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Darya Minovi
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EPA Finalizes Critical Chemical Disaster Prevention Rules

   

 The Equation Read More 

On Friday, the US Environmental Protection Agency (EPA) issued long-awaited regulations to strengthen the Risk Management Program (RMP). The RMP requires roughly 12,000 industrial facilities that use or store extremely hazardous substances to develop Risk Management Plans that identify prevention and response measures for chemical releases. The new rule restores critical disaster planning and prevention protections under the program after it was gutted in 2019 under the Trump administration.

The RMP was first established in 1996 and in the nearly 30 years since, the program has been subject to political tug-of-war. After the Biden-Harris administration took office, the EPA held a series of listening sessions, and in 2022, proposed the “Safer Communities by Chemical Accident Prevention” rule. The Union of Concerned Scientists (UCS) joined hundreds of organizations and individuals in commenting on the proposed rules and testifying at EPA’s public hearings. While the proposal restored many of the rollbacks under the Trump administration, it still left some to be desired in terms of preventing chemical disasters. You can read about our comments on the proposed rule here.

The final rule also comes soon after the one-year anniversary of the devastating train derailment and fire in East Palestine, Ohio. While the RMP only applies to stationary sources and not transportation of hazardous substances, the train was traveling between RMP facilities and highlighted just how dangerous these chemicals are and how quickly a disaster can unfold.

The newly finalized rule retains many of the provisions in the proposed rule, and in some cases, strengthens requirements, as recommended by UCS and many others. We applaud EPA for finalizing these critical requirements. While the final rule still falls short on prevention measures, it significantly strengthens protections for workers at RMP facilities and surrounding communities and represents a major step forward.

Let’s break down some key provisions in EPA’s final rule:

EPA’s final rule will, for the first time, require regulated companies to assess risks from natural hazards such as flooding, wildfires, and hurricanes in facility risk management plans. This requirement is critical considering the accelerating climate crisis. In 2021, UCS published a policy brief (which EPA actually cited in the final rule) that found that nearly one-third of RMP facilities are located in areas prone to wildfires, inland and coastal flooding, and/or storm surges. The following year, the non-partisan US Government Accountability Office released its own report with similar findings. While the final rule did not go a step further to require facilities to implement measures to mitigate climate-related hazards, some facilities may still voluntarily choose to implement such measures once they are evaluated. Furthermore, the results of natural hazard assessments will be made available in risk management plans, which are accessible to the public.

One of the major requests made by advocates was for EPA to expand proposed requirements for Safer Technology and Alternatives Analysis (STAA). STAA is an industry best practice that, in short, requires companies to evaluate whether safer technologies and processes can be used at their facilities. In the draft rule, EPA proposed to require just five percent of RMP facilities to conduct STAAs. In the final rule, EPA expanded the requirement to cover roughly 11 percent of RMP facilities, which EPA claims are the “industry sectors with high accident rates.” Unfortunately, this still leaves nearly 90 percent of RMP facilities exempt from having to evaluate whether they are able to implement risk management measures to minimize or substitute their use of hazardous substances, or employ safer processes. Nevertheless, the final rule does require a subset of these facilities to also implement reliable safeguards to minimize hazards in response. This is an important step forward in actually preventing disasters in the first place, and hopefully the data generated in STAA analyses will help companies and regulators identify safer measures going forward.

Under the final rule, facilities that have had one prior accident (rather than two, as proposed) will be required to complete third-party compliance audits and root-cause incident investigations to help prevent future accidents from happening. The rule also importantly enhances protections for workers at RMP facilities, including required employee training, anonymous reporting, and “stop work authority” that provides employees with a mechanism to refuse to perform a task that they are concerned may result in a catastrophic incident.

One of the most notable actions under this rule is that EPA finally created a public database with information about RMP facilities. For years, information about facilities was only accessible through Freedom of Information Act (FOIA) requests, which can be tedious and take a long time to fulfill, or by visiting EPA reading rooms in person. For years, the agency claimed that information about facilities could not be made public due to national security concerns. This was a major disservice to communities around these facilities, as well as to first responders, after an incident occurred. While EPA could have made these data available at any time, we are grateful that the agency is doing so now.

The online tool allows users to search by facility and company name, ID and NAICS code, location, and the chemicals and processes used there. Users can also access the facility’s most recent risk management plan online.

EPA also finalized a provision that allows people who “reside, work, or spend significant time” within a six-mile radius of an RMP facility to request more comprehensive information about the facility. Importantly, this information will also be provided in at least two major languages (other than English) used in the community. While UCS and many commenters disagreed with this confusing and difficult-to-enforce approach, we support EPA’s efforts to expand public access to RMP facility information. (In case you missed it, the Coalition to Prevent Chemical Disasters, of which UCS is a member, also recently published a searchable chemical incident database here with information on releases at RMP and non-RMP sites occurring since 2021).

Despite its shortcomings, the publication of the final Safer Communities by Chemical Accident Prevention rule is a momentous occasion. Nearly 200 million Americans–too often members of Black, Latine, and low-income communities–live in “worst-case scenario zones” for chemical disasters. This rule restores accountability for these facilities to ensure that they are adequately planning for and preventing catastrophic disasters, such as those that have occurred in Houston, Texas and Louisiana in recent years. Finalizing this rule was also an important step toward realizing the Biden-Harris administration’s commitments to advancing environmental justice.

This win was shepherded by countless community members who live near these facilities as well as by labor and environmental justice advocates who have called for reforms for decades. It was also supported by legislators, faith leaders, public health experts, and more than 15,000 UCS members who made their voices heard in the advocacy and comment process. Thank you to EPA for restoring these critical protections to protect public and worker health!

 

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