Response to Comments on the 2017 Proposed Rule Further Delaying the … · · 2017-06-12Response to Comments on the 2017 Proposed Rule Further Delaying the ... American Fuel and

Response to Comments on the 2017 Proposed Rule Further

Delaying the Effective Date of EPA’s Risk Management Program Amendments (April 3, 2017; 82 FR 16146)

Docket EPA-HQ-OEM-2015-0725 U.S. Environmental Protection Agency

Office of Emergency Management June 8, 2017

TABLE OF CONTENTS Acronyms __________________________________________________________________________ 1 Introduction ________________________________________________________________________ 2 Table 1. Index of Comment Submissions Sorted by Submission Number ______________________ 3 1. Legal Issues ______________________________________________________________________ 9

1.1 Authority______________________________________________________________________ 9

1.1.1 EPA has authority to extend the effective date _____________________________________ 9

1.1.2 EPA does not have authority to extend the effective date ____________________________ 10

1.2 Effective date extension rulemaking is arbitrary and capricious __________________________ 13

1.3 Other legal arguments on the effective date extension rulemaking ________________________ 18

2. Support for extending the effective date until February 2019 ____________________________ 22

2.1. Lack of sufficient notice and comment period on 2016 RMP proposed amendments _________ 22

2.1.1 New provisions added to the final rule that were not in the 2016 RMP proposed amendments22

2.1.2 Docket materials not posted at beginning of the comment period _____________________ 22

2.1.3 Other comments on lack of sufficient notice and comment period on 2016 RMP proposed amendments ___________________________________________________________________ 23

2.2 Changing circumstances necessitating additional opportunity for comment _________________ 23

2.2.1 Information about criminal cause of West, Texas incident ___________________________ 23

2.3 Safety and security concerns related to implementation of the final rule ____________________ 24

2.4 Cost burden to regulated facilities and emergency response organizations __________________ 25

2.5 Insufficient coordination with OSHA by EPA ________________________________________ 26

2.6 Insufficient coordination with stakeholders or consideration of stakeholder comments ________ 26

2.6.1 SBREFA concerns __________________________________________________________ 26

2.6.2 Other comments on insufficient coordination with stakeholders or consideration of stakeholder concerns ______________________________________________________________________ 27

2.7 Other comments in support of extending the effective date ______________________________ 27

3. Opposition to extending the effective date until February 2019 ___________________________ 28

3.1 Safety concerns with existing RMP rule ____________________________________________ 28

3.2 Environmental justice concerns with status quo _______________________________________ 30

3.3 Rulemaking provides needed clarification ___________________________________________ 32

3.4 Other comments opposing extending the effective date _________________________________ 32

4. Other comments on the proposed rule _______________________________________________ 34

4.1 Comments suggesting alternate timeframes for extension _______________________________ 34

4.2 Other comments on the proposed rule ______________________________________________ 35

5. Comments outside the scope of the proposed rule ______________________________________ 36

5.1 Rescission of the 2017 RMP Amendments [w/o relating to the extension of the effective date] _ 36

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5.2 Substantive comments on content of 2017 RMP Amendments [w/o relating to the extension of the effective date] ____________________________________________________________________ 36

5.3 Substantive comments on supporting documents for the 2017 RMP Amendments (e.g., cost-benefit analysis) [w/o relating to the extension of the effective date] _______________________________ 36

5.4 Other comments outside the scope of the proposed rule ________________________________ 37

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Acronyms APA Administrative Procedure Act ATF Bureau of Alcohol, Tobacco, Firearms and Explosives CAA Clean Air Act CFATS Chemical Facility Anti-Terrorism Standards DHS U.S. Department of Homeland Security DOT U.S. Department of Transportation EO Executive Order EPA U.S. Environmental Protection Agency FOIA Freedom of Information Act IST Inherently safer technologies LEPC Local emergency planning committee NPRM Notice of proposed rulemaking OMB Office of Management and Budget OSHA Occupational Safety and Health Administration PSM Process safety management RFA Regulatory Flexibility Act RMP Risk Management Program SBAR Small Business Advocacy Review SBREFA The Small Business Regulatory Enforcement Fairness Act of

