The EPA is planning to reinstate a rule meant to prevent fires, leaks, spills, explosions, and other disasters at more than 12,000 facilities nationwide, including many oil and gas and petrochemical plants. But many safety advocates say it’s still missing crucial protection for people living nearby.
EPA will hold three virtual public hearings to discuss the regulations on Sept. 26, 27, and 28 and is accepting public comments online now through this link.
Following a deadly 2013 explosion at a fertilizer plant in Texas, the EPA in 2017 under the Obama Administration updated the Risk Management Program with multiple safeguards in an effort to prevent similar disasters at oil refineries, natural gas plants, agriculture supply distributors, water and wastewater treatment plants, chemical manufacturers and distributors, food manufactures, packing plants, and other sources.
Most of these 2017 rules never took effect. In 2019, the EPA under former coal-industry lobbyist Andrew Wheeler rolled back that rule, one of dozens of environmental regulations reversed during President Donald Trump’s four-year term. In 2021, the EPA announced plans to restore the rule. The agency also added new measures, including requiring facilities to evaluate natural hazards such as flooding, wildfires, and earthquakes.
After the West, Texas, fertilizer plant explosion, the Senate’s Environment and Public Works Committee held hearings to investigate how to prevent similar catastrophes. The EPA later proposed updates to the rule that apply to facilities that handle at least one of the more than 250 chemicals on this list, above certain thresholds.
The facilities had been required since the early 1990s to submit risk management plans to the EPA every five years. Many credit the Risk Management Program(RMP), along with other regulations required by the Occupational Safety and Health Administration and state and local authorities, with helping reduce the rate of chemical disasters across the U.S.
Still, between 2004 and 2020, the EPA logged more than 2,400 accidents at facilities regulated under the program. These incidents caused 29 worker and public responder deaths, nearly 600 injuries, and nearly $3 million in offsite property damage, according to the EPA. This list doesn’t include accidents at facilities that don’t fall under the EPA’s chemical disaster prevention rules. For instance, the West, Texas, explosion that killed 15 and caused an estimated $100 million in property damage, isn’t on the list of accidents released the EPA released last month.
“This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities,” EPA Administrator Michael S. Regan said in an Aug. 19 statement.
The rule is an example of the Biden Administration's efforts to restore multiple environmental policies his predecessor cut. In January 2021, Biden issued an executive order directing all agencies to review Trump’s rollbacks and reinstate rules meant to address pollution and counteract climate change.
Advocates say the new version includes some positive measures, including new requirements to plan for climate disasters and notify neighbors and first responders.
This especially matters in places like Harris County, Texas, home to Houston. The county includes roughly 3,000 facilities that fall under the Risk Management Plan regulations and are therefore at some risk of a chemical disaster. In industrial neighborhoods such as Harrisburg/Manchester and Galena Park, cancer risks are 28 percent and 22 percent higher, respectively, than the Houston urban area as a whole, according to a 2016 report by Union of Concerned Scientists and Texas Environmental Justice Advocacy Services.
In only the past year, multiple accidents have occurred at industrial facilities that are planning or have recently built massive new projects and expansions, according to a list of incidents maintained by the Coalition to Prevent Chemical Disasters, comparing with records in the Oil and Gas Watch database. Here are some examples:
Industry supporters and trade groups have pointed to downward trends in industrial incidents like these. During EPA listening sessions in June and July 2021, they claimed that adding new requirements to the Risk Management Plan rule will add needless costs without any safety gains.
“A prescriptive, rules-based approach, such as the one proposed in the 2017 amendment, would not have created additional improvement opportunities for the regulated communities, and it would have incurred significant cost to industry,” Rebecca O’Donnell, an American Fuel and Petroleum Manufacturers representative, told the EPA.
Peter Downing, co-founder of a consulting firm called Environmental and Safety Solutions, Inc., which is often hired by chemical manufacturers, told the EPA that adding more chemical safety rules would push smaller companies out of the market, leading to larger stockpiles of dangerous chemicals at fewer facilities. Others will skirt the law and simply store chemicals in unsafe ways, he said.
“As an (environmental health and safety) professional, this scenario, knowing that a company isn’t even trying to comply, really worries me,” Downing said.
Here are some of the main components of the new rule.
The EPA’s new rule goes further than the 2017 version in one key way: by specifically requiring operators to take into account natural disasters, such as hurricanes, wildfires, floods, and blizzards exacerbated by climate change.
One example was the August 2017 Arkema chemical plant fire in Crosby, Texas, an energy hub near Houston. After Hurricane Harvey dumped record rainfall on the area, flooding disabled the plant’s refrigeration system, leading hazardous chemicals to combust. According to the Chemical Safety Board, 21 people were exposed to toxic fumes and smoke, and more than 200 people were evacuated from their homes for over a week.
