Message Information 2012 JUL26 lI: 05 

Date 07/25/2012 05:52 PM

OFF/CE OF THE From Rick Hind <rick.hind@greenpeace.org >

E 

LisaP Jackson/DC/USEPNUS@EPA; KarenL Main/DC/USEPNUS@EPA 

XECUTp SECR1 

To Richard Moore <ljinewmexico@gmail.com >; Scott Nelson 

<snelson@citizen.org > 

APA PETITION TO PREVENT CHEMICAL DISASTERS 

Dear Administrator Jackson, 

Please find attached a petition from more than 50 organizations and 

individuals requesting that the EPA issue new rules and guidance under 

the Clean Air Act to prevent chemical disasters. 

Thank you. 

Respectfully, 

Richard Moore 

Los Jardines Institute 

(505) 301-0276 

Rick Hind 

Greenpeace 

(202) 319-2445 

Scott Nelson 

Public Citizen 

(541) 488-1876 

Petition to EPA to Prevent Chem Disasters.pdf 

OEX Processing Information 

Processed Date: 

Processed By 

P0 Office 

Message Count
Message Information 

Date 07/25/2012 05:47 PM 

From Rick Hind <rick.hind@greenpeace.org > 

LisaP Jackson/DC/USEPNUS@EPA; Martin.KarIenLEpa,gov; Richard 

Moore <IjinewmexicogmaiI.com >; Scott Nelson <snelson©citizen.org > 

APA PETITION TO PREVENT CHEMICAL DISASTERS 

Dear Administrator Jackson, 

Please find attached a petition from more than 50 organizations and 

individuals requesting that the EPA issue new rules and guidance under 

the Clean Air Act to prevent chemical disasters. 

Thank you. 

Respectfully, 

Richard Moore 

Los Jardines Institute 

(505) 301-0276 

Rick Hind 

Gre enpe ace 

(202) 319-2445 

Scott Nelson 

Public Citizen 

(541) 488-1876 

Petition to EPA to Prevent Chem Disasters.pdf 

OEX Processing Information 

Processed Date: 

Processed By 

P0 Office 

Message Count
Submitted to the US Environmental Protection Agency: 

PETITION TO THE ENVIRONMENTAL PROTECTION AGENCY TO EXERCISE ITS

AUTHORITY UNDER SECTION 112(r) OF THE CLEAN AIR ACT TO PREVENT

CHEMICAL FACILITY DISASTERS THROUGH THE USE OF SAFER CHEMICAL

PROCESSES 

Nearly thirty years after the disastrous release of methyl isocyanate from a chemical plant 

in Bhopal, India, and more than a decade after the attacks of September 11, 2001, brought home 

the vulnerability of U.S. chemical facilities to terrorist attacks that could cause similarly 

devastating releases of hazardous materials, many Americans remain at risk of death or injury 

from the unforeseen release of harmful chemicals from nearby industrial plants, water treatment 

facilities, and the like. To address this risk, the undersigned organizations and individuals hereby 

petition the Environmental Protection Agency (EPA), pursuant to the Administrative Procedure 

Act, 5 U.S.C. § 553(e), and section 1 l2(r)(7)(A) of the Clean Air Act, 42 U.S.C. § 7412(r)(7)(A), 

to commence a rulemaking to require the use of inherently safer technologies, where feasible, by 

facilities that use or store hazardous chemicals. 

Petitioners also request that, pending completion of a rulemaking under section 

1 12(r)(7)A), EPA revise its guidance conceming the enforcement of the Clean Air Act's general 

duty clause, section 1 12(r)(1), 42 U.S.C. § 7412(r)(l), to make clear that the duty to prevent 

releases of extremely hazardous substances includes the use, where feasible, of safer 

technologies to minimize the presence and possible release of hazardous chemicals. 

I. THE NEED FOR ACTION 

A. MILLIONS OF AMERICANS ARE THREATENED BY POSSIBLE ACCIDENTAL 

RELEASES OF HAZARDOUS CHEMICALS. 

The Bhopal tragedy, which killed thousands and injured hundreds of thousands, alerted 

the world to the potential magnitude of the consequences of a major release of hazardous 

substances from a chemical facility. In 1990, as a partial response to this threat, Congress 

enacted section 112(r) of the Clean Air Act, 42 U.S.C. § 7412(r), which provided EPA with new 

powers to address possible releases of extremely hazardous substances. Two decades later, 

however, Americans remain vulnerable to the risk of catastrophic releases of such materials—a 

risk that, we are increasingly aware, is magnified by the possibility that chemical facilities may 

be targets of terrorist attacks that may result directly in the release of deadly chemicals. 

The scope of these hazards is revealed by information submitted to EPA by operators of 

facilities that use hazardous chemicals. Under Clean Air Act section 1 12(r)(7)(B), 42 U.S.C.
§ 7412(7)(B), EPA has promulgated regulations requiring facilities that possess more than 

threshold amounts of designated hazardous substances to submit risk management plans (RMPs) 

to EPA. The RIvIP regulations require facilities to identify "worst-case scenarios" that indicate 

how many people would be at risk of exposure in the event of a release of the hazardous 

materials that are on-site. 

In April 2011, the Congressional Research Service analyzed the most recent information 

from RMPs submitted to EPA and found that there were 94 facilities across the country where a 

release of hazardous substances would potentially affect a population of 1 million people or 

more. Another 398 facilities placed between 100,000 and I million people at risk; over 2,000 

more threatened between 10,000 and 100,000 people, and more than 4,500 could affect 1,000 to 

10,000 people.' 

Another illustration of the extent of the potential exposure of the public to hazardous 

releases is the Department of Homeland Security's (DHS) designation of nearly 5,000 U.S. 

chemical facilities as presenting a high risk of vulnerability to releases of hazardous substances. 

