As discussed in my May 19th blog, the Biden Administration is pursuing a variety of regulatory actions to revoke the Trump Administration’s deregulatory efforts at a rapid pace and address the Administration’s climate change and environmental justice priorities and goals consistent with “Executive Order 13990: Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/).
As part of the Biden Administration’s rulemaking initiative, EPA recently published a notice in the Federal Register at 86 Fed. Reg. 28828 (May 28, 2021) announcing two listening sessions scheduled for June 16, 2021, and July 8, 2021, on EPA’s Risk Management Program (“RMP”) rule (https://www.govinfo.gov/content/pkg/FR-2021-05-28/pdf/2021-11280.pdf). In the accompanying press release, EPA states that “[t]hese listening sessions are a first step in considering improvements to the RMP rule, so EPA can better address the impacts of climate change on facility safety and protect communities from chemical accidents, including vulnerable and overburdened communities living near RMP facilities” (https://www.epa.gov/newsreleases/epa-announces-public-listening-sessions-risk-management-plan-rule-0).
As noted by EPA, the RMP rule arises out of section 112(r) of the Clean Air Act Amendments that “requires EPA to publish regulations and guidance for chemical accident prevention at facilities that use certain hazardous substances. These regulations and guidance are contained in the RMP rule, which requires facilities using extremely hazardous substances to develop a Risk Management Plan.” According to EPA, the Risk Management Plan:
· identifies the potential effects of a chemical accident,
· identifies steps the facility is taking to prevent an accident, and
· spells out emergency response procedures should an accident occur.
These plans provide valuable information to local fire, police, and emergency response personnel to prepare for and respond to chemical emergencies in their community. Making RMPs available to the public also fosters communication and awareness to improve accident prevention and emergency response practices at the local level. (https://www.epa.gov/newsreleases/epa-announces-public-listening-sessions-risk-management-plan-rule-0).
At first blush, the RMP rule may not appear to be connected directly to the Biden Administration’s climate change priorities. However, Executive Order 13990 asserts that “[e]xtreme weather events and other climate-related effects have harmed the health, safety, and security of the American people and have increased the urgency for combatting climate change.” RMP accidents have been connected to climate change with the increase of “natech” events – natural hazards triggering technological disasters such as in the case of Hurricane Harvey in 2017, which struck Refinery Row in Houston, Texas, where many RMP facilities are located. See, e.g., “Empirical Estimation of the Conditional Probability of Natech Events Within the United States,” https://www.researchgate.net/publication/49752497_Empirical_Estimation_of_the_Conditional_Probability_of_Natech_Events_Within_the_United_States; and “Biden Administration Doubling FEMA Funds for Extreme Weather Preparation,” (as reported in The Hill, 5/31/21) https://click1.email.thehill.com/ViewMessage.do;jsessionid=9EB180CD5F4E59EADCCD284E2C79DE1E recognizing “[a]s climate change threatens to bring more extreme events like increased floods, sea level rise, and intensifying droughts and wildfires, it is our responsibility to better prepare and support communities, families, and businesses before disaster — not just after.”
Similarly, the Biden Administration press release for the RMP rule listening sessions notes the need for reassessment of the RMP rule to protect environmental justice communities:“[t]his rule is [a] critical piece of EPA’s work to address environmental justice issues as these facilities are often located in communities that have historically borne a disproportionate burden from pollution.” EPA has indicated that it should improve the RMP rule to protect the “overburdened” environmental justice communities often located near RMP facilities from additional chemical accidents.
Thus, as reflected in statements from the Biden Administration, EPA is taking concrete steps to revoke many of the Trump Administration’s deregulatory actions to further its climate change and environmental justice goals – and not just those rules with more obvious climate change implications such as the phasedown of hydrofluorocarbons or the reinstatement of the oil and gas methane rules as discussed in my last blog. Giving the rapidly changing regulatory environment, it is important for your organization to be prepared for the wide-reaching environmental agenda of the Biden EPA. We will be discussing these and other environmental regulatory developments in our Environmental Regulatory Bootcamp and Advanced Environmental Regulatory Workshop in Hilton Head, SC, this August. I hope to see you there.