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AcuSafe Feature: Chemical Safety Act

• The bill would duplicate existing legislative authority and regulations in several ways. First, the transportation of hazardous substances is already extensively regulated by the Department of Transportation. These regulations address all aspects of the transportation continuum, including training, packaging, loading, transport, unloading, storage incidental to transportation, and routing. Additionally, United Nations (UN) standards apply to packaging, labeling and handling of hazardous materials. The business of chemistry assists government agencies and the UN to develop safe and efficient transportation standards. The Department of Transportation should continue to have primary regulatory oversight for transportation issues, and every effort should be made to avoid overlapping and/or duplicative requirements.
• Second, as I mentioned earlier, the Clean Air Act already contains a general duty clause applicable to owners and operators of stationary sources producing, processing, handling or storing any extremely hazardous substance to prevent against accidental releases. Thus, the bill appears simply duplicative of that authority, while at the same time extending it in very broad and unpredictable ways. 
• Third, the imminent and substantial endangerment provisions of this bill appear to overlap completely with Section 106 of CERCLA which authorizes response and cleanup actions when there is an "imminent and substantial endangerment" to the public's natural resources from an actual or threatened release of hazardous substances. However, it expands unnecessarily what is already sufficiently broad authority. Section 5 also fails to preserve the President's power under CERCLA to delegate his authorities to agencies besides EPA (e.g., the Coast Guard). 
• The scope of the bill is overly broad in several respects. First, the substances of concern under the bill would be not just hazardous substances under CERCLA, but also pollutants and contaminants under that law, as well as petroleum in all its manifestations. This is a potentially infinite range of materials, particularly since there is no list of "pollutants and contaminants," only a very inclusive definition. Congress and federal agencies have already identified those highly hazardous substances that may pose the greatest threat from accidental releases, and they are identified under EPA's Risk Management Plan rule and OSHA's Process Safety Management standard. Those lists were identified based upon their likely impact upon surrounding communities. Unless there is some new information, these do not need to identified again in a new law.   Second, many features of the bill are not limited to the "high priority" combinations of substances and sources that EPA would designate. Sections 5 ("abatement action"), 6 ("record keeping and entry") and 7 ("penalties") would apply to the owner or operator of any chemical source. That would include, for example, any person driving an automobile.
• This bill appears to establish absolute responsibility for any release no matter what the cause. Although it is unclear how it would be enforced, the bill appears to make it a crime to be a victim of a crime. Any owner or operator of a chemical facility would potentially become criminally responsible if a terrorist or other criminal attacked the facility. This is simply untenable and possible unconstitutional. The General Duty Clause of the Clean Air Act already requires industry to design and maintain a safe facility to prevent accidental releases, and to minimize the consequence of any that does occur. This is perfectly appropriate. But to enhance that duty to require industry to prevent acts of crime is completely improper. We cannot be expected to assume the role of a law enforcement authority. This is the government's job. 
• The bill presumes the public availability of "information relating to a potential accidental release or criminal release." We have grave concerns about the unsupervised availability of this information. The American Chemistry Council fully supports the principles espoused in most legislation concerning the public's right to know important information about their communities. However, we must find a way to achieve this without offering terrorists a roadmap.