Of Natmats, Terrorists, and Toxics: Regulatory Adaptation in a Changing World

36 Pages Posted: 14 Apr 2008 Last revised: 26 Aug 2013

Timothy F. Malloy

University of California, Los Angeles (UCLA) - School of Law

Abstract

Regulators charged with overseeing chemical production and use in the United States face a perfect storm of sorts. Proliferation of new toxic chemicals, climate change-induced extreme weather events, and the specter of industrial terrorism are converging at once, increasing the likelihood of both chronic and catastrophic chemical releases. Taken together, these three developments call for a reevaluation of the risk management paradigm underling our existing environmental and chemical security regulations. That paradigm relies upon administrative procedures and control technologies to minimize the risk of release and, in the event of a release, to reduce the likelihood of human exposure to the released substance.

Risk prevention is a competing approach which focuses on removing the risk by removing the chemical. Where replacement of the chemical with a safer substitute is not practical, risk prevention attempts to modify the production process so as to reduce the amount of the chemical used or stored at the facility. EPA rejected risk prevention in developing its chemical risk management program in the early 1990s, as did both Congress and the Department of Homeland Security (DHS) in crafting security requirements for chemical facilities in the years after 9/11.

This article presents the case for the adoption of inherently safer design (ISD), a risk prevention methodology with roots in industrial hygiene, as part of our nation's chemical policy. ISD builds safety into industrial processes through systematic review of new and existing industrial processes and the evaluation of safer alternative processes and chemicals. The article examines the ISD methodology, and considers arguments raised against its adoption before Congress and DHS. It concludes that ISD, which is already used by a number of businesses, could be integrated into existing chemical management programs by requiring all affected facilities to consider ISD, implement ISD alternatives to the extent feasible, and to document the basis for the rejection of potential ISD alternatives.

Keywords: climate change, industrial terrorism, chemical risk management, EPA

Suggested Citation

Malloy, Timothy F., Of Natmats, Terrorists, and Toxics: Regulatory Adaptation in a Changing World. UCLA School of Law Research Paper No. 08-14; UCLA Journal of Environmental Law & Policy, Vol. 26, pp. 93-127, 2008. Available at SSRN: https://ssrn.com/abstract=1115008

Timothy F. Malloy (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-794-5278 (Phone)

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