DHS has promulgated "chemical facility anti-terrorism standards" (CFATS) pursuant to 

legislation giving it interim authority to impose security measures on facilities that have 

threshold amounts of 322 designated hazardous chemicals, depending on DHS's determination 

of whether those facilities present a high level of risk. 2 Under the CFATS regulations, DHS has 

divided high-risk facilities into four tiers. According to a January 2012 analysis by the 

Congressional Research Service, as of September 2011, 4,589 facilities had been finally or 

tentatively designated has high-risk, with 102 in the first tier representing the greatest threat, 539 

in the second tier, 1,290 in the third tier, and 2,638 in the fourth tier.3 

The DHS designations of high-risk facilities substantially understate the public threat 

posed by concentrations of dangerous chemicals because many chemical facilities are excluded 

from the purview of DHS's CFATS regulations. Most notably, the CFATS regulations do not 

cover water treatment facilities, many of which use and store significant quantities of chlorine 

gas, a potent poison that can threaten death or injury to large numbers of people if released into 

the atmosphere. As of March 2010, an estimated 2,600 water treatment facilities nationwide 

continued to use large quantities of chlorine gas. 4 Also exempt from CFATS regulations are an 

undetermined number of facilities, including most refineries, that are nominally regulated under 

the Maritime Transportation Security Act. 

Such concentrations of hazardous chemicals pose significant threats of releases as a result 

of accidents during normal operations. Illustrative examples abound. In 2011, the Center for 

Public Integrity and ABC News reported that 16 million Americans live within range of potential 

releases of clouds of toxic hydrofluoric acid from gasoline refineries, including 550,000 near a 

single plant in Texas City, Texas, and 2.2 million near a refinery outside Minneapolis, 

Congressional Research Service, RMP Facilities in the United States as oJ'April 2011 (April 12, 2011), 

2 See Pub. L. No. 109-295, § 550 (2006); 6 C.F.R. Part 27. 

Congressional Research Service, Chemical Facility Security. Issues and Options br the 112th Congress, 

at5(Jan. 13, 2012). 

Reece Rushing, Paul Orum. Leading Waler Utilities Secure Their hemicaIs (March 2, 2010), 

hltp://www.aniericanprogress.org/issues/20 I 0/03/chemical sccurity.html/
Minnesota. A 2009 explosion at a refinery in Corpus Christi, Texas, resulted in the release of 

more than a ton of the material, and a much larger release was only narrowly avoided. 6 Other 

examples include a 2008 explosion and fire at a Bayer facility in West Virginia, which narrowly 

missed causing a breach in piping on the top of an above-ground tank of methyl isocyanate, 

which in turn would have resulted in a deadly release of the same chemical responsible to the 

Bhopal disaster. 7 In 2007, an explosion and fire at a Texas refinery resulted in the release of 

nearly three tons of chlorine gas, with deaths and injuries avoided only by prompt evacuation of 

workers. 8 A 2007 release of 900 pounds of chlorine gas in Tacoma, Washington, required 

closure of the entire Port of Tacoma and resulted in 25 hospitalizations, and other releases of 

chlorine associated with railway accidents have resulted in numerous deaths in recent decades.9 

Natural disasters such as hurricanes, floods, and earthquakes also create the potential for 

releases of hazardous chemicals. For example, numerous releases of potential toxins, including 

several thousand pounds of ammonia from a food-processing plant, resulted from the 1989 San 

Francisco earthquake.'° Flooding in Brazil in 1995 resulted in a massive release of ammonia 

from a chemical plant requiring the mass evacuation of a nearby city and causing numerous 

injuries.' As extreme weather events proliferate in the wake of global warming, such disasters 

will become increasingly likely. 

Concentrations of hazardous chemicals at industrial and other sites also present obvious 

targets for terrorists. Analyses by federal security agencies indicate that the targeting of 

concentrations of chlorine gas or other hazardous materials could easily cause tens of thousands 

of deaths and hundreds of thousands of injuries in downwind areas. The National Academies of 

Sciences summed up the point in a 2006 report: "it is easy to determine that a single chemical 

event could cause catastrophic casualties." 2 Moreover, the dispersed nature of facilities storing 

hazardous chemicals, their large number, and the shipment of chemicals between them render it 

exceedingly difficult to ensure that such an attack cannot occur or succeed, and the close 

proximity of major facilities to large populations of potential victims makes the evacuation in the 

event of a release problematic, to say the least. 

J. Morris, et al., Use of toxic acid puts millions at risk (Feb. 24, 2011), 

http://www.iwatchnews.org/20 11/02/24/211 8/use-toxic-acid-puts-millions-risk. 

61d 

See National Research Council, The Use and Storage of' Methyl Isocyanate (Mic,) at Bayer CropScience 

II R. Moure-Eraso, It's time for government and industry to adopt inherentl y safer technology, Charleston 

Gazettte, June 23, 2012, http://wvgazette.com/OpinionlOpEdCommentarieS/2O 1206230057. 

R. Jones, ei al., Chlorine Gas. An Evolving Hazardous Material Threat and Unconventional Weapon, 11 

West J. Emerg. Med. 151 (2010), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2908650/.

10 s, Young, et al., Natural and Technologic Hazardous Material Releases During and After Natural 

Disasters; A Review, 322 Science of the Total Environment 3, 11(2004). 

'Id, at 5. 

12 National Research Council, Terrorism and the Chemical Ifrastructure: Protecting People and Reducing 

Vulnerahilities 99 (2006).
B. USE OF INHERENTLY SAFER TECHNOLOGIES CAN HELP ENSURE PROTECTION

OF THE PUBLIC. 

