Chemical Plant Rule Could Be Kicked Back by Nearly Two Years

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By Sam Pearson

Companies could have nearly two years to avoid complying with new chemical facility regulations under a new EPA action—the latest in a series of administrative delays that have drawn scrutiny from Democratic lawmakers.

According to a proposed rule scheduled for publication in the Federal Register April 3, the Environmental Protection Agency will consider delaying the effective date of a final rule amending risk management program regulations (RIN:2050-AG82) to Feb. 19, 2019.

The delay would move the effective date back 20 months from June 19. That date was a delay from March 21.

The EPA needs the extra time “to consider petitions for reconsideration of this final rule and take further regulatory action, which could include proposing and finalizing a rule to revise the Risk Management Program amendments,” the agency said.

In a statement March 31, EPA Administrator Scott Pruitt said the agency wants “to prevent regulation created for the sake of regulation by the previous administration.”

Pruitt referred to concerns raised by industry groups and states—including Oklahoma, where he served as attorney general—that the regulation would disclose sensitive information about chemical facilities.

The regulation must also “be developed in accordance with the explicit mandate granted to EPA by Congress” under the Clean Air Act Amendments of 1990, Pruitt said.

The rule could also be killed if Congress passes a joint resolution to overturn it under the Congressional Review Act, a procedure that lets legislators block the rule using a simple majority vote.

Groups Weigh In

The move drew praise from industry groups, while public interest organizations criticized the decision.

The delay “shows that the agency is not ready to necessarily rule on or focus on the merits” of changing the rule, Yogin Kothari, a Washington representative at the Center for Science and Democracy, told Bloomberg BNA March 31.

Kothari called the changes “common-sense ideas” that would protect communities and emergency responders.

Jennifer Gibson, vice president of regulatory affairs at the National Association of Chemical Distributors, told Bloomberg BNA March 31 the delay was appropriate if EPA was going to redo the rule.

“The wiser course of action is to do this deliberately, take the time necessary to fully address all the issues and take everything into consideration,” Gibson said.

In a statement to Bloomberg BNA March 31, the American Chemistry Council said the group welcomed the delay but CRA action remained necessary to block the Obama administration’s “misguided regulatory revisions.”

Delays Questioned

The notice says that the Clean Air Act limits to three months the EPA administrator’s authority to issue an administrative stay of a pending regulation. But “in the past, it has often been our practice to also propose an additional extension of the stay of effectiveness through a rulemaking process.”

In a letter to Office of Management and Budget Director Mick Mulvaney March 20, House Energy and Commerce Committee Democrats said administrative delays by EPA and the Energy Department “have consistently ignored and flouted the requirements of the Administrative Procedure Act.”

The letter, which criticized a delay of the RMP rule as improper, said OMB should withdraw the final rules and reissue them with 30-day public comment periods.

The lawmakers also requested that OMB turn over “all emails and other communications” among Pruitt, EPA political appointees and staff at seven industry trade associations.

OMB spokesman Coalter Baker said in a statement to Bloomberg BNA March 31 the agency lacks the legal authority “to unilaterally withdraw rules issued by other agency heads.” However, a House Democratic aide told Bloomberg BNA his party believes OMB does have responsibility when agencies improperly publish regulations.

EPA also said it will hold a public hearing at its headquarters April 19 from 9 a.m. to 4 p.m. The agency is also accepting written comments through May 19.

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

The notice is available at http://src.bna.com/nxj.

The Democratic lawmakers' letter is available at http://src.bna.com/nyd.

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