EPA Final Facility Safety Rule Still Faces Uncertain Future

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Yesterday, EPA Administrator Gina McCarthy signed the agency’s final Facility Safety Rule.[1]  The rule, which contains some significant changes from the draft version, will be published in the Federal Register within the next few weeks and will take effect 60 days after publication.  That is, if it is not somehow blocked.

The final rule codifies many of the safety requirements in the draft rule, including consideration of inherently safer technology and third party audits after reportable releases.  It also includes notable changes to address security concerns raised both by industry and by a group of attorneys general led by Scott Pruitt, President-elect Trump’s presumptive nominee to head EPA come January.[2]  Specifically, the final rule omitted requirements that facilities share information on chemical hazards with local emergency planners as well as on public websites or in public libraries. Critics of these requirements argued that the benefits of sharing this information is outweighed by the risk that publication may increase the risk of a successful terrorist attack.  EPA’s final rule substitutes the proposed broad public disclosure with requirements such as the owner or operator of a stationary source’s duty to relay emergency response planning information as part of its annual meetings with local emergency response agencies.  EPA notes that some of the rule’s reporting requirements may overlap with—but do not displace—other regulatory requirements, such as those under the Occupational Health and Safety Act and the Emergency Planning and Community Right-to-Know Act.

It is not clear that these and other alterations will sufficiently address critics’ security and cost concerns, and Messrs. Pruitt and Trump could still decide either not to enforce the rule or to undertake full-blown notice-and-comment to amend or revoke it.  In addition, Congress could reject the final rule by a simple majority in both houses under the Small Business Regulatory Enforcement Fairness Act (also known as the Congressional Review Act), a “disapproval resolution” that the President-elect could then sign into law.  Individuals may also challenge the rule in court.

For additional information regarding this advisory, please contact Bruce Pasfield or Phil Sandick.

[1] Pre-publication copy of the Final Amendments to the Risk Management Program Rule (Dec. 21, 2016) available at https://www.epa.gov/sites/production/files/2016-12/documents/rmp_final_rule_dec_20_2016_unsigned_version_for_web_with_headers_0.pdf.

[2] Comment submitted by Scott Pruitt, Office of Attorney General, State of Oklahoma, et al., EPA-HQ-OEM-2015-0725-0624 (July 27, 2016) available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OEM-2015-0725-0624&attachmentNumber=1&disposition=attachment&contentType=pdf.