The dramatic evacuation of a 1.5-mile area around the Arkema, Inc. organic peroxide plant in Crosby, Texas, in the aftermath of Hurricane Harvey has renewed interest in pending amendments to the U.S. Environmental Protection Agency’s (EPA’s) Risk Management Program and may well affect the outcome of EPA’s reconsideration of these amendments.

The plant stores organic peroxides, which require cold storage to prevent them from catching fire. The Arkema Crosby plant lost power as a result of Hurricane Harvey and the backup generators flooded, so the chemicals could no longer be cooled. The plant alerted authorities, who evacuated neighboring properties within a1.5-mile perimeter in anticipation of an uncontrolled fire, which eventually occurred.

Despite media speculation, the proposed rule changes would not have prevented the recent Texas incident

Some of the resulting media analysis implied that a recent delay in the implementation of EPA’s amendments to its risk management program regulations was unwarranted in the face of the dangers posed by facilities similar to the Arkema plant. The Houston Chronicle (September 7, 2017) reported that, “Arkema’s [risk management] plan for its explosive chemicals didn’t work,” while new rules that would “require facilities to consider reducing dangerous chemical inventories and get outside safety audits” were delayed by new EPA Administrator, Scott Pruitt.

A contributor to the Huffington Post (David Halperin, August 31, 2017) reported that the “Arkema fire highlights one more area where Trump-Pruitt environmental decisions endanger the American people” because EPA is “delaying by 20 months an Obama rule aimed at improving safety at U.S. chemical plants, while it revisits the wisdom of the rule.”

The EPA risk management program amendments would not have changed the outcome of the Arkema facility storm response. Like all facilities, the Arkema plant is subject to the Clean Air Act general duty clause requiring all facilities “to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur,” but the specific risk management program regulations (like the OSHA PSM standard) apply only to specific chemical processes.

The Arkema facility is subject to EPA’s risk management program regulations for other chemicals at the plant, but the Wall Street Journal (August 21, 2017) reported that the organic peroxides produced at the Arkema plant are not on the list of chemicals subject to the EPA risk management program. The facility had several layers of protection to prevent the chemicals from heating, but the protective practices failed in the face of an unprecedented storm. Rule changes to enhance incident investigations might help the facility avoid difficulties in the future, but even without the rule amendments, the negative press and pending lawsuits provide a tremendous incentive for Arkema to avoid similar incidents in the future.

Recent Harvey events likely to trigger further EPA reconsideration

Even though the risk management program amendments would not have changed the outcome of the Arkema plant storm response, the negative press and extensive reporting on the incident will likely affect EPA reconsideration of the risk management program amendments.

The EPA risk management program amendments were published on January 13, 2017, just a few days before the end of the Obama administration. The corresponding proposed rule had been published only 10 months earlier, and over 44,000 comments were received. Many of the commenters protested that the risk management program changes were not coordinated with the Occupational Safety & Health Administration’s (OSHA’s) process safety management (PSM) standard, upon which the EPA risk management program was based. OSHA is also in the process of evaluating amendments to the PSM standard, raising the possibility of inconsistent regulatory requirements when the OSHA amendments are promulgated.

EPA did not wait for OSHA to propose PSM rule amendments and it is unclear how, or if, EPA was coordinating its rulemaking with OSHA. On June 14, 2017, under pressure from three petitions requesting reconsideration, including one initiated by a consortium of 10 states, EPA delayed the effective date of the risk management program revisions until February 19, 2019, to allow time for EPA to reconsider the amendments. It was widely expected that the reconsideration could result in further delay, potential wholesale change in the amendments, or at least coordination with any OSHA PSM rule amendments.

Companies should prepare and participate

The rulemaking originally was incident-driven. The Federal Register preamble to the rule amendments points out the 2013 explosion of the West Fertilizer facility in West, Texas, explosions at the BP Refinery in Texas City, Texas in 2005, a 2010 explosion at the Tesoro Refinery in Anacortes, Washington, and a 2012 Chevron Refinery fire in Richmond, California, as reasons for the rule amendments. Newer high profile incidents like the Arkema fire keep the topic of industrial dangers in the public mind and complicate any efforts to slow down or weaken amendments to the rules that are designed to prevent such incidents.

Companies interested in the risk management program amendments need to be vigilant and promptly participate in EPA’s reconsideration of the amendments. EPA may well be more sympathetic to industry concerns since the election, but with incidents like the Arkema evacuation and fires on the public mind, some amendments to the risk management program are likely. EPA needs to be focused on final rule changes that are workable and actually enhance safety, rather than add meaningless burdens.