The saga of the amendments to the Risk Management Program (RMP) continues. Based on a premise that turned out to be unfounded, the amendments now seem to be destined for repeal or at least a major rewrite.
In April 2013, a fire and subsequent explosion at the West Fertilizer facility in West, Texas, caused 15 deaths, injured 300 people, destroyed more than 500 homes, and left a crater 93 feet wide and 12 feet deep. Shortly thereafter, President Obama issued Executive Order (EO) 13650, which -- among other things -- directed agencies such as EPA to improve the safety and security of chemical facilities through regulations, information reporting requirements and site inspections. The White House cited the West Fertilizer explosion as an example of the need to address the serious risks presented by chemicals.
In response to the EO, EPA proposed changes to the RMP regulations in March 2016, citing the West Fertilizer explosion and the EO. However, in May 2016, well before the rule was finalized, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) found the West Fertilizer fire, which led to the explosion, was intentionally set. ATF offered a $50,000 reward for information leading to the arrest of the person responsible for the fire. Nevertheless, in the waning days of the Obama administration, the rule was finalized on Jan. 13, 2017. The preamble to the final rule mentions ATF's conclusion but does not address why the rule is necessary in light of the fact that the fire was intentional.
The amendments make several important changes at an annual cost to the regulated community of about $131 million. Notably, a root-cause analysis is required for a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss), and an independent third party must perform a compliance audit after the facility has a reportable accident. Also, facilities must provide certain basic information to the public upon request and hold a public meeting for the local community within 90 days of a reportable accident.
Although scheduled to go into effect March 14, there is some doubt as to whether the amendments will ever become effective. EPA initially extended the effective date of the amendments to March 21 and then extended it again to June 19. EPA has now proposed to extend the effective date until Feb. 19, 2019 and held a public hearing to receive comments on the extension proposal.
Further, separate petitions asking EPA to reconsider the amendments have been filed by the RMP Coalition, the Chemical Safety Advocacy Group and a group of 11 states. The petition by the RMP Coalition, for example, notes that although EPA stated that the amendments were intended to address the West Fertilizer explosion and the EO, EPA used the opportunity to "expand its authority and increase the burden of the RMP requirements," citing the third-party compliance audit requirement.
In response to these petitions, EPA convened a proceeding for reconsideration of the amendments. In the letter announcing the proceedings, EPA Administrator Pruitt noted that many did not have the opportunity to "address the significance of [ATF's] finding in their comments" because the ATF's announcement that the fire was intentionally set was issued after the close of public comments.
Finally, Congress has gotten into the act. A resolution under the Congressional Review Act (House Joint Resolution 59) was introduced, which would in effect revoke the amendments. However, the resolution has not yet been voted on.
In short, it seems the amendments to the RMP in their current form are on life support. The question is when the plug will be pulled.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
