EPA Proposes to Rescind Obama Chemical Plant Protections; Puts Residents At Risk

Five years after a catastrophic ammonium nitrate explosion in West, Texas killed 15 persons, destroyed much of the city, and launched reforms in the way the federal government oversees the safety of the nation’s chemical facilities, EPA Administrator Scott Pruitt last week told us that he cares more about the concerns of the chemical industry than he does about the millions of Americans living in the shadow of hazardous chemical facilities.

Last Thursday,  EPA released is long anticipated proposal to “reconsider” the Obama administration’s improvements to EPA’s Risk Management Program (RMP) that protects communities surrounding chemical plants from explosions and uncontrolled chemical releases.

I won’t mince words: this is not a “reconsideration.” With very few exceptions, it’s a total repeal of the Obama-era modernization of EPA’s program.

I’m sure the chemical industry is taking comfort in the fact that despite the historically unprecedented number of investigations into Pruitt’s corruption, he’s not pulling any punches on the policy side.  On the contrary. Blatantly catering to the whims of regulated industries may be the only thing keeping Scott Pruitt from a well deserved opportunity to spend more time with his family.

Blatantly catering to the whims of regulated industries may be the only thing keeping Scott Pruitt from a well deserved opportunity to spend more time with his family.

EPA’s press release states that “accident prevention is our first priority and boasts that the revised regulation “will ensure proper emergency planning and continue the trend of fewer significant accidents involving chemicals.”

How, you ask?  By reducing “unnecessary regulatory burdens” and addressing the “concerns of stakeholders and emergency responders on the ground.” And as a bonus, it will save Americans “roughly $88 million a year.”

And in case you’re wondering whether this is a good idea, EPA’s press release assures us with supportive quotes from the National Association of Chemical Distributors and the Society of Chemical Manufacturers and Affiliates. But their bland statements of support are nothing compared with the ravings of Arkansas Attorney General Leslie Rutledge who subtly states: “The new RMP rule is another victory for common sense over environmental radicalism and is a good example of the Administration listening to and properly responding to the valid concerns of multiple states.”

In case you missed it, this statement was actually included in the official EPA press release.

“The new RMP rule is another victory for common sense over environmental radicalism.” — Arkansas Attorney General Leslie Rutledge

This is only a proposal and not a final regulation. Comments are being solicited and EPA will hold a hearing on June 14. You can read the entire 128 page proposal if you have the patience. The desperate justifications and ridiculous distortions of the facts are headshakingly painful to read.  This is nothing short of a betrayal of the promises this nation made to the people of West and the many other victims of chemical incidents. There is no doubt in my mind that if the regulation finalized in this form, lives will be lost that could have been saved.

West Mayor Tommy Muska said the rollback of regulations was unwarranted and dangerous.

“With all due respect to Scott Pruitt, he’s never lost 15 firefighter friends,” Muska told the American-Statesman. “I’m as pro-business as anyone, but some things are way, way, way more important than too much regulation, and that includes the safety of these chemical plants.”

Background

EPA’s Risk Management Program regulation, originally issued at the direction of Congress in 1992, is designed to protect communities surrounding chemical facilities from harmful explosions and chemical releases.  In January 2017, EPA updated these protections in response to President Barack Obama’s 2013 Executive Order on “Improving Chemical Facility Safety and Security” following the West explosion and several other serious chemical plant incidents that occurred around the same time. Thirteen of those killed at West were emergency responders.

This is nothing short of a betrayal of the promises this nation made to the people of West and the many other victims of chemical incidents.

The new rule significantly improved communication between facilities and emergency responders, clarified information that emergency responders need to safely respond to incidents, required root cause analyses of chemical plant incidents and near misses, and required chemical facilities to consider “inherently safer” chemicals and production processes.

Last June, Pruitt suspended the regulation so that EPA could “reconsider” it in light of industry petitions.

What’s the Damage?

Which parts of the Obama 2017 RMP update are being rescinded? Pretty much everything. Much more than I can describe in a blog post, but I’ll try to cover the “highlights.”

