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EPA’s Chemical Disaster Rule: Small Steps Forward When Environmental Justice Demands Giant Leaps

Climate Justice Public Protections Chemicals Climate Environmental Justice

At the end of August, the U.S. Environmental Protection Agency (EPA) proposed a draft rule to better protect people who live near industrial facilities with hazardous chemicals on site. The rule would strengthen EPA’s Risk Management Program (RMP), which regulates more than 12,000 facilities in the United States that store, use, and distribute significant amounts of dangerous chemicals.

The facilities covered under this rule include a wide array of toxic producers ― including oil refineries, petroleum and coal manufacturing plants, chemical manufacturing plants, and other types of chemical wholesale and storage sectors.

Roughly a third of these facilities are at risk of climate-driven disasters like flooding, wildfires, storm surge, and sea level rise. Accidental chemical releases from RMP-covered facilities have injured, displaced, and even killed hundreds of thousands of facility workers or residents who live nearby ― who are disproportionately Black, Latino, and/or low-wealth.

In 2021, the Center for Progressive Reform co-authored a policy brief with Earthjustice and the Union of Concerned Scientists recommending a number of key regulatory changes to the RMP. While the draft RMP rule adopted some of our recommendations, there’s tremendous potential for improvement. Ensuring an adequate Risk Management Program rule is not only essential to addressing the very real impacts of climate change at these facilities, but also to protecting vulnerable communities who are facing environmental injustices.

Draft Rule Improves Key Protections

In alignment with our brief’s recommendations, the draft rule:

  • Explicitly requires facilities to consider climate change in their required Hazard Assessments, which include important information about the potential effects of an accidental releases of hazardous chemicals, accident history, and an evaluation of worst-case and other accidental releases and siting considerations.

  • Adds text to emphasize that natural hazards, including those caused by climate change and loss of power and standby or emergency power systems, must be addressed in certain RMP-covered facilities’ process hazard analysis, as well as the siting of the facility.

  • Requires risk management plans to include natural hazard, power loss, and siting hazard evaluation recommendations and their associated justifications.

  • Requires facilities to discuss the community emergency response plans and exercises with appropriate local officials and first responders, as well as develop and implement procedures (including community notification) to inform the public and the appropriate emergency response agencies about accidental releases.

  • Requires facilities to release specific chemical hazard information to the public (if they reside within six miles of a facility), including the names of the hazardous chemical substances used or stored at the facility, accident history, and procedures for informing the public about accidental releases (this must be provided in the language requested).

  • Requires facilities to formally engage workers when making decisions regarding process hazard evaluations, compliance audits, and incident investigations, while also providing stop-work authority to workers to avoid accidents.

  • Reiterates whistleblower protections for workers and anonymous reporting of accidents and regulatory violations.

  • Requires third-party compliance audits to help ensure a systematic evaluation of risk management and prevention at certain facilities.

  • Includes mandatory dates for facilities to comply with the new provisions.

Draft Rule Falls Short in Significant Ways

EPA should amend the draft rule to expand coverage of RMP regulations to certain facilities in areas exposed to a heightened risk of wildfires, flooding, storm surge, or coastal flooding, as well as to more substances (e.g. ammonium nitrate) and processes.

The rule should also require facilities to:

  • Install and maintain real-time or near real-time fenceline air monitors and share that data with nearby communities and officials.

  • Reduce or replace hazardous chemicals and processes when safer technology or chemicals are available.

  • Provide emergency response notifications in multiple languages.

  • Evaluate and assess risks associated with climate- and natural disaster-related hazards and adopt and implement chemical release prevention and safety practices that can respond to those hazards.

  • Account for the cumulative health impacts in their plans, evaluations, assessments, and siting considerations.

The Need for Stronger Chemical Facility Rules

EPA references a number of chemical disasters, among other reasons, as the impetus for the new draft rule. One of these incidents includes the massive explosion and resulting fire that occurred at the Philadelphia Energy Solutions oil refinery on the banks of the Schuylkill River in Philadelphia in 2019. The disaster released more than 5,000 pounds of deadly hydrofluoric acid, along with hazardous quantities of cancer-causing benzene. Only five minor injuries were reported as a result of this accident; however, there were likely many other negative health impacts felt by community members that were not reported. Philadelphia Energy Solutions shut down the refinery and filed for bankruptcy shortly after the incident. Approximately 1,000 workers lost their jobs as a result.

While the refinery closed a little over three years ago, the 1,300-acre complex is still being dismantled and continues to leak unsafe levels of benzene (at least two to three times the federal threshold in some reports) in the process. According to a tool developed by the Drexel Urban Health Collaborative that measures cancer risks and outcomes in Philadelphia neighborhoods, the two neighborhoods closest to the oil refinery have a higher number of cancer cases relative to the rest of the city.

The disaster exemplifies the need for stronger RMP regulations, including a requirement that facilities that use, store, or produce hazardous chemicals shift to recognized safer alternatives. Stronger regulations are essential to protect the health and livelihoods of the communities surrounding these facilities ― and may even be a matter of life or death for some workers and nearby residents.

Make Your Voice Heard

The EPA is soliciting public comments on the draft rule through October 31, 2022. Members of the public can also register to attend one of three virtual public hearings on the rule, which the agency is holding on September 26, 27, and 28.

Stay tuned to our blog, follow us on social media, and subscribe to our email list for more information and developments on the rule as they become available.

Climate Justice Public Protections Chemicals Climate Environmental Justice

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