Delay of Chemical Plant Rule Could Make Congressional Action Moot

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

By Sam Pearson

The EPA took a first step this week to unwind an Obama administration regulation on chemical plant safety, the agency announced late March 13, a path that could reduce requirements for operators.

Agency Administrator Scott Pruitt granted an industry petition to reconsider the regulation (RIN:2050-AG82) and issued an order administratively delaying the rule 90 days from March 21 to June 19. Industry groups also took action March 13 by filing a lawsuit at the U.S. Circuit Court of Appeals for the District of Columbia Circuit ( American Chemistry Council v. EPA , D.C. Cir., 17-01085, 3/13/17 ).

The actions leave options for industry to block the rule through EPA action, a win at the D.C. circuit or by legislative repeal under the Congressional Review Act. Industry groups applauded Pruitt’s move March 14 but maintained the CRA was the best way to eliminate the regulation. CRA resolutions targeting the regulation are pending in the House and Senate (H.J. Res 59) and Senate (S.J. Res 28).

Pruitt’s action comes under Section 307(d) of the Clean Air Act, which the petition noted was permitted for no more than 90 days to let the Environmental Protection Agency “reconsider its position and review the rule’s requirements without imposing unnecessary compliance costs on regulated entities.”

The petition also requested a stay under Section 705 of the Administrative Procedure Act, which allows the agency to delay action “if it finds that justice so requires” while a matter is pending judicial review. But Pruitt’s response did not address the claim.

Pruitt was among parties who criticized the rule as burdensome and unworkable during an EPA public comment period last year. He argued in favor of limiting what information is made available to the public so that bad actors could not learn about high-risk chemical sites.

“As an agency, we need to be responsive to concerns raised by stakeholders regarding regulations so facility owners and operators know what is expected of them,” Pruitt said in a statement March 13.

The move is just the opening salvo in a bid to stall regulation, James Goodwin, a senior policy analyst at the Center for Progressive Reform, told Bloomberg BNA March 14.

“The Trump administration and the business community has any number of ways to delay this thing as much as they want,” Goodwin said, “and they’re going to use them all.”

Process Concerns

The petition claims the EPA made changes in the final rule without providing an opportunity for comment and that the industry groups are “likely to prevail on the merits of its challenges to the Final Rule due to its numerous procedural and substantive flaws.”

A host of industry groups including the American Chemistry Council, American Forest & Paper Association, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, U.S. Chamber of Commerce, National Association of Manufacturers and the Utility Air Regulatory Group filed the petition Feb. 28.

At the D.C. Circuit, ACC, AFPM, API, NAM and the U.S. Chamber argue the regulation “should be set aside because it is unlawful, arbitrary, capricious, an abuse of discretion and not otherwise in accordance with law.”

The groups also contend the EPA exceeded its statutory authority under Section 112 of the Clean Air Act; required disclosure of information prohibited from disclosure under the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards program; and failed to fully account for the costs of the regulation.

Because Pruitt opposed the regulation as Oklahoma Attorney General, environmental and public health groups are likely to intervene at the D.C. Circuit, Goodwin said.

Industry Says CRA Preferred

Industry groups praised the EPA’s delay but said CRA action is still the first choice.

In a statement, the American Chemistry Council said March 14 that the EPA “made the right call in delaying the implementation of problematic changes to RMP that could threaten the safety and security of chemical facilities and communities across the country” but added the CRA is “the best and most appropriate way to rollback misguided changes that were hastily adopted during the final days of the Obama Administration.”

The action is “an important step for providing regulatory certainty and supporting safety and security in the oil and natural gas industry,” Frank Macchiarola , API’s downsteam group director, said in a statement March 14.

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

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Try Environment & Energy Report