As one of his first acts in office, EPA Administrator Scott Pruitt decided to put on hold the implementation of new regulations to improve the safety of chemical facilities around the country. Those regulations, finalized in 2017, called for consideration of safer technologies, better information for communities and first responders that are on the front lines of accidents and other incidents, better planning for accidents and disasters, and improvements in response capabilities including coordination and practice sessions with local first responders. These changes were made to update the so-called Risk Management Plan rule, last significantly modified in 1996.
Now, the EPA has proposed a new rule, modifying the 2017 regulations without ever implementing them. The new proposal, soon to be published in the federal register and open for a 60-day public comment period, basically rescinded all new requirements with a few minor exceptions and takes us back to 1996 at best. The justification by Pruitt’s EPA is that it will reduce industry costs if they don’t have to do these things, by $88 million. Rolling back these critical protections in the wake of a devastating hurricane season that demonstrated the need for increased planning for these chemical facilities and after there have been 43 reported incidents at chemical facilities since the rule was initially delayed demonstrates a lack of leadership and commitment to public health at the EPA.
The short summary is that Pruitt’s EPA has eliminated or weakened every provision of the rule to eliminate protection for fenceline communities or workers. The justification is possibly saving $88 million dollars in compliance and at the expense of immense public health and safety benefits to communities which were not calculated in the proposal.
When the Public Comment period is open, the EPA will hold exactly one public hearing to receive input in addition to written comments. That hearing will be in EPA Headquarters in DC, not in any one of the communities like Houston, TX and Wilmington, DE affected by the risks of chemical facilities, and frankly out of reach in terms of cost to most grassroots or local organizations. That’s a shame. It also means that the written comments submitted to the EPA are all the more important as the delay of the previous rule, and certainly this new proposal if it is finalized, are being challenged in court, including by the Union of Concerned Scientists.
So here are five things you should note as you consider commenting on the new EPA proposal.
- The 2017 rule required chemical facilities to evaluate and consider safer technology and alternatives defined by the EPA itself as “a variety of risk reduction or risk management strategies that work toward making a facility and its chemical processes as safe as possible.” Seems reasonable that these should be considered by facilities everywhere to reduce risks to workers, communities and first responders. The idea is to reduce the risks with safer alternatives before an accident or disaster takes place. The preventive medicine of the chemical facility so to speak. The new proposal completely eliminates this requirement for facilities to look at preventative, safer alternatives. The justification for the rollback was the costs to industry, without any consideration of benefits to the public or to the mission of the EPA (to serve the public interest).
- Prior to the new rules set in 2017, it was nearly impossible to get much information about what chemicals were being held at a facility in a timely and regularly updateable way. To obtain any information, you had to prove you lived in the neighborhood around the facility and go to a special EPA reading room when it was open—if it was available, you were not allowed to use a copier, computer or scanner and you couldn’t take anything away. The 2017 rules eased these restrictions somewhat by allowing communities to ask for information and requiring companies to be forthcoming in a timely way. The new proposal eliminates that option. It goes back to a system where the public, including first responders, have little or no information in case of a chemical disaster or emergency chemical release in their neighborhood.
- Prior to 1996, chemical facilities could leave most of the response capability for accidents and disasters up to the local government, with the cost borne by local taxpayers, not the company. That burden was only partially shifted in 2017 with greater participation and coordination requirements put on companies to work with local government and groups. The new proposed rule takes a step back again and weakens those requirements, though there would be some requirement for joint exercises to practice responding to an accident every few years. And they propose eliminating the requirement to report on the results of those exercises to improve performance.
- Under the 2017 rules, when an accident occurred, an incident analysis would be required along with an analysis of the causes of the incident. Now Pruitt’s EPA is eliminating that requirement to analyze and report on accidents and their causes and make that information available to the community.
- And, in 2017 the rules required the industry to hire third-party independent auditors to evaluate compliance with the rules and to investigate problems. The EPA is now proposing to eliminate that requirement and continue to allow companies to audit themselves.
Should you submit a comment? Yes! Because this proposal makes all of us less safe. It is simply unacceptable that we cannot do a better job of preventing and responding to the thousands of chemical accidents that occur every year in this country.