On January 13, 2017, EPA published a final rule amending its Risk Management Program (RMP) in response to an Executive Order from former President Obama ordering enhanced safety procedures in the wake of the West Texas fertilizer fire in 2013. As discussed in the May 2016 issue of the Air Quality Letter, EPA’s proposed rule added numerous requirements for certain facilities, including root cause analyses after incidents or “near misses”; independent third party audits; safer technology and alternatives analysis; significantly enhanced coordination with first responders (including field and tabletop exercises); and making publically available a host of information, including regulated substance information and emergency response program information. EPA proposed that the public information be in an “easily accessible” format such as a website.

EPA received criticism on the proposed rule from industry, especially regarding the requirements for public access to information that could be used by persons inclined to cause a catastrophic release to select a target and exploit emergency response plans for any perceived vulnerabilities. Security issues raised by the proposed rule were of major concern during the public comment period. Also of concern was the requirement for totally independent public audits, whether the proposed requirement for a safer technology and alternatives analysis for some facilities provided any practical benefit and whether the proposed requirement for field and tabletop exercised would provide significant benefit.

In the final rule, EPA attempted to address security concerns by removing the requirement to post hazard information on websites and instead requiring facilities to make information available on request regarding the names of regulated substances in the operating process, safety data sheets, a summary of the emergency response program, a list of coordination exercises scheduled with emergency responders, and local emergency responder contact information. The final rule also required a facility to provide a local emergency planning committee (LEPC) with any information related to emergency planning the LEPC deems relevant and requests. Further revisions in response to comments included removal of the certification requirement for auditors and allowing other participants to be involved in the audit process.

EPA’s changes to the final rule did not satisfy criticism and various actions have been taken in response since publication. On February 1, 2017, a joint resolution under the Congressional Review Act (CRA) was filed in the House of Representatives that would disapprove the rule. A joint resolution for the same purpose was introduced in the Senate on March 2, 2017. However, competing priorities could overtake the CRA resolution to stop this rule.

On February 28, 2017, a coalition of industry groups consisting of the American Chemistry Council, the American Forest and Paper Association, the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, the United States Chamber of Commerce, the National Association of Manufacturers and the Utility Air Regulatory Group petitioned EPA Administrator Scott Pruitt for review of the rule. The petition requests the rule be reviewed and rescinded and the effective date be stayed. Along with other final rule provisions, the petition identifies the LEPC disclosure requirements as a new provision that should have gone through additional public notice and comment as it poses a security threat. The petition also asserts that the finding that the West Texas incident was an intentional criminal act of arson, released two days prior to the end of the public comment period, made it impractical for commenters to fully consider the impact of the finding or how the proposed rule may change based on the finding (e.g., more focus on enhanced security measures for facilities).

By letter dated March 13, 2017, Administrator Pruitt responded that one or more objectives in the petition arose after the public comment period or were impracticable to raise during the public comment period, are central to the rule and thus a proceeding for reconsideration is being convened. The letter also found the cause of the West Texas incident is of central relevance to the rule. Further, on March 16, 2017, EPA published notice of the reconsideration and administrative stay of the effective date of the rule until June 19, 2017. 82 Fed. Reg. 13968 (March 16, 2017). Having considered the issues raised in the coalition petition, EPA stated that reconsideration is appropriate and the agency will provide the petitioners and the public opportunity to comment on the issues in the petition meeting the requirements for reconsideration “as well as any other matter we believe will benefit from further comment.”

Finally, on March 14, 2017 a group of 11 states, including Kentucky and West Virginia, also petitioned for reconsideration of the rule. In addition, the states requested the stay be extended for 15 months to “prevent needless expenditures by states and localities in order to meet their obligations under provisions of the rule that are potentially subject to change.” The states assert the final rule will burden emergency responders as well as state and local governments without commensurate benefit and requires disclosures of facility information that is a security threat when the states believe existing regulations are adequate to prevent accidental releases. On April 3, 2017, EPA proposed to delay the effective date of the final rule to February 19, 2019 to allow EPA to review the petitions and address comments. EPA will accept comments on the proposed extension through May 19, 2017. https://www.gpo.gov/fdsys/pkg/FR-2017-04-03/pdf/2017-06526.pdf

We will continue to monitor and report on the final rule during the reconsideration process.