By R. Lee Vail, P.E, Ph.D.

On May 30, 2018, the Environmental Protection Agency (EPA) published proposed revisions to the Risk Management Program (RMP) rules that would largely undo changes to the (stayed) final rule published on January 13, 2017.  See 83 Fed. Reg. 24850 (May 30, 2018).  Although not a complete one hundred eighty degree U-turn, the revised proposed rule pretty much guts most of the 2017 changes.  Rather than spending time parsing out what stayed from what was removed, I thought it would be more useful to consider the underlying message.

  • EPA has no ongoing obligation to modify RMP. EPA notes that section 112(r) of the Clean Air Act (CAA) contains four provisions that require EPA to promulgate regulations.  EPA believes that they have “met all of its regulatory obligations under section 112(r) prior to promulgating the RMP Amendments rule.”  83 Fed. Reg. at 24856 – 57.  EPA further explains that changes to the rule are allowed, but such changes are discretionary.
  • Discretionary changes to RMP should be coordinated with OSHA and reflect costs. The RMP prevention program requirements, from its initial promulgation in 1966 until the 2017 (stayed) rulemaking, were effectively identical to the Occupational Health and Safety Administration’s (OHSA) Process Safety Management (PSM) program rules.  This is not surprising as EPA is obligated to coordinate with OSHA pursuant to CAA section 112(r)(7)(D).  “While EPA has amended the Risk Management Program several times after 1996 without corresponding OSHA amendments to its PSM standard, these changes did not involve the prevention program provisions, thus precluding any need for coordination with OSHA.”  83 Fed. Reg. at 24864.  Although the EPA recognizes that “at times divergence between the RMP rule and the PSM standard may make sense given the agencies’ different missions,” the 2017 amendment “constitute a divergence from that longstanding practice.”   Further, most of the anticipated costs associated with the new rule are aligned with OSHA preventive program requirements.  Given the cost, coupled with the understanding that changes to the RMP program are discretionary, EPA action is a policy choice.  Id.
  • An enforcement-led approach is preferred to over-regulation. EPA notes that only 8% of RMP covered facilities had reportable accidents and that 2% of the facilities reported 48% of such incidents.  See 83 Fed. Reg at 24872.  Accordingly, instead of burdening all facilities with new rules, EPA believes that it would be more efficient to fulfill the goal of RMP through an enforcement-led approach.  Accordingly, “the RMP Amendments missed the opportunity to better target the burdens of STAA [Safer Technology and Alternatives Analysis] to the specific facilities that are responsible for nearly half of the accidents associated with regulated substances at stationary sources subject to the RMP rule.” 83 Fed. Reg. at 24872.
  • Reporters of RMP incidents beware. See above.
  • Process safety information (PSI) may have no regulatory purpose other than information required to conduct a Process Hazard Analysis (PHA). The 2017 Amendment added a requirement that process safety information be kept up to date.  This requirement was removed without any explanatory discussion.  Arguably, by adding and removing this requirement, the only obligation is to have up-to-date PSI at the beginning of a PHA.  If so, any violation should be a one-time, single-day, violation.
  • Information release should be limited to that which is necessary for developing and implementing emergency response plans. Perhaps just semantics, but EPA modified the requirement to share information with local emergency planning and response organizations from relevant information to information necessary to develop and implement (fearing that the original language was too open-ended).    See 83 Fed. Reg. at 24853.  Arguably, the only true “relevant” reason to request such information would be as needed to develop and implement response plans.  The revised proposed language will accomplish the goal and is less ambiguous.
  • EPA should not require information “synthesis” that connect-the-dots for intended bad actors. Whereas information may be accessible to the public through multiple sources, added hazard may occur through compiling the information in a single source.  See 83 Fed. Reg. at 24867.

A public hearing on the proposed revisions to the RMP rules is planned for June 14, 2018 and comments must be submitted on or before July 30, 2018.

By R. Lee Vail, P.E., Ph.D.

On May 17, 2018, the Environmental Protection Agency (“EPA”) released a proposed revision to the Risk Management Program (“RMP”) rule following its reconsideration of the Obama era revisions.  The proposal strips out much of those additions.  According to the Rule Fact Sheet, the reconsidered rule will maintain consistency with the Occupational Safety and Health Administrations’ (“OSHA”) Process Safety Management (“PSM”) regulation, address safety concerns raised in petitions, will reduce compliance cost, and revise compliance dates.  Specifically, the proposed rule will rescind many prior changes including:

  • Requirements for third-party audits;
  • Safer technology and alternatives analysis;
  • Incident investigation root cause analysis; and most other minor changes to keep RMP consistent with PSM;
  • Most of the added requirements related to public information availability; and
  • Supervisor training requirements.