EPA is proposing to rescind: requirements for third-party audits, a requirement that plants consider and analyze safer technology and alternatives (STAA), a requirement for the hazard review (including findings from incident investigations) most of the requirements for investigations after incidents, including a 12-month completion deadline, requirements for conducting root cause analysis, a schedule to address recommendations, a requirement to keep the records for five years, or any investigation into catastrophic chemical releases “that results in the affected process being decommissioned or destroyed” as well as the requirement to make any of that information available to the community. And just in case you missed the point, the results of the investigations will no longer be “report(s).” They will now be “summary(ies).”

They’re also seriously weakening measures implemented by the Obama rule that would have made it much easier for citizens living near chemical plants to get information on their potential hazards , including information about chemical disasters or releases.

But that’s not all. For good measure, they’re also rescinding employee training requirements as they apply to supervisors (because who cares if supervisors are trained?) and just to make sure nobody gets any deviant ideas, they’re getting rid of the definitions of “active measures,” ‘inherently safer technology or design,” “passive measures” and “practicability.”

But don’t despair. All is not lost. When OSHA updated its Hazard Communication Standard in 2012, harmonizing its requirements with other countries, the agency changed the term “Material Safety Data Sheet” to “Safety Data Sheet.” EPA announced that it has graciously agreed to adopt that revision.

Why?

Why is EPA rescinding these protections? The simple answer is because the chemical industry didn’t like the Obama RMP update.

A better question is how is EPA justifying its evisceration of these protections?

The West Arson Myth

Security concerns was the main justification for weakening the provisions of the RMP regulation making it easier for communities to get information about the hazards in their neighborhood refineries and chemical facilities. Terrorists might use information about what chemicals were in the plant and what emergency response procedures had been planned to attack a chemical plant, releasing materials that could kill hundreds or thousands in the surrounding community.

A little background. As a result of President Obama’s 2013 Chemical Facility Executive Order, leadership from OSHA, EPA, Homeland Security and other agencies spent a year travelling to “Listening Sessions”  across the country. At every single one of the stakeholder meetings, dozens of residents who lived near chemical facilities plead with us to make information about the hazards in the plants and emergency response planning easier to get so that they could figure out how to protect themselves and if emergency response plans were adequate in the even of a major release. The 2017 regulation made major progress in providing user-friendly, one-stop-shopping for that information.

But for Pruitt and the chemical industry, making all of this information available to the public was a problem, not a solution — a problem they hid behind security concerns. For example, the user-friendly aspects of the 2017 rule that required most important information to be provided in one place instead of making residents go to several different state and government agencies to the information? Turns out that’s a bad thing according to the industry-friendly Trump EPA. 

If a facility is required to disclose in synthesis and in one public source that it has experienced frequent accidental releases involving large quantities of highly toxic or flammable chemicals, does not maintain an on-site response capability, and is located a long distance away from the nearest public responders, the synthesis of this information might allow a criminal or terrorist to identify a relatively “softer” facility target for attack, or a target that if attacked could cause more damage to the facility and surrounding community due to a less timely response.

Translated: If a chemical facility is doing a piss poor safety job and the emergency response procedures suck, EPA is now proposing to make it really, really hard for the community to get that information — because terrorists might be able to get it too. Never mind that history has shown over and over again that the American chemical industry is much more adept at blowing up their own facilities than terrorists are.

Much of the justification for weakening these basic right-to-know provisions was the unsubstantiated 2016 allegation by the Bureau of Alcohol, Tobacco and Firearms (BATF) that the fire at West Fertilizer was caused by arson. The BATF based this finding on the fact that after millions of dollars and years of investigation, they were unable to figure out what else had ignited the fire that led to the explosion. (Not finding an ignition source is not uncommon in explosion investigations.)  The technical term for process of elimination is “negative corpus.”

Event though BATF’s findings and their use of “negative corpus” methodology have been debunked and ridiculed even by residents of West, the EPA proposal nevertheless cites BATF’s finding. BATF has allegedly “provided EPA an explanation” of its investigation and also now denies that that it used negative corpus. Pruitt apparently believes them despite any additional evidence being presented.

