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By Sam Pearson
The Environmental Protection Agency’s final rule to tighten safety requirements at high-risk chemical plants, an important part of an executive order President Barack Obama issued in 2013, faces an uncertain future in the incoming Donald Trump administration.
The agency “struck the right balance” between industry’s compliance concerns and public interest groups pushing for greater safety protections, Mathy Stanislaus, the EPA’s assistant administrator for land and emergency management, told reporters on a conference call Dec. 21. Oklahoma Attorney General Scott Pruitt (R), whom President-elect Donald Trump tapped as EPA administrator, has been among the rule’s most vocal critics, however.
“I’m very proud of this rule for the safety and protection it delivers local responders,” Stanislaus said. “I think none of us want what has happened in the past where local responders, not knowing what’s at a chemical facility, get hurt or die.”
The final risk managmenet program rule (RIN:2050-AG82), released Dec. 21, stems from Executive Order 13650 that President Barack Obama issued in August 2013 calling for coordination between federal agencies to identify gaps in chemical facility regulation. Obama issued the order in the wake of an explosion that killed 15 people at a fertilizer plant in West, Texas.
Stanislaus said the rule is needed to stem 1,500 accidents reported by facilities in the risk management program in the past 10 years.
In proposing the rule in March, the EPA included provisions strengthening emergency preparedness, public access to information, auditing and disaster response coordination requirements, among other modifications.
The proposed rule brought criticism from industry trade organizations, who warned it is burdensome and could pose security risks if it forces plants to disclose too much sensitive information.
Pruitt called the proposal a terrorism risk and asked the EPA to withdraw it in a letter to the agency in July.
Under the current system, covered plants are required to file risk management plans with the EPA and local emergency response committees. Part of the plans, known as off-site consequence analyses, are exempted from public disclosure and can be viewed only by local residents at government libraries. The EPA has not changed the status of off-site consequence analyses, but opponents warned posting audits online could make it too easy to learn which plants are vulnerable.
The EPA has made changes to at least two components that had drawn objections from companies and Pruitt in the proposed version.
Responding to the security concerns, the EPA will not require companies to post information on the internet regarding near-misses or chemical stockpiles, but this information will be available to local residents and emergency responders, Stanislaus said.
In addition, the EPA made changes to its requirements for third-party facility audits to make it easier for auditors to meet the requirements, among other adjustments.
Industry groups said they were still reviewing the plan, but Jennifer Gibson, the vice president for regulatory affairs at the National Association of Chemical Distributors, told Bloomberg BNA the plan still contained problematic changes for companies.
Among the troublesome provisions is a requirement for companies to study if it is feasible to shift to inherently safer systems or processes and conduct third-party audits of plants, Gibson said.
While the EPA responded to security concerns by removing a proposal for online disclosure of some information, companies would still be required to provide some documents to community members upon request, Gibson said.
“In general, we don’t think the whole rule is necessary,” Gibson said. “We think that the current [risk management program] regulations are very robust and effective and the key there is just to make sure that they are enforced and followed. I don’t know if all these additional requirements are going to make communities safer because the existing rule was fine.”
In a statement to Bloomberg BNA, the American Chemistry Council said the EPA “did not make the best and appropriate use of its regulatory authority” when it issued the proposed rule. The group said its staff will review the final rule further but flagged concerns with auditing and safer alternatives analysis requirements.
Public interest groups, meanwhile, said the EPA rule will do too little to protect the public.
Ron White, a public interest environmental health consultant formerly at the Center for Effective Government, told Bloomberg BNA the rule was “very much consistent with the original proposal, except for a few changes that actually, in my perspective, actually weaken the rule.”
White and others had lobbied the Office of Management and Budget to put tougher safety and information sharing requirements for facilities in the final rule.
The rule is not scheduled to take effect until at least a month into the new administration, raising the prospect of a regulatory rollback.
The final rule will take effect 60 days after publication in the Federal Register, the agency said, but the date of publication has not been determined.
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