Risk Management Regulations Relaxed in EPA Final Rule

November 25, 2019
The Clean Air Act mandates that EPA require Risk Management Plans for facilities storing specific chemicals above threshold amounts and develop risk management programs to prevent and mitigate accidents that could release those chemicals into the environment.
EPA published its first Risk Management Plan regulation in 1996. In 2017, EPA finalized a new regulation mandating new requirements and disclosure of additional public information. Following the finalization of this rule, EPA received and granted three petitions to reconsider the 2017 RMP regulations, including a petition from 11 states: Louisiana, Arizona, Arkansas, Florida, Kansas, Texas, Oklahoma, South Carolina, Wisconsin, West Virginia, and Kentucky.
Currently, EPA regulates approximately 12,500 RMP facilities throughout the country such as agricultural supply distributors, water and wastewater treatment facilities, chemical manufacturers and distributors, food and beverage manufacturers, chemical warehouses, oil refineries, and other chemical facilities.
Last week, EPA finalized changes to the Risk Management Program (RMP) Reconsideration final rule, which removes what the Agency described as burdensome, costly, unnecessary amendments while maintaining appropriate protections and ensuring first responders have access to all of the necessary safety information. This rule also resolves important security concerns. 
With this action, under President Trump, EPA has finalized 48 deregulatory actions, which the agency projects have saved US companies more than $5 billion in regulatory costs.
“Today’s final action addresses emergency responders’ longstanding concerns and maintains important public safety measures while saving Americans roughly $88 million per year,” said EPA Administrator Andrew Wheeler“Accident prevention is a top priority of the EPA and this rule promotes improved coordination between chemical facilities and emergency responders, reduces unnecessary regulatory burdens, and addresses security risks associated with previous amendments to the RMP rule.”
EPA’s relaxation Chemical Disaster Rule comes some two years after EPA suspended the rule to try to prevent it from taking effect. Following a lawsuit in which Earthjustice represented communities from around the country affected by chemical disasters, a federal court reinstated the rule and said EPA’s suspension made “a mockery of the statute.” EPA did not appeal that ruling. During the unlawful suspension of protections, public reports showed at least 73 chemical releases, fires, and explosions occurred at facilities that would have been covered by the rule.
According to EPA, the final RMP reconsideration rule maintains important public safety measures. Under this final rule, no less safety information will be available to first responders and state and federal regulators than was available under any previous version of the RMP rule.
From 2007-2016, at least 90% of RMP facilities had no reported accidents and nearly half of accidents occurred at less than 2% of facilities reporting multiple releases. EPA is focusing on high-risk facilities and vigorously enforcing the original RMP rule. The revisions in final rule maintains public safety requirements without imposing substantial new regulatory requirements on all facilities in the RMP program. EPA believes this approach will effectively address the very small percentage of facilities that need increased supervision to improve their performance. In fact, accident rates in states that had adopted burdensome elements in the RMP Amendments rule show less decline in accident rates than RMP facilities nationwide under the original rule. Thus, there was little data supporting the claimed benefits of the RMP Amendments. According to EPA, this rule reduces the costs of compliance with unnecessary regulatory requirements and makes reasonable, practicable updates to improve the effectiveness of the rule.
“This administration is gutting the few protections we have against chemical explosions and other toxic disasters, just to appease chemical companies who only worry about their own profit,” said the team of 13 groups that successfully vacated the delay of that rule after Trump’s EPA’s first attack, when EPA tried to prevent the rule from taking effect. “Yet for the millions of families and children who live by chemical facilities, this is not about money, it’s about surviving chemical disasters. Lives depend on this rule.”
“The National Association of SARA Title III Program Officials (NASTTPO) represents members and staff of State Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), Local Emergency Planning Committees (LEPCs), various federal agencies, and private industry. Our membership is pleased with the Trump Administration and EPA Administrator Andrew Wheeler’s finalized changes to the 2017 RMP rule, specifically with respect to its provisions impacting emergency planning and response. This includes final modifications to overly complex exercise requirements that placed resources burdens on LEPCs without recognizing these arbitrary requirements provided little or no benefit to community emergency preparedness or accident prevention,” said NASTTPO Past-President and Board Member Tim Gablehouse. “We also appreciate that the final rule maintains critical access for first responders to necessary facility information that will result in improved local emergency response planning and public safety.”
Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) said, “Today, the EPA put workers, first responders, and frontline community members in unnecessary danger by rolling back the Risk Management Plan updates, also known as the Chemical Disaster Rule.  The rule was updated by President Obama in order to strengthen the accountability, preparedness, and prevention of chemical incidents from industrial facilities.  The Energy and Commerce Committee will continue our work to make sure that frontline communities, workers, and emergency responders are protected from the risks of chemical disasters.”