I find this odd. I was still at OSHA when the BATF came up with this “finding.” And despite requests from OSHA, EPA, DHS and the White House, BATF refused to brief anyone on how they came to their conclusion.  Did they actually brief Pruitt? Or is he just taking them at their word?

It doesn’t really matter how the fire at West fertilizer started. The problem at West wasn’t the fire itself, but the improper storage of the ammonium nitrate that allowed the fire to ignite a catastrophic explosion.

And finally, as we have written before, it doesn’t really matter how the fire at West fertilizer started. The problem at West wasn’t the fire itself, but the improper storage of the ammonium nitrate that allowed the fire to lead to a catastrophic explosion.  Had proper safety procedures been followed at West, the fire would have been a one-day, page 3 article in the West Gazette instead of 15 deaths, a destroyed city and weeks of nationwide headlines..

OSHA Made Us (Not) Do it

Another justification EPA gives for taking away these protections is that the because the agency is required to consult with OSHA which has a similar Process Safety Management standard, EPA can’t act until OSHA does. This excuse falls into the category of “just makin’ stuff up.” Obama’s Executive Order instructed both agencies to update their regulations, but OSHA’s process is much slower than EPA’s, but there is no requirement that EPA wait for OSHA or vice-versa.

Stating that EPA must wait for OSHA means that there will never be a revised RMP regulation as long as Trump is in office.

In fact, stating that EPA must wait for OSHA means that there will never be a revised RMP regulation as long as Trump is in office. Why?

First, as I said, OSHA’s rulemaking process if very slow, even in the best of times.

Second, OSHA just released its Spring 2018 regulatory agenda last week and their Process Safety Management update remains slow-tracked on the “Long Term” agenda.

Finally, remember Trump’s “One in/Two Out” Executive Order which states that for every new regulation an agency issues, it must rescind two other regulations of equal cost?  Well, if we assume that it’s legal, it will stop OSHA from issuing any but the smallest of regulations — and the PSM revision will likely be large and costly.

Not only is this “one-in/two-out” requirement morally bankrupt (because how does OSHA decide which workers will be chosen to lose their workplace safety protections so that other workers can receive protections?), but it would also be physically impossible for OSHA to comply. It takes almost as much work to repeal an old regulation as it does to issue a new one. That means that instead of OSHA conducting a single lengthy rulemaking, the agency would have to conduct three simultaneous rule-makings — one to issue the new standard and two to rescind the old.

Not gonna happen.

War is Peace. Reaction is Prevention

We have become perhaps too accustomed lately to accusing this administration of using Orwellian language. But in this case it’s truly justified.

Pruitt boasts in the press release and on his twitter feed about how “Accident prevention is a top priority” and then the first line of the “Summary of the Provisions” announces that they are proposing “to rescind almost all the requirements added to the accident prevention provisions” of the Obama regulation, including requirements for an analysis of safer technology and alternatives .

Pruitt boasts about how “Accident prevention is a top priority” and then announces that they are rescinding almost all of the accident prevention provisions of the regulation.

Just to remind you, an inherently safer approach means that you strive to replace the most hazardous chemicals and processes with less hazardous chemicals and processes. This not only reduces that impact of a chemical plant explosion or release, but at the same time eliminates the “target” for any terrorist seeking to wreak havoc.  Because only a really dumb terrorist would attack a chemical facility that had removed any chemicals capable of wiping out the surrounding community if released.

Ironically,  the Obama regulation came under considerable criticism from chemical safety advocates because the original regulation only requires facilities to consider inherently safer chemicals or processes, not to actually implement them.

Pruitt’s justification for rescinding most of the preventive provisions of the rule is that only a small percentage of plants experience multiple incidents (as one would hope and expect) and therefore it doesn’t make sense to put requirements on everyone when stronger enforcement action against the bad apples would suffice. So instead of measures that could prevent incidents in every plant, Pruitt has chosen a “enforcement-led” approach that reacts to accidents.

In other words, this proposal is exactly the opposite of prevention.

Pruitt’s press release and the proposal also claim that no new requirements are needed because the current rules are working just fine, as shown by “the trend of fewer significant accidents involving chemicals.”

