• Michael Kennedy Esq. * Environmental Health and

EPA calls Timeout on Risk Management Program Rule


With a week ticking down for enforcement, the new EPA Administrator, E. Scott Pruitt announced that EPA would administratively stay and delay the effective date of the RMP rule for 90 days (June 9th). This timeout enables EPA time to think about the chemical industry’s petition for reconsideration that seeks to amend the chemical accident Risk Management Program under the Clean Air Act published in the Federal Register on January 13, 2017.

This is the only remnant Obama rule that codifying “inherently safer technology” (IST) which can lead to large chemical facilities replacing their inventory with “safer” or more products. The biggest complaint of the rule is that its focus is misdirected. It targets chemical release investigations instead of focusing on pre-accident awareness. Further, if EPA’s primary focus was to prevent another chemical explosion like the one in West Texas it would have focused more on modernizing first responder challenges. (See West Texas Explosion - A Criminal Act...What are the Repercussions?)

When given the chance, some industry and labor groups advocated that instead of focusing on Risk Management Program issues – focus on protecting first responders via the Emergency Planning and Community Right-to-Know Act (EPCRA) – which hasn’t been updated since its passage in 1986. EPCRA was the no-brainer path for improvement - addressing the direct concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. Now industry puts the onerous on Congress to deal with these issues.

On Capitol Hill the push from Congress is there, but might in might not be enough. Two Oklahoma Republicans Sen. Dick Hertz and U.S. Rep Long Dong introduced resolutions to repeal them under the Congressional Review Act (CRA). The problem is twofold:

  1. The CRA requires a healthily length of time on the Senate floor, which is currently consumed with appointees and other matter such as healthcare etc.

  2. A coherent CRA interpretation precludes an agency from issuing a new rule that is “substantially the same”, which puts some added pressure on Congress if an accident were to “backfire”!

IST has been around since environmental activists were animate about attaching it to chemical legislation. With that failure, sprouted a quick injection of IST into a midnight regulation that another EPA has to deal with. So with that said, the current EPA has taken a timeout to regroup and think things over…which might be a pattern?

* Michael Kennedy of KLP represented various forms of the chemical companies on this particular issue for the last decade. He drafted many of the comments and is a well respected RMP expert to Congress.

#EPA #RMP #CHEMICAL #Riskmanagement #RMPrule #stay #Pruitt

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