In a stinging rebuke to the Environmental Protection Agency, a federal court has called EPAâs delay in implementing the Obama administrationâs chemical disaster rule âarbitrary and capriciousâ and told the agency to implement the rule.
EPA had argued that delaying the rule would reduce industry confusion while it figured out whether it wanted to modify or rescind the rule. The court, noting that the Clean Air Act clearly limits such delays to three months, rejected the EPAâs reasoning.Â The decision means that EPA can no longer delay enforcement of the rule. So far, only provisions regardingÂ local emergency-response coordination requirements are in effect, while other provisions come into effect in 2021.
We have written frequently here about how issuing standards and regulations designed to protect workers, consumers and the environment is a long and difficult process.Â Rescinding or even delaying these legal protections is also difficult because an agency is required to justify its actions and provide evidence showing why the previous regulations are no longer needed. And despite all the fanfare that former EPA administrator Scott Pruitt received for being the deregulator-in-chief, the corners he cut have come back the haunt the Trump Administrationâs efforts to undermine the laws that Congress passed to protect people from preventable workplace and environmental hazards.
According to Mike Wright, Director of Health, Safety and the Environment for the United Steelworkers union, who successfully sued the agency, âThe decision clearly shows that EPA â and by implication OSHA and other federal agencies â canât just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.â
Following a number of chemical plant disasters, including the 2013 explosion at West Fertilizer that killed 15 people and destroyed much of the town of West, Texas, President Obama issued an Executive Order that, in part, ordered EPA to reconsider its Risk Management Program (RMP). In January 2017, EPA issued a revised RMP regulation that enhanced requirements related to emergency response, provision of chemical hazard information, and requirements for facilities to consider inherently safer processes, as well asÂ post-accident investigations, more rigorous safety audits and improved training.
âThe decision clearly shows that EPA â and by implication OSHA and other federal agencies â canât just delay a rule protecting the American people on a whim, or to do the bidding of some outside group.â â Mike Wright, USWÂ Director of Health, Safety and the Environment
Provisions of the 2017 rule related to clarifying regulatory definitions were scheduled to come into effect on March 14, 2017. Other provisions, including most local emergency-response coordination requirements, were supposed to become effective on March 14, 2018. The requirements for emergency response exercises, public information-sharing and post-accident public meetings, third-party audits, more rigorous post-incident analyses, and safer technology requirements are not scheduled to become effective until March 15, 2021.
The Trump administration, under then EPA Administrator Scott Pruitt, delayed enforcement of the rule three times, the last time by issuing the âDelay Rule,â which delayed enforcement of the rule for 20 months while the agency decided whether to modify or rescind the Obama rule. (The EPA did, in fact, issue a proposal to rescind most provisions of the Obama rule last May. That process is not affected by this decision.) A number of organizations, including the United Steelworkers union, sued EPA, arguing thatÂ âThe Clean Air Act (CAA) is explicit that reconsideration âshall not postpone the effectiveness of the rule,â beyond a three-month period.â A number of other environmental and community groups joined in challenging the delay, along with a number of states.
A Mockery of the Statute
The court found that EPAâs delay rule âmakes a mockery of the statuteâ because itÂ Â violates the paragraph in the Clean Air Act that requires EPA rules to âhave an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.â The court writes that âThe Delay Rule does not have the purpose or effect of âassur[ing] complianceâ; it is calculated to enable non-compliance.â And the EPA did not consider the delayâs effect on the requirement to âprevent accidental releases,â to âminimize . . . consequences of any such release,â to âprotect human health and the environment,â and âto include procedures and measures for emergency response after an accidental release.â
The court criticizes EPA for basing the delay onÂ a bunch of âalleged âsecurity risksâ and other hypotheticals raised by industryâ without actuallyÂ explaining why the implementation delay was necessary.
The court also mocks EPAâs explanation that the delay is intended to avoidÂ confusion among the regulated community and local responders who would have to comply with a rule that might later be changed, when it is actually EPA thatâs causing confusion âby the almost two-yearsâ reconsideration it desires in order to decide what it wants to do.â
EPA is also ignoring the express interest of CongressÂ Congress which expressly stated that it wants compliance with rules âas expeditiously as practicableâ and thereforeÂ provided âa strict limit of three months on stays of effective dates pending reconsiderationâ in order toÂ keep any reconsideration from delaying a final rule.
Arbitrary and Capricious
The court found the EPAâs delay rule to be arbitrary and capricious first, because it didnât explain why it couldnât revise (or rescind) the rule while the rule was in effect. Second,the Delay Rule didnât provide a âreasoned explanationâ why the original effective date and compliance dates were unjustified, despite the fact that the EPA in the original Obama rule had gone to great lengths to justify the compliance dates and consider comments from the public. EPA also failed to explain âwhy the detailed factual findings [in the Obama rule] regarding the harm that would be prevented upon implementation of the Chemical Disaster Rule are now only âspeculative.ââ
The third reason the court found the Delay Rule to be arbitrary and capricious is a favorite of mine. The court found that the EPAâs justification of the delay on ââthe timingâ of a finding by the Bureau of Alcohol, Tobacco, and Firearms . . . that the West Fertilizer explosion was caused by arsonâ rather than an accidentâŚis not a reasoned basis for delaying the entire Chemical Disaster Rule.â
As readers of Confined Space are aware, in 2016 â days before the end of the RMP rule comment period â the Bureau of Alcohol, Tobacco and Firearms (BATF), found that the fire that led to the catastrophic explosion at West was intentionally set.Â (The Bureau used a highly criticized investigative process to make that doubtful finding, but that wasnât the reason for the Courtâs decision.)
The EPA partially based the Delay Rule on arguments made in chemical industry petitions to the EPA stating that they did not have enough time to comment on the BATF finding and if the cause of the fire was actually arson, that might have affected their comments and the final outcome of the rule, especially in the area of emergency response and provision of chemical information to responders and the public.
But the court rejected EPAâs reasoning â particularly as the argument impacted the emergency-response and information-sharing provisions of the Obama regulation:
Even were the court to agree for purposes of argument that the cause of the West, Texas disaster being arson is relevant to some of the accident-prevention provisions of the Chemical Disaster Rule, it is irrelevant to the emergency-response and information-sharing provisions, including those that have indisputably been delayed from the original March 14, 2018 effective date. Given that twelve of the fifteen fatalities in the West, Texas disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning. (emphasis added)
The court also noted that the West disaster was not the only chemical plant incident that EPA cited to justify the original regulation, citing incidents in Hawaii, Colorado, Washington, California, Louisiana and the 2005 BP refinery explosion in Texas City, Texas.
One other feature of the court decision was that it granted âstandingâ to the United Steelworkers Union, allowing the union to sue the agency on behalf of its members who work in chemical facilities and live in communities surrounding the plants. As Wright explained,
The Courtâs decision on the USWâs standing is especially important. The ruling clearly shows that unions have the right to defend their members, not only in the workplace, but in the broader community. And thatâs a right the labor movement should always be exercising.
One final note.Â The decision notes that Supreme Court nominee Judge Brett Kavanaugh was a member of the judicial panel at the time the case was argued but did not participate in this opinion.
This blog was originally published at Confined Space on August 17, 2018. Reprinted with permission.Â
About the Author: Jordan BarabÂ wasÂ Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).