According to the EPA, “the increased occurrence of extreme-weather-caused events like this highlight the importance of ensuring proper evaluation of natural hazards.” The agency is proposing requiring all facilities to address these hazards, including power loss, in their plans.
According to an October 2017 Harvard Law School analysis, amendments to the Risk Management Program rule could have helped prevent the Arkema disaster – if only they had been in effect at the time. Though the EPA’s latest proposal revives these rules, they wouldn’t block new facilities from being built in hazard-prone sites; they would only require that natural disasters be addressed in their five-year plans.
Loopholes such as these are why advocates say the rule still needs significant upgrades. One of the biggest missing pieces is air monitors along the fence lines of industrial facilities to ensure that people leaving nearby learn the quality of the air they are breathing. Maya Nye, federal policy director with environmental health and justice group Coming Clean, said that nearby air monitors are often disabled or turned off before and during emergencies.
“We think they need to have fenceline monitors and ensure that they have backup power and are never turned off,” Nye said.
The final 2017 rule included a requirement that some new facilities conduct a thorough analysis to find safer processes and ways to store and handle chemicals. The official name is a Safer Technologies and Alternatives Analysis (STAA), and the changes would require companies to perform these analyses on 566 facilities.
In 2019, the Trump EPA rescinded that requirement. As the EPA’s own 2019 summary states, the cuts included “all major accident prevention program provisions.” At the time, the agency wrote the rollback was meant to “remove burdensome, costly, unnecessary amendments.”
The 2022 version brings back that requirement for safety studies, but only for a limited set of facilities. Only chemical and coal products manufacturers would have to abide by the rule, along with petroleum and coil facilities that use hydrofluoric acid – a highly caustic chemical – in a phase of the manufacturing process known as alkylation.
Advocates want to see more facilities included in the requirement for the safety analyses. Genna Reed, director of policy analysis for the Union of Concerned Scientists’ Center for Science and Democracy, pointed out that the Obama version of the rule would have required the safety analyses all chemical facilities, refineries, and paper pulp mills. Under the new version, “they’ll only be required at some facilities.”
“In parenting terms, it’s like baby-proofing only some parts of the house but failing to put a baby gate at the top of the stairs,” Reed said. “You need to baby-proof an entire house to keep your kids safe.”
The 2022 version also restores rules requiring an audit by a third party. According to the EPA, “self-auditing may be insufficient to prevent accidents, determine compliance with the (Risk Management Plan’s) prevention program requirements, and ensure safe operation.” The agency itself conducts approximately 300 inspections per year to verify whether facilities comply with the rule.
Industry trade groups pushed back against this requirement, arguing that such auditors lack industry knowledge, might disclose confidential business information, and would impose additional costs and unnecessary recordkeeping burdens.
“Company-led audits can be far more effective in addressing issues uncovered during an audit, due in part to the company auditor’s intimate knowledge of the process technology and of the organization,” American Petroleum Institute representatives wrote in August 2021 comments to the EPA.
Environmental and safety advocates were disappointed that the requirement only applies to facilities that have already had an accident. The EPA’s proposal would only require third-party audits for facilities that meet the following criteria: a) Facilities with two accidents within the past five years; or b) Petroleum refineries or chemical manufacturers with one accident in the past five years that are also located within a mile of a similarly classified facility.
The EPA estimates this would require audits of roughly 70 facilities. Between 2016 and 2020, 66 accidents occurred at refineries and chemical plants within a mile of other such facilities, according to the EPA.
Another revived provision from the original 2017 would require facility operators to formally study the root causes of an accident, following a spill, release, or other mishap. The EPA estimates this will apply to an average of 100 facilities per year.
Nye with Coming Clean pointed out that both regulations only kick in once there’s been a disaster.
“You don’t want to wait for the disaster to happen before you’re taking an assessment of the facility to look at what kind of measures they have in place,” Nye said.
The new rule also affects facilities that have their own emergency response crews. These had not previously been required to develop procedures to inform the public about accidental releases. The rule would expand the requirement to all facilities except those located near populated areas and those without a record of causing problems off-site in the past five years.
The EPA also proposed reinstating a 2017 requirement the owner or operator of a facility provide information on hazardous chemicals being stored there to members of the public within 45 days of a request. However, the 2022 version limited this right to people living within 6 miles of a site.
“EPA believes this distance to be reasonable as 90 percent of all toxic worst-case distances to endpoints are 6 miles or less, and almost all flammable worst-case distances are less than 1 mile,” EPA staff wrote.
Reed questioned how the EPA would enforce this measure. Currently, this information is typically only available via Freedom of Information Act requests, she said.
“How are they going to make sure that everyone gets this information?” Reed said, adding that notifications should be in multiple languages and accessible for those with disabilities. “There’s a lot that rests upon how well these pieces are actually implemented.”