For more information on the proposed RMP Reconsideration Rule, see: https://www.epa.gov/rmp/proposed-risk-management-program-rmp-reconsideration-rule.
For history about the RMP Amendments Rule, see: https://www.epa.gov/rmp/final-amendments-risk-management-program-rmp-rule.
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What’s on EPA’s Agenda?
EPA has released the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan (Fall Regulatory Agenda and Annual Regulatory Plan)which provides updates to the public about regulatory activity.
“EPA’s Fall Regulatory Agenda and Annual Regulatory Plan continue to advance the agency’s core mission of protecting human health and the environment through regulatory reform and modernization,” said EPA Administrator Andrew Wheeler. “Under President Trump, EPA has finalized 47 deregulatory actions, saving Americans nearly $5 billion in regulatory costs. By creating a climate of regulatory certainty, we’re able to breathe new life into local economies around the country.”
EPA’s Fall Regulatory Agenda includes information on the agency’s regulatory and deregulatory activities under development within the next 12 months. The Agenda includes 56 actions that are expected to be deregulatory and 37 actions appearing for the first time.
The Annual Regulatory Plan includes EPA’s statement of regulatory priorities and additional information about 34 priority actions that the agency plans to propose or complete in the coming year. Among those are multiple actions focused on emerging contaminants, including Per- and Polyfluoroalkyl Substances (PFAS). Other priority actions include:
  • Revised Definition of “Waters of the United States;
  • Oil and Gas NSPS Reconsideration; and
  • Update Regulations on Water Quality Certification.
To access EPA’s Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan go to: https://www.reginfo.gov/public/do/eAgendaMain.
For more information about regulatory reform at EPA, see https://www.epa.gov/laws-regulations/epa-deregulatory-actions
All Retail Distribution of Methylene Chloride to Consumers for Paint and Coating Removal Banned by EPA
EPA regulations to prohibit the manufacture (including import), processing, and distribution of methylene chloride in all paint removers for consumer use went into effect on November 22, 2019. It is now unlawful for any person or retailer to sell or distribute paint removal products containing methylene chloride for consumer use, including e-commerce sales.
“EPA’s action keeps paint and coating removers that contain the chemical methylene chloride out of consumers’ hands,” said EPA Administrator Andrew Wheeler. “It is against the law to sell or distribute methylene chloride for paint and coating removal in the retail marketplace—a step that will provide important public health protections for consumers.
EPA is encouraging all consumers to stop using methylene chloride products that they may have already purchased for paint and coating removal. EPA is also reminding all retailers that sales of these products to consumers is prohibited by EPA regulations under the authority of section 6 of the Toxic Substances Control Act (TSCA). To learn more about how to comply with the regulations, including recordkeeping requirements, please visit: www.epa.gov/assessing-and-managing-chemicals-under-tsca/small-entity-compliance-guidance-regulation-methylene
The final regulation on methylene chloride for consumer paint and coating removal use was published on March 27, 2019, and the prohibition related to manufacturing, processing and distribution of methylene chloride for consumer paint and coating removal use is in now effect. A variety of effective, less harmful substitutes are readily available for paint removal.
EPA is continuing to work through the process outlined in TSCA to review the risks associated with other uses of methylene chloride. This process is designed to thoroughly evaluate available science before taking action to manage the risk associated with the other uses of the chemical.
Federal Pollution Prosecutions Continue to Fall
Criminal anti-pollution enforcement continues to fall under the Trump Administration, according to the latest figures released by Public Employees for Environmental Responsibility (PEER). Prosecution of pollution crimes in Fiscal Year 2019 fell to levels not seen in 25 years, as the ranks of EPA criminal investigators also shrink.
Rejecting criticism of declining pollution prosecution, enforcement chief Susan Bodine recently told an American Bar Association conference that EPA remains aggressive. Yet, Justice Department records compiled by Syracuse University’s Transactional Records Access Clearinghouse paint a far different picture. For FY 2019 (which ended this past September):
  • There were only 75 EPA-initiated criminal prosecutions filed, a low dating back to 1994; and
  • Convictions secured are at the lowest level this century (back to 1995) and half the number of such convictions won just five years ago.
“By any recognized metric, the odds of corporate polluters facing criminal consequences have reached a modern low,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, expressing skepticism about Bodine’s claims the Trump administration is tough on corporate violators. “Every year under Trump has seen a further enforcement decline.”
