Court To Decide Fate Of EPA’s Chemical Disaster Rule

February 20, 2018 | 1:29 pm
US Department of Energy
Josh Goldman
Former Contributor

Union of Concerned Scientists (UCS) is plaintiff in a lawsuit challenging a 20-month delay EPA Administrator Pruitt put on standards designed to prevent accidents at facilities that use or store hazardous chemicals. On March 16, the U.S. Court of Appeals for the D.C. Circuit is scheduled to hold a public oral hearing on this case, which pits environmental justice communities, scientists, public health advocates, and others against the EPA – whose very mission is to protect public health.

Why we need updated chemical safety regulations

As my colleagues Yogin and Kathy have detailed, chemical-related accidents happen like clockwork. Over 2,000 incidents were reported between 2004 and 2013, and lives were lost. Over 17,000 people were injured and 59 people were killed during this period, and over 400,000 people experienced evacuations or shelter-in place orders because of a chemical-related accident at a facility covered by the rules delayed by EPA.

For years, community groups, environmental organizations, and labor groups lobbied for stronger chemical disaster prevention rules. In 2013, President Obama finally issued an Executive Order directing federal agencies to enhance chemical facility safety. EPA then undertook a multi-year effort of stakeholder engagement and requests for information in the run-up to a proposed rule. After receiving comments from the regulated industry, advocacy groups, and other stakeholders, a rule was finalized in January . The updated rule, which modernized the EPA’s Risk Management Program, was scheduled to go into effect March 14, 2017, though some of the provisions were scheduled to phase in over time, some as far out as 2022, which gave the covered facilities some flexibility in figuring out how to comply with the updated requirements. Upon entering office, Administrator Pruitt put this rule on hold until February 2019, almost 2 years later than the rule was supposed to go into effect. This decision prompted the legal challenge from UCS and others.

Smoke and flames rise from the flooded Arkema chemical plant in Crosby, Texas, after two trailers of highly unstable compounds blew up. First responders filed a lawsuit saying they weren’t properly warned of risks while responding to an Arkema facility explosion after Hurricane Harvey. Image via: Associated Press / WSJ.

What’s next for the EPA risk management program

There are heavy hitters on both sides of this case. The plaintiffs are a coalition of scientists, fenceline communities, public health advocates, the United Steelworkers (North America’s largest industrial labor union) the EPA, and the DOJ. The case will likely hinge on a judicial interpretation of whether EPA has the authority to delay rules as long as they wish, or whether the agency must adhere to the Clean Air Act’s directive that any reconsideration of a rule “shall not postpone the effectiveness” of the rule for longer than three months (emphasis added).

Interested in more of the legal theory? Read the excellent brief filed by our council Earthjustice here, or let me know if you would like a more in-depth debrief. Stay tuned for the result. The safety of many communities across the country will hinge on it.