Blocking Rule to Prevent Plant Blasts May Burn Bridges: Advocates

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By Sam Pearson

Opponents of a GOP resolution to rescind an EPA rule meant to reduce chemical plant explosions face competing congressional priorities in an environment awash in anti-regulatory resolutions and Cabinet fights.

No floor action has been scheduled yet on a joint resolution (H.J. Res 59), introduced by Rep. Markwayne Mullin (R-Okla.), that threatens to undo years of work by the Environmental Protection Agency on a plan to more closely track and monitor high-risk chemical facilities.

Key Democrats like Sen. Tom Carper (D-Del.), the new ranking member of the Environment and Public Works Committee, are silent so far, but opponents of the resolution expect this to change.

Frustrated safety advocates say even if Republicans have the votes, taking up the resolution to block what they characterize as modest new rules could waste floor time better suited for other issues and burn bridges with lawmakers whose support will be needed for major legislation like infrastructure or tax reform.

“It’s like they’ve beaten it to a pulp and it’s crawling and they want to smother it before it takes another step,” Rick Hind, who worked on the issue as legislative director at Greenpeace, said of the rule. “It’s really an abuse of power on behalf of special interests.”

Industry groups, meanwhile, say the rule has to go because it contains harmful mandates to share excessive information with first responders and audit facilities, among other problems.

The American Chemistry Council, an industry group, pushed the EPA to delay the regulation’s effective date from March 21 to “at least 60 days” beyond in a letter earlier this month. The regulation “imposes significant new regulatory burdens and costs on the chemical industry while adding little benefit in terms of advancing chemical safety,” the Feb. 6 letter said.

Outreach Beginning

Interest groups say they are still in the early stages of reaching out to key senators needed to defend the rule, such as Carper, who led the Democratic opposition to confirming Oklahoma Attorney General Scott Pruitt to be EPA administrator. That put messaging action on Mullin’s Congressional Review Act resolution to the back burner for now. The 1996 Congressional Review Act provides a procedure for using resolutions that must be passed by both chambers and signed by the president to cancel rules issued in the final months of an administration.

With the support of Republicans, the resolution seems to have an easy path to passing the House. In the Senate, where the GOP holds 52 seats, the resolution could also win the support of moderate Democrats like Sen. Joe Manchin (D-W.Va.) and Heidi Heitkamp (D-N.D.).

Heitkamp opposed an Occupational Safety and Health Administration regulatory interpretation known as the retail exemption, which was blocked by the U.S. Court of Appeals for the District of Columbia Circuit last year. Like the risk management program (RMP) rule, the retail exemption was opposed by many facility operators.

Manchin signed a letter to the EPA in May 2016 with eight Republicans warning the RMP’s provisions “are unproven and are not sufficiently justified by EPA.”

Aides to Heitkamp and Manchin did not respond to e-mail requests for comment.

Timing of Floor Action

Don Stewart, spokesman for Senate Majority Leader Mitch McConnell (R-Ky.), told Bloomberg BNA in an e-mail no decision has been made on specific Congressional Review Act resolutions that will be brought to the floor. McConnell told reporters Feb. 17 Republicans “plan to take as many of these job-killing regulations off the books as possible.”

A spokesman for House Majority Leader Kevin McCarthy (R-Calif.) didn’t respond to a request for comment.

Michele Roberts, co-director of the Environmental Justice Health Alliance, told Bloomberg BNA her group and related advocacy groups have been in touch with Carper’s office about the rule. She said her group and others are sending letters to lawmakers and reaching out to the Congressional Black and Hispanic Caucuses to mobilize opposition to the resolution.

The group urged lawmakers in a Feb. 10 letter to “reject self-interested calls from industries that use extremely hazardous chemicals to overturn the modest changes to the RMP rule.”

Muted Response So Far

Still, with floor prospects unclear, the issue has seen a quieter response so far from Democrats.

As lawmakers prepared to vote on Pruitt last week, Carper declined to weigh in on the pending joint resolution, telling Bloomberg BNA he didn’t have a position because he was “focused on the nomination of the EPA administrator.”

That could change, advocates contend.

“While he’s not being vocal about it right now, we do anticipate when the time comes that he will be standing up on this,” Yogin Kothari, a Washington representative at the Center for Science and Democracy, which supports the rule, told Bloomberg BNA.

Chemical safety groups are also working without the help of former Sen. Barbara Boxer (D-Calif.), who held a hearing on the issue in December 2014 and used to speak out in favor of the regulation.

Still, advocates expect Democratic Sens. Ed Markey (Mass.), Jeff Merkley (Ore.) and Cory Booker (N.J.) to weigh in against the CRA action, Kothari said, though none of the lawmakers’ offices responded to requests for comment on the issue.

GOP, Industry Gear Up

Meanwhile, opponents of the regulation have been more vocal, expressing optimism the rule will be reversed even though it must compete with dozens of others for House and Senate floor time. Pruitt has also remained one of the rule’s toughest critics.

In a speech on the Senate floor Feb. 9, Sen. James Inhofe (R-Okla.) assailed the EPA rule as harmful to security because it would require chemical companies to share information on plant operations.

Mullin’s proposed CRA would further prevent the agency from reissuing the rule in a “substantially similar” form, potentially blocking meaningful action for years in favor of an existing set of procedures dating back to the Clean Air Act amendments in 1990.

Inhofe told Bloomberg BNA he was confident the joint resolution would be taken up at some point when lawmakers return Feb. 27 after a weeklong recess, allowing lawmakers to meet the CRA’s deadline to take action within 60 legislative days of the rule’s publication.

The final risk management program rule (RIN:2050-AG82), released Dec. 21, stems from Executive Order 13650 that President Barack Obama issued in 2013 following an explosion that killed 15 people at fertilizer plant in West, Texas. The order called for coordination between federal agencies to identify gaps in chemical facility regulation.

The Bureau of Alcohol, Tobacco, Firearms and Explosives later determined the West explosion was intentional. Although the EPA was already preparing the final rule by then, Inhofe said in his floor speech it showed the Obama administration used West as “as an excuse to make these facilities and the surrounding communities less safe.”

The EPA also declined to add ammonium nitrate—the chemical that exploded at West—to the risk management program. Boxer and others had urged the chemical be included.

More broadly, the EPA said the rule was in response not only to the West explosion, but to around 1,500 accidents reported by facilities in the risk management program in the past decade.

Short of blocking the rule through the CRA, industry groups could sue over it or Pruitt, a staunch opponent of the regulation, could slow-walk implementation, Hind said.

To contact the reporter on this story: Sam Pearson in Washington at spearson@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

Manchin's letter to EPA is available at: http://src.bna.com/mpL.

The Environmental Justice and Health Alliance's letter to congressional leaders is available at: http://src.bna.com/mpN.

The American Chemistry Council letter is available at: http://src.bna.com/mrK.

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