Technologies and processes to reduce the likelihood that hazardous materials will be 

released, and actions to minimize or mitigate the consequences of releases, are of course 

essential parts of any strategy to protect the public against harmful chemical exposures. But as 

long as hazardous materials remain present in sufficient quantities to cause injury, such measures 

always leave some remaining degree of risk, and often substantial risk, particularly given the 

possibility of such unpredictable factors such as terrorism or natural disasters that may negate the 

effectiveness of protective measures. By contrast, if a hazardous material is not present at a site, 

or not present in a quantity capable of causing harm, there is no possibility of a catastrophic 

release.

This intuitively obvious proposition underlies the concept of using safer materials and 

processes to avoid chemical hazards that is, taking steps to eliminate or minimize extremely 

hazardous materials where feasible. As the American Chemical Society has stated: 

Inherently safer industrial technologies for the production, transport, and use of 

industrial and agricultural chemicals, pharmaceuticals, and both commodity and 

advanced materials is a vital concept that is currently the focus of significant activity 

in a wide range of forums in the industrial, academic, and governmental arenas. 

While many industrial processes and sectors use various definitions of this term, 

collectively, they capture a group of processes and technologies that improve safety 

by greatly reducing or eliminating hazards through a permanent and inseparable 

element of the process. Thus, safety is built into the process, not added on, and 

hazards are reduced or eliminated, not simply controlled. 

Where feasible, inherently safer process technology can greatly reduce potential 

threats to public and worker safety, health, the environment and plant and public 

infrastructure from a variety of scenarios that might result in the release—fugitive or 

otherwise—of hazardous and toxic materials. 

Many organizations involved in the chemical, pharmaceutical, and related process 

industries have strongly advocated and advanced inherent safety, supporting the work 

of professional societies and academic institutions, utilizing the concept in training 

chemists and engineers, and incorporating it into internal process safety management 

programs. Inherent safety is a well recognized engineering process concept that is 

based on the belief that a hazard can be moderated or eliminated, thereby reducing 

risk and possibly removing the risk altogether. Certainly an inherently safer system or 

technology can make hazardous events less likely and less intense if there is an 

accident. 

These considerations led the National Research Council of the National Academy of 

Sciences, in its influential 2006 report, Terrorism and the Chemical Infrastructure: Protecting 

People and Reducing Vulnerabilites, to recommend that "[t]he most desirable solution to 

° American Chemical Society, Inherently Sq/er Technology Jbr Chemical and Related Industrial Process 

Operations, 2009-20] 2, http://portal.acs.org/porta1/Pub1icWebSite/poIicy/

publicpolicics/promote/ist/WPCPO 11539.
preventing chemical releases is to reduce or eliminate the hazard where possible, not to control 

it. This can be achieved by modifying processes where possible to minimize the amount of 

hazardous material used, lower the temperatures and pressures required, replace a hazardous 

substance with a less hazardous substitute, or minimize the complexity of a chemical process."4 

More recently, in its report on the near-disaster at Bayer's West Virginia facility, the NAS has 

emphasized that the philosophy of inherently safer technology recognizes that "[i]t may not 

always be feasible to eliminate or reduce hazards, but ... this [mustj be attempted before moving 

on to specification of risk management equipment and procedures." 5 Inherently safer 

technologies not only "have the potential to reduce the probability or likelihood that a worst-case 

accident occurs," but also "to provide assurance that, should a worst-case release occur (i.e., the 

entire chemical inventory under worst meteorological conditions), an absolute upper bound to 

the magnitude of an offsite release exists, and that this upper bound is less severe than the worstcase accident resulting from conventional passive, active, and procedural controls."6 

The success of the inherently safer technology approach depends on the availability and 

feasibility of alternatives to the use and storage of dangerous quantities of extremely hazardous 

substances. Practical experience demonstrates that such alternatives are, in many cases, readily 

available. Clorox, for example, announced in 2009 that it would eliminate the use of bulk 

amounts of chlorine gas in its bleach-manufacturing process, eliminating the possibility of largescale releases from its facilities.' 7 Similarly, a survey in March 2010 found that 554 water 

treatment facilities had converted from reliance on chlorine gas and other extremely hazardous 

substances to alternative technologies, such as the use of liquid bleach and ultraviolet light as 

disinfectants, although nearly 2,600 water and wastewater facilities continued to rely on 

chemicals that would endanger the public in the event of an accidental release.' 8 Similarly, 

alternatives to the use of hydrofluoric acid in gasoline refining are available, yet one third of the 

nation's refineries continue to rely on jt.' 9 These examples illustrate both the feasibility of using 

inherently safer technology and the continuing need for requiring its adoption in the face of the 

inertia that leads owners and operators of particular facilities to hold to outmoded and dangerous 

practices even in the face of recognition in their own industries that there are feasible and costeffective alternatives. The scope of the potential application of safer technologies in the 

prevention of accidents is indicated by a recent analysis of Chemical Safety Board accident 

investigation reports finding that the Board has addressed the potential application of safer 

technology to avoid such accidents in 90 of the serious accidents it has investigated.20 

14 National Research Council, Terrorism and the Chemical Infrastructure: Protecting People and Reducing 

Vulnerabililies 7 (2006) 

National Research Council, The Use and Storage of Methyl Isocyanate (MIC) at Bayer CropScience, at 

4-53 (2012). 

6 Id. at 4-57. 

'' M. McCoy, Clorox to Stop Using Chlorine, Chemical & Engineering News, Nov. 9, 2009, 

http://pubs.acs.org/cen/news/87/i45/8745notw2.html

8 Rushing & Orum, supra. 

"

J, Morris, et al., Use oJ toxic acid puts millions at risk (Feb. 24, 2011), 

http://www.iwatchnews.org/20 11/02/24/2118/use-toxic-acid-puts-millions-risk. 

