NJ and 13 Other States Sue EPA over Rollback that Has ‘Gutted’ Chemical Safety Rule

Jon Hurdle | January 31, 2020 | Energy & Environment
Agency says it wants to improve compliance rather than imposing new rules on chemical manufacturers
Credit: Edwin J. Torres/ Governor's Office
Attorney General Gurbir Grewal: “The federal government is supposed to be protecting us from dangerous chemical accidents.”

New Jersey and 13 other states are suing the U.S. Environmental Protection Agency over its rollback of a rule on the storage and control of dangerous chemicals, saying the change will increase the risk of explosions and threaten public safety.

Attorney General Gurbir Grewal and the other prosecutors are asking a federal appeals court to overturn EPA’s recent reversal of a 2017 rule amendment that placed stricter requirements on companies over how they store chemicals and deal with chemical emergencies.

The city of Philadelphia joined the states in the suit. A major refinery explosion there last summer released thousands of gallons of deadly hydrofluoric acid, shut down the plant and led to the bankruptcy of its owner, Philadelphia Energy Solutions.

“The 2019 explosion in Philadelphia, just across the river from New Jersey, is a crystal-clear example of the danger posed by hazardous materials and the importance of the EPA’s 2017 Accident Prevention Amendments,” said Catherine McCabe, commissioner of the state Department of Environmental Protection, in a statement issued on Thursday.

McCabe said New Jersey has its own precautions against chemical emergencies under the Toxic Catastrophe Prevention Act but that the new federal rollback may undermine the state law.

EPA ‘ignored’ comments, AG says

Grewal said EPA adopted the rule last November despite objections from some of the attorneys general. The agency later “ignored” supplemental comments from the prosecutors after the Philadelphia incident, he said. EPA did not respond to a question on whether it had ignored the prosecutors’ comments.

“The federal government is supposed to be protecting us from dangerous chemical accidents, but is once again falling down on the job,” Grewal said. He called EPA’s action “yet another deadly rollback” that has “gutted” safety protections for chemical accidents.

Last week, the agency finalized changes to its Waters of the U.S. rule under the landmark Clean Water Act of 1972, removing federal protections on freshwater wetlands and intermittent streams, and placing any future protection in the hands of states. Critics said the move will make those water bodies more vulnerable to farming or development, and will threaten downstream water quality.

The 2017 amendments to the chemical rule were implemented mostly because of a Texas fertilizer plant explosion that killed 15 people, Grewal said. After that incident, regulated companies were required to submit to independent audits, explore safer technologies, and provide more detailed and timely investigative reports following chemical accidents.

But those measures were rescinded under EPA’s Risk Management Program (RMP) because they were no longer “reasonable or practicable” in relation to safer technology, third-party audits and other areas, EPA said.

The changes were made, the agency said, to improve security, reduce “unnecessary and ineffective regulatory burdens” and eliminate a conflict with federal health and safety regulations.

“The changes are intended to promote better emergency planning and public information about accidents and continue the trend of fewer significant accidents involving chemicals regulated under the RMP rule,” EPA said in a summary of the measure.

It concluded that it was better to improve compliance with regulations than to impose more regulations on plants that are “generally performing well in preventing accidental releases.”

At risk for chemical accidents

New Jersey has 94 plants, such as chemical factories and petroleum facilities, that are subject to federal risk management regulations, the prosecutors said.

Elvin Montero, a spokesman for the Chemistry Council of New Jersey, a trade group representing chemical manufacturers, said its members would not be affected by the federal rollback, and are required to comply with state law on chemical accidents.

Michael Egenton, an executive vice president of the New Jersey Chamber of Commerce, said it is reviewing the lawsuit.

New Jersey Sierra Club director Jeff Tittel said New Jersey is especially at risk for chemical accidents because of its dense population and the large number of chemical facilities in the small state.

“This dismantling of protections will put people at risk across the country,” he said. “The risk of a spill or explosion threatens our safety, health, and the environment.”

An EPA spokeswoman said the agency does not comment on pending litigation.