The U.S. Environmental Protection Agency (EPA) has apparently decided not to pursue further legal action following a federal appeals court decision in August ordering the agency to enforce its amended Risk Management Program (RMP), according to Bloomberg Law.
The agency had until Oct. 1 to file a petition in response to the Aug. 17 ruling by the U.S. Court of Appeals for the District of Columbia (GM Aug. 31, p. 1), which found that the enforcement delays imposed by former EPA Director Scott Pruitt against the amended RMP were “arbitrary and capricious” and made “a mockery of the statute.”
Bloomberg Law, citing legal records, reported that the government declined to file a petition for a rehearing of the case before the Oct. 1 deadline. As a result, the amended RMP, which was drafted in response to the West Fertilizer Co. tragedy, could go into effect as early as this month for all chemical facilities that fall under the RMP’s Program 3 classification.
The amended RMP contains a number of provisions that were strongly opposed by chemical industry trade groups (GM April 22; May 27, 2016), including The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA).
These provision include increasing the frequency and scope of “independent third-party compliance audits” while narrowing the pool of eligible auditors; requiring “root cause investigations” for chemical incidents and “near misses;” requiring companies to evaluate the feasibility of adopting inherently safer technologies (IST) as part of their process hazard analyses; enhancing coordination with local emergency response organizations; and enhancing public information sharing.
EPA previously estimated that some 10,628 facilities nationwide would be impacted by the amended RMP, including those that store more than 10,000 pounds of anhydrous ammonia. Bloomberg Law said EPA has estimated that fully implementing the amended RMP would cost companies about $131 million per year, while preventing some of an estimated $274.7 million in annual damages from unplanned chemical releases.
Originally slated to take effect in March 2017, EPA under Scott Pruitt’s leadership first placed a 90-day hold on the amended RMP (GM March 17, 2017), and then proposed a two-year delay (GM April 14, 2017), pushing the effective date back to Feb. 19, 2019. TFI at that time (GM April 21; May 26, 2017) said it supported the extension, and called on EPA “to reexamine several parts of the RMP proposal that will have unintended security and emergency response consequences.”
Earlier this year, Pruitt released another proposal to rescind several provisions of the amended RMP (GM May 25, p. 27), including those related to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and “several other minor regulatory changes.” In addition, EPA proposed to modify amendments relating to local emergency response coordination and notification.