1996

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Introduction

The U.S. Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking (NPRM) in docket EPA-HQ-OEM-2015-0725 on April 3, 2017, to delay the effective date of the January 13, 2017 Risk Management Program (RMP) Amendments.1 EPA received a total of 54,117 public comments on the proposed rule. Of these, approximately 54,000 of these comments are represented by copies of form letters or signatures of additional individuals or organizations jointly submitting a comment letter or otherwise expressing support for a particular comment letter. Approximately 11,612 of the commenters joining in support of form letter campaigns that opposed the delay of the effective date provided additional unique text describing their personal experiences or other relatively non-substantive unique text explaining their opposition to the proposed rule. The remaining comments include 108 unique public comments or representative copies of form letter campaigns/joint submissions, and 9 duplicate submissions. In addition to these public comments, EPA also received 5 written comments and had 28 members of the public provide verbal comments at a public hearing on April 19, 2017 (three of the speakers later submitted their testimony as written comments).

Of the 108 submissions considered to be unique or the representative copy of a form letter/joint submission, a total of 75 were deemed to be substantive (i.e., the commenters presented both a position and a reasoned argument in support of the position).

Following this introduction, Table 1, the “Index of Comment Submissions Sorted by Submission Number” table identifies the commenter name and the submission number for the unique comment submissions summarized in this summary. The submissions included in this index reflect all unique submissions and a representative copy of each form letter/joint submission.

The purpose of this document is to provide a comprehensive summary of all arguments provided by commenters in response to the NPRM. However, it should not be assumed that the submission number references provided throughout the summary reflect an exhaustive list of commenters making each specific argument. Rather, the submission number references reflect example commenters providing the more detailed versions of each argument.

The responses presented in this document are intended to augment the responses to comments that appear in the preamble to the final rule and to address comments not discussed in the preamble to the final rule. Although portions of the preamble to the final rule are paraphrased in this RTC document, to the extent such paraphrasing introduces any confusion or apparent inconsistency, the preamble itself remains the definitive statement of the rationale for the revisions to the standards adopted in the final rule. This document, together with the preamble to the final rule to further delay the effective date of the RMP Amendments rule and related technical support documents, should be considered collectively as EPA’s response to all of the significant comments submitted on EPA’s April 3, 2017 rule proposal.

182 Fed. Reg. 16146 (April 3, 2017).

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Table 1. Index of Comment Submissions Sorted by Submission Number

Comments marked with an asterisk “*” represent form letter campaigns or joint submissions. Submissions EPA-HQ-OEM-2015-0725-0798-01 through EPA-HQ-OEM-2015-0725-0798-28 reflect portions of the public transcript from the RMP public hearing held on April 19, 2017. Several commenters that provided verbal comment at the public hearing are not identified in this index as having provided verbal comments because duplicative or more comprehensive versions of written comments from that same commenter are instead identified.

Submission Number Commenter Name

EPA-HQ-OEM-2015-0725-0767 Anonymous

EPA-HQ-OEM-2015-0725-0769 Dave Popoff


EPA-HQ-OEM-2015-0725-0772 Center for Science and Democracy at the Union of Concerned Scientists, Charise Johnson

EPA-HQ-OEM-2015-0725-0773 Isaac Lello-Smith

EPA-HQ-OEM-2015-0725-0776 Chemical Safety Advocacy Group (CSAG), Richard Pavlak

EPA-HQ-OEM-2015-0725-0777 U. S. Chamber of Commerce, Mary Martin

EPA-HQ-OEM-2015-0725-0778 Russel Honorè, et. al.





EPA-HQ-OEM-2015-0725-0784 Dennis Smith

EPA-HQ-OEM-2015-0725-0785* Union of Concerned Scientists

EPA-HQ-OEM-2015-0725-0787* Anonymous



EPA-HQ-OEM-2015-0725-0792 George Siple

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EPA-HQ-OEM-2015-0725-0795 Emily Monosson

EPA-HQ-OEM-2015-0725-0796 Herb Kieklak

EPA-HQ-OEM-2015-0725-0797 Ludwig Benner

EPA-HQ-OEM-2015-0725-0798-01 American Fuel and Petrochemicals Manufacturers Association, Matthew Hodges

EPA-HQ-OEM-2015-0725-0798-02 National Association of SARA Title III Program Officials, Tim Gablehouse

