Regulatory Developments

Groups Take EPA to Court Over Delay of RMP Amendments

Led by an industrial workers’ union, 14 environmental and health organizations have petitioned the D.C. Court of Appeals to stay EPA’s final rule (June 14, 2017, FR) delaying by up to 2 years the Agency’s amendments to regulations implementing the Clean Air Act’s (CAA) Risk Management Program (RMP), CAA Section 112(r). According to the petitioners, the delay is “a shocking disregard for the rule of law and the process the government is required to follow before it takes away any health and safety protections under the Clean Air Act.”

Industrial fire training for refinery or chemical plant fire brigade or fireman

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The petition refers to the amendments as the “Chemical Disaster Rule.”

Increased Sharing of Information

The original 1996 RMP regulations require that owners and operators of thousands of stationary sources nationwide assess the potential impact of releases of dangerous chemicals kept on-site; undertake steps to prevent those releases; plan for emergency response to releases; and summarize all this information in a risk management plan submitted to the EPA.

The RMP amendments (January 13, 2017, FR) being delayed added provisions, including requiring covered facilities to conduct root-cause analyses of both accidents and near accidents; have independent third parties conduct compliance audits if there has been a reportable accident or if an implementing RMP agency determines that a third-party audit is necessary based on information about the facility or about a prior third-party audit at the facility; engage in annual coordination with Local Emergency Planning Committees (LEPCs) or local emergency response officials to clarify response needs, emergency plans, roles, and responsibilities; and share emergency planning information with the LEPCs and also share information about chemical hazards and accident history with the public.

No Opportunity to Comment

In February 2017, major industry organizations calling themselves the RMP Coalition asked the EPA to reconsider the amendments. Shortly thereafter, 11 states also requested that the amendments be stayed and reconsidered. Generally, the petitioners were most concerned about new requirements to disclose internal information to the LEPCs and have third parties conduct audits. The petitioners claimed that these provisions were not described when the amendments were proposed, and hence, there was no opportunity to comment on them. The petitioners also noted that the catastrophic explosion at the West Texas Fertilizer facility in April 2013, which provided some impetus for the amendments, was later found to be an act of arson, not the result of safety mismanagement and, therefore, not a reasonable basis for some of the amendments.

The EPA found the concerns valid and in March 2017 issued a 90-day administrative stay of the amendments. The Agency then proposed two additional delays (April 3, 2017, FR): a 3-month bridging delay, which would be followed by a 20-month delay, ultimately giving the Agency until February 19, 2019, to reconsider the amendments and take follow-up regulatory action.

“[The delay] of the effective date enables EPA time to evaluate the objections raised by the various petitions for reconsideration of the RMP amendments, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise or rescind the RMP amendments, as appropriate,” states the Agency. “During the reconsideration, EPA may also consider other issues, beyond those raised by petitioners, that may benefit from additional comment, and take further regulatory action.”

Illegal Postponement

The petitioners claim that before the delay was promulgated, they asked the EPA not to finalize it and also submitted requests for a stay of the delay but received no response. The point of the delay, the petitioners continue, is to make sure no facilities need to “prepare to comply with, or … immediately comply with, rule provisions that might be changed during the subsequent reconsideration.”

“EPA simply cannot do this,” state the petitioners. “The Clean Air Act is explicit that reconsideration ‘shall not postpone the effectiveness of the rule,’ beyond a three-month period. EPA’s stay under this provision expired June 19. EPA’s intention to perform reconsideration through 2019 and solicit comment ‘on any other matter’ regarding the Chemical Disaster Rule cannot nullify that rule now; only a new final action that lawfully changed course through reasoned decisionmaking could do so.”

The petition to the D.C. Circuit is here.

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