measures that have failed us for the past twenty years. Still, fenceline communities, unions representing facility workers, first responders, public health professionals, national security leaders, and a majority of likely voters surveyed in a national poll support the need for these requirements, especially given the availability of effective and affordable safer alternatives.

As you know, section 112(r)(7)(A) of the Clean Air Act (CAA) provides the Environmental Protection Agency (EPA) with rule making authority to prevent future tragedies such as West, Texas by requiring chemical facility owners and operators to use safer processes that will reduce or eliminate the consequences of a catastrophic chemical release where feasible.  Safer processes are the only fool proof way to eliminate or dramatically reduce the loss of human life in a catastrophic chemical facility event whether it is triggered by an accident, natural disaster or terrorism. Section 112(r)(1) also creates a general duty that obligates facilities to prevent a release but this provision is most often applied after an accident has already occurred and the guidance document is fourteen years old.

It is clearly time for executive action and the President’s Executive Order is the best opportunity in a generation to prevent future tragedies. A letter from you before the current comment period ends on March 31st to the EPA supporting new requirements to use safer processes (where feasible) would show the EPA that there is support in Congress for disaster prevention. It would also counter efforts by others in Congress who have proposed (S. 1781 & H.R. 888) crippling the Clean Air Act’s authority to prevent these disasters.

Since the first reporting of EPA’s Risk Management Program (RMP) data in 1999, the Agency, industry and the public have become aware of the large number and magnitude of chemical facilities that pose catastrophic risks to workers, first responders and communities. According to a 2012 Congressional Research Service (CRS) analysis of RMP data, 473 of these facilities each put 100,000 or more people at risk of a catastrophic disaster.  Thanks to Freedom of Information Act requests we also became aware of hundreds of facilities that have switched to safer, cost-effective chemical processes that have eliminated these hazards. However, CRS analyses show that the number of RMP facilities has grown since 2009 and reports by the Center for American Progress show that most of the facilities that have switched to safer processes are not in the highest risk categories.

These vulnerabilities and catastrophic hazards were heightened following the 9/11 attacks. In 2002, the EPA proposed using the Clean Air Act’s disaster prevention authority to make chemical facilities “inherently safer by reducing quantities of hazardous chemicals handled or stored, substituting less hazardous chemicals for extremely hazardous ones, or otherwise modifying the design of processes to reduce or eliminate chemical hazards.”  Tragically, the Bush administration scuttled this proposal.

As legislation was considered in 2006, then Senator Obama said, “by employing safer technologies, we can reduce the attractiveness of chemical plants as a target...Each one of these methods reduces the danger that chemical plants pose to our communities and makes them less appealing targets for terrorists."

At a December 7, 2011 hearing of the House Energy and Commerce Committee, former DHS Undersecretary Rand Beers said, “the Administration has established the following policy principles in regard to inherently safer technologies (IST) at high-risk chemical facilities: The Administration supports consistency of IST approaches for facilities regardless of sector…Further, the appropriate regulatory entity should have the authority to require facilities posing the highest degree of risk (Tiers 1 and 2) to implement IST method(s) if such methods demonstrably enhance overall security, are determined to be feasible, and, in the case of water sector facilities, consider public health and environmental requirements.”

In a March 14, 2012 letter to EPA Administrator Lisa Jackson, the National Environmental Justice Advisory Council (NEJAC) urged the EPA to adopt such a proposal saying, “the Clean Air Act’s prevention authority will not only eliminate accidental hazards but will also address fatal flaws in the current chemical security law…”

On April 3, 2012, former EPA Administrator Gov. Christine Todd Whitman also wrote Administrator Jackson saying,“I therefore fully support the implementation of the NEJAC recommendations and any other authorities you can apply to reduce these hazards before a tragedy of historic proportions occurs.” And following the West, Texas disaster, former EPA Administrator Lisa Jackson told MSNB, "We need to use the authority we have now." 