One measure that saw a slight uptick was EPA criminal referrals (i.e., new cases). Ironically, Bodine dismissed referrals as an example of “statistics mongering” even though she previously touted the number of new cases opened as evidence of her diligence. Nonetheless, the FY19 referral numbers remain well below pre-Trump years and the lowest since 1990.
At the same time, the number of EPA Criminal Investigation Division (CID) agents continues to decline with only 145 on staff as of February 2019, a decline from 175 in 2012, and a level well below the 200-agent minimum threshold that Congress set in the U.S. Pollution Prosecution Act of 1990.
“As evidenced by the trend under Trump, unless more resources are devoted to enforcement, pollution prosecutions will diminish further,” added Whitehouse. “Fewer criminal referrals today inevitably leads to fewer prosecutions and convictions in coming years.”
Clean Air Research Converts Toxic Air Pollutant into Industrial Chemical
A toxic pollutant produced by burning fossil fuels can be captured from the exhaust gas stream and converted into useful industrial chemicals using only water and air thanks to a new advanced material developed by an international team of scientists.
New research led by The University of Manchester, has developed a metal-organic framework (MOF) material that provides a selective, fully reversible and repeatable capability to capture nitrogen dioxide (NO2), a toxic air pollutant produced particularly by diesel and bio-fuel use. The NO2 can then be easily converted into nitric acid, a multi-billion dollar industry with uses including, agricultural fertilizer for crops; rocket propellant and nylon.
MOFs are tiny three-dimensional structures which are porous and can trap gasses inside, acting like cages. The internal empty spaces in MOFs can be vast for their size, just one gram of material can have a surface area equivalent to a football field.
The highly efficient mechanism in this new MOF was characterized by researchers using neutron scattering and synchrotron X-ray diffraction at the US Department of Energy’s Oak Ridge National Laboratory and Berkeley National Laboratory, respectively. The team also used the National Service for Electron Paramagnetic Resonance Spectroscopy at Manchester to study the mechanism of adsorption of NO2. The technology could lead to air pollution control and help remedy the negative impact nitrogen dioxide has on the environment.
As reported in Nature Chemistry, the material, named MFM-520, can capture nitrogen dioxide at ambient pressures and temperatures—even at low concentrations and during flow—in the presence of moisture, sulfur dioxide and carbon dioxide. Despite the highly reactive nature of the pollutant, MFM-520 proved capable of being fully regenerated multiple times by degassing or by treatment with water in air—a process that also converts the nitrogen dioxide into nitric acid.
“This is the first MOF to both capture and convert a toxic, gaseous air pollutant into a useful industrial commodity.” said Dr Sihai Yang, a lead author and a senior lecturer at The University of Manchester’s Department of Chemistry. “It is also interesting that the highest rate of NO2 uptake by this MOF occurs at around 45 degrees Centigrade, which is about the temperature of automobile exhausts.”
Professor Martin Schröder, Vice-President and Dean of the Faculty of Science and Engineering at The University of Manchester, said: “The global market for nitric acid in 2016 was USD $2.5 billion, so there is a lot of potential for manufacturers of this MOF technology to recoup their costs and profit from the resulting nitric acid production. Especially since the only additives required are water and air.”
As part of the research, the scientists used neutron spectroscopy and computational techniques at ORNL to precisely characterize how MFM-520 captures nitrogen dioxide molecules.
“This project is an excellent example of using neutron science to study the structure and activity of molecules inside porous materials,” said Timmy Ramirez-Cuesta, co-author and coordinator for the chemistry and catalysis initiative at ORNL’s Neutron Sciences Directorate. “Thanks to the penetrating power of neutrons, we tracked how the nitrogen dioxide molecules arranged and moved inside the pores of the material, and studied the effects they had on the entire MOF structure.”
“The characterization of the mechanism responsible for the high, rapid uptake of NO2 will inform future designs of improved materials to capture air pollutants.” said Jiangnan Li, the first author and a PhD student at The University of Manchester.
In the past, capturing greenhouse and toxic gases from the atmosphere was a challenge because of their relatively low concentrations and because water in the air competes and can often affect negatively the separation of targeted gas molecules from other gases. Another issue was finding a practical way to filter out and convert captured gases into useful, value-added products. The MFM-520 material offers solutions to many of these challenges.
The paper, 'Capture of nitrogen dioxide and conversion to nitric acid in a porous metal-organic framework, by authors; Sihai Yang; Martin Schröder; Jiangnan Li; et al, is published in Nature Chemistry 
EPA Settlement with Connecticut Electric Cable Facility Resolves Alleged Chemical Reporting Violations
EPA has reached a settlement with a Connecticut electric cable manufacturing company, Marmon Utility LLC, that failed to report information about certain chemical compounds at its manufacturing facility in Seymour, Connecticut.