20 U.S. Chemical Safety Board, Inherently Safer: The Future of Risk Reduction (July 11, 2012) (video), 

http://www.csb.gov/videoroom/detail .aspx?V1D66.
As the Association of American Railroads has put it, "We can no longer continue to risk 

the lives of millions of Americans by using, transporting and storing highly toxic chemicals 

when there are safer alternatives commercially available. It is time for the nation's big chemical 

companies to stop making the dangerous chemicals that can be replaced by safer substitutes or 

new technologies currently in the marketplace."2' 

C. EXISTING REGULATIONS Do NOT REQUIRE USE OF SAFER TECHNOLOGIES 

EVEN WHERE READILY FEASIBLE. 

Despite the clear benefits of using feasible technologies that do not result in 

concentrations of lethal chemicals that pose threats to the public, existing federal regulations 

governing chemical facilities fail to address the subject adequately. Although some states and 

local governments have attempted to step into this void, the issue is national in scope, and 

resource scarcity and competitive pressures may bar individual states from taking effective steps 

to protect their populations. 

As noted above, EPA has invoked its authority under Clean Air Act section 1 12(r)(7)(B) 

to promulgate the RMP regulations, but those regulations are primarily procedural, requiring 

facilities to prepare and file planning documents with federal authorities; they do not impose 

substantive requirements to prevent chemical hazards through the use of safer technologies. Nor 

do the RMP regulations explicitly require facilities to systematically evaluate and document 

major technological options that can remove chemical hazards. Moreover, EPA's regulatory 

authority under section 1 12(r)(7)(B) does not reach all facilities that pose threats of release of 

hazardous chemicals, but only facilities that have more than threshold amounts of those 

chemicals that EPA has listed under section 1 12(r)(3). 

EPA also has not, to date, broadly invoked the general duty clause in Clean Air Act 

section 11 2(r)( 1), which requires owners and operators of chemical facilities to design and 

maintain safe facilities in such a manner as to prevent releases of hazardous chemicals, to require 

the use of available safer technologies and alternative materials and processes that would avoid 

risks to the public. EPA's existing guidance on the enforcement of the general duty clause does 

state that owners and operators of facilities "should try to substitute less hazardous substances for 

extremely hazardous substances or minimize inventories when possible" and recognizes that 

"[t]his is usually the most effective way to prevent accidents and should be the priority of a 

prevention program." 22 However, it does not appear that EPA has vigorously invoked the general 

duty clause to obligate facilities to recognize technological alternatives and to adopt feasible 

alternatives that ensure failsafe design and maintenance, or that industry recognizes this as a 

requirement under the general duty clause as currently enforced by EPA. 

Nor do DHS's CFATS regulations address the use of inherently safer technology. DHS 

has authority to promulgate interim regulations applicable to chemical facilities, requiring them 

to implement performance-based site-security standards. See Pub. L. No. 109-295, § 550 (2006). 

2! Association of American Railroads, Homeland Security c'oniniittee urged to consider safer chemicals; 

Chemical companies should stop manufacturing extremety dangerous chemicals (2008), 

http://www.greenpeace.org!usa'Global/usalreport/2008/2/railroads-in-favor-of-safer-te.pdf. 

22 EPA, Guidance for Implementation of the General Duty Clause Clean Air Act Section 112(r)(l), at 15
Defending facilities as they currently exist against attack is not a substitute for designing them to 

be inherently safer, DHS has not required safer chemical processes that would prevent chemical 

releases that can occur not only as a result of security breaches, but also because of process 

accidents or natural disasters. Moreover, DHS is prohibited from requiring the use of any 

"particular security measure" in its CFATS regulations, see Id. § 550(a), which would complicate 

any potential attempt to use DHS's authority to require use of specific safer processes and 

chemicals. Finally, DHS's authority does not extend to many facilities that use significant 

quantities of hazardous materials, most notably water treatment facilities, large numbers of 

which continue to rely on lethal chlorine gas. See Id. 

IL EPA HAS AUTHORITY TO ACT UNDER CLEAN AIR ACT SECTION 112(r). 

Despite the inadequacy of existing regulatory measures, EPA has legal authority under 

existing statutes to take actions requiring safer technologies to reduce the possibility of 

catastrophic releases. In particular, section 112(r) contains two sources of authority: (1) EPA's 

hitherto unused authority under section 11 2(r)(7)(A) "to promulgate release prevention, 

detection, and correction requirements which may include monitoring, record-keeping, reporting, 

training, vapor recovery, secondary containment, and other design, equipment, work practice, 

and operational requirements." 42 U.S.C. § 7412(r)(7)(A); and (2) the "general duty clause," 

section 1l2(r)(1), which imposes an obligation on all owners and operators of facilities that use 

extremely hazardous substances to "design and maintain a safe facility taking such steps as are 

necessary to prevent releases, and to minimize the consequences of accidental releases which do 

occur," 42 U.S.C. § 7412(r)(1). 

A. SECTION 112(r)(7)(A) AUTHORIZES EPA TO IMPOSE DESIGN AND 

OPERATIONAL REQUIREMENTS TO PREVENT RELEASES. 