Businesses are also negatively impacted. Due to the billions of dollars of potential liability for hauling poison gases, the Association of American Railroads issued a statement in 2008 saying, “It’s time for the big chemical companies to do their part to help protect America. They should stop manufacturing dangerous chemicals when safer substitutes are available...”

Most recently, the Chemical Safety Board (CSB) recommended that the EPA issue new rules under the EPA’s CAA authority in their January 29, 2014 draft report on the Tesoro refinery disaster. CSB Chair Rafael Moure-Eraso said,“We need a national mandate for state and federal regulators to require chemical facilities [to] utilize inherently safer technology to the greatest extent practicable”

Thank you for all you have done on this issue in the past.  We look forward to working with you again on this critical phase of this work.

Sincerely,

George Kohl
Communications Workers of America

Sylvia Johnson
International Union, UAW

Michael J. Wright
United Steelworkers

Lee Anderson
BlueGreen Alliance

Michael Brune
Sierra Club

Lynn Thorp
Clean Water Action

Ben Schreiber
Friends of the Earth

Jenny Levin
U.S. Public Interest Research Group

Renee Sharp
Environmental Working Group

Richard Moore
Los Jardines Institute (The Gardens Institute)

Michele Roberts
Environmental Justice Health Alliance

Sofia Martinez Concerned
Citizens of Wagon Mound and Mora County, NM

Sara Chieffo
League of Conservation Voters

Judy Robinson
Coming Clean

John Pajak
NJ Work Environment Council

Stephen Lester
Center for Health, Environment & Justice

Anne Rolfes
Louisiana Bucket Brigade

Monique Harden
Advocates for Environmental Human Rights

Philip D. Radford
Greenpeace

Deepak Bhargava
Community Change

Robin Schneider
Texas Campaign for the Environment

Barbara Warren
Citizens' Environmental Coalition

Arlene Blum, PhD
Green Science Policy Institute

Denny Larson
Global Community Monitor

Gerald Poje
Founding Board Member U.S. Chemical Safety Board

Ronald White
Center for Effective Government

Bill Walsh
Healthy Building Network

Lisa Graves
Center for Media and Democracy

Niaz Dorry
Northwest Atlantic Marine Alliance

Heather Warman
Kentucky Environmental Foundation

Lisa Arkin
Beyond Toxics

Claire Barnett
Healthy Schools Network

Eric Uram
Safe Minds

Janet Nudelman
Breast Cancer Fund

Ted Smith
International Campaign for Responsible Technology

Lynn Carroll
The Endocrine Disruption Exchange

Catherine Thomasson
Physicians for Social Responsibility

Mark Catlin
Service Employees International Union (SEIU)

Anna Aurilio
Environment America

Austin Price
California Public Interest Research Group (CalPIRG)

Sarah Smith
Texas Public Interest Research Group (TexPIRG)

Jen Kim
New Jersey
Public Interest Research Group (NJPIRG)

Randy E. Manner
Major General, US Army, Retired

Kathleen A. Curtis
Clean and Healthy New York 

Austin Wilson
As You Sow

John Morawetz
International Chemical Workers Union Council

Eboni Neal Cochran
REACT (Rubbertown Emergency ACTion)

Pamela Miller
Alaska Community Action on Toxics

Paulyne Webster and Anne Tate
Delaware Concerned Residents for Environmental Justice, Wilmington, DE

Juan Parras
Texas Environmental Justice Advisory Services (TEJAS)

Jose T. Bravo
Just Transition Alliance

Janette Robinson Flint
Black Women for Wellness 

Martha Dina Arguello
Physicians
for Social Responsibility-Los Angeles

Cecil D. Corbin-Mark
WE ACT for Environmental Justice

Mark A. Mitchell M.D., MPH
Connecticut Coalition for Environmental Justice

Brittingham C. Edward
NAACP Wilmington Branch_unit 2031

Dorothy Felix
Mossville Environmental Action Now
(MEAN)

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