What’s at Risk, How to Comment and Talking Points

In response to industry and state petitions, the Trump EPA has proposed to gut a January 2017 rule[i] to reduce the risk of catastrophic accidents at facilities handling large amounts of dangerous chemicals.  The 2017 rule requires these facilities to take common sense steps that are based on lessons learned from recent catastrophic chemical accidents.  Specifically, the rule requires facilities to look back at previous accidents and “near-misses” to figure out how to prevent or mitigate future disasters.  It also calls on facilities in the most dangerous industries to consider inherently safer ways of handling chemicals.  It further requires improved coordination and information sharing with first responders and the communities they serve. 

In previous actions, Trump's EPA pushed back the 2017 rule's effective date until February 19, 2019, to give itself time to roll back the rule's improvements before they take effect.

EPA’s Risk Management Program Rule

In 1990, following accidents at chemical facilities in India and West Virginia that killed and injured many nearby residents, Congress called on EPA to establish a program to prevent and mitigate accidents involving dangerous chemicals.[ii] In response, EPA established the Risk Management Program covering more than 12,500 facilities that handle large amounts of dangerous chemicals.[iii]  The program requires those facilities to take steps to prevent and mitigate chemical accidents and submit a “risk management plan” to federal, state and local authorities.

EPA’s program has reduced the rate of chemical accidents,[iv] but catastrophic chemical releases continue to occur.  Over the past 13 years, releases at facilities in Texas, Washington, California and Louisiana killed 39 people and injured hundreds more.[v]  An accident at a Chevron facility resulted in nearly 15,000 residents seeking medical treatment.[vi] In the wake of these and other releases, EPA considered what lessons had been learned and conducted a rulemaking to further reduce the risk of chemical accidents.

In a rule published on January 13, 2017, EPA increased the rigor and effectiveness of the Risk Management Program in several important ways --

• Root cause analysis: Facilities that have had or could have an accidental release that affects the surrounding community are required to determine the root cause (or causes) of a catastrophic release or a “near-miss” that could have resulted in a catastrophic release.  By learning the root cause(s) of a release or near-miss, a facility can fix the underlying problem so that it doesn’t happen again.
• Independent audits: The same facilities are required to use an independent, third-party auditor to review the facility’s compliance with Risk Management Program requirements when an accident occurs that must be reported to EPA or a government inspectors finds conditions at the facility could result in an accident.  Use of an independent auditor ensures that the review is objective and identifies the problems that need fixing.
• Consideration of safer technologies: Facilities in industry sectors that have more frequent serious accidents (e.g., petroleum refineries, pulp mills and various kinds of chemical manufacturing) must consider whether there are inherently safer technologies or alternatives (ISTA) that could reduce the risk of accidents at their plants.  Facilities may then decide whether switching to safer technologies or alternatives makes sense for their plants.
• Other improvements to accident prevention program: Facilities must conduct more thorough incident investigations, hazard reviews and compliance reports to ensure that problems leading to, or that could lead to, accidents are identified and addressed.  For example, everything learned from an incident investigation at a facility must be considered in the facility’s next hazard review.
• Coordination with first responders: Facilities that have had or could have an accidental release that affects the surrounding community are required at least once a year to coordinate with local emergency response agencies and ensure that emergency contact information is up to date, accurate and complete.  Facilities that have a significant role in responding to accidents must also conduct field exercises and tabletop exercises at certain intervals in consultation with their local emergency response agencies.
• Public access to safety information: All facilities must provide certain basic information to the public upon request as well as ongoing notification of the availability of that information.  They must also share information relevant to emergency response planning with local emergency response agencies.  In the event of a reportable accidental release, the relevant facility must hold a public meeting for the local community within 90 days.

 Trump Administration Rollback Proposal

In a May 30, 2018 proposal,[vii] Trump’s EPA calls for gutting the 2017 rule.  It proposes to eliminate virtually all of the improvements made to prevent accidents (including root cause and ISTA analyses and third-party audits) and most of the improvements made to emergency response and preparedness and public access to information. Specific aspects of the rollback are identified and addressed in the talking points below.  EPA published a notice July 24, 2018, extending the comment period to August 23 and notifying the public that a database containing risk management plans was placed in the docket.