A public hearing is planned for June 14, 2018 and the rule will have a 60 day comment period.  For more information, click here.

Stay tuned as more analysis will follow in the coming weeks.

By Tod J. Everage

Recently, the US Fifth Circuit addressed three maritime tenets in the same case: McCorpen defense, unseaworthiness, and regulatory governance. While these issues can be rather straightforward in the typical case, the facts in Thomas v. Hercules Offshore Services, LLC (5th Cir. March 2, 2018) provided an interesting review of each. The specific issues addressed in this case were: (1) whether OSHA regulations are preempted by Coast Guard regulations on an “uninspected” MODU; (2) whether a raised doorsill constituted a negligent or unseaworthy condition by creating a tripping hazard; and (3) whether a McCorpen defense can be made when the employee passed a pre-employment physical.

Plaintiff was a galley hand employed by Hercules on the HERCULES 264, a mobile offshore drilling unit (MODU). She tripped on the raised doorsill leading out of the bathroom, measuring two inches high and approximately three inches wide. Plaintiff sued in the Middle District of Louisiana alleging negligence under the Jones Act, unseaworthiness under general maritime law, and a claim for maintenance and cure benefits. Hercules began paying M&C from the date Plaintiff’s injury was reported. Hercules eventually filed two dispositive motions addressing its liability and asserting a McCorpen defense; the district court granted both motions.

The first issue on appeal was whether the MDLA erred in holding that the HERCULES 264 was an inspected vessel, such that OSHA regs were preempted by the Coast Guard CFR’s. Plaintiff insisted that the MODU was an uninspected vessel. In Chao v. Mallard Bay Drilling, 534 US 235 (2002), the US Supreme Court held that inspected vessels were governed by Coast Guard regulations, which preempt OSHA regulations; on uninspected vessels though, OSHA is not preempted. In 46 USC § 3301(1)-(15), Congress clearly set forth a list of 15 types of vessels that are deemed inspected vessels – MODUs are not on that list. Hercules argued that though the HERCULES 264 was not an inspected vessel under the statute, the Coast Guard had issued a Certificate of Compliance and a Report of Inspection for the HERCULES 264, making it an “inspected” vessel.

Hercules also argued that the Coast Guard regs preempt OSHA regs on the Outer Continental Shelf (OCS), where the HERCULES 264 was drilling. Specifically, the Coast Guard had promulgated regulations respecting the design and equipment standards for MODUs, including the construction of accommodation spaces on those units. See 46 CFR § 108.197. The regs also address design requirements of wash spaces, toilet spaces, and shower spaces. See 46 CFR § 108.205. Citing back to Mallard Bay Drilling, the 5th Circuit was persuaded by the Coast Guard’s promulgation of these regulations as an exercise of the Coast Guard’s authority sufficient to preempt OSHA regulations. Thus, the HERCULES 246 would be treated as an inspected vessel and the Coast Guard regulations would apply.

The second issue was whether the HERCULES 264 was unseaworthy for having raised doorsills, creating tripping hazards. After affirming the district court’s ruling that Plaintiff had failed to present any evidence that the raised doorsill created an unsafe condition, the Court concluded that it also did not make the HERCULES 264 unseaworthy. Notably, the design of the doorsill did not violate any applicable Coast Guard regulation. In fact, certain regulations actually called for higher doorsills than the two-inch one Plaintiff had tripped over. This fact alone was sufficient to dismiss Plaintiff’s negligence and unseaworthy claims.

The last issue addressed Hercules’s successful McCorpen defense. McCorpen is the US 5th Circuit’s longstanding shield against fraudulent claims for Maintenance and Cure. It allows a Jones Act employer to terminate its M&C obligation when the employee has willfully concealed a preexisting medical condition. The three prongs of defense are: (1) the seaman intentionally misrepresented or concealed medical facts; (2) the nondisclosed facts were material to the employer’s decision to hire the seaman; and (3) there is a link between the withheld information and the injury that is the subject of the complaint.

