Congressional Review Act Resolution Introduced to Block Final EPA RMP Rule
February 14, 2017 •
Earlier this month, Rep. Markwayne Mullin (R-OK-2) introduced H.J.Res.59, a Congressional Review Act (CRA) joint resolution that blocks the U.S. Environmental Protection Agency’s (EPA) Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act Rule (RMP rule). Sen. James Inhofe (R-OK) is the Senate sponsor of this CRA joint resolution.
On Feb. 9, Sen. Inhofe, senior member of the Senate Environment and Public Works Committee, spoke on the Senate floor in opposition to the RMP final rule. He outlined some the major concerns that the regulated community has with the RMP rule. At the end of his remarks, he called on the Senate to consider taking further action on this “midnight” regulation.
The Congressional Review Act, passed in 1996, allows Congress to vote to overturn any regulation during a period of 60 days after the regulation has been created. Regulations created at the end of the Obama Administration are subject to be overturned, so long as it is within the 60-day “in-session” period of Congress.
In January, ACA signed onto a coalition letter to Congressional leaders expressing major concern over EPA’s final RMP rule. ACA and 20 other trade associations maintain that the final RMP rule not only imposes significant new costs without identifying or quantifying the safety benefits that will be achieved through these new requirements; but that it may actually compromise the security of facilities, emergency responders, and communities. As such, the trade associations urged Congress to disapprove the final RMP rule under the Congressional Review Act.
In the letter, ACA and the other trade associations underscored that the current RMP regulations include requirements that have produced and will continue to drive continuous safety improvements, provide robust protection for our employees and the public, and are not in need of revision.
EPA issued the final RMP rule in mid-January, stating that the amendments made to the final rule were aimed at modernizing RMP by (1) making changes to the accident prevention program requirements, (2) enhancing the emergency response and preparedness requirements, and (3) modifying the information availability requirements.
A memorandum signed by President Trump last week put a “regulatory freeze” on certain regulations, including RMP. As a result, the rule’s new effective date is March 21, 2017.
On March 14, 2016, the U.S. Environmental Protection Agency (EPA) proposed to amend its Risk Management Program (RMP) regulations in response to Executive Order 13650, Improving Chemical Facility Safety and Security. The proposal included several significant changes to the accident prevention program requirements, including a strict third-party auditing regime and expanded access to sensitive facility-specific chemical information. Following the proposal, EPA received numerous comments from various sources raising concern, including members of the paint and coatings industry and advocates that called on EPA to reconsider its proposed changes to RMP.
Nevertheless, EPA published its final rule in the Federal Register on January 13, 2017, with an effective date of March 21, 2017. Despite EPA’s contention that it took each comment received into consideration, several of its proposed amendments remain in the final rule. The following highlights three major concerns that ACA and its industry have with the RMP amendments.
Purpose of the Amendments
During this rulemaking process, EPA was required to weigh the benefits of improving chemical facility safety against the costs imposed on the regulated community. However, EPA did not demonstrate that the benefits of having additional safety requirements justify the complementary regulatory costs. The final rule does not enhance chemical facility safety; rather, it creates significant administrative burdens for facilities and higher costs (money, time, resources) with very little commensurate benefit. More than 12,500 facilities, including several paint and coatings industry facilities, are negatively impacted without any reduction in the risk of accidental releases.
Third-Party Compliance Audit Requirements
The new requirement for facilities to engage independent, third-party compliance auditors when there is an RMP reportable accident or there are findings of significant noncompliance by an implementing agency is unsubstantiated, unreasonable, and costly (time, money, resources). There is no evidence that third-party audits will be more rigorous or safer than an internal audit. Moreover, the quality of a compliance audit depends on the auditor’s training, familiarity with the process being audited, and experience, rather than whether the auditor is a third-party. Lastly, the added independence requirements for third-party auditors severely limits the availability of qualified auditors.
Information Sharing Requirements
The final rule requires companies to provide facility-specific chemical information (i.e., list of hazardous chemicals, emergency response program, scheduled exercises, etc.) to Local Emergency Planning Committees (LEPCs) during coordination, and to any member of the public upon request, which creates both local and national security concerns. While the final rule does include provisions for classified and confidential business information — which somewhat addresses concerns of chemical information security — EPA provides no evidence that these new information sharing requirements would in fact improve community emergency response planning.
ACA supports the Congressional Review resolution in order to protect national security and allow EPA to reconsider what, if any, revisions to the RMP regulations are needed to reduce the risk of an accidental release.