Underwood calls on Trump EPA to abandon proposed rollback of safety protections for workers and communities

Prior to proposing to roll back the Accident Prevention Amendments, then-EPA Administrator Scott Pruitt sought to block the rule by delaying it by 20 months. The New York Attorney General led a coalition of 11 state Attorneys General in a lawsuit challenging the delay and, last week, the US Court of Appeals for the District of Columbia Circuit struck down the delay, ruling that it violated the federal Clean Air Act and was arbitrary and capricious. In throwing out the unlawful delay, the court concluded, “EPA had found, and the record shows, that there was a need for improvements to protect worker and community safety, and to reduce fatalities, injuries, life disruption, and other harm.”

“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.”

Joining Attorney General Underwood in the comments are the Attorneys General of Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.

The more than 12,000 facilities covered by the RMP regulations include chemical manufacturers, petroleum refineries, pulp and paper mills, chemical and petroleum wholesalers and terminals, wastewater treatment plants, agricultural chemical distributors, midstream gas plants, and food storage facilities with ammonia refrigeration systems. The 169 facilities located in New York include Amrex Chemical (Binghamton), Arch Chemicals (Rochester), Durez Corp. (Niagara Falls), FMC Industrial Chemicals (Tonawanda), MPM Silicones (Waterford), International Paper (Ticonderoga), JCI Jones Chemicals (Warwick), Momentive Specialty Chemicals (South Glens Falls), PVS Chemical Solutions (Buffalo), Surpass Chemical (Albany), and Twin Lakes Chemical (Lockport).

More than 9.1 million people live within the “vulnerability zone” of RMP facilities in New York; vulnerability zones are the maximum possible area where a worst-case release of chemicals could harm people. People of color are more likely to live in the vulnerability zones, raising substantial environmental justice concerns. According to a September 2014 report by the Center for Effective Government entitled “Kids in Danger Zones,” New York has the fifth-largest number of schools and number of students located in vulnerability zones. Further, roughly 85 New York facilities (over 50 percent) are located in flood zones defined by the Federal Emergency Management Agency (FEMA).

In their comments, the coalition charges that the proposed rule would “eviscerate” the safeguards added by the Accident Prevention Amendments rule, and represent a “step backwards in preventing and mitigating harms to public health and the environment from chemical accidents.” The coalition also argues that the proposal, if adopted, would be “inconsistent with the Clean Air Act” and “arbitrary and capricious.”

In New York, 169 facilities that store or use toxic chemicals are subject to RMP regulations.  According to their most recent 5-year accident histories, these facilities reported 16 accidents that released more than 21,000 pounds of toxic chemicals into the surrounding communities. The accidents resulted in fourteen injuries, the evacuation of more than a thousand people, and property damage totaling more than $200,000. In May 2011, a flash fire ignited at Momentive Performance Materials in Waterford, New York and severely burned two employees. The federal Occupational Safety and Health Administration (OSHA) ultimately fined Momentive $81,000 for violations including failure to review operating procedures as often as necessary, exposing employees to “fire and explosion hazards,” and failing to address all factors that contributed to the accident in its post-accident report.

The most recent accident at a New York RMP facility took place in May 2017, when a chemical explosion at the Occidental Chemical Corporation plant in Niagara injured four people.

The number and severity of accidents over the last decade make clear the need to update the safety and security of the nation’s chemical facilities. In January 2017, the Obama administration finalized the “Accident Prevention Amendments” to update RMP regulations mandated by Congress in 1990 amendments to the federal Clean Air Act.

The amended rules established additional safeguards in accident prevention programs to protect communities and prevent future accidents – requiring “root cause” analyses and third-party audits following accidents, as well as analyses of safer technology and alternatives; emergency response procedures, mandating annual coordination with local first responders, annual notification drills, and periodic field exercises; and increased public access to facility chemical hazard information, in addition to public meetings within 90 days of an incident. The Trump EPA published a June 2017 fact sheet explaining how these improvements “will help protect local first responders, community members, and employees from death or injury due to the chemical facility accidents.”

Shortly after EPA finalized the Accident Prevention Amendments, three petitions were filed with the Agency – including one from the “RMP Coalition,” a coalition of industry groups that includes the American Chemistry Council, the American Forest & Paper Association, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute – urging then-EPA Administrator Scott Pruitt to reconsider the new regulations.

In May of this year, then-Administrator Pruitt proposed to rescind key provisions of the Accident Prevention Amendments, including eliminating all third-party compliance audits, and safer technology and alternatives analysis.  The proposal would weaken accident investigations by removing requirements for root cause analyses and detailed reporting. It would also weaken existing requirements for evaluations of the dangers associated with chemicals, processes, and procedures at facilities, as well as decrease safety training for facilities’ employees. The coalition of Attorneys General, in its comments, challenges the rationales EPA uses to support of these rescissions as in conflict with the Clean Air Act and unsupported by the public record. In June, Attorney General Underwood’s office testified against the proposed rollback.

This matter is being handled by Assistant Attorney General Laura Mirman-Heslin and Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers of the Attorney General’s Environmental Protection Bureau. The Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.