Courts block Trump administration from further delays of chemical safety law

A FEDERAL appeals court has ordered the Environmental Protection Agency (EPA) to stop delaying an Obama-era law that would improve safety at chemical facilities. However the EPA is still trying to roll back crucial safety measures.

On 13 January 2017, the Obama administration finalised amendments to the Risk Management Program in response to the explosion at the fertiliser plant in West, Texas, in 2013. The explosion killed 15 people, including 12 first responders who were unaware of the risks posed by the ammonium nitrate stored at the facility. The plant exploded as firefighters were attempting to put out the fire. The new rule, dubbed the Chemical Disaster Rule, would ensure that any facilities dealing with hazardous chemicals would be required to disclose potential risks to local police and firefighters.

The Chemical Disaster Rule also advocates that the public should be made aware of any hazardous material and any potential health risks they may face if an accident occurs. The rule requires facilities to have third-party audits, incident investigation analyses, and to assess possibilities of safer technologies. These regulations were delayed when Donald Trump took office a week later and were delayed twice more by the EPA until February 2019.

The EPA was sued for the delay by a group of 11 state attorneys general and Earthjustice, which represents fenceline communities, workers’ unions, and scientists. On 17 August, the DC Circuit Court ruled that the EPA did not have the authority to delay the Chemical Disaster Rule, saying that the “EPA’s action was arbitrary and capricious in any event.”

The rule was originally supposed to come into effect in March 2017. Since then, over 61 incidents have occurred, including the fire and explosion at the Husky refinery in April 2018, and the Arkema fire during Hurricane Harvey in August 2017. First responders to the Arkema fire were exposed to fumes from the burning organic peroxides as they didn’t have enough information on what was stored at the plant.

Supporters for delaying the rule had argued that stricter measures would not have helped in the case of the West fertiliser explosion as it was reportedly caused by arson. However, the court ruling argued that sharing information with first responders was vital, regardless of the initial cause of the accident. “Given that 12 of the 15 fatalities in the West, Texas disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning.”

Trish Kerin, director of the IChemE Safety Centre, said:

“The tragedy at West Texas, that saw emergency responders lose their lives was a preventable incident. The Obama chemical safety rule would require among other things, analysis of safety technology, third-party audits, incident investigation analyses and stricter emergency preparedness. These are all standard requirements in several other countries, designed to minimise the likelihood and consequence of an incident such as this. As such it is pleasing to see the DC Circuit Court ruling that these basic safety measures cannot be bypassed or delayed.”

Andrew Rosenberg, director of the Center for Science and Democracy at the Union of Concerned Scientists, said:

“This is a victory first and foremost for the neighbourhoods most susceptible to dangerous and toxic chemical releases. EPA needlessly blocked an important public protection that would have resulted in fewer chemical releases causing direct harm to communities.”

Overturning the safety rule

While the 17 August ruling means that the EPA must implement the rules immediately, the EPA is still planning to overturn the rule, having submitted proposed revisions back in May. Former head of the EPA, Scott Pruitt, who resigned in July over a series of ethics scandals and is currently the subject of several federal investigations, said at the time: “The rule proposes to reduce unnecessary regulatory burdens, address the concerns of stakeholders and emergency responders on the ground, and save Americans roughly US$88m/y.”

The total cost of the damage in West was estimated to be around US$100m by the Insurance Council of Texas.

The proposed revisions block most of the January 2017 changes from taking effect. Arkansas attorney general Leslie Rutledge called the new rules “another victory for common sense over environmental radicalism.”

A public hearing on the new revisions was held on 14 June. According to NPR reporting at the hearing, representatives from the American Petroleum Institute and the American Chemical Council (ACC) argued that companies already have regulatory incentives to prevent disasters and that the Obama-era rules would add a significant burden. The ACC representative further argued that sites that hadn’t reported problems shouldn’t face tighter regulations.

The revisions plan to rescind the requirement for companies to disclose information to emergency responders. The new rule would also eliminate the requirement for facilities to assess the possibility of safer technologies, the requirement that an investigation should determine the root cause of an accident, and that the investigation team should have at least one person knowledgeable in the process.

Timothy Gablehouse, who leads a local emergency planning committee outside Denver, told the EPA panel at the hearing: "The entire community is responsible for preparedness. That means the entire community needs to understand the risks to the community. The response does not begin at the 911 call."

Communities, environmental groups, and scientists also called on the EPA to withdraw the proposed changes through comments submitted on the regulation by Earthjustice in August, saying that the efforts to weaken safety measures were just as unlawful as the delay tactic.

Gordon Sommers, an attorney with Earthjustice, said:

“The court’s decision to end the delay of the Chemical Disaster Rule is a tremendous victory, but there is still work to be done. Now we have to ensure the rule gets implemented fully and swiftly. EPA needs to stop trying to roll back critical public health protections.”