News

Chemical Disaster

State challenges delay of industry safety rule

Wednesday, July 26, 2017

The state Attorney General asks a federal court to review the Trump Administration’s two-year delay of the Chemical Disaster Rule, which updates safety requirements for large industrial facilities that handle hazardous chemicals. The action was filed this week in the U.S. Court of Appeals for the District of Columbia.

The state joined 10 other attorneys general to claim the administration’s delay violates the Clean Air Act. The Chemical Disaster Rule was prompted by a number of high-profile accidents around the nation, including the 2010 Tesoro refinery explosion in Anacortes that claimed the lives of seven workers.

The rule is designed to prevent disasters like the Tesoro refinery explosion, which investigators found was worsened in part because of deficiencies in the company’s safety culture that led to a “complacent” attitude toward flammable leaks and occasional fires.

“Washingtonians have firsthand experience with the types of disasters this rule was designed to help prevent,” Ferguson said. “I won’t allow the Trump Administration to violate the law by blocking these important environmental and worker safety standards.”

In response to protests from the chemical industry, U.S. Environmental Protection Agency director Scott Pruitt delayed the rule in January, slapped on another 90-day delay in March, and in June put off the rule by 20 months while Pruitt considers repealing it. The lawsuit alleges these delays are unlawful.

After taking office, the Trump Administration issued a directive to “temporarily postpone” regulations issued by the previous administration that had not yet taken effect. These regulations had been through an intensive public review and vetting process. Ferguson is involved in several challenges to those delays.

“Protecting our workers, first-responders, and communities from chemical accidents should be something on which we all agree. Yet the Trump EPA continues to put special interests before the health and safety of the people they serve,” noted New York Attorney General Eric Schneiderman, who is leading the lawsuit.

Noting that the EPA itself says there have been more than 1,500 accidents at chemical plants over the past decade resulting in 58 deaths, Schneiderman said, “It’s simply outrageous to block these commonsense protections—and attorneys general will keep fighting back when our communities are put at risk.”

The EPA said in June it was again delaying implementation of the Risk Management Program (RMP) Amendments, setting an effective date of Feb. 19, 2019. The states say the EPA rule delay is arbitrary and capricious, and exceeds the agency’s authority.

The Chemical Disaster Rule aims to reduce the threat of chemical releases with new standards and required safety audits, in addition to bolstering emergency preparedness. The rule applies to more than 12,000 facilities nationwide, including refineries, chemical manufacturers and others that use, store or have the potential to release highly hazardous chemicals.

Once a rule is finalized, the Clean Air Act allows for a 90-day delay to reconsider it in response to litigation. Beyond 90 days, the act clearly states that “reconsideration shall not postpone the effectiveness of the rule.”

According to the lawsuit, the Obama-era rule was delayed in effect by the incoming Trump Administration for 60 days—along with 29 other environmental regulations—shortly after the president took office. The Trump Administration postponed the 30 environmental regulations without providing an opportunity for public comment.

After the initial delay on Jan. 26, the Trump Administration postponed the Chemical Disaster Rule another 90 days in March, according to the lawsuit filed by the state attorney general. In June, the EPA again stalled its implementation, this time for an additional 20 months while the agency reconsiders the rule.

The rule, a press statement from Schneiderman’s office states, would necessitate additional safeguards in accident-prevention programs to protect communities and prevent future accidents—requiring “root cause” analyses and third-party audits following accidents, as well as analyses of safer technology and alternatives; emergency response procedures, mandating annual coordination with local first responders, annual notification drills, and periodic field exercises; and increased public access to facility chemical hazard information, in addition to public meetings within 90 days of an incident.

Despite Administrator Pruitt’s delay of the rule, the Trump EPA published a June 2017 fact sheet explaining how these improvements “will help protect local first responders, community members, and employees from death or injury due to the chemical facility accidents.”

The delay of the rules, notes Genna Reed at the Union of Concerned Scientists, “came after several petitions from the American Chemistry Council and a handful of other chemical manufacturing corporations, oil and gas companies, and trade organizations asked the agency to reconsider the rule. Even after receiving thousands of public comments, including those from individuals from low-income communities and communities of color that face the greatest risks from RMP facilities urging the EPA to enforce the rule as planned, the EPA sided with industry and went forward with its decision to delay.”

“President Trump’s illegal safety rollback puts our first responders and local communities in danger from chemical accidents,” said New Mexico Attorney General Hector Balderas, vowing continued legal action against Trump when he “puts our children, families, and whole communities at risk.”

Counsel for Environmental Protection chief Bill Sherman is leading the case for Washington. In 2016, Ferguson created the Counsel for Environmental Protection to protect our environment and the safety and health of all Washingtonians.
The Attorney General’s Office has prevailed in three cases against the Trump Administration. Every court to have issued a decision has ruled in favor the Washington Attorney General’s Office in cases it brought against the Trump Administration. These cases include:

• In January, a federal judge granted the Attorney General’s request to block implementation of President Donald Trump’s first travel ban executive order. A three-judge panel with the U.S. Court of Appeals for the Ninth Circuit unanimously agreed with that decision. The Trump Administration decided not to appeal and agreed to pay the state of Washington’s legal costs.

• After the Attorney General’s Office and a multi-state coalition asked the U.S. Court of Appeals for the Second Circuit to review the administration’s delay in implementing new energy efficiency rules for ceiling fans, the U.S. Department of Energy conceded and announced that the rules would go into effect.

• On July 3, after the Attorney General’s Office intervened in a lawsuit against the EPA challenging delays in implementing a rule regulating emissions from new oil and gas facilities, a federal panel ruled against the EPA.

Photo: The Mosquito Fleet stands off the Tesoro Refinery in 2016 photo. The fleet and many other activists staged a demonstration to demand action on climate and an equitable transition away from fossil fuels on May 13-15th, 2016. The protests were part of the BreakFree global wave of actions calling for our society to “Transition Together” towards “Energy Without Injury.”

Photo courtesy of the Backbone Campaign

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