EPA-HQ-OEM-2015-0725-0798-04

Eastman Chemical Company and American Chemistry Council Process Safety Committee, Pete Lodal

EPA-HQ-OEM-2015-0725-0798-05 Agricultural Retailors Association, Richard Gupton

EPA-HQ-OEM-2015-0725-0798-06 American Chemistry Council, Bill Erny

EPA-HQ-OEM-2015-0725-0798-07 Center for Science and Democracy at the Union of Concerned Scientists, Yogin Kothari

EPA-HQ-OEM-2015-0725-0798-09 Earthjustice, Gordon Sommers

EPA-HQ-OEM-2015-0725-0798-10 On behalf of Halperin, Honorè, Manner, David Halperin

EPA-HQ-OEM-2015-0725-0798-12 National Association of Chemical Distributors, Peter Downing

EPA-HQ-OEM-2015-0725-0798-13 League of Conservation Voters, Madeline Foote

EPA-HQ-OEM-2015-0725-0798-14 Coalition to Prevent Chemical Disasters, Paul Orum

EPA-HQ-OEM-2015-0725-0798-15 Rick Hind

EPA-HQ-OEM-2015-0725-0798-16 Global Cold Chain Alliance, Lowell Randel

EPA-HQ-OEM-2015-0725-0798-17 American Petroleum Institute, Peter Tolsdorf

EPA-HQ-OEM-2015-0725-0798-18 Center for Science and Democracy at the Union of Concerned Scientists, Amy Gutierrez

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EPA-HQ-OEM-2015-0725-0798-19 Society of Chemical Manufacturers and Affiliates, Robert Helminiak

EPA-HQ-OEM-2015-0725-0798-20 Environmental Data and Governance Initiative Steering Committee, Andrew Bergman

EPA-HQ-OEM-2015-0725-0798-21 American Coatings Association, Rhett Cash

EPA-HQ-OEM-2015-0725-0798-23 Corn Refiners Association, Mark Dreux

EPA-HQ-OEM-2015-0725-0798-24 US Chamber of Commerce, Mary Martin

EPA-HQ-OEM-2015-0725-0798-25 Fertilizer Institute, Andy O'Hare

EPA-HQ-OEM-2015-0725-0798-26 Public Citizen's Congress Watch Division, Susan Harley

EPA-HQ-OEM-2015-0725-0798-27 Sierra Club, Matthew Gravatt

EPA-HQ-OEM-2015-0725-0798-28 Yudith Nieto





EPA-HQ-OEM-2015-0725-0804 AK Steel Corporation, Katie Kistler




EPA-HQ-OEM-2015-0725-0808 Adrien-Alice Hansel

EPA-HQ-OEM-2015-0725-0809 Louisiana Chemical Association, Gregory Bowser

EPA-HQ-OEM-2015-0725-0810 Philip Marrone

EPA-HQ-OEM-2015-0725-0811 Alex Sparks

EPA-HQ-OEM-2015-0725-0813 BlueGreen Alliance, Jessica Eckdish

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EPA-HQ-OEM-2015-0725-0814 The Fertilizer Institute

EPA-HQ-OEM-2015-0725-0815 CountryMark

EPA-HQ-OEM-2015-0725-0816 Union of Concerned Scientists

EPA-HQ-OEM-2015-0725-0817 Ted Stroter


EPA-HQ-OEM-2015-0725-0819 Kathleen Brown Krieg

EPA-HQ-OEM-2015-0725-0820 Christina Friedel






EPA-HQ-OEM-2015-0725-0826 Plastics Trade Association (PLASTICS), Marie Gargas

EPA-HQ-OEM-2015-0725-0827 U.S. Chamber of Commerce, Bill Kovacs

EPA-HQ-OEM-2015-0725-0828 American Petroleum Institute, Ron Chittim

EPA-HQ-OEM-2015-0725-0829 J.R. Simplot Company, Krista Kinsey

EPA-HQ-OEM-2015-0725-0830 National Association of SARA Title III Program Officials, Timothy Gablehouse

EPA-HQ-OEM-2015-0725-0831 American Coatings Association, Rhett Cash


EPA-HQ-OEM-2015-0725-0833 American Chemistry Council, Leslie Hulse

EPA-HQ-OEM-2015-0725-0834 International Association of Fire Fighters, Shannon Meissner

