Twelve AGs Demand that EPA Not Gut Life-Saving Chemical Accident Protections

Washington, D.C. — A coalition of 12 attorneys general led by New York Attorney General Barbara Underwood submitted comments to the Environmental Protection Agency (EPA) before yesterday’s comment deadline. The AGs called on the EPA to abandon its plan to roll back key provisions of an Obama-era rule that addressed serious shortcomings in accident response and prevention practices in chemical facilities. The AGs demonstrated that EPA’s proposed rule threatens the safety of workers, first responders and fenceline communities, and is unlawful under the Clean Air Act.

“Yet again, the Trump Administration is proposing to sell out the health and safety of New Yorkers to corporate interests – jeopardizing our workers, first-responders, and communities,” Attorney General Underwood said. “The EPA’s proposal would gut critical protections against all-too-common accidents at facilities that store and use dangerous toxic chemicals. If acting EPA Administrator Wheeler won’t scrap this reckless erosion of New Yorkers’ health and safety protections, we’re prepared to take legal action yet again to ensure a court does.”

The AGs’ comments come in response to the EPA’s May 2018 proposed rule, “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act.” The proposed rule seeks to replace the Obama-era Risk Management Program Rule. The Risk Management Program rule was developed in response to a series of series accidents that occurred in chemical facilities in 2013. One of those incidents, the West Fertilizer explosion, resulted in the death of 14 people, including 12 first responders.

“State attorneys general have already beaten the Trump Administration in court over EPA’s repeated attempts to delay implementation of this life-saving rule,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. “The Trump Administration’s choice to restrict public access to critical information at chemical facilities, halt analysis on new, safer technologies that could prevent future accidents, and discontinue coordination with first responders is clearly a bridge too far for State attorneys general. If the EPA does not back down this fight will also end up in the courts, where the Administration can expect to continue its historic losing streak.”

Among other requirements, the Risk Management Program Rule requires chemical facilities to complete root cause analyses and third-party audits after accidents, and mandates industry-wide analysis of safer technologies aimed at improving worker and community safety. Chemical facilities are also required to make chemical storage information public under the rule, helping first responders avoid exposure to hazardous substances in emergency situations.

The EPA has also been criticized for moving forward with its proposed rule even after admitting that the risks associated with its action “fall on minority and low-income populations, to a significantly greater degree than those risks affect other populations.”

Attorneys General of Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington joined New York in signing the comment letter opposing EPA’s proposal to gut the Risk Management Rule.

BACKGROUND

In June 2017, the Trump Administration issued a 20-month delay that would prevent the Risk Management Program rule from taking effect until February 2019. The new Administration argued that the rule finalized under then-President Obama presented a burden for regulated companies, justifying its delay by noting that additional time was needed to create a replacement.

In July 2017, 11 attorneys general filed a petition for review in the D.C. Circuit Court of Appeals, asking the court to vacate EPA’s delay. The D.C. Circuit Court ruled in favor of the attorneys general on August 17, 2018, issuing a scathing rebuke to the Agency. The Court concluded that EPA’s action was “arbitrary and capricious” and resulted in the delay of “life-saving protections” for both workers and first-responders.

“Again and again, the Trump EPA has tried to push through policies that jeopardize our health and fly in the face of the law – and again and again, we’ve taken them to court and won,” said New York AG Underwood following issuance of the court’s decision.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.