Trump’s EPA justifies its rollback proposal on two main grounds.  First, it argues that EPA should wait to make improvements to its Risk Management Program until the Occupational Health and Safety Administration (OSHA), which runs a similar program for worker safety, has made more progress in improving its own program.  By statute, EPA is supposed to coordinate with OSHA in implementing its program.  EPA’s program mirrors many of the core aspects of OSHA’s program, but differs in important ways that reflect the EPA program’s broader scope and purpose (protection of the public).

Second, Trump’s EPA raises concerns about the costs of the 2017 rule on industry.  It notes that Trump Executive Orders 13771, 13777 and 13783 call for “plac[ing] greater emphasis on reducing regulatory costs and burdens,” particularly for the energy sector.

All told, annual costs of 2017 the rule are estimated to be around $130 million.  Since the largest cost is for ISTA analysis ($70 million), the rule’s costs are mostly borne by facilities in the most dangerous industry sectors.

Trump’s EPA says little about the benefits of the 2017 rule, but it does question how large they would be.  The rule’s benefits are difficult to quantify since, by definition, accidents are unintended and so unpredictable.  EPA calculated that the average amount of damage done by accidents over the past 10 years was about $275 million per year.  The agency’s calculation did not include benefits that it could not monetize, like avoided damage to the environment, property values and productivity.  In issuing the 2017 rule, EPA stated that it expected that the rule would reduce to some extent the number and severity, and thus the monetized and non-monetized costs, of accidents.

Trump’s EPA argues that the costs of the 2017 rule could be higher and the benefits lower.  EPA’s original cost calculation did not include the cost of switching to inherently safer technologies and alternatives (since the rule does not require switching), and the benefits assessment did not recognize that some facilities may already be making those switches.  Considering that the rate of accidents at covered facilities was low and declining before the 2017 rule, Trump’s EPA asserts that “it is likely” that the costs of the prevention program improvements “exceed their benefits unless significant non-monetized benefits are assumed.”

Trump’s EPA does acknowledge that its proposal would put low-income communities and communities of color at greater risk of increased chemical disasters.  Many dangerous chemical facilities are located near these vulnerable communities.

As further reason for repealing improvements to the accident prevention program, Trump’s EPA cited an industry analysis showing that 1,500 reportable accidents had occurred over 10 years and that a significant percentage of those had occurred at a relatively small number of facilities.  The agency argued that enforcement action against facilities with a pattern of violations would be a better course for reducing accident risk.  As for the public access improvements of the 2017 rule, Trump’s EPA pointed to security (i.e. terrorism) concerns as another reason for rolling them back.

Suggestions for What to Say

 First, explain why you’re concerned about this proposed withdrawal – why it matters to you.  Since this rule would roll back safety requirements at facilities handling dangerous chemicals, consider whether you or family members or friends live, work or go to school near such a facility.  Over 12,500 facilities across the country are subject to EPA’s safety rules because they handle large amounts of dangerous chemicals.  You can go to EPA’s FRS Query Page to find out if one is located near you or loved ones.  (In doing your geographic search, make sure to click the “Risk Management Program” box near the bottom of the form.)

If you have relevant expertise, say so. You don’t have to be an expert to make a valid and valuable comment, but if you do have expertise, share your knowledge.

If you have information relevant to the rule (for example, news articles about events in your community or anecdotal information showing how the public is impacted) include that information and highlight it.

Be constructive and civil. Don’t write a lot if less will do.

Suggested Talking Points

 America cannot afford to turn back the clock on chemical accident prevention. Although progress has been made, catastrophic chemical releases are still occurring.  We need to learn from recent tragedies and apply the life-saving lessons they teach.