EPA-HQ-OEM-2015-0725-0835 National Association of Chemical Distributors, Jennifer Gibson

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EPA-HQ-OEM-2015-0725-0836 Chlorine Institute, Robyn Brooks

EPA-HQ-OEM-2015-0725-0837 American Forest & Paper Association, Stewart Holm

EPA-HQ-OEM-2015-0725-0838 Vinyl Institute, Richard Krock

EPA-HQ-OEM-2015-0725-0839* Joint Submission from State Attorneys General, Louisiana Attorney General, Elizabeth Murrill

EPA-HQ-OEM-2015-0725-0840 SOCMA, Robert Helminiak

EPA-HQ-OEM-2015-0725-0841 Paul Orum

EPA-HQ-OEM-2015-0725-0842 International Dairy Foods Association, Emily Lyons

EPA-HQ-OEM-2015-0725-0843 Chemical Safety Advocacy Group, Shannon Broome

EPA-HQ-OEM-2015-0725-0844 Corn Refiners Association (CRA), Mark Dreux

EPA-HQ-OEM-2015-0725-0845 International Warehouse Logistics Association, Pat O’Connor

EPA-HQ-OEM-2015-0725-0846 Elizabeth King

EPA-HQ-OEM-2015-0725-0847 National Rural Water Association



EPA-HQ-OEM-2015-0725-0850*

Joint Submission from Industry Trade Associations, GCCA, IIAR, IARW, AFFI, NAMI, and RETA, Lowell Randel

EPA-HQ-OEM-2015-0725-0851 Capacity and Governance Working Group of the Environmental Data & Governance Initiative, Megan Martenyi


EPA-HQ-OEM-2015-0725-0853* Joint Submission from Advocacy Groups, Alaska Community Action on Toxics

EPA-HQ-OEM-2015-0725-0854* Sierra Club, Alexander Rony

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EPA-HQ-OEM-2015-0725-0855 American Fuel & Petrochemical Manufacturers, Lara Swett

EPA-HQ-OEM-2015-0725-0856* Earthjustice, Kyle Da Silva

EPA-HQ-OEM-2015-0725-0857 Institute for Policy Integrity, Bethany Davis Noll

EPA-HQ-OEM-2015-0725-0858 Responsible Drilling Alliance, Ralph Kisberg

EPA-HQ-OEM-2015-0725-0859 United Steelworkers (USW), Holly Hart

EPA-HQ-OEM-2015-0725-0860 Union of Concerned Scientists

EPA-HQ-OEM-2015-0725-0861* Joint Submission from Advocacy Groups, Earthjustice, Gordon Sommers

EPA-HQ-OEM-2015-0725-DRAFT-08322 Earthjustice

2 This draft comment number may change when finally posted. The commenter asked that EPA include every support document and comment from the RMP Request for Information (RFI) Docket EPA-HQ-OEM-2014-0328 in the rulemaking docket EPA-HQ-OEM-2015-0725 and attached 274 files comprising 231 of these documents to their comment. As of this writing, the attachments were still undergoing processing and had not been posted. EPA submitted a memorandum to the docket incorporating by reference all the RFI docket comments and support documents into the current rulemaking docket.

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1. Legal Issues

1.1 Authority

1.1.1 EPA has authority to extend the effective date

Commenters provided various arguments in support of EPA’s authority to extend the effective date.

EPA’s Authority Under Section 307(d) of the CAA

Comment: Many commenters, including industry trade associations, argued in favor of the delay of the effective date and described EPA’s legal authority for the proposed rule (0828, 0833, 0843, 0844). Some of these commenters cited EPA’s general rulemaking authority under section 307(d) of the Clean Air Act (CAA) (0828, 0833, 0843, 0855). An industry trade association commented that EPA may exercise its discretion under section 307(d) in delaying the effective date because no other provisions of the CAA mandate that EPA set a specific or earlier date by which the standards must be effective (0833).

Response: EPA agrees that the Agency has authority to conduct a notice and comment rulemaking to delay the effective date of the Risk Management Program Amendments rule. CAA section 307(d) authorizes the Agency to set effective dates as appropriate through notice and comment rulemaking unless another provision of the CAA controls. The Agency has cited this authority as well as the rulemaking authority in CAA section 112(r)(7) in the preamble to the final rule delaying the effective date of the Risk Management Program Amendments rule.