In her hiring process, Plaintiff filled out a medical questionnaire and underwent a pre-employment physical – which she passed with no restrictions. On her forms, she signed that she had never sustained any injury or sought medical attention for a physical problem. She also checked the boxes indicating she had never received treatment for any neck, back, or leg pain, among others. In her deposition though, she admitted to two prior car accidents which required medical treatment for neck, back, and leg pain. This satisfied the first prong of McCorpen.

Next, the 5th Circuit rejected Plaintiff’s argument that passing the pre-employment FCE negated the materiality of her concealment. The 5th Circuit has consistently held that the materiality factor is satisfied if the employer asked specific questions about the relevant pre-existing injury on its application forms. Plaintiff’s ability to perform physical tasks at the time of hiring was irrelevant. As to the third factor, the 5th Circuit found a direct link between the concealed pre-existing injuries and the injuries complained about in this case. A Jones Act employer need not prove that that the prior injuries are the sole causes of the current injuries; nor do the present injuries have to be identical. Here, Hercules showed that Plaintiff had received months of medical treatment for neck, back and leg pain after each of her previous car accidents, and reported pain in those same areas after her fall on the HERCULES 264. Therefore, the 5th Circuit affirmed the district court’s ruling on this issue as well.

Despite this finding, Plaintiff was entitled to keep the more than $44,000 she received in Maintenance benefits prior to the district court’s ruling. Though it may be difficult pre-suit, Jones Act employers should immediate begin investigating their employee’s injury claims with an eye towards supporting a McCorpen defense, if available; especially, if the potential cure exposure is significant.

By David M. Whitaker

OSHA’s regulation at 29 CFR § 1904 requires employers with more than 10 employees in most industries to keep records of occupational injuries and illnesses at their business establishments. The regulation was first issued in 1971. Covered employers must record each recordable employee injury and illness on an OSHA Form 300, known as the “Log of Work-Related Injuries and Illnesses.” Recordable injuries and illnesses include those that involve death, loss of consciousness, days away from work, restriction of work, transfer to another job, medical treatment other than first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.

Employers must also prepare a supplemental OSHA Form 301 “Injury and Illness Incident Report” that provides details about each case recorded on the OSHA 300 Log. At the end of each year, covered employers must prepare a summary report of all injuries and illnesses recorded on the OSHA300 Log, known as the “Summary of Work-Related Injuries and Illnesses,” and are required to post this form in the workplace in a conspicuous location. Failure to meet these injury and illness recording and posting requirements can result in OSHA citations and penalties.

Until recently, employers were not required to submit their illness and injury reports to OSHA unless they were requested by the Agency (often during an OSHA site inspection). During the waning days of the Obama Administration, OSHA published a new rule which requires certain employers to electronically submit their OSHA-mandated employee injury reports (with employee name field information deleted) to OSHA, which in turn will publish the information on its public website.

The final rule imposed the following new requirements:

  1. § 1904.41(a)(1)—Establishments with 250 or more employees that are required to keep part 1904 records must electronically submit the required information from the three recordkeeping forms that they keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and Illness Incident Report)
  2. § 1904.41(a)(2)—Establishments with 20-249 employees that are classified in a designated industry listed in appendix A to subpart E of part 1904 (so-called high hazard industries) must electronically submit the required information from the OSHA Form 300A annually.
  3. The final rule requires other employers to electronically submit information from part 1904 recordkeeping forms to OSHA upon request.

It is important to note that the electronic reporting requirement is based on the size of an “establishment,” not the employer’s total number of employees company-wide. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. An employer may be comprised of one or more establishments, and the number of establishments may vary from year to year. An employer is required to maintain employee injury reports (and electronically submit them, if covered by the new requirements) for each of its covered establishments.

The electronic reporting requirement became effective on January 1, 2017, with a two-year phase in period. Employers were originally required to submit their 2016 OSHA Forms by July 1, 2017 and their 2017 OSHA Forms by July 1, 2018.  Beginning in 2019 and for every year thereafter, all annual OSHA Forms will be due by March 2 of the following year.

Earlier this year OSHA announced that it would postpone the 2016 submittal deadline from July 1st to December 1, 2017 to allow the Trump Administration additional time to further study these requirements. On November 22, 2017, OSHA announced that it will again extend the date by which employers with covered establishments must submit the data from the 2016 Form 300A to OSHA’s electronic database.  The new deadline is December 15, 2017, which OSHA explained is necessary to “allow affected employers additional time to become familiar with a new electronic reporting system launched on August 1, 2017.”