EPA's regulatory authority under § I 12(r)(7)(A) directly provides EPA with regulatory 

authority to require chemical facilities to avoid or mitigate releases through the use of safer 

technologies. Section 1 12(r)(7)(A) provides the agency broad authority (which it has apparently 

never exercised) to regulate chemical facilities in order to prevent accidental discharges: 

In order to prevent accidental releases of regulated substances, the Administrator is 

authorized to promulgate release prevention, detection, and correction requirements 

which may include monitoring, record-keeping, reporting, training, vapor recovery, 

secondary containment, and other design, equipment, work practice, and operational 

requirements. Regulations promulgated under this paragraph may make distinctions 

between various types, classes, and kinds of facilities, devices and systems taking into 

consideration factors including, but not limited to, the size, location, process, process 

controls, quantity of substances handled, potency of substances, and response 

capabilities present at any stationary source. Regulations promulgated pursuant to this 

subparagraph shall have an effective date, as determined by the Administrator, 

assuring compliance as expeditiously as practicable. 

42 U.S.C. § 7412(r)(7)(A). 

The authority conferred by § 1 12(r)(7)(A) clearly encompasses the power to require the 

use of safer technology to reduce or eliminate quantities of extremely hazardous substances. The 

provision specifically authorizes the imposition of "design" and "operational" requirements, and
further authorizes EPA to make distinctions among facilities based on "process controls, quantity 

of substances handled, [and] potency of substances." This authority seems ideally suited to serve 

as the basis for regulations that require that facilities be designed and operated in such a manner 

as to minimize quantities of highly potent hazardous substances. And it permits regulation of any 

stationary source, thus permitting the agency to regulate without regard to whether "threshold" 

quantities of substances are present (as under regulations pursuant to § 11 2(r)(7)(B)) and without 

restrictions on the types of facilities subject to regulation (such as the limits imposed on DHS in 

establishing the CFATS regulations). 

That EPA's authority under § 112(r) encompasses the power to require measures to 

prevent release through eliminating or minimizing the use of dangerous chemicals is fully 

consistent with the intent of the enacting Congress. As the Senate Report on the 1990 legislation 

that added § 112(r) to the Clean Air Act explains, such measures were viewed by Congress as the 

best way to achieve the statutory goal of preventing accidental releases: 

The objectives of the proposed section ... include both the prevention of accidental 

releases and the minimization of the consequences which may result. Systems and 

measures which are effective in preventing accidents are preferable to those which are 

intended to minimize the consequences of a release. Measures which entirely 

eliminate the presence of potential hazards (through substitution of less harmful 

substances or by minimizing the quantity of an extremely hazardous substance 

present at any one time,), as opposed to those which merely provide additional 

containment, are the most preferred. 

S. Rep. No. 101228, at 209, 1990 U.S.C.C.A.N. 3385, 3594 (emphasis added). 

EPA's regulatory authority under § 1 12(r)(7)(A) extends broadly to "accidental releases" 

of covered chemicals. Moreover, the statutory definition of "accidental releases" does not 

preclude the agency from requiring safer chemical technology simply because such measures 

would reduce the likelihood and possibility of releases caused by terrorist attacks as well as 

releases caused by other types of accidents. For purposes of § 112(r), an "accidental release" is 

defined as "an unanticipated emission of a regulated substance or other extremely hazardous 

substance into the ambient air from a stationary source." 42 U.S.C. § 7412(r)(2)(A). Proponents 

of the view that EPA should not use its authorities under section 112(r) to require safer 

technologies have argued that this definition does not allow EPA to take action based on the 

possibility of releases caused by terrorism, because such releases are not "unanticipated" from 

the standpoint of the terrorists. The argument is incorrect for several reasons. 

To begin with, although the use of safer technologies would be highly beneficial in 

reducing the likelihood and possibility of catastrophic releases caused by terrorism, it would be 

equally effective in preventing and mitigating the consequences of "traditional" accidents not 

caused by terrorism, such as the Bhopal release that was among the motivating factors in the 

enactment of § 112(r). 23 Thus, EPA's authority to use its section 112(r) powers for this purpose 

23 Indeed, the cause of the Bhopal disaster was a controversial issue, and at the time of the legislation Union 

Carbide had blamed sabotage, although the Indian government and independent experts disagreed. See Theory of 

Bhopal Sabotage Is OJftred, N.Y. Times, June 23, 1987, http://www.nytimes.com/l 987/06/23/world/theory-ofbhopal-sabotage-is-offered.html?pagewanted=all&src=pm; Disaster in Bhopal Laid to Sabotage: Study B/ames 

Worker at Carbide Facility, L.A. Times, May 11, 1988, http://articles.latimes.comII988-05-1 I/business/fl-
does not depend on whether releases resulting from terrorism are "accidental" within the 

meaning of the statute. 

In any event, the argument that EPA may not consider the potential for releases caused by 

terrorism in using its authority to require prevention of "accidental releases" is not well-founded. 

The definition of "accidental releases" can easily be construed to encompass accidents that result 

from terrorism. In providing that an "accidental release" is one that is "unanticipated," the statute 

does not specify by whom it must be unanticipated. Given that the focus of the general duty 

clause is on owners and operators of facilities, however, the most natural reading of the clause 

would be that the definition is aimed at releases that are unanticipated from the standpoint of 

facility owners and operators (as opposed to releases that are a regular part of their operations, 

which are subject to CAA permitting requirements). 

Such an interpretation would also be in accord with the way similar terms are treated in 

an analogous context in which legal consequences are attached to whether an event is 

"accidental": liability insurance, in which coverage typically is available unless an accident is 

"expected or intended from the standpoint of the insured."24 By incorporating a similar concept 

of "accidental" in § 112(r), Congress likely intended to adopt a similar view of the standpoint 

from which whether an event was "unanticipated" should be determined. 

