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A federal appellate court’s rejection of the U.S. Environmental Protection Agency’s rule to delay its Risk Management Program amendments for chemical disasters is raising compliance questions for regulated entities since the agency is promulgating a separate rule to rescind the amendments’ most controversial elements.
The EPA under the Trump administration delayed the regulation, also known as the Chemical Disaster Rule, three times, including promulgating a rule in June 2017 to delay its effective date for 20 months. But in July 2017, a group of 11 state attorneys general sued the EPA for delaying the regulation, and the U.S. Court of Appeals for the District of Columbia Circuit ruled in their favor Friday.
“Because EPA has not engaged in reasoned decision-making, its promulgation of the delay rule is arbitrary and capricious,” the appeals court said in vacating the delay rule.
The delay rule did not have the purpose or effect of assuring compliance, but was rather calculated to enable noncompliance, according to the court. “This makes a mockery of the statute,” the court stated.
“We are reviewing the decision,” an EPA spokesperson said via email Sunday.
In May 2018, the agency proposed a rule to rescind the planned changes — a regulation that was seen by some experts as gutting an effort to improve the safety of chemical facilities launched under the Obama administration even as incidents at these facilities continued to occur. An April analysis by a coalition of environmental nongovernmental organizations found that at least 58 incidents have occurred in the United States, including a major evacuation instigated by a fire and explosion at the Husky Energy Inc. oil refinery in Superior, Wisconsin, since the delay began.
Facilities will be required to conduct a root cause analysis as part of an incident investigation of a catastrophic release or a near-miss event that could have resulted in a catastrophic release, according to the amendments. Facilities will also be required to hire a third-party auditor or a team led by a third-party auditor to perform a compliance audit after a reportable incident. Prior to the final rule, facilities had to do compliance audits and incident reports, but those could be led by an internal staffer most familiar with the facility and internal processes.
“This ruling creates significant concern for the regulated community,” attorneys at Washington-based Conn Maciel Carey L.L.P. said in a blog post Friday. “The amendments require major overhauls to the way covered employers implement their risk management plans. But EPA is still advancing a rulemaking to rescind and narrow those amendments. Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs.”
But David Michaels, the former assistant secretary of labor for Occupational Safety and Health and professor at the Milken Institute School of Public Health at George Washington University in Washington, praised the appellate court’s decision via Twitter on Friday. “EPA cannot simply decide not to enforce a regulation — especially one that will save lives,” he said.
The Obama-era proposal was adopted in the wake of the West, Texas, fertilizer plant explosion that killed 15 people in 2013. But the EPA said its new proposal related to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ finding that the 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.
The appeals court rejected the Trump administration’s rationale for rescinding the regulation.
“Even were the court to agree for purposes of argument that the cause of the West, Texas, disaster being arson is relevant to some of the accident prevention provisions of the chemical disaster rule, it is irrelevant to the emergency-response and information-sharing provisions, including those that have indisputably been delayed from the original March 14, 2018, effective date,” the court stated. “Given that 12 of the 15 fatalities in the West, Texas, disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning.”
That comment by the appellate court reflects the amendments’ requirements that regulated entities coordinate with local emergency responders at least annually on an emergency response plan and to ensure that responders are aware of the risks, quantities of the regulated substances at their facilities and their ability to respond to accidental releases. This was in direct response to the West disaster because the emergency responders were unaware of the ammonia nitrate risks present at the facility and attempted to put out the fire rather than focusing on evacuations, experts said.
Due to procedural rules, the earliest the amendments could go into effect is early October 2018 — a petition for rehearing granted by the D.C. Circuit should extend that time frame by several months, according to the Conn Maciel attorneys. However, if a hearing is not granted, some of the amendment provisions would become immediately effective, including the compliance audits and coordination with local emergency responders.
“By ignoring the obvious change in regulatory strategy after the change in administrations, the D.C. Circuit Court highlighted the difficulty EPA may face as it seeks to reverse the actions the same agency took during the Obama Administration,” the attorneys continued. “While the court made clear that EPA has the ability make substantive changes to its own rules, that ability is limited by its Congressional authorization (the Clean Air Act in this case), and a change in presidential administrations has no effect on that authorization.”
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.