The OSHA Injury Tracking Application (ITA) website where employers will be required to make their electronic records submissions can be found here.

The electronic data submission is controversial because of its public nature, and many in industry have criticized the new requirement as part of the Obama Administration’s tactics of publicly shaming employers as a compliance technique.  OSHA has justified the new rule on its belief that the electronic data collection and public disclosure of employers’ workplace injuries is necessary to “identify and mitigate workplace hazards and thereby prevent worker injuries and illness,” and its view that “behavioral economics” through publication of the collected information will “nudge” employers to improve compliance efforts.

Recent comments by Secretary of Labor Alex Acosta suggest that the Trump Administration may be considering further tweaks to these requirements, or at least how the reported information may be published by the Agency.  During a hearing before the House Education and the Workforce Committee on November 15, Secretary Acosta indicated that OSHA is continuing to examine the rule.

“We are balancing the issues of privacy – because it was asking for some information that was very detailed and that identified individuals – with the needs [sic] to get information so that we can engage in appropriate and targeted enforcement.”

Given these developments, it does not appear that the Trump Administration will do away with the electronic submission requirement altogether, so affected employers should continue preparations for compliance with the electronic reporting requirements by the new December 15th deadline.  But given that some changes to alleviate employer concerns may be yet to come, affected employers may wish to consider delaying their 2016 electronic reporting as long as possible to be in position to take advantage of any late-breaking developments in the Agency’s application of this rule.  And it is also possible that OSHA could extend the deadline a third time to account for additional changes to the reporting requirements.

By R. Lee Vail, P.E., Ph.D. and Lauren J. Rucinski

On August 30, 2017 the D.C. Circuit denied environmental and labor groups’ request to stay the Tump EPA’s final rule delaying the Obama-era amendments to the EPA’s Risk Management Program (“RMP”) rule. The RMP rule implements Section 112(r) of the Clean Air Act and requires facilities that use extremely hazardous substances to develop and update a Risk Management Plan.

In June, the EPA Administrator Scott Pruitt signed a final rule to further delay the effective date of the RMP rule amendments until February 19, 2019 (“the Delay Rule”).  The delay allows EPA to conduct a reconsideration proceeding to review objections raised by petitioners to the final RMP amendments rule.[1]

Environmental and labor groups challenged the Delay Rule in the D.C. Circuit and then moved to stay the Delay Rule until the court takes full review of it. The groups’ motion requests a stay of the stay of the RMP rule until the court can review the merits of the Delay Rule—which stays the RMP rule. Try to say that five time fast. In any event, the D.C Circuit denied the groups’ motion to stay the Delay Rule. In denying the request for a stay, the D.C. circuit held that the environmental and labor groups had not “satisfied the stringent standards for a stay pending court review.”[2] Thus the Delay Rule will remain in effect while the D.C. Circuit reviews the merits of the groups’ challenge.

***************************************************

[1] 82 Fed. Reg. 27133 (June 14, 2017).

[2] The Court also denied EPA’s motion for additional briefing time on the merits of the groups’ challenge.

By Maureen N. Harbourt

Just a quick reminder that in 2007, the Louisiana State Police (“LSP”) adopted regulations requiring special reporting requirements for persons “engaged in the transportation of hazardous materials by railcars, vessels, or barges, or the temporary storage of hazardous materials in any storage vessel not permanently attached to the ground” if that activity is within “a parish affected, or projected to be affected, by a Category 3 or higher hurricane for which a mandatory evacuation order has been issued.”  LAC 33:V.11103.  Hazardous materials are those materials listed in 40 C.F.R. Part 355, Appendix A.  Temporary storage is defined as storage in a portable container, and excludes any storage in pipelines or any other storage vessel permanently attached to the ground.

At the present time (11 a.m, CST, August 25, 2017),  Hurricane Harvey is a Category 2 storm with maximum sustained winds of 110 mph; but, it is projected that Harvey will strengthen to a Category 3 Hurricane by the time of landfall, which is projected to occur between Corpus Christi and Houston, Texas, late evening on August 25, 2017.  It is also projected that the hurricane will affect southwest and south central Louisiana parishes.  In fact, the Governor of Louisiana has issued an executive order that puts the entire State of Louisiana under a declaration of emergency.  Yesterday evening, Cameron Parish entered a mandatory evacuation order for all areas of the parish south of the Intracoastal Waterway, effective at 6 a.m., CST, August 25, 2017.   We are not aware of any mandatory evacuation orders for any other Louisiana parishes at this time.  The following is a link to all parish emergency response offices which will provide contact information to inquire about any orders issued: http://gohsep.la.gov/about/parishpa.