Under the settlement, Marmon Utility has agreed to pay $75,000 to settle EPA allegations that the company failed to comply with federal right-to-know laws in 2018 when it failed to file and certify required reports describing certain chemical and chemical compounds processed at the facility. The reports, Toxics Release Inventory (TRI) forms, are required under the federal Emergency Planning and Community Right-to-Know Act.
In April 2019, Marmon filed and certified its missing TRI reports for lead, copper and zinc compounds after an inquiry from EPA's New England office. Marmon was cooperative during the inspection process and case settlement negotiations.
At the Marmon Kerite facility, Marmon manufactures medium and high-voltage electric power cables. Copper, aluminum and steel wire are bound and braided, then coated with insulation that contains lead and zinc compounds, to make power cables. The facility also melts and extrudes metallic lead to coat power cables with lead insulation.
In 2017, Marmon processed lead, copper, and zinc compounds in quantities that exceeded 10 times their threshold TRI reporting amounts. Because Marmon's TRI forms were not properly submitted and certified, the information for these chemicals was not available to the public. Both copper and zinc compounds are hazardous to aquatic life, and lead is a bioaccumulative material that is hazardous to both humans and wildlife.
Environmental Impact of Bitcoin Mining
As an alternative to government-issued money, the cryptocurrency Bitcoin offers relative anonymity, no sales tax and freedom from bank and government interference. But some people argue that these benefits have an enormous environmental impact, particularly with regard to Bitcoin mining –– the process used to secure the cryptocurrency. Now, researchers reporting in ACS’ Environmental Science & Technology have estimated that past and future environmental impacts of Bitcoin mining could be lower than previously thought.
In contrast to traditional banks, which keep records of balances and transactions at a centralized location, in Bitcoin all transactions are stored digitally as “blocks” in a chain that is kept by a network of peers. Using special computers, Bitcoin miners in this network compete to solve a mathematical puzzle. The winner, who earns the right to add the next block of data to the chain, is rewarded with new Bitcoin currency. This mining requires substantial electricity to power the special computers, but current estimates of the impact associated with this energy use suffer from a lack of accurate data. Susanne Köhler and Massimo Pizzol wanted to conduct a life cycle assessment to better understand the total environmental impact of Bitcoin mining.
The researchers estimated the electricity consumption and carbon dioxide emissions in 2018 for each stage of Bitcoin mining, from the extraction of raw materials to make the equipment to its production, use and recycling. They calculated that the Bitcoin network consumed 31.3 Terawatt-hours of electricity and generated 17.3 megatons of carbon dioxide equivalents in 2018, which were lower than previous estimates. About 99% of the environmental impact came from the use of the mining equipment, with minimal contributions from production and recycling. The location of the miners had the largest impact on the environment, with areas that use mostly fossil fuels for electricity, such as Inner Mongolia, China, contributing more to the carbon footprint than regions using renewable resources, such as Sichuan, China. The analysis also predicted that the environmental impact per miner will shrink if mining equipment becomes more efficient, use of renewable energy sources increases, or miners relocate to cooler climates, where less energy is needed to cool the computers. However, the overall number of miners is likely to continue increasing, at least in the short term, the researchers say.
16 Penalties for Environmental Violations in Oregon
The Oregon Department of Environmental Quality issued 16 penalties totaling $231,915 in October for various environmental violations. A detailed list of violations and resulting penalties is at https://go.usa.gov/xEQJn.
Fines ranged from $1,500 to $38,400. Alleged violations included failing to hire a licensed asbestos abatement contractor to safely remove asbestos during construction, illegal open burning, discharging untreated wastewater to Oregon rivers, and providing underground storage tank and heating oil tank services without a license.
DEQ issued civil penalties to the following organizations and individuals: 
  • Arcadia Environmental, Inc., $1,500, Newport (asbestos)
  • Bernard M Hanson Trust, $2,909, Independence (asbestos)
  • Hexion Inc., $15,485, Springfield (stormwater)
  • JH Kelly Construction Inc., $6,000, Portland (underground storage tanks)
  • Lillie, Joshua Benjamin dba Groundwork Excavation, $3,000, Myrtle Point (heating oil tank)
  • McCue, Tracy Jean, $22,450, Huntington (asbestos)
  • Meirow, Jim, $21,600, Canby (solid waste)
  • Mountain West Investment Corporation, $33,012, Monmouth (stormwater)
  • Oregon Cherry Growers LLC, $4,600, The Dalles (wastewater) • PNW Metal Recycling, Inc., $3,209, Portland (air quality)
  • Polygon WLH LLC, $19,600, Tigard (water quality)
  • Roseburg Forest Products, $38,400, Dillard (air quality)
  • Roth, Ron dba R.A. Roth Construction & Son, $17,600, Canby (solid waste)
  • RPH Sandy Blvd, $1,500, Portland (air quality)
  • Vanco Contracting, LLC, $14,800, Lebanon (asbestos)
  • Young, Travis Wilson, $26,250, Huntington (asbestos)
Organizations or individuals must either pay the fines or file an appeal within 20 days of receiving notice of the penalty. They may be able to offset a portion of a penalty by funding a supplemental environmental project that improves Oregon’s environment. Penalties may also include orders requiring specific tasks to prevent ongoing violations or additional environmental harm. 
