Regulatory Developments

State AG Coalition Challenges EPA’s Delay for Chemical Safety Amendments

In response to the EPA’s final rule to extend for 20 months a stay of recent revisions to chemical accident prevention regulations, a coalition of attorneys general (AGs) from 11 states filed a petition July 24 with the U.S. District Court of Appeals for the District of Columbia Circuit asserting the agency exceeded its authority under the Clean Air Act (CAA).

The legal action is led by New York’s Attorney General Eric Schneiderman, who was joined by attorneys general from Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

“Protecting our workers, first-responders, and communities from chemical accidents should be something on which we all agree,” Schneiderman stated in a news release. “Yet the Trump EPA continues to put special interests before the health and safety of the people they serve.”

On January 13, 2017, the Obama administration published a final rule to amend existing Risk Management Program (RMP) regulations under the accidental release prevention requirements of CAA Section 112(r).

In the final rule, the EPA spelled out several new provisions to improve local coordination of emergency preparedness and planning, and to increase the public’s access to facility chemical hazard information.

The RMP amendments rule also would add several elements to investigation reports that facilities must prepare after any incident that resulted in, or could reasonably have resulted in, a catastrophic release. Reports would be required to identify the “root cause” of the incident, and include information on the consequences of the accident and any emergency response actions taken.

In addition, the final rule would strengthen and clarify requirements related to the use of independent third parties to conduct RMP audits at a facility. Such third-party audits would be required after a reportable incident has occurred, or when an “implementing agency” determines that an audit is necessary.

However, before the RMP amendments became effective in March, the EPA granted an industry petition to reconsider the new rules and stay their effective date. Industry argued the RMP amendments may create issues with respect to plant security and would complicate compliance.

The EPA agreed to conduct a “proceeding for reconsideration” of the amendments and eventually issued a final rule staying them until February 19, 2019. In granting the extended stay, the EPA said it needed “additional time to review the program, so that we can fully evaluate the public comments raised by multiple petitioners and consider other issues that may benefit from additional public input.”

According to the coalition of attorneys general, the decision to delay the rule for nearly 2 years directly contradicts a June 2017 EPA factsheet outlining the safety benefits of the EMP amendments. “The 20-month delay would extend the date at which chemical facilities must comply with the rule’s emergency response requirements to 2020, and with its accident prevention program and public information disclosure requirements to 2023,” the coalition stated.

The 11 state attorneys general are challenging the EPA’s delay action based on arguments that the agency exceeded its CAA authority and that its action is “arbitrary and capricious.”

They point to data showing that more than 1,500 chemical accidents have occurred nationwide over the past 10 years. “Nationally, these accidents caused 58 deaths; 17,099 people to be injured or to seek medical treatment; almost 500,000 people to be evacuated or sheltered in place; and over $2 billion in property damage.” The coalition argued that the number and severity of these accidents “make clear the need to update the safety and security of the nation’s chemical facilities.”

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