EPA’s Authority Under Section 112(r)(7)(A) of the CAA

Comment: Other commenters, including industry trade associations, stated that there is legal support for extending the effective date under section 112(r)(7)(A) of the CAA, which states that “Regulations promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.” Commenters asserted that this statutory language explicitly provides that that effective dates of regulations are to be determined by the EPA Administrator, and that the statute gives the Administrator significant discretion on how and when to establish such dates (0828, 0833, 0843, 0844, 0855). One commenter stated that a “determination” by its very nature involves the consideration of alternatives and the exercise of choice. The commenter further stated that the statute also provides that such effective dates will “assur[e] compliance as expeditiously as practicable.” The commenter asserted that the words “as practicable” provide the Administrator with further discretion to consider facts or circumstances that bear on the wisdom and feasibility of a particular effective date (0828). Commenters also noted that CAA section 112(r)(7)(A) does not impose any maximum time limit for a rule’s effective date (0828, 0833, 0844). Cf. e.g., CAA section 112(e)(1), CAA section 112(i)((3)(A), CAA section 112(j)(5).

Many commenters stated that delaying the effective date is appropriate here because compliance is impracticable while legal challenges to the rule are pending and likely to require significant modifications (82 FR 16,148 – 49), to the rule’s requirements (0844, 0843).

Response: EPA agrees that the Agency has authority to conduct a notice and comment rulemaking to delay the effective date of the Risk Management Program Amendments rule. CAA section 307(d) authorizes the Agency to set effective dates as appropriate through notice and comment rulemaking unless another provision of the CAA controls. The Agency has cited this authority as well as the rulemaking authority in CAA section 112(r)(7) in the preamble to the final rule delaying the effective date of the Risk Management Program Amendments rule. EPA

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also agrees that CAA section 112(r)(7)(A) does not contain any language limiting “as expeditiously as practicable” to an outside date (e.g., “in no case later than date X”).

EPA’s Authority Under Section 705 of the APA

Comment: A few commenters, including industry trade associations, argued that EPA has authority to stay the effective date of the 2017 RMP Amendments under section 705 of the Administrative Procedure Act (APA) (0833, 0843, 0844, 0855). An industry trade association stated that under APA section 705, an agency may issue a stay while judicial review is pending if “justice so requires.” The commenter described a four-part standard for injunctive relief traditionally applied by courts when determining whether to grant a stay pending judicial review and concluded that EPA satisfies all prongs of the four-part standard. The commenter concluded that, therefore, EPA may exercise its authority to delay the effective date of the 2017 RMP Amendments under APA section 705 (0833). Another industry trade association argued that in making a determination of whether “justice so requires” the stay of the effective date of the final rule, an agency must consider, among other things, whether there is a likelihood of success on the merits of the judicial challenge and whether irreparable harm to the challengers would occur absent a stay. The commenter asserted that, in this case, the legal challenges to the rule are likely to succeed on the merits because EPA failed to adequately assess the costs and benefits of the final rules requirements. Therefore, the commenter concluded that the regulated community will suffer significant and irreparable harm if it is required to comply with the rule that is likely to be overturned on appeal (0844).

An industry trade association commented that there is no limitation on the duration of a stay that may be issued under section 705 of the APA by either an agency or a court pending judicial review. Further, the commenter stated that the fact that EPA has stayed the 2017 RMP Amendments pending reconsideration pursuant to its authority under CAA section 307(d)(7)(B) in no way limits its ability to use an APA section 705 stay when such a stay also serves to delay the effective date pending judicial review (0833).

Response: EPA is not taking action under APA section 705 at this time. At this time, we do not believe an indefinite delay is needed to complete the reconsideration. We have no need to take a position at this time on whether the requirements of a delay of effectiveness under the APA are met.

