EPA has issued two final rules that provide significant rights to the public that may, and will likely, increase litigation or otherwise be used against industry.
First, EPA issued the final Risk Management Program (RMP) rule revisions which contain requirements to provide voluminous information to the public regarding the regulated substances at a facility. Second, EPA empowered ‘third-party' notifiers to record and report "super-emitter" events. Together, they create a greater possibility of agency enforcement and private litigation.
On February 27, 2024, EPA added numerous provisions to the RMP rules. Most concerning is the addition of an obligation for a facility to provide detailed, internal information about the facility to the public.
Upon "request by any member of the public residing, working or spending significant time within six miles of the fence line of a stationary source," the owner or operator must provide, within 45 days of the request, the information specified in the rule. Of course, there is no definition or indication of how much time a person must spend within six miles of the facility to be considered significant.
The facility must provide the names of regulated substances held in a process, safety data sheets for all regulated substances located at the facility, the five-year accident history information required to be reported to EPA, information about the facility's emergency response program and Local Emergency Planning Committee contact information. The owner or operator must also provide an "ongoing notification on a company website, social media platforms or through other publicly accessible means" that the above information is available to the public. It must also provide instructions as to how to request the information.
On December 2, 2023, EPA issued a final rule related to methane and volatile organic compounds emissions from new and existing sources in the industrial markets. While there are many problematic provisions, the most problematic could be the "super-emitter" program.
A super-emitter event is defined as any emissions event with a quantified emission rate of 100 kilograms per hour of methane or greater that is located at or near a facility and that is detected using remote detection methods. A person may be approved by EPA to become a "third-party notifier of super-emitter events." A person must submit certain information to EPA, such as a description of the technologies the entity will use and its SOP.
Once certified, a third-party notifier can use specified detection methods such as satellite detection, remote-sensing equipment on aircraft and/or mobile monitoring platforms to record a super-emitter event. The third-party notifier provides the information of the super-emitter event to EPA. Once EPA determines the notification is complete and accurate to a reasonable degree of certainty, the EPA will make the notification publicly available and provide the super-emitter event notification to the owner or operator. The owner or operator must initiate an investigation to determine the sources of the event and has 15 days to submit a report to EPA.
Providing information to the public related to regulated substances, the internal operations of a facility and posting information regarding super-emitter events for public review will likely foster litigation against the regulated entities.
Indeed, most of the information necessary to support a private litigant's claim will now be readily available and easy to obtain. Instead of focusing dwindling resources on compliance and ensuring that accidents or emission events do not occur, owners and operators will now be defending lawsuits. This seems to be the result desired by EPA. Regardless, industry will soon be awash in requests, notices, internal investigations, report writing and unfortunately, additional litigation.
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.
For more information, visit bswenviroblog.com, email jbk@bswllp.com or call (225) 381-8014.