There is no documentation of that trend on the website. (It’s supposedly buried in the Regulatory Impact Analysis which hasn’t been posted yet.) I’ve talked to a number of chemical safety experts and no one can quite figure out what they’re talking about because no government agency actually tracks chemical incident trends.

If by “significant accidents” Pruitt means catastrophic explosions, he’s misleading the country. Catastrophic chemical plant explosions, such as West Fertilizer or the BP Texas City refinery explosion in 2005, are categorized as “low frequency, high impact” events. In other words, they don’t happen often, but they are catastrophic — causing tens or potentially hundreds of deaths when they occur. The fact that they’re “low frequency,” however, means you can’t really define trends accurately and it’s highly dangerous to become complacent just because there haven’t been any major explosions recently.

Perhaps Pruitt is counting smaller incidents and “close calls,” which are pretty good indicators that there are problems. But you can’t just rely on a plant’s history. Every facility needs to take preventive measures. Remember, West Fertilizer had never had an incident before it killed 15 and wiped out a good part of the town.

$80 Million?

There are many things I don’t understand about this action. One is why EPA is boasting about how this will save Americans $80 million a year. Maybe Pruitt thinks that $80 million will sounds like a lot of money to Americans.  I wouldn’t mind having it in my bank account. But nationally, it’s chicken feed, any way you divide it.

EPA reports that there are 12,542 facilities affected by this rule, which comes to just over $70,000 saved per facility. Now some of these are huge refineries and others are your mom and pop plant down the street — like West Fertilizer. But all in all, it doesn’t come to much when you consider the costs of a major (or even minor) chemical plant explosion. The Chemical Safety Board, for example, estimated the total insurance-related losses from the West explosion to be approximately $230 million, almost three times the “savings” from this proposal.

A RAND analysis of the costs and benefits of California’s recent PSM revision (which has stronger requirements for inherently safer alternatives) determined that each major refinery incident avoided would save a refinery about $220 million, not including the potential costs associated with damage to surrounding communities or worker fatalities and injuries.

A 2008 study by the Center for American progress found that 80 million Americans live within range of a worst-case toxic gas release from one of the 101 most dangerous chemical facilities in the country. Would all of these Americans be willing to pay a dollar for safer plants?

It all gives new meaning to the phrase “penny wise and pound foolish.”

It’s also amusing (in a sick sort of way) that repeal of the safer alternatives provisions are credited with $70 million of the $80 million total savings. An unknown part of those costs would be due to “high indirect costs” — that is if a facility is forced by “external pressures” to implement safer technologies “regardless of whether they are necessary or practical.” In other words, some part of the cost “savings” for the American people comes from preventing an unruly neighborhood mob from forcing a poor, defenseless chemical company to implement costly safety upgrades that aren’t “necessary or practical.”

We’re putting that into the “just makin’ stuff up” basket as well.

The Wrong Side of History

The bad news is that this move comes shortly after the chemical plant explosions at the Husky refinery in Superior, Wisconsin that injured several workers and caused the evacuation of thousands of residents, and this weekend’s explosion at the Kuraray America Eval factory in Pasadena, Texas that injured 22 workers.

And just as we enter hurricane season. You’ll recall last hurricane season, flooding in the Houston area by Hurricane Harvey was so bad that the Arkema chemical facility had to evacuate the plant, leaving behind highly hazardous chemicals that exploded when the flooded cooling systems failed.

The good news is that this is just a proposal. The public (that’s you) has a chance to submit written comments or appear at a public hearing in Washington DC on June 14.

But why just have a hearing in Washaington DC? Why not have field hearings to hear from those most affected by this proposal — the many Americans who live every day in the shadow of hazardous chemical facilities?

We think the answer to that is obvious.

The other good news is that EPA is on the wrong side of history. CalOSHA has already implemented a revised Process Safety Management standard that is much stronger than Obama’s RMP regulation, and the state of Washington is expected to follow soon. Others will undoubtedly follow — at least in those states where the government actually listens to the people that these regulations are designed to protect.