If a mandatory evacuation order is issued for any Louisiana parishes due to a Class 3 or higher category hurricane, the rules (LAC 33:V.11105) require the following:

  • Notification shall be given to the DPS, via electronic submittal, to the 24-hour Louisiana Emergency Hazardous Materials Hotline email address at emergency@la.gov within 12 hours of a mandatory evacuation order issued by the proper parish authorities.
  • For persons engaged in the transportation activities noted above, the report must include the following information:
    • the exact nature of, and the type, location, and relative fullness of the container (i.e., full, half-full, or empty) of all hazardous materials that are located within a parish subject to the evacuation order;
    • the primary and secondary contact person’s phone, e-mail, and fax number; and
    • whether the facility will be sufficiently manned such that post-event assessments will be performed by company personnel (as soon as safely practicable) and that any releases and/or hazardous situations will be reported in accordance with existing Louisiana Department of Environmental Quality (LDEQ) and State Police reporting requirements.
  • For those materials that are stored, it shall be necessary to only report those hazardous materials that were not reported in the annual SARA inventory report (40 CFR Parts 312/313) and those that are in excess of what is typically stored at the facility.

In addition to the notification to the LSP, “within a reasonable period of time” persons subject to the rule “shall perform a post-event assessment of those hazardous materials that were actually present in the affected area and to what degree, if any, those materials were compromised by said event and their current condition.”  Such information must be available for review by both the LSP and the LDEQ shall have access to this information.

louisiana

By R. Lee Vail, P.E., Ph.D.

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations for alleged violations of Process Safety Management (“PSM”) regulations. In that case, the Court held that OSHA was barred from issuing a citation for the failure to act on Process Hazard Analysis (“PHA”) findings/recommendations that remained open beyond the six month statute of limitations provided in 29 U.S.C.A. §658(c) of the Occupational Safety Health Act of 1970. See, Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 179 (5th Cir. 2016).

Conversely, violations of the Clean Air Act are recognized to be subject to the general federal five-year statute of limitations established by 28 U.S.C. § 2462. See Nat’l Parks & Conservation Ass’n, Inc. v. Tennessee Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007). Consistent with this, the “duration of violation” factor under the Environmental Protection Agency (“EPA”) “Combined Enforcement Policy for Clean Air Act Sections 112(r)(1), 112(r)(7) and 40 C.F.R. Part 68 ” reaches its maximum at 60 months. At first glance, it would appear that the Delek decision might have little or no impact on RMP penalties, but that would be incorrect.

Some RMP violations are not continuing violation.

In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

RMP has the exact same requirements, albeit at 40 C.F.R. 68.67(e) and 40 C.F.R. 68.79(d). Aligning RMP with PSM based on Delek, no duration of violation factor should apply to violations of §68.67(e) or §68.79(d). Further, this ruling could apply to other RMP provisions that only require compliance by a particular date. For example, this case strengthens the argument that the failure to conduct a specific Management of Change (“MOC”) is a one day violation and not subject to “duration of violation” factor. Delek could similarly affect other RMP requirements.

Prior PHA’s might not be a basis of violation.

Consider the following example. A facility conducts a PHA in 2010, and a second five years later in 2015. Also assume that a recommendation from the 2010 PHA remains open seven years later in 2017. Any single violation based on the 2010 PHA is time barred five years after the facility failed to act promptly or timely. If for argument sake, prompt and timely is considered two years, the five year statute of limitation bars enforcement of the omission by 2017. Further, the EPA might have issues with citing a violation of the open issue based on the 2015 PHA as it may not yet be past the prompt or timely criteria.

Time will tell to what degree Delek will impact the existing RMP penalty policy. Regardless, it could have an impact.

refinery1a

By R. Lee Vail, P.E., Ph.D.

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations against an employer that allegedly failed to timely resolve open findings and recommendations from Process Hazard Analysis (PHA). The 2008 citation related to multiple PHAs that occurred over a decade (with the last being 2005) and a 2005 compliance audit. In doing so, the Court narrowed these process safety management requirements to no more than addressing and resolving the findings in a timely manner:

Neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R. § 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise, subsection (o)(4) directs employers to “determine and document an appropriate response” to the audit compliance findings.

Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 178 (5th Cir. 2016)

This case followed AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012), where the Court concluded the obligation to create a record was a onetime event and that OSHA was barred from citing a facility six months after that record should have been created. In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

OSHA’s argued that the “address and resolve” obligation was continuous and that any failure was a continuing violation. Arguably, if the violation is continuing, a violation accrues on the first non-timely day and every day thereafter. According to the holding in this case, six months after that first non-timely day, OSHA is barred from issuing a citation. So what is timely? The Fifth Circuit noted that OSHA has historically placed this timely obligation at 1 – 2 years.

The Secretary has, on at least one occasion, taken the position that a response to PHA and audit recommendations is “timely” when it is done within “one to two years.” See Secretary of Labor v. BP Prods. N. Am., Inc., 2013 WL 9850777, at *37 (OSHRC Aug. 12, 2013). We need not address this issue here, however, because the Secretary has not argued that the citations underlying Items 4 and 12 would be timely under the interpretation of Section 658(c) we now adopt, even if Section 1910.119’s references to “timely” or “prompt” action afforded an employer more than one or two years to resolve open PHA or audit recommendations.

Id. at 177.

As such, if two years is timely, a citation issued within two years of the PHA recommendation would be premature; a citation issued after two and a half years would be barred. Such will likely place OSHA in a quandary . . . in order to argue that similar PHA citations are not time barred, OSHA may need to provide more time to “address and resolve.” Even then, an action becomes barred six months after whatever OSHA defines as timely. Only a six month window exists where OSHA can issue a citation with the big question being “where does the window start?”

This decision could have a much broader effect. For example, is the failure to conduct a pre-startup review no longer citable six months after startup?

chemical_plant

By R. Lee Vail, P.E., Ph.D.

The EPA received three petitions asking it to delay and reconsider amendments to the RMP rule. First, the “RMP Coalition” submitted a petition dated February 28, 2017. On March 13, 2017, the Chemical Safety Advocacy Group also submitted a petition, followed by a third petition from a group of eleven states. On March 13, 2017, Scott Pruitt, Administrator of the EPA, convened a proceeding for reconsideration of the RMP rule amendments and signed a letter that administratively delayed the effective date of the rule for 90 days.

On April 3, 2017, EPA proposed to further delay the effective date of changes to the rule until February 19, 2019. 82 Fed. Reg. 16146 (Apr 3, 2017). In proposing extra time to conduct the reconsideration, the EPA determined “three months to be insufficient to complete the necessary steps in the reconsideration process.” 82 Fed. Reg. at 16148. The EPA noted that it would take time to “prepare the necessary comment solicitations to help focus commenters on issues of central relevance to [their] decision-making.” Id. Further “a separate Federal Register notice published in the near future will specifically solicit comment on the range of issues under reconsideration.” 82 Fed. Reg. at 16149.

Such a further delay would have the effect of also delaying provisions that don’t kick in until later years. “Compliance with all of the rule provisions is not required as the rule does not become effective.” Id. EPA would later “amend the compliance dates as necessary when considering future regulatory action.” Id.

Comments are due by May 19, 2017 on the proposed delay to February 19, 2019.

chem

By R. Lee Vail, P.E., Ph.D.

On February 28, 2017, the EPA received a petition from the “RMP Coalition” for reconsideration and a request for a stay from the amendments to the RMP rule. The RMP Coalition consists of several affected industry trade groups, manufacturing groups, and the Chamber of Commerce of the United States of America. The petition asserts that:

  • the Local Emergency Planning Committee (“LEPC”) disclosure requirements are open ended, will result in a significant security risk, and that EPA failed to give notice that it may alter the final rule being open-ended;
  • the EPA changed the third-party audit criteria to include an arbitrary trigger that is subject to the whims and imagination of an agency, and EPA did not properly notice or address this change;
  • the EPA did not include information on its cost-benefit findings as required by Michigan v. EPA, 135 S.Ct. 2699 (2015);
  • the scope of the three year audit was expanded to include all covered process without providing notice of the change or the rational;
  • the EPA failed to explain claimed statutory authority to expand the rule;
  • numerous supporting documents were not available during the comment period; and
  • the EPA should reconsider the amendment “in light of the revelations that the West, Texas, incident was an intentional act.”

On March 13, 2017, Scott Pruitt, Administrator of the EPA, convened a proceeding for reconsideration of the RMP rule amendments and signed a letter that administratively delayed the effective date of the rule for 90 days.