1.1.2 EPA does not have authority to extend the effective date

Comment: Many commenters, including approximately 43,670 commenters associated with a form letter campaign, stated that EPA does not have authority to delay the effective date (0787, 0792, 0856, 0857, 0861). Several advocacy groups argued that the CAA does not allow the agency to delay the rule for longer than three months to consider the arguments provided in the petitions for reconsideration (0857, 0861). An advocacy group stated that EPA’s general rulemaking authority under section 307(d) of the CAA is limited by any other specific provisions of the CAA that might control. The commenter asserted that in the current situation, the specific provisions in CAA section 307(d)(7)(B), which states that any postponement of the effective date pending reconsideration may not exceed three months, control and override EPA’s general rulemaking authority (0857). A joint submission from advocacy groups stated that the D.C. Circuit has ruled that EPA’s general rulemaking authorities cannot be used to delay a rule beyond the three-month limit (Natural Res. Def. Council v. Reilly, 976 F.2d 36, 39, 41 (D.C. Cir. 1992)) (0861).

Response: We disagree with the view that the three month stay provision in CAA section 307(d)(7)(B) prohibits the use of rulemaking to further delay the effectiveness of rules that are not in effect. As an initial matter, were no reconsideration involved, a rule with a future effective

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date could have its effective date delayed simply by a timely rulemaking amending its effective date before the original date. Cf. NRDC v. EPA, 683 F.2d 752, 764 (3d Cir. 1982) (discussing application of rulemaking procedures to action to postpone effective date of rule); NRDC v. Abraham, 355 F.3d 179, 203 (2d Cir. 2004) (discussing amendment of effective date of rule through notice-and-comment process). While one commenter criticizes the initial delay of effectiveness for relying on the good cause exception (arguing that, in lieu of the initial good cause delay, we should have used a notice and comment procedure to delay the effective date), and the subsequent 90-day stay for continuing that delay, neither of those actions were challenged. There is no reasonable dispute that the RMP Amendments are not yet in effect. EPA has explained in both the proposed rule and in the Administrator’s letter of March 13, 2017, that part of its purpose in proposing to delay the effective date 20 months is to not only to conduct a reconsideration on the issue identified in that letter but also to solicit comment on any other matter that will benefit from additional comment. The interpretation of CAA section 307(d)(7)(B) urged by the commenters would say that EPA’s ability to use a notice and comment procedure to delay the effective date for these matters that EPA seeks to solicit additional comment on is negated when there is a reconsideration ongoing as well.

We also disagree with the commenters’ view that the phrase “reconsideration shall not postpone the effective date of the rule” is meant to prohibit using a notice and comment procedure or any means other than the three month stay in CAA section 307(d)(7)(B) to delay a rule that is not in effect. In quoting the statute, the comment omits the word “[s]uch.” In context, “such reconsideration” follows a discussion of the process for convening reconsideration and precedes the 90-day stay provision. A natural reading of the language is that the act of convening reconsideration does not stay a rule but that the Administrator, at his discretion, may issue a stay if he has convened a proceeding. The three-month limitation on stays issued without rulemaking under CAA section 307(d)(7)(B) does not limit the availability or length of stays issued through other mechanisms. Furthermore, CAA section 307(d) expressly contemplates the “revision” of rules to which it applies. See CAA section 307(d)(1)(C); see also CAA section 112(r)(7)(E) (regulations under CAA section 112(r) “shall for purposes of sections 113 . . . and 307 . . . be treated as a standard in effect under subsection (d) of [section 112]”). EPA is issuing this rule as a revision of the RMP Amendments.

The case of Natural Resources Defense Council v. Reilly, 976 F.2d 36 (D.C. Cir. 1992) (NRDC) does not prohibit EPA from using rulemaking procedures under CAA section 307(d) to modify and delay the effective date of the Risk Management Program Amendments. In that case, EPA had made the finding that radionuclides were hazardous air pollutants under the pre-1990 CAA. That finding, in turn, triggered a series of mandatory duties under the CAA that required promulgation of emission standards. EPA did so after several court orders, but, under a series of rules under section 301 of the CAA and the pre-1990 section 112, continuously stayed the effectiveness of those rules. The 1990 Amendments added special provisions for radionuclides, saving the former rules, delaying the effectiveness of a category of rules impacting medical facilities regulated by the Nuclear Regulatory Commission (NRC), and establishing specific procedures for exempting NRC-licensed sources. See CAA section 112(d)(9), CAA section 112(q). EPA conducted a rulemaking under CAA section 112(d)(9) but lacked sufficient data to promulgate an exemption for most NRC-licensed facilities. Nevertheless, EPA promulgated a stay of effectiveness of the radionuclide rules, using CAA section 301, while it gathered the necessary information to establish exemptions. NRDC at 38 – 39. EPA characterized its rule as a transitional rule necessary to implement the intent of the 1990 Amendments. Id. at 40.