• Many Americans live near facilities that handle large amounts of dangerous chemicals. It’s not just big refineries or chemical plants that pose risks to neighbors.  Facilities that treat water and sewage, manufacture and refrigerate food, and make and distribute fertilizer are found in many communities, and many store enough dangerous chemicals to do serious harm if they are accidently released.  As noted in EPA’s regulatory impact analysis,[viii] Americans who are low income or minorities are more likely than the general population to live near dangerous chemical facilities.
• We need the common-sense improvements to the Risk Management Program that EPA issued in 2017. Facilities that want to be good neighbors should be taking these steps already.
• Root cause analysis: Figuring out the root cause of an accident or near-miss is just good sense.  What’s the use of tightening a screw that comes loose if the board it’s screwed into is rotten?  If a facility near me has an accident, I want the facility to know, and fix, everything that went wrong so that it doesn’t happen again. If the facility has a near-miss, I want it to know, and fix, everything that nearly when wrong so that it doesn’t go wrong in the future.
• Safer technologies: Like root cause analysis, considering inherently safer technologies and alternatives (ISTA) just makes good sense. I don’t take chances with my family’s health if I can avoid it.  Owners of facilities that use dangerous chemicals should feel the same way about nearby communities that could be harmed in the event of an accidental release.
• Independent audits: If an accident harms nearby residents and/or exposes problems with the facility’s handling of dangerous chemicals, the facility has a strong incentive to minimize its own culpability.  Communities that are harmed or put at risk deserve an independent, objective accident investigation that reveals all that went wrong.
• Other accident prevention improvements: Once again, it’s just common sense for a facility to consider its accidents or near-misses when it reviews the dangers posed by its handling of chemicals.  The 2017 rule’s other measures for preventing accidents help ensure that lessons are learned and applied in time to avoid or minimize future accidents.
• Emergency response coordination and public information: Communities and their emergency responders deserve to know enough about the dangers that nearby facilities pose to take the steps needed to protect themselves.  Emergency response agencies should be able to get whatever information they need without having to argue about whether it is “necessary.”  The public should have easy access to instructions for how to get information about the risks posed by nearby facilities.
• Concern for terrorism cuts both ways. EPA and industry representatives are quick to cite terrorism for why communities and emergency responders should have less access to chemical safety information.  But concerns about terrorism should also lead EPA and industry to embrace stronger measures for accident prevention.  If we have to fear terrorists targeting facilities handling dangerous chemicals, then all the more reason for facilities to identify and consider ways of making their operations safer so chemical releases are less likely or deadly.
• EPA should not wait for OSHA to play catch-up. EPA is responsible for protecting the public, OSHA for protecting workers.  Waiting for OSHA to act before making improvements to EPA’s accident prevention program would be an abdication of EPA’s responsibility to protect the public.  EPA does not control OSHA, and OSHA may or may not act quickly – or at all – to improve its program.  (Notably, EPA doesn’t even venture a guess as to when OSHA may announce its “path forward.”)  Before EPA hitches its protections to OSHA’s, the agency must make the case that any benefits to industry that might accrue from waiting for OSHA are worth the costs to the public of delayed or foregone protections.
• EPA should not rely on enforcement to ensure facilities do the right thing. Given the Trump Administration’s cuts to EPA’s enforcement program, we can’t count on EPA to enforce against every facility that needs to make the improvements the 2017 rule requires. Enforcement is also no substitute for placing responsibility for accident prevention where it belongs – on facilities that handle dangerous chemicals.  Any facility that has an accident significant enough to require reporting should be audited by a third party and should determine the root cause of the accident, whether the facility has had past problems or not.  It’s no comfort to communities hurt by a chemical accident that the facility had a “clean record” before the accident and so avoided making improvements that could have prevented the accident.
•  EPA should put public safety first! EPA’s explicit emphasis on cost and burden reduction over public safety is wrong.  EPA’s responsibility is to the public, not industry.  The 2017 rule would cost covered facilities a total of $130 million annually.  Divided among covered facilities – which number in the thousands and include facilities owned by large, highly profitable oil and chemical companies – the cost of the 2017 rule is a relative pittance.  While it’s impossible to calculate how many accidents the 2017 rule would prevent or mitigate, the benefits of preventing and mitigating catastrophic releases can be a matter of life or death to nearby communities.  EPA acknowledges that it has not even included in its benefits calculation many important benefits of the 2017 rule.  In the face of unavoidable uncertainty about the magnitude of the rule’s benefits, EPA should err on the side of protecting the public, not saving industry relatively small change.  Before EPA abandons the common-sense improvements of the 2017 rule, it must show – not just guess – that the benefits of those improvements aren’t worth their cost.  EPA should also show that the benefits and costs of repeal are fairly distributed rather than favoring industry at the expense of the public.

