Why We Need a Strong EPA Chem Safety Rule

By Adrian Shelley

Many of us remember the stunning videos from the small town of West, Texas, just a short drive north of Waco. In 2013, a massive fertilizer plant explosion in West killed 15 people and caused widespread destruction.

The explosion led to changes to prevent similar disasters. But those efforts stalled under the Trump administration. Now, however, a new version is in the works.

The U.S. Environmental Protection Agency is taking comments now on a rule to protect communities from chemical disasters. We support this rule because it will provide additional protections for people that live or work near industrial facilities that use large amounts of dangerous chemicals. But we also believe the rule could do more.

Public Citizen has made it easy for you to submit your comment supporting the rule. The comment period ends on Oct. 31.

EPA’s new rule concerns something called the “Risk Management Program.” The RMP has been around since 1996, and almost 12,000 facilities across the country must follow it. It was amended during the Obama administration in 2017—a move that came after a series of high-profile disasters, including the West explosion.

The Obama-era rule faltered under Trump when the industry-controlled EPA tried to rescind it. This delayed the rule by several years, leading us to today with a new version known as the Safer Communities by Chemical Accident Prevention Rule.

This version is the strongest yet but doesn’t go far enough. This is about avoiding disasters and saving lives. EPA estimates that accidents at RMP facilities cost $477 million each year. Implementing the rule itself would cost only about $77 million a year. The companies impacted the most are global oil companies with quarterly profits in the tens of billions of dollars.

We won’t put a price on lives and have no problem cutting into obscene corporate profits to save people. So, while the EPA’s new chemical disaster rule is an improvement, much more could be done.

Here are some of our recommendations to improve the rule.

Shorten the four-year timeline for companies to comply with the new rule.

Communities have been waiting since West for stronger protections from chemical facilities. This rule will give companies until 2026 to comply—three years after the rule’s effective date. That’s too long; we think even one year would be plenty of time.

Relying on workers and the public to enforce the rule puts an unjust burden on communities.

The EPA’s approach in this rule is to trigger new safety requirements based on a company’s accident history. EPA acknowledges that this could incentivize companies to avoid reporting accidents. But EPA’s solution to this problem is to rely on workers and the public to spot and report accidents. EPA calls this approach “leveraging workers and the public in facility oversight.”

We have another name for it: unjust.

Consider how this approach plays out in Texas, where neither workers nor the public can count on any support from the local government, as Governor Greg Abbott has ignored or defied federal chemical safety rules since at least 2014 when he advised people concerned about chemical stockpiles near them to “ask every facility” what they store. (Advice: do not try this unless you want a visit from Homeland Security.)

Even if someone did have the courage to ask companies what they store, it wouldn’t get them anywhere. Abbott and his successor as attorney general, Ken Paxton, have seen to it by refusing to comply with public information requests. Furthermore, how should an average citizen know when a chemical company is violating the law? They aren’t experts. And there are plenty of reasons even a well-intentioned citizen might not want to file a report, including immigration status, outstanding tickets or fines, or social and economic pressures.

Worker protections are also famously lacking in Texas. Can we put the burden on workers to rat on their employers? Maybe if the EPA offered anonymous, third-party reporting, but they declined to do that in this rule. This brings us to our next point:

Anonymous third-party reporting is needed.

If EPA wants workers and the public to report accidents, it should make it easy and safe for them to do so. Many advocates have long suggested that an anonymous complaint line operated by a third party such as EPA—not the companies themselves—would be the safest way to report an accident. EPA acknowledged this request and then dismissed it without explanation. EPA says that companies can operate their own complaint lines and that existing whistleblower protections from the Occupational Safety and Health Administration (OSHA) should be adequate protection. We disagree.

An anonymous, third-party complaint line would have other uses beyond reporting accidents. It could be used to report other violations of permits or laws that jeopardize safety. It could also be used for “near miss” incidents—lapses in safety or procedure that could have led to an accident but luckily did not. Unfortunately, we won’t know how many uses an anonymous, third-party complaint line would have because EPA won’t create one.

Better planning for natural hazards.

EPA has stated that it believes companies are already planning well for natural hazards. We disagree. After Hurricane Harvey, a major disaster occurred at the Arkema Inc. chemical plant in Crosby, Texas. Loss of power led to unsafe conditions and a community evacuation. The eventual explosion and fire sent more than two dozen first responders to the hospital.

The cause of this disaster? Power loss. Easily preventable.

EPA has directed companies to plan for natural disasters, but we have specific concerns about the adequacy of planning for hurricanes along the Texas Gulf Coast. We know, for example, that companies only engineer their facilities to withstand 12 inches of rain in a 24-hour period. That’s why at least nine companies experienced storage tank failures after Harvey, releasing more than 3 million pounds of air pollution. (Granted, these storage tanks aren’t covered by the new rule, but their failure clearly indicates that companies are not planning for severe storms.)

This is another case where a solution is at hand. Companies are relying on old assumptions about the frequency and volume of severe storms. As Public Citizen reported earlier this year, newer data is available that revises up assumptions about extreme rain. In Houston, for example, more recent data increases the 100-year storm from twelve inches in twenty-four hours to more than seventeen inches.

It’s also important to note that a large natural disaster like a hurricane threatens dozens of facilities at once. EPA should also require facilities to develop plans to prepare for storms in a way that minimizes the combined impact of dozens of simultaneous plant shutdowns.

Backup power is needed for all process equipment—not just safety equipment.

Back to the Arkema disaster, backup power is often a solution to minimize the impact of accidents and disasters. Power losses have many different causes—lightning strikes, loss of third-party power supply, naughty squirrels—but the fact of power loss is a near certainty. Companies should be prepared to endure power losses of any cause without causing major disasters.

In this rule, the EPA has proposed requiring backup power for pollution control equipment and air monitoring equipment only. We suggest that backup power be required for all process equipment.

Safer technologies and chemical alternatives should be required now.

In this rule, the EPA is proposing to require companies to study the feasibility of safer technologies and safer chemical alternatives. In some cases, more study might be appropriate. But in at least one major case—it is far past time to act.

Hydrofluoric acid (a.k.a. hydrogen fluoride or HF) is used by a third of the nearly 150 oil refineries across the United States. The dangers of HF have been long known, as has the availability of safer chemical alternatives. In fact, our sister organization, the U.S. Public Interest Research Group, published a paper on alternatives to HF way back in 2005.

The EPA knows that alternatives to HF are available for refineries. Its reason for not requiring these alternatives right away is cost—between $35 million and $900 million per refinery.

That may seem like a lot, but the consequences of a major hydrogen fluoride release are incomprehensible. The Risk Management Plan for the Pasadena Refinery includes a scenario of the release of 150,000 pounds of HF, putting 1.7 million people at risk across the Houston region. Meanwhile, the refinery’s owner, Chevron, reported $11.6 billion in earnings last quarter. Do you think it’s fair for that company to save even a few hundred million dollars while putting almost two million people’s lives at risk?

Don’t forget to take action by Monday.

This is a matter of community safety, and it’s important. Please take a moment to click here and contact the EPA to ask the agency for a strong chem safety rule.