Court Puts EPA in Check on Toxic Chemical Regulations
A federal appeals court in California ruled that the EPA, when evaluating the risks of toxic chemicals, cannot ignore harmful exposures to asbestos and other chemicals that are still in use, but no longer being manufactured.  The court also concluded that the EPA’s own rules do not give it discretion to choose between evaluating some uses of a chemical and not others.
The Natural Resources Defense Council, the Alliance of Nurses for Healthy Environments and Cape Fear River Watch filed the lawsuit in August 2017, challenging Trump administration’s rules issued in July 2017 for evaluating the risks of toxic chemicals.  Those rules address how the EPA planned to prioritize chemicals and evaluate their health risks under the Toxic Substances Control Act.
The following is a statement by Sarah Tallman, a senior litigation attorney with the Natural Resources Defense Council, who argued the case in the 9th circuit for the plaintiffs:
Congress passed TSCA in 1976 and updated the law in June 2016 to strengthen the agency’s program to evaluate and review toxic chemicals after a lengthy bipartisan effort to modernize the law.  
The EPA announced the first 10 industrial chemicals it would assess and consider regulating in November 2016.
MGP Products, Inc. Agrees to Pay $1 Million For Violating Clean Air Act
The Atchison, Kan., company pleaded guilty to violating the federal Clean Air Act and is expected to pay a $1 million fine, U.S. Attorney Stephen McAllister said. MGP Products, Inc. pleaded guilty to a misdemeanor offense of negligently violating the Clean Air Act. In its plea, the company admitted that on Oct. 21, 2016, a greenish-yellow chlorine gas cloud formed when 4,000 gallons of sulfuric acid were mistakenly combined with 5,800 gallons of sodium hypochlorite. The Atchison County Department of Emergency Management ordered community members to shelter in place and to evacuate in some areas. Approximately 140 people including members of the public, first responders, employees of MGP Ingredients and Harcos Chemicals sought medical attention.
Sentencing is set for Feb. 24. The company could be sentenced to a term of probation up to five years.
McAllister commended the EPA and Assistant U.S. Attorney Rich Hathaway for their work on the case.
EPA Settles with Arizona’s Decon7 Systems for Selling Unregistered and Misbranded Pesticides
EPA announced a settlement with Decon7 Systems LLC (Decon7) related to two pesticides produced by the Scottsdale company that were not registered with the EPA and were labeled with false and misleading claims about their safety and efficacy. The company also exported the unregistered pesticides without the necessary notifications and failed to comply with reporting obligations following a Stop Sale, Use or Removal Order (SSURO) issued to the company in 2018. Decon7 has agreed to pay a $200,000 civil penalty and has corrected all identified compliance issues.
“The EPA is committed to ensuring products making public health claims meet stringent effectiveness and safety standards,” said EPA Pacific Southwest Regional Administrator Mike Stoker.
Based on information collected during inspections by EPA, the Michigan Department of Environmental Quality and the Arizona Department of Agriculture, EPA asserted that Decon7 Systems had violated several sections of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates the storage, labeling, distribution, sale and use of pesticides in the United States.
Decon7 sold “D7 Part 1” and “D7 Part 2,” pesticides that are combined to disinfect hard nonporous surfaces, with misleading efficacy claims to kill all bacteria, viruses and fungi. The products also had false and misleading safety claims, which created the incorrect impression that the products were noncorrosive and nontoxic. The products’ formulations in fact could have caused skin burns and irreversible eye damage. The products’ labeling also claimed the products were used by various federal government agencies to clean up buildings following anthrax attacks, implying that the federal government recommends or endorses their use.
The products were produced in Ohio, offered for sale on the Internet, and widely distributed to customers in Arizona, California, Connecticut, Ohio, Minnesota and Texas. In addition to the illegal domestic sales, Decon7 exported these unregistered pesticides to customers outside of the United States without filing the required information about the foreign purchasers.
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