At worst, the statute is ambiguous as to the standpoint from which an "accidental release" 

must be "unanticipated." In light of the possible ambiguity, an EPA determination that 

"unanticipated" means "unanticipated from the standpoint of the facility's owner or operator" 

would at least be entitled to deference under Chevron USA., Inc. v. NRDC, 467 U.S. 837 

(1984). In light of the statute's purposes of protecting the public against catastrophic releases, its 

delegation of broad authority to the agency, and its language, courts would be required to defer 

to EPA's assertion of such authority. 

Moreover, confirmation that Congress anticipated and approved of the possibility that 

EPA's authority under § 112(r) could protect the public against the effects of accidental releases 

resulting from terrorist attacks on chemical facilities as well as other types of accidental releases 

can be found in language added to the subsection by the Chemical Safety Information, Site 

Security and Fuels Regulatory Relief Act of 1999, Pub. L. No. 106-40, 113 Stat. 207. Among 

other things, that legislation added a new provision, § 1 l2(r)(7)(H)(ix), requiring the Attorney 

General to "submit to Congress a report that describes the extent to which regulations 

promulgated under this paragraph have resulted in actions, including the design and maintenance 

of safe facilities, that are effective in detecting, preventing, and minimizing the consequences of 

releases of regulated substances that may be caused by criminal activity." 42 U.S.C. 

§ 7412(r)(7)(H)(ix). The provision supplies express congressional recognition that EPA actions 

respecting "accidental releases" under the regulatory authority granted by § 1 12(r)(7) should be 

"effective" in addressing releases "caused by criminal activity" (including terrorism). 25 The 

2522_1 . carbide-disaster-bhopa1. It would be an odd reading of the statute to exclude from its coverage one of the 

possible causes of the exact type of accident that gave rise to its passage. 

24 See Jon Kalmuss-Katz, Eco Anti-Terrorism: EPAS Role in Securing our Nation's chemical Plants, 18 

N.Y.U. Envtl. Li. 689, 709 & n. 109 (2011). 

The reference to "this paragraph" in section 1I2(r)(7)(H)(ix) refers to paragraph (7) of subsection (r). 

Thus, the provision expressly refers to EPA's regulatory authority under § II 2(r)(7).
provision offers strong support that EPA may consider the effectiveness of its actions to prevent 

such releases, as well as their impact on other types of accidental releases, when exercising its 

powers under § 112(r). 

The use of EPA's regulatory authority under section 1 12(r)(7)(A) would be particularly 

appropriate in addressing the subject of inherently safer technology, because, by allowing the 

agency to "make distinctions between various types, classes, and kinds of facilities, devices and 

systems," that provision provides the agency with the needed flexibility to take into account the 

many considerations that are necessary to determine when the use of safer technology is 

appropriate (and when it should be mandated). Section 1 12(r)(7)(A) also provides the agency 

with the ability not only to announce a generally applicable standard, but also to issue specific 

rules applicable to specific types of facilities and chemicals that pose particular hazards and for 

which there are readily available safer technologies (e.g., water treatment facilities that use 

chlorine gas). Regulations under § 112(r)(7)(A) could also incorporate requirements that site 

owners and operators perform written assessments of the hazards posed by regulated substances 

used on-site, and the potential for their replacement or minimization through the use of feasible 

alternative materials and processes; in addition, regulations could authorize EPA to require use 

of such alternatives if, upon review of such an assessment, the agency found that such a change 

would have significant benefits for public health and safety and would be feasible and not 

unreasonably costly. 26 Use of the agency's regulatory authority to promulgate such requirements 

would provide site owners and operators with clear standards facilitating compliance and 

enforcement, and the notice-and-comment process leading to promulgation of regulations would 

allow all stakeholders and interested members of the public to have a voice in developing the 

standard that emerged. 

B. THE GENERAL DUTY CLAUSE PROVIDES ADDITIONAL AUTHORITY ALLOWING 

EPA TO TAKE AcTioN Now TO ADDRESS UNSAFE AND UNNECESSARY 

CONCENTRATIONS OF HAZARDOUS CHEMICALS. 

As a complementary measure that could be implemented while the rulemaking process 

goes forward, or in the alternative to a rulemaking, petitioners request that EPA issue guidance 

making clear that the general duty clause of Clean Air Act section 1 12(r)(1) itself requires the 

use of inherently safer technology where it would be feasible and would reduce grave risks of 

accidental discharges resulting from process upsets, natural disasters, and terrorist attacks or 

other criminal acts. 

The general duty clause imposes a requirement that all chemical facility owners and 

operators take measures to prevent "accidental releases" of extremely hazardous substances—

including measures that relate to the design and maintenance of their facilities and that minimize 

the consequences of releases. The statutory provision itself creates a legally enforceable duty that 

is effective without implementing regulations. Because implementing regulations are not 

necessary under the general duty clause, EPA has provided direction to its enforcement 

personnel, and to facilities that must comply with the clause, through "guidance" that explain 

how it will enforce the clause. 

26 One possible model for requirements that could be imposed through EPA's regulatory authority would be 

the provisions of § 2111 of HR. 2868, the Chemical and Water Security Act of 2009, which passed the House of 

Representatives in 2009.
EPA's existing guidance does not clearly emphasize that the general duty clause requires 

use of safer technology, including less hazardous chemicals, that would prevent hazardous 

releases and mitigate their consequences by reducing the presence of hazardous materials, and 

neither EPA enforcement efforts nor industry practice have broadly recognized that the clause 

incorporates such a requirement. The language of the statute, however, readily encompasses, and 

even requires, a reading under which the general duty clause mandates the avoidance of releases 

through the recognition and use of reasonably available technology that would prevent them. The 

clause, on its face, requires that the "design" of facilities be such as to "prevent releases" and 

"minimize the consequences of accidental releases that do occur." Designs that prevent releases 

and minimize their consequences by using available technology to reduce or eliminate the use of 

extremely hazardous materials fall readily within the scope of that language. 

