Chemical Policy and Homeland Security Redux

The Bureau of National Affairs reported recently that the House Homeland Security Committee is considering draft legislation that would require major chemical facilities to evaluate the use of inherently safer design to reduce chemical security risks.  Generally speaking, inherently safer design attempts to reduce risks associated with the storage and use of hazardous chemicals by using safer substitute chemicals or processes, or by minimizing the amount or nature of the hazardous chemicals at the plant.  Similar provisions were in early versions of the current Department of Homeland Security Appropriations Act, but dropped in the face of vigorous industry objections.  The American Chemical Council has already voiced renewed concerns regarding these new provisions, cautioning that mandatory inherently safer design could adversely affect industry’s ability produce goods and maintain product quality.

Will inherently safer design make it in this time around?  There does seem to be some momentum building for such management-based regulations in the chemical policy area at the state, local and international level.  Consider the European Union’s REACH program, California’s new Green Chemistry statute,  and Contra Costa County’s Industrial Safety Ordinance, all of which incorporate such an approach.  At the federal level, debates over TSCA reform will undoubtedly include lively discussion about mandatory alternatives analysis as well.  It could be quite an interesting year to come.

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Timothy Malloy teaches Environmental Aspects of Business Transactions, Regulatory Lawyering, Regulation of the Business Firm, Environmental Policy and Politics, and Contr…

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