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A new proposed rule by the U.S. Environmental Protection Agency would gut an effort to improve the safety of chemical facilities launched under the Obama administration even as incidents at these facilities continue to occur, according to some experts.
In the latest incident, a fire at the Pasadena, Texas, facility of Houston-based chemical company Kuraray America Inc. injured 21 workers on Saturday. Preliminary findings indicate a pressure safety valve released ethylene, causing a flash fire in one of its process units, according to a company statement on Saturday. The U.S. Chemical Safety and Hazard Investigation Board is deploying a four-person investigative team to the scene, the agency said in a statement on Monday.
On Thursday, the EPA issued a proposed rule that would rescind changes to the agency’s Risk Management Program proposed by the Obama administration in January 2017, including requirements for third-party audits and incident investigations at chemical facilities regulated by the agency.
“Make no mistake — a third-party audit of a complex facility is an extraordinarily expensive undertaking,” said Shannon Broome, San Francisco-based attorney with Hunton Andrews Kurth L.L.P. “That kind of additional expense needs to be thoughtfully considered when you already have a requirement in the rule for compliance auditing on a regular basis.”
“The EPA is supposed to enforce its rules,” said Ms. Broome, who represented industry groups intervening on EPA’s behalf in litigation over the agency’s rule to delay the regulation. “It’s not supposed to outsource that and create a third-party auditing industry.”
The EPA is also planning to modify planned amendments relating to local emergency coordination, emergency exercises and public meetings and to change the compliance dates for these provisions, according to an agency statement on Thursday.
“It is a near-full revocation of that final rule,” said Micah Smith, Washington-based of counsel with Conn Maciel Carey L.L.P.
EPA Administrator Scott Pruitt had opposed the rule in his position as attorney general in Oklahoma prior to being named the head of the agency.
“Basically, it shows that Pruitt is caving in to the chemical industry,” said Jordan Barab, former deputy assistant secretary of U.S. Occupational Safety and Health Administration under the Obama administration and founder of the Confined Space safety and health newsletter. “It’s not just rescinding some of the provisions of the Obama regulation. It’s pretty much rescinding everything significant in the regulation and significantly weakening those remaining parts of the original regulation.”
The agency said it is proposing these changes to address potential security risks associated with new information disclosure requirements and address concerns about unnecessary regulations and regulatory costs and a lack coordination between the EPA and OSHA, which has engaged in similar rule-making.
OSHA’s process safety management regulation remains on the Trump administration’s long-term action list, meaning that activity on the regulation is not expected for the next 12 months following publication of the agenda.
“One of the excuses that Pruitt uses to justify rescinding this regulation and all the protections in this regulation is that EPA didn’t sufficiently coordinate with OSHA and that EPA really has to wait for OSHA to act at the same time,” Mr. Barab said. “What that is basically saying is that EPA will never act because under this administration OSHA will never issue a process safety management standard.”
Even if OSHA were to begin work to finalize a process safety management regulation, it would conflict with President Trump’s two-for-one executive order, which stated that for every new regulation proposed by an agency, two rules would have to be rescinded, he said.
“OSHA’s PSM standard is going to be very expensive, and the agency will never be able to figure out what two worker protections of equal cost it’s going to repeal to issue a PSM update,” Mr. Barab said. “The bottom line is you’re never going to see that as long as Trump is president.”
The Obama-era proposal was adopted in the wake of the West, Texas, fertilizer disaster that killed 15 people. But the agency said its new proposal related to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ finding that the West Fertilizer incident was caused by arson and not an accidental chemical incident. The fire and explosion at the West Fertilizer Co. killed 12 emergency responders and three civilians and injured more than 300 other people.
“I think it’s a very convenient fact for them, given that this process started with the executive order that was issued after that West, Texas, incident,” Mr. Smith said. “It’s certainly entirely too narrow-minded. If you’re paying attention, there are other incidents in the news.”
The critical issue with the West fire was not how it started, but why it led to such a catastrophic explosion, Mr. Barab said.
“That’s where process safety management and chemical safety becomes important — preventing small fires from becoming catastrophic explosions,” he said. “Even if the fire was arson … it still does not justify EPA weakening this regulation or EPA further restricting the amount of information that’s going to go to the community.”
The West, Texas, disaster led to then-President Barack Obama’s April 2013 executive order directing agencies such as the EPA to strengthen their preparation and response to chemical safety incidents, which culminated in the proposed EPA Risk Management Program amendments and other actions.
But the Trump administration delayed enforcement as it pored over reconsideration petitions, which led a group of 11 state attorneys general to sue the EPA in July 2017 over the delay.
Legal experts expect litigation over the new proposal but not immediately, as the rule has not yet been finalized. The proposed rule will be available for public comment for 60 days after publication in the Federal Register.
“The short answer is yes — you can expect litigation,” said Brittany Barrientos, a Kansas City, Missouri-based partner with Stinson Leonard Street L.L.P. “I always say that EPA is in the terrible position of the enemy of all. You don’t see many rules get through EPA promulgation unchallenged, and this one will be no different.”
A deadly explosion at a Texas fertilizer plant in 2013 was intentionally set and constitutes a criminal act, according to U.S. investigators who are offering a $50,000 reward for information leading to the arrest of the responsible party or parties.