Appeals court strikes down EPA’s attempt to delay Chemical Disaster Rule

Washington — A federal appeals court has struck down the Environmental Protection Agency’s latest attempt to delay the Obama-era Chemical Disaster Rule.

In a decision issued Aug. 17, the U.S. Court of Appeals for the District of Columbia Circuit ruled that EPA’s reasoning for pushing back the effective date to Feb. 19, 2019, “makes a mockery” of the Clean Air Act, and that the postponement has “delayed lifesaving protections.”

The Chemical Disaster Rule amends EPA’s Risk Management Program for chemical facilities with the intention of:

• Preventing catastrophic incidents by improving incident prevention program requirements.
• Enhancing emergency preparedness to ensure coordination between facilities and local communities.
• Improving information access to help the public understand the risks at RMP facilities.
• Improving third-party audits at RMP facilities.

Prompting those changes, in part, was a fertilizer facility explosion that killed 15 people in West, TX, in 2013. An Aug. 8 letter from Sens. Cory Booker (D-NJ) and Tom Carper (D-DE) to former EPA administrator Scott Pruitt cites agency data showing more than 1,500 serious incidents occurred at chemical facilities from 2004 to 2013, “resulting in 58 deaths, over 17,000 injuries and billions of dollars in property damage.”

EPA finalized the Chemical Disaster Rule on Jan. 13, 2017, with an initial effective date of March 14 that same year. The Trump administration delayed the effective date for 60 days on Jan. 26. The agency then delayed the rule for another 90 days on March 13, and published a final rule June 14 to push it back to Feb. 19, 2019.

Environmental groups – including lead petitioner Air Alliance Houston – as well as attorneys general from 11 states and other parties filed a lawsuit in response to the delays.

“This decision means that people living near industrial facilities and those who respond to chemical accidents will have the stronger protections they deserve,” Air Alliance Houston Executive Director Bakeyah Nelson said in an Aug. 17 press release.

Unaffected by the ruling is EPA’s proposed rule, issued May 17, to rescind amendments on safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and “several other minor regulatory changes.”

The agency states that the changes will address, among other issues:

• Potential security risks associated with new information disclosure requirements introduced in the 2017 amendments.
• Concerns about unnecessary regulations and their costs, along with concerns that EPA did not coordinate rulemaking with OSHA.

EPA also stated that it is seeking to modify amendments regarding local emergency coordination, emergency exercises and public meetings, as well as change the compliance dates for those amendments.