The general duty clause further requires site owners and operators to use "appropriate 

hazard assessment techniques" to identify hazards posed by their facilities, and then take steps to 

address those identified hazards through the design of their facilities. This language is perfectly 

suited to convey a requirement that chemical facilities analyze the risks posed by the presence of 

concentrations of hazardous chemicals and consider, and, if appropriate, implement measures to 

reduce them through the use of feasible substitutes. Indeed, the Congress that enacted the general 

duty clause so recognized. The House Conference Report on the legislation expressly stated that 

hazard assessments required by § 112(r) "shall include ... a review of the efficacy of various 

release prevention and control measures, including process changes or substitution of materials." 

H.R. Conf. Rep. No. 10 1-952, at 349, 1990 U.S.C.C.A.N. 3867, 3872. 

The general duty clause, like EPA's authority to regulate to prevent releases under 

section 1 12(r)(7), is applicable to "accidental releases." For the reasons stated above, the 

statutory definition of "accidental releases" does not in any way limit EPA's authority to use the 

general duty clause to require appropriate uses of safer technology to reduce the likelihood and 

mitigate the consequences of catastrophic releases, regardless of whether releases caused by 

terrorist attacks are among the releases EPA seeks to prevent. Any reliance on the general duty 

clause to impose such requirements must, of course, be consistent with other limitations on the 

scope of the general duty clause. Principal among those limitations is that the duty to identify 

and avoid hazards under §112(r)(1) is qualified by language incorporating standards applicable 

under the Occupation Safety and Health Act's general duty clause. That is, § 112(r)(l) provides 

that chemical facility owners and operators have a general duty to identify and address risks "in 

the same manner and to the same extent as section 654 of Title 29" (the OSH Act's general duty 

clause). 42 U.S.C. § 74l2(r)(l). 

The OSH Act's general duty clause has been construed to require employers to protect 

workers against hazards that are "recognized" within their industries. Duriron Co. v. Sec. of 

Labor, 750 F.2d 28 (6th Cir. 1984). Arguably, § 112(r)(l)'s statement that the general duty to 

avoid and mitigate accidental releases exists "in the same manner and to the same extent" as the 

general duty under the OSH Act indicates that a general duty clause violation would require that 

a chemical facility had disregarded a "recognized" hazard. 

Assuming that reading of the statute is correct, it would not pose an obstacle to the use of 

the general duty clause to require appropriate uses of inherently safer technology to avoid or 

mitigate accidental releases by reducing or eliminating extremely hazardous substances. The 

hazards posed by unnecessary use and storage of large quantities of such substances are clearly
"recognized," as actions by some facilities to eliminate unnecessary hazards (such as gaseous 

chlorine) demonstrate. The general duty clause requirement of recognition of feasible 

alternatives assuredly encompasses generally accepted industry practices, including the safer 

design practices of industry leaders as well as technologies that are widely commercially 

available. Moreover, EPA's listing of hazardous substances under Clean Air Act § 1 12(r)(3), and 

the regular reporting by facilities (pursuant to risk management plans required under regulations 

promulgated under § 1 12(r)(7)(B)) of worst-case scenarios for the release of such substances, 

also demonstrate that the hazards that EPA would be addressing under the general duty clause 

are widely recognized. Guidance on the use of safer technology to avoid or mitigate hazardous 

releases would easily comply with the limitation imposed by the incorporation of the OSH Act 

standard, as long as the agency's guidance addressed materials (and quantities of those materials) 

that are recognized to be hazardous. 

Like regulations under section 1 12(r)(7), guidance implementing the general duty clause 

would be most helpful to site owners and operators who must comply with the general duty to 

avoid releases, as well as to EPA enforcement personnel and the general public, if it not only set 

forth a general standard for the use of inherently safer technology, but also addressed specific 

examples of facilities and substances that could trigger enforcement. Because the greatest risks to 

large numbers of members of the public appear to be posed by only a small number of hazardous 

substances, guidance could place a priority on addressing the use of those materials and outline 

specific circumstances where the general duty clause might require substitution of other 

materials or processes. Such guidance would also avoid anticipated criticism that the agency is 

imposing vague and open-ended requirements that could lead to arbitrary enforcement. 

Finally, even after regulations under section 112(r)(7) are promulgated, the agency 

should recognize that the general duty clause has a continuing role to play. Unlike section 

1 12(r)(7)(A), which provides regulatory authority only with respect to "regulated substances" 

(i.e., those designated under section 1 12(r)(3)), the general duty clause applies not only to 

substances listed under section 1 12(r)(3), but also to "any other extremely hazardous substance." 

42 U.S.C. § 74l2(r)(1). The general duty clause thus gives the agency flexibility to address 

dangers posed by newly developed chemicals as well as by existing hazardous chemicals that did 

not meet section 112(r)(3)'s criterion of "posing the greatest risk." 42 U.S.C. § 7412(r)(3). 

Reserving the ability to exercise its powers under the general duty clause would give EPA the 

ability to proceed against potential risks that might otherwise fall through the cracks in the 

agency's regulatory authority under § I 12(r)(7). 

