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By Sam Pearson
An industry-friendly replacement for Obama-era chemical facility safety rules is moving forward despite a court decision in August that questioned the agency’s basis for making changes.
Revisions to the risk management program (RIN:2050-AG95), a set of safety standards aimed at keeping first responders and communities near chemical facilities safe, are expected by January, the Environmental Protection Agency said in its fall regulatory agenda released Oct. 17.
The dispute over the rules began in the early days of the Trump administration, when the EPA delayed the Obama-era rule by 20 months to give the new administration time to replace it.
It didn’t go as planned. The U.S. Court of Appeals for the District of Columbia Circuit ruled Aug. 17 the action exceeded the EPA’s authority, vacating the delay. That left the old rule to take effect and threw the administration’s deregulatory strategy into disarray.
Environmental groups that defeated the 20-month delay before the D.C. Circuit have called on the EPA to withdraw the replacement rule and implement the Obama proposal instead.
Some of the same errors that doomed the 20-month delay are also present in the replacement rule, Bethany Davis Noll, litigation director at the Institute for Policy Integrity at New York University, told Bloomberg Law.
The agency could have a stronger case if it let the original rule take effect and proposed changes down the line based on real data developed during the implementation, Noll said.
“The D.C. Circuit confirmed they have to give a reasoned explanation,” Noll said. “They can’t just give guesses.”
Since the court loss, about 12,500 facilities using high-risk chemicals are starting to face compliance requirements from the Obama administration rule. However, some of the most far-reaching components have yet to take effect.
Under a proposed rule the EPA issued May 17, companies would be spared from analyzing whether they can run facilities using safer chemical processes and would see an eased compliance audit process and reduced requirements to share information with the public. They also wouldn’t have to conduct a root cause investigation to determine what went wrong after chemicals are released or almost released.
The Obama administration estimated its program would cost companies about $131 million per year but prevent some of an estimated $274.7 million in annual damages from unplanned chemical releases. The EPA now says the rollback will save companies $88 million per year.
The EPA didn’t immediately respond to Bloomberg Environment’s request for comment Oct. 17.
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