In letter to Congress, GCCA and IIAR encourage the use of the Congressional Review Act to nullify changes to the Risk Management Program.
Anticipating the more lenient regulatory stance of the Trump Administration and the Republican-controlled Congress, a coalition of 21 industry associations asked Congress last week to apply the Congressional Review Act (CRA) to the Environmental Protection Agency’s new rule amending its Risk Management Program (RMP).
If the House of Representatives and the Senate act on the request within 60 legislative days – giving it until about late March/early April – and President Trump lends his signature, then changes made to the RMP in the final rule would be vacated, noted Lowell Randel, vice-president, government and legal affairs, Global Cold Chain Alliance (GCCA).
The GCCA and the International Institute of Ammonia Refrigeration (IIAR) were among the associations that signed a letter to Congress asking it to cancel the new rule via the CRA, said Randel. Even if the rule is repealed, the RMP’s original, underlying provisions, which impose safety requirements on U.S. cold storage and food processing facilities using at least 10,000 lbs. of ammonia in refrigeration processes, would remain in effect.
Issued by the Obama administration in late December 2016, the new rule strengthens the RMP in three broad areas: ensuring that local responders and community residents are prepared for an accident; preventing catastrophic accidents; and third-party audits (see ‘EPA Releases Final RMP Rule’, Accelerate America, January 2017).
In the industrial refrigeration industry, the most controversial part of the new RMP rule involves third party audits. The rule requires industrial refrigeration operators to get an independent third party – rather than use its own internal resources – to conduct a compliance audit within a year following a reportable accident. The industry also believes “the EPA didn’t meet its burden on the cost-benefit of the rule,” said Randel. “And there are some security concerns on public information sharing.”
The expansion of the RMP, as well as greater enforcement of the program, has led many operators to implement low-charge ammonia systems that use far less than 10,000 lbs. of ammonia and are thus held to the EPA’s less restrictive General Duty Clause.
Effective date postponed
The original effective date of the new RMP rule, March 14, was postponed one week by the Trump Administration last week in a memorandum for the heads of executive departments and agencies that called for a “regulatory freeze pending review”. The RMP rule was among 30 EPA rules whose effective dates were postponed until March 21. For the RMP rule, the one-week delay is inconsequential since the deadline for compliance for many of its provisions is four years from the effective date, Randel pointed out.
More consequential would be the application of the CRA to the rule. “It would not surprise me if we see a member of the House of Senate put forward a proposal to use the CRA to disapprove of the RMP rule,” said Randel. “Whether it would make it through the process [and be enacted] is uncertain, since there are competing priorities.”
“It would not surprise me if we see a member of the House of Senate put forward a proposal to use the CRA to disapprove of the RMP rule.”
- Lowell Randel, GCCA
In the Senate, James Inhofe (R-Okla.) “has raised concerns about the rule and mentioned consideration of the CRA,” said Randel. “Other members are looking at it.” (In the environmental arena, Inhofe is known as a leading skeptic of the science behind climate change.)
Even if the CRA is not used to repeal the new RMP rule, the rule faces other hurdles, including a legal challenge or efforts by newly appointed officials at the EPA to delay the effective date further or propose new notice-and-comment rulemaking. “There are a lot of options and tools people are considering,” Randel said. “These could result in revision of the rule, nullification or a negotiated settlement. Or it could stand the way it is – it takes a lot to change a final rule.”
Moreover, he noted, the Trump administration has paid more attention to higher profile EPA regulations like the Clean Power Plan and the Waters of the U.S. rule. “Where RMP fits, I don’t think anybody fully knows yet.”
Randel was more certain about the status of proposed changes to the Occupational Safety and Health Administration’s Process Safety Management (PSM) program, which also regulates plants with more than 10,000 lbs. of ammonia. “The pause button has been hit; I wouldn’t expect activity on the PSM rule for the foreseeable future.”