In outlining the policies his Administration would implement if he were elected, 

President Obama stated that his Administration would "[s]ecure our chemical plants by setting a 

clear set of federal regulations that all plants must follow, including improving barriers, containment, 

mitigation, and safety training, and, where possible, using safer technology, such as less toxic 

chemicals."27 The President, Vice President, and other Administration officials have repeatedly stated 

their support for inherently safer technology requirements. Former EPA Administrator Christine 

Todd Whitman has recently called upon EPA to exercise its powers under the section 112(r) to 

27 Change We Can Believe In: Barack Obama s Plan to Renew America Promise, at 116 (2008).
address chemical threats, 28 and Chemical Safety Board Chair Rafael Moure-Eraso has called upon 

EPA to make enforceable requirements for the use of safer chemicals and processes "a cornerstone of 

its accident prevention programs." 29 As elaborated above, such requirements are necessary to protect 

the public against possible chemical releases, including those that may be caused by terrorist attacks, 

and are well within EPA's existing authority under section 112(r) of the Clean Air Act. 

For these reasons, petitioners respectfully request that EPA grant this petition, commence 

rulemaking proceedings under Clean Air Act section 1 12(r)(7), and take action to revise its guidance 

for enforcement of the general duty clause of Clean Air Act section 11 2(r)( 1). Petitioners request that 

EPA, in compliance with its obligations under the Administrative Procedure Act, 3 ° proceed 

expeditiously to consider this petition within a reasonable time, considering the grave matters of 

public safety at stake. 

Respectfully submitted, 

Michael J. Wright 

United Steel Workers 

David LaGrande 

Communication Workers of 

America 

Ed Hopkins 

Sierra Club 

Lynn Thorp 

Clean Water Action 

Tyson Slocum 

Public Citizen 

Richard Moore 

Los Jardines Institute 

Jennifer Kim 

NJ Public Interest Research 

Group

José T. Bravo 

Just Transition Alliance 

Catherine Thomasson 

Physicians for Social 

Responsibility 

Shelley Vinyard 

Environmental America 

Rick Hind 

Greenpeace 

Kristen Breitweiser 

9/11 Widow 

Erich Pica 

Friends of the Earth 

Nasima Hossain 

U.S. Public Interest Research 

Group

Bill Walsh 

Healthy Building Network 

Louis Gibbs 

Center for Health, 

Environment and Justice 

David Foster, Executive Director 

BlueGreen Alliance 

Kathy Curtis 

Clean and Healthy New York 

Matthew S. Tejada 

Air Alliance Houston 

Gerald V. Poje, PhD 

Founding Member, US 

Chemical Safety Board 

2 See The Danger Downwind, N.Y. Times, May 23, 2012, 

http://www.nytimes.com/20l 2/05/24/opinion/the-danger-downwind-of-chemical-plants.html. 

R. Moure-Eraso, 11 time Jar government and industiy to adopt inherently saJ'r technology, Charleston 

Gazettte, June 23, 2012, http://wvgazette.com!OpinionlOpEdCommentaries/20 1206230057. 

° SeeS U.S.C. §sS 555(b), 706(1).
Rick Engler 

NJ Work Environment Council 

Michael Green 

Center for Environmental 

Health 

Juan Parras 

Texas Environmental Justice 

Advocacy Services 

Erin Switaiski 

Women's Voices for the Earth 

Dorothy Felix 

Mossville Environmental 

Action Now 

Kimberly Freeman Brown 

Green For All 

Cherié Eichholz 

Philadelphia Physicians for 

Social Responsibility 

Rena Steinzor 

Professor, University of 

Maryland Carey Law School 

Gigi Lee Chang 

Healthy Child, Healthy World 

Tracey Easthope 

Ecology Center 

Denny Larson 

National Refinery Reform 

Campaign, National Bucket 

Brigade Coalition & Global 

Community Monitor 

Kristen Welker-Hood, ScD, RN 

Sciencecorps

Rev. Fletcher Harper 

GreenFaith 

Judy Brairnan 

Empire State Consumer 

Project 

Katie Huffing, RN, MS, CNM 

Alliance of Nurses for Healthy 

Environments 

Sandy Buchanan 

Ohio Citizen Action 

Sanford Lewis 

Investor Environmental Health 

Network 

Anne Rolfes 

Louisiana Bucket Brigade 

Edmund J. Schlegel 

Ret. Fire Captain, County of 

Los Angeles Fire Dept., CA 

Brian Imus 

illinois Public Interest 

Research Group 

Tessa Hill 

Kids for Saving Earth 

Jill Johnston 

Southwest Workers Union 

Steve Taylor 

Environmental Health Strategy 

Center 

Ted Smith 

International Campaign for 

Responsible Technology

Lin Kaatz Chary, PhD, MPH 

Indiana Toxics Action 

Erin Heaney 

Clean Air Coalition of Western 

New York 

Boyce Thorne Miller 

Northwest Atlantic Marine 

Alliance 

Dominique Browning 

Moms Clean Air Force 

Pamela K. Miller 

Alaska Community Action on 

Toxics 

Gary Cohen 

Health Care Without Harm 

Jeannie Economos 

Farmworkers Association of 

Florida 

Barbara Warren 

Citizens' Environmental 

Coalition 

Nathalie Walker & Monique 

Harden 

Advocates for Environmental 

Human Rights 

Mark A. Mitchell 

Mitchell Environmental Health 

Associates & Connecticut 

Coalition for Environmental 

Justice 

Cecil D. Corbin-Mack 

WE ACT for Environmental 

Justice
"PETITION TO THE ENVIRONMENTAL PROTECTION AGENCY TO EXERCISE ITS

AUTHORITY UNDER SECTION 112(r) OF THE CLEAN AIR ACT TO PREVENT CHEMICAL

FACILITY DISASTERS THROUGH THE USE OF SAFER CHEMICAL PROCESSES" 

For Correspondence Please Contact: 

Rick Hind, Legislative Director of Greenpeace USA

702 H Street NW, Suite 300

Washington DC, 2001

(202)462-1177 

Tyson Slocum, Public Citizen

1600 20th Street NW

Washington, DC. 20009

(202) 588-1000