For more suggestions, see Save EPA's Comments on the Proposed Rollback of the Chemical Disaster Rule, submitted to EPA August 22, 2018.

There Is More That We Can Do

The upcoming November elections give us a potent opportunity to let our elected leaders know that public protections are important to us and how we vote.  Submitting comments to EPA is a good first step.  Please consider also writing to your members of Congress (your representative in the House of Representatives and your two senators).  Many of them up for reelection.

If you submit comments to EPA, you can let your members of Congress and other elected officials know what you think by sending them a copy of your comments.  A template for comments to members of Congress is on page 23 of Save EPA’s “A Practical Guide for Resisting the Trump De-Regulatory Agenda,” which is available to read or download at the following link: http://saveepaalums.info/Resistance+Guide.  The following links help you send your comments to your members:

Countable lets you identify your members of Congress based on your address and then send a message to all three members at once. Its link is https://www.countable.us/.

If you prefer to write your members of Congress separately, you can go to https://whoismyrepresentative.com/or https://www.usa.gov/elected-officials/ to find your members' email contact forms or snail mail addresses.

Also consider letting your state and local officials know that you are concerned about this issue by writing or calling them or speaking at town hall meetings.  In the absence of federal leadership, it is vitally important that states and local governments fill the void.

Other ways of raising the public and political profile of this rollback include:

Getting involved with local activists who are encouraging federal, state or local action.

Writing letters to the editor and even op-eds in your local papers.  Letters to the editor should be fairly brief.

Organizing or participating in campaigns to make phone calls or write letters to members of Congress. Some campaigns ask participants to make phone calls to radio stations during call-in days, or take other actions to spread the word.

Spreading the word via social media.  Tag your elected officials so they know how you feel.

Joining or organizing demonstrations.

Talking to your friends, colleagues and neighbors and encouraging them to comment and otherwise join in this effort.

VOTING!

Links For More Information

Notice of proposed RMP reconsideration rule:  https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0890

Notice of data availability and extension of public comment:  https://www.gpo.gov/fdsys/pkg/FR-2018-07-24/pdf/2018-15715.pdf

EPA web page on proposed RMP reconsideration rule:  https://www.epa.gov/rmp/proposed-risk-management-program-rmp-reconsideration-rule

EPA’s January 2017 RMP Rule and May 2018 proposed amendments:  https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule

Union of Concerned Scientists blog on importance of implementing January 2017 RMP updates and opposing Trump administration implementation delay (which has since occurred):  https://blog.ucsusa.org/yogin-kothari/epa-should-not-delay-an-update-to-its-chemical-facility-safety-rmp-rule

ENDNOTES

[i] 82 FR 4594 (Jan. 13, 2017). https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule

[ii] See Clean Air Act section 112(r), 42 USCA section 7412(r), added by the Clean Air Act Amendments of 1990.

[iii] EPA Risk Management Program overview web page:  https://www.epa.gov/rmp/risk-management-plan-rmp-rule-overview

[iv] See 83 FR 24873, col. 1 (May 30, 2018). https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule

[v] 82 FR 4594, 4599 (Jan. 13, 2017). https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule

[vi] Same as above.

[vii] 83 FR 24850 (May 30, 2018). https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule

[viii] See section 8.2.1 of EPA’s April 27, 2018, Regulatory Impact Analysis, Reconsideration of the 2017 Amendments to the Accidental Relase Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7).  https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0907