EPA’s Risk Management Plan (RMP) Final Rule Delayed
EPA’s new Risk Management Plan (“RMP”) Final Rule was to take effect on March 14, 2017. EPA has delayed the effective date until June 19, 2017, and has proposed a further delay until February 19, 2019, in light of industry petitions for reconsideration and judicial review.
On February 28, 2017, the “RMP Coalition” filed its petition with the EPA seeking reconsideration of the Final Rule (“Petition”). The Coalition, which is also seeking judicial review of the Final Rule in the U.S. Court of Appeals for the District of Columbia, is composed of the American Chemistry Council, the American Forestry & Paper Council, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, the Chamber of Commerce of the United States of American, the National Association of Manufacturers, and the Utility Air Regulatory Group.
Starting at the end, the Petition acknowledges that the pre-existing (which is to say, the current regulation until the Final Rule takes effect) “has proven to be a robust and effective process for improving safety and reducing accidental releases” of extremely hazardous chemicals. (Petition, p. 21) Moreover, the Petition asserts “the Coalition commits to work with the EPA, OSHA and other stakeholders on a new rulemaking in response to this Petition. (Petition, p. 21) The Final Rule as promulgated, according to the Petition, however, “rests on a faulty foundation.”
First, the Petition asserts challenges to a host of procedural deficiencies during the rule making process.
A. Disclosure requirements to local emergency planning committees and the public could undermine security by allowing access to sensitive information by terrorists.
B. Inadequate notice and opportunity for public comment on the replacement of a predictable trigger for third-party auditing (based on non-compliance with specific regulations) with “an unpredictable one that relies entirely on the implementing agency’s discretion to determine which conditions “could lead to an accidental release.”
C. EPA’s omission of reasonableness of cost assessment and detailed cost-benefit analyses deprived industry and the public with a meaningful opportunity to address EPA’s inadequately supported conclusion that the Final Rule is cost effective.
D. Inadequate notice and opportunity for public comment on the replacement of representative sampling of covered processes with mandatory evaluation of each covered process at least every three years.
E. Inadequate notice and opportunity for public comment on the legal basis for third-party auditing and safer technology alternatives assessments.
F. EPA added numerous supporting documents after the close of the public comment period.
Second, the Coalition’s Petition asserts that changed circumstances merit reconsideration and a refocusing of the Final Rule. President Obama signed an Executive Order instructing various agencies, including OSHA, which administers its Process Safety Management (“PSM”) regulation, to consider revising the RMP in the wake of the massive explosion of ammonium nitrate at a facility located in West, Texas in 2013, given ammonium nitrate is not a regulated chemical under the RMP. Just two days before the public comment period expired, however, the Bureau of Alcohol, Tobacco, Firearms and Explosives announced the explosion had been caused by an arsonist. The Coalition argues that the overarching emphasis in the rule making process would have centered on security and preventing intentional criminal or terrorist actions rather than on compliance with existing regulations if it had been known from the beginning the explosion was the work of an arsonist.
The EPA’s RMP and OSHA’s PSM are demonstrably important programs that protect lives on and off chemical storage facility sites. These regulations will not be going away. It appears, however, the details of the Final RMP will be the subject of intricate legal argument and judicial scrutiny in the months, and more likely years, to come.