In a letter to EPA Administrator Lisa Jackson, former Administrator Christine Whitman states that the Agency should make use of the general duty clause in CAA Section 112(r) to require chemical facilities to adopt inherently safer technologies, thereby reducing the risks of harm to the public resulting from accidental or intentional releases of toxic chemicals. Whitman adds that the general duty clause could also be used to address risks at thousands of chemical facilities that are exempted by current law from Department of Homeland Security antiterrorism regulations. At present, exempted facilities include all water treatment plants and refineries located on navigable waters.

In her letter to Jackson, Whitman notes that after the 9/11 attacks, EPA, under her leadership, seriously considered using Section 112(r) to extend the Agency’s existing responsibility to include releases caused deliberately. Whitman eventually decided that such a direction should be undertaken by Congress to reduce the potential for court challenges. Subsequently, the Whitman EPA worked with stakeholders for over a year to craft a bill that included language encouraging the use of inherently safer technologies. Ultimately, the White House chose not to submit the legislation to Congress.

Whitman emphasizes that the Section 112(r) general duty clause “has not been changed or amended on this subject.” Specifically, it obligates chemical facilities handling the most dangerous chemicals to prevent potentially catastrophic releases to surrounding communities.

Whitman notes a 2003 Government Accountability Office report that concluded that EPA could use the CAA’s general duty clause to effect these actions without regulatory changes since the Agency currently implements the clause through guidance. Therefore, by issuing new or revised guidance, EPA could reduce the hazards associated with chemical facilities “before a tragedy of historic proportions occurs,” according to Whitman.