Last week, a Reed Smith client alert discussed pending legislation and possible regulatory responses related to chemical plant safety, in the aftermath of the recent West, Texas fertilizer plant explosion. The pressure to act continues to build. Most recent developments include a letter sent this week from Congressman Mike Pompeo (R-KS-4) to the U.S. Environmental Protection Agency (USEPA) addressing several issues, including: the scope of its authority to regulate chemical plant security under the General Duty Clause of the Clean Air Act; the EPA’s authority to mandate the use of “inherently safer technologies”; and its regulatory plans related to chemical plants. The Congressman also brought up these issues during testimony on May 16 by USEPA Acting Administrator Bob Perciasepe before the House Energy and Commerce Committee, Subcommittee on Energy and Power.

As we explained in the alert, it is the view of many – especially in the environmental community – that the General Duty Clause [Section 112(r)(1)] already provides the EPA with the authority to prevent the release of dangerous chemicals by requiring the use of “inherently safer technologies” i.e., replacing a chemical or chemical process when the use of that chemical is considered to be too dangerous. The EPA has not yet adopted this view - Acting Administrator Perciasepe did not commit to any position during his testimony on May 16 – but the possibility remains that the EPA might do so at any time. The letter from Rep. Pompeo underscores the concern of many lawmakers to such an interpretation of the General Duty Clause and follows legislation he sponsors, H.R. 888, the General Duty Clarification Act, which would prohibit USEPA from regulating “inherently safer technologies.”

As investigators continue to look at the explosion in Texas, the chances remain high that Congress and the EPA will take additional action on chemical plant safety.