Court chides EPA on delay of rules

Agency sought time to examine chemical safety regulation effects

WASHINGTON — In a major rebuke to the Trump administration’s efforts to roll back Obama-era environmental policies, the D.C. Circuit Court of Appeals ruled Friday that the Environmental Protection Agency can no longer delay a set of regulations designed to prevent chemical disasters.

The Chemical Disaster Rule, stemming from industrial accidents like the 2013 West Fertilizer explosion in Texas, made changes in how companies store dangerous chemicals, requiring companies to obtain audits of their safety plans and share more information with first responders and emergency managers. It also requires industrial facilities to publish chemical inventories and disclose the root causes of chemical incidents at their facilities.

Texas environmentalists hailed the decision, saying it also will address concerns raised during Hurricane Harvey, when explosions at the Arkema facility in Crosby exposed first responders to fumes that they say made them ill.

The EPA delayed implementing the rules, arguing it needed more time to consider industry objections.

The D.C. Circuit rejected the EPA’s arguments, noting that the Clean Air Act limits such delays to three months. The court said that unless the government proposes something new or actively changes the rule, it cannot delay its implemen-

tation indefinitely.

The court found that EPA’s delay “makes a mockery” of the Clean Air Act, which requires the agency’s rules to have an effective date “assuring compliance as expeditiously as possible.”

The court also ruled that the EPA did not consider the delay’s effect on the need to “prevent accidental releases” and “minimize … consequences of any such releases.”

‘Cannot have it both ways’

In seeking to rescind most of the safety rules, former EPA administrator Scott Pruitt called them “unnecessary regulatory burdens” on the chemical industry, while maintaining in a statement that “accident prevention is a top priority at EPA.”

The court rejected the EPA’s reasoning.

“EPA cannot have it both ways,” the court said. “Either there would be ‘substantial compliance and implementation’ efforts by regulated parties absent the delay rule, or the rule has no effect on compliance requirements and does nothing more than maintain the status quo.”

Backers of the Obama rules said they would create much-needed protections for first responders, workers and communities that border chemical and industrial plants, such as the Houston Ship Channel.

First responders in the Arkema incident reported that they did not have information about the chemicals to which they were exposed.

“One of the most tragic aspects of the Arkema disaster was that the first responders were charging head-first into the danger without knowing what was inside the facility,” said Bay Scoggin, director of the Texas Public Interest Research Group.

The West Fertilizer tragedy involved an ammonium nitrate explosion at a distribution facility in West, Texas, north of Waco. The blast occurred as emergency personnel responded to a fire callout.

Fifteen people were killed and more than 160 were injured. More than 150 buildings were damaged or destroyed. The Bureau of Alcohol, Tobacco, Firearms and Explosives concluded in 2016 that the fire had been deliberately set.

More sharing of information about potential chemical hazards “is something that makes first responders safer, and the communities around those facilities safer,” Scoggin said. “Houston is absolutely affected by this, and not only in the context of Hurricane Harvey.”

The EPA justified repealing the rule by pointing out that it will save the chemical industry $88 million a year.

The industry endorsed Pruitt’s decision in May to finally end the regulations.

“The EPA’s Risk Management Plan Rule as proposed under the Obama administration would have imposed significant new costs on the industry without identifying or quantifying the safety benefits to be achieved through the new requirements,” Eric Byer, president of the National Association of Chemical Distributors, said in a statement.

But environmental and union groups, including the United Steel Workers Union, said that under President Donald Trump, the EPA is overlooking the costs of industrial accidents, especially to workers and neighboring communities. Eleven state attorneys general — though not Texas’ — also joined the court challenge.

“This decision means that people living near industrial facilities and those who respond to chemical accidents will have the stronger protections they deserve,” said Bakeyah Nelson, executive director of Air Alliance Houston, one of the groups that challenged the EPA’s delay. “In Houston, the people who live in the places with the most perils are mostly people of color and low incomes. They want their neighborhoods to be healthy and safe. This is a big win for them.”

Affects 12,000 facilities

The Chemical Disaster Rule was slated to take effect on March 14, 2017, with phased-in compliance over several years.

But one of the first actions taken by the Pruitt, Trump Administration’s first EPA administrator, was to suspend them.

That action came in March, 2017, a month after an industry coalition including the American Chemistry Council, the American Petroleum Institute, the U.S. Chamber of Commerce, and the Utility Air Regulatory Group asked EPA to reconsider the matter.

Under Pruitt, who resigned last month under criticism for his spending habits, the EPA delayed enforcement of the Obama rules three times, the last time issuing a “delay” intended to last 20 months while the agency decided whether to modify or rescind the new regulations.

An estimated 12,000 facilities covered by the regulations include chemical manufacturers, petroleum refineries, gas plants, and other industrial facilities.

Though the rules are set to be phased in over time, supporters of the Obama regulations said that barring appeals, they expect the government to begin implementing them as planned.

“The government cannot withdraw critical safety rules based on political whim — people’s lives should come first,” said Earthjustice attorney Gordon Sommers. “The court’s order means industry will have to start implementing these critical safety measures immediately — with the new hurricane season underway, there is no time to wait.”

The D.C. Circuit’s opinion did not include input from Supreme Court nominee Brett Kavanaugh, who heard the case but recused himself from the opinion.