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The Trump administration is likely to move to repeal all of the U.S. Environmental Protection Agency’s regulatory amendments designed to prevent chemical incidents such as the West, Texas, fertilizer disaster that killed 15 people, according to a legal expert.
In December 2016, the EPA, under the Obama administration, issued a rule amending its risk management program regulations that aimed to prevent accidental releases at chemical facilities and improve emergency response activities when those releases occur.
The rule was scheduled to take effect in March but was delayed until June by the Trump administration, which eventually issued a new regulation further delaying the effective date to Feb. 19, 2019, so that it could consider petitions to reconsider the program amendments.
“My sense is, at this moment in time, the most vulnerable elements are all of them,” Eric Conn, chair of the U.S. Occupational Safety and Health Administration workplace safety group for Conn Maciel Carey L.L.P., said during a webinar hosted by his law firm on Tuesday. “It’s likely to be a complete withdrawal or rescinding of the amendments that were advanced.”
In July, 11 state attorneys general sued the EPA in the U.S. Court of Appeals, District of Columbia Circuit, accusing the Trump administration of implementing an illegal two-year delay to the accidental release prevention regulations under Section 112(r) of the Clean Air Act — also known as the EPA risk management program regulations — and asked the court to vacate the delay rule. But the EPA filed a motion on Friday to dismiss the litigation, arguing that the petitioners lacked standing and that the agency had “ample authority” to issue its delay rule.
“If the delay is found to be an unlawful rule, the amendments would go into effect, but that would not stop the agency from undertaking a new rulemaking to analyze amendments to the amendments, rescind the amendments or doing something different altogether,” Mr. Conn said. “We’re paying close attention to that challenge.”
Some organizations petitioning the EPA to reconsider the rule noted that the news that the West, Texas fertilizer incident was the result of arson rather than an accident showed that the amendments were based partly on an “important mistaken assumption” and complained that the late timing of the finding precluded effective comments on this new development, according to the EPA’s court filing. In addition, some petitioners objected to the rule’s disclosure requirements and expressed concern they could increase security risks.
“Clearly, (the) EPA does not desire to establish regulations that increase security risks,” the agency said. “While (the) EPA has not concluded that the (amendments) would increase such risks, the petitioner’s concerns, which are echoed by many other commenters, require careful consideration and cannot be dismissed out of hand.”
There was concern about how much of the information about the chemicals in these facilities would be shared publicly versus being shared only with emergency responders, Mr. Conn said. The rule as initially proposed included a broad disclosure requirement – in direct response to the West, Texas, incident in which the local first responders were unaware of the chemical hazards in the facility.
“There was a great deal of concern about having out there accessible to terrorists and ne’er-do-wells exactly what chemicals are onsite and what volumes and how the facility could be significantly impacted by events like attacks on the facility or accidents at the facility,” he said.
The rule’s requirement for companies to conduct a safer technology and alternatives analysis was “the element of the RMP amendment that probably caused the most heartburn among operators and employers,” Mr. Conn said. “This was going to be essentially adding a whole new process hazard analysis to the PHA process where you analyze the availability and the feasibility of alternative chemicals, alternative technologies, alternative equipment that might be inherently safer or safer in any measure than the technologies and the chemicals already in place in your process.”
The requirement for this type of ongoing analysis is “a real big deal,” he said. “It’s one thing to do a risk engineering analysis before a new process goes online. It’s an entirely different ballgame to look at this in the life of the process … making this a significant burden and great challenge for operators and employers.”
Meanwhile, OSHA is unlikely to move on a modernization of its process safety management standard: “a sister rulemaking” to the EPA’s risk management program amendments, Mr. Conn said. In July, the Trump administration proposed its Unified Agenda, which reports on regulatory and deregulatory activities under development for the coming year, and the PSM item was moved to the long-term action list, “also known as the backburner,” he said.
“On the OSHA front, we don’t expect to see any further progress on this rule during the Trump administration,” Mr. Conn said.
A federal district court has refused to dismiss coverage litigation filed by a chemical company against a Chubb Ltd. unit over its refusal to pay environmental and personal injury claims under its excess policy.