Appeals Court Orders EPA to Enforce Amended RMP; Overturns Trump Administration’s Delays
The Trump administration has suffered another setback in its effort to roll back or delay Obama-era EPA regulations. A federal appeals court in Washington, D.C., on Aug. 17 overturned EPA’s decision to delay the enforcement of its amended Risk Management Program (RMP), which was drafted in response to the West Fertilizer Co. explosion.
The amended RMP will now go into effect immediately for all chemical facilities that fall under the RMP’s Program 3 classification. It 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 will be impacted by the amended RMP, including those that store more than 10,000 pounds of anhydrous ammonia.
The ruling was hailed by environmental groups and a number of lawmakers. “This decision means that people living near industrial facilities and those who respond to chemical accidents will have the stronger protections they deserve,” Air Alliance Houston Executive Director Bakeyah Nelson said in an Aug. 17 press release.
Sens. Cory Booker (D-N.J.) and Tom Carper (D-Del.) said in an August letter to EPA that the amended RMP “will save lives and create a safer working environment” for facility workers, first responders, and communities located near chemical facilities. “These constituencies deserve to live, raise their families, and work in a community that is safe from chemical disasters,” the letter said.
The amended RMP has had a bumpy ride since its January 2017 rollout. Originally slated to take effect in March 2017, EPA under Scott Pruitt’s leadership placed a 90-day hold on the rule (GM March 17, 2017) after a coalition of industry groups petitioned for a stay, arguing that the rule required facilities to publicize sensitive information about covered processes, and that stakeholders hadn’t had sufficient opportunity to comment.
EPA then proposed a two-year delay on the rule (GM April 14, 2017), pushing the effective date back to Feb. 19, 2019, so that EPA could have more time to initiate a new administrative process to solicit comments on modification to the rule. 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.
In response, however, a coalition of environmental groups, as well as attorneys general from 11 states, filed a lawsuit in July challenging the delay. In its Aug. 17 ruling to vacate the delay, the U.S. Court of Appeals for the District of Columbia described the rule’s delay as “arbitrary and capricious,” and said it “makes a mockery of the statute.”
“By delaying the effective date, EPA has delayed compliance, reduced or eliminated the lead-up time to achieve the compliance that EPA had earlier found necessary, and thus has delayed life-saving protections,” the ruling said. “EPA may not employ delay tactics to effectively repeal a final rule while sidestepping the statutorily mandated process for revising or repealing that rule on the merits.”
The RMP ruling was viewed by many pundits as the third in a series of recent setbacks for an administration seeking to reduce the regulatory burden on industry. The ruling came just one day after a federal court in South Carolina overturned the Trump Administration’s attempt to delay the WOTUS rule (GM Aug. 24, p. 1), and barely a week after a federal appeals court ordered EPA to ban all remaining uses of the pesticide chlorpyrifos (GM Aug. 10, p. 33).
The Agricultural Retailers Association (ARA) told Green Markets on Aug. 29 that it commented in favor of the revisions that EPA was attempting to make to the amended RMP, and “disagrees with the court decision to overturn them instead of allowing the rulemaking process to run its course.”
It was not clear what the next legal maneuver might be for those opposed to the amended RMP. The EPA proposal in May to rescind portions of the amended RMP is still going through the rulemaking process, and is reportedly unaffected by the decision.
On Aug. 21, a letter was submitted to acting EPA Administrator Andrew Wheeler by former National Security Council staff member David Halperin and retired U.S. Army generals Russel L. Honoré and Randy Manner voicing strong support for the amended RMP and opposition to any weakened version. The letter repeatedly referenced the 2013 West Fertilizer explosion.
“The American people need more, not less, protection from chemical disasters, so we urge you to cancel this rule and instead strengthen safety measures,” the letter said. “To protect our national security, EPA must change course.”