The NRDC court observed that the pre-1990 CAA had a highly circumscribed schedule for promulgating hazardous air pollutant rules. NRDC at 41. Recognizing that its past precedents did not allow the grant of general rulemaking authority to override specific provisions of the CAA,

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the court held that “[i]n the face of such a clear statutory command, we cannot conclude that section 301 provided the EPA with the authority to stay regulations that were subject to the deadlines established by [former] section 112(b).” Id.

In contrast to the “clear statutory command” to promulgate rules for radionuclides once they were found to be hazardous air pollutants, CAA section 112(r) contains no similar mandate to promulgate the Risk Management Program Amendments. There is no dispute that EPA discharged its mandatory duty under CAA section 112(r)(7)(B) to promulgate “reasonable regulations” when it promulgated Risk Management Program rule in 1996. These rules have been in effect and stationary sources that have present a threshold quantity of a regulated substance must comply with 40 CFR part 68 as in effect. The Risk Management Program Amendments were not promulgated to comply with a court order enforcing a mandatory duty. In contrast to the specific deadlines in the pre-1990 CAA for hazardous air pollutant regulation and the detailed structure in CAA section 112(d)(9) and section CAA 112(q) for addressing radionuclides under the amended CAA, CAA section 112(r)(7)(A) provides the Administrator substantial discretion regarding the setting of an effective date. The statutory framework for a discretionary rule under CAA section 112(r)(7) differs greatly from the “highly circumscribed schedule” analyzed by the NRDC court. Absent an otherwise controlling provision of the CAA, CAA section 307(d) allows EPA to set a reasonable effective date.

We view the provision in CAA section 112(r)(7)(B) regarding when regulations shall be “applicable” to a stationary source to not prohibit the delay of effectiveness we promulgate in this rule. First, we note that February 2019 is before January 2020 (three years after the January 2017 promulgation), so even assuming the provision in question requires compliance by three years after promulgation of the Risk Management Program Amendments3, it is speculative to say that it is “inevitable” that some compliance dates will be “pushed off far beyond three years” from promulgation. Even if the commenter’s intuition is correct, the argument is premature. A challenge to compliance dates after January 2020 should be brought in litigation over a rule that establishes such a date. Second, the appropriate rule to challenge compliance dates set in the Risk Management Program Amendments would be the underlying rule that established compliance dates (i.e., the Amendments Rule promulgated on January 13,2017). This rule does not impact compliance dates except for those dates that would be triggered prior to February 2019. If EPA proposes amending compliance dates beyond January 13, 2020, then this issue will need to be addressed.

While CAA section 112(r)(7)(B) contains a requirement that EPA’s regulations “provide, to the greatest extent practicable,” for prevention, detection, and response to accidental releases, that subparagraph places this requirement in the context of a mandate for the regulations to be “reasonable.” Under CAA section 112(r)(7)(A), the limitation on EPA’s discretion to set effective dates is that the date should “assur[e] compliance as expeditiously as practicable.” Practicable itself does not prohibit weighing the difficulties of compliance planning and other implementation issues.

3 EPA does not concede that the provision requires all compliance deadlines to be set 3 years from the date of any rule under CAA 112(r)(7)(B)(i). This provision more naturally is read to refer to the earliest possible compliance date for a newly-regulated stationary source. This reading is confirmed by the rest of the sentence, which refers to when a stationary source with a newly-listed substance must comply with CAA 11(r)(7)(B) regulations. The Risk Management Program Amendments itself describes the rationale for when already-regulated sources must comply with the Amendments.

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1.2 Effective date extension rulemaking is arbitrary and capricious

Comment: Many commenters, including a joint submission from advocacy groups, argued that the proposed delay is arbitrary and capricious (0792, 0857, 0861).

A joint submission from advocacy groups argued that the proposed delay is arbitrary and capricious because EPA fails to justify its change in position from the 2017 RMP Amendments to the current proposed rule and fails to reconcile this proposal with its own rulemaking record. The commenter states that EPA must provide a reasoned explanation for the changed effective date. And, because EPA’s delay contradicts factual findings that underlay the 2017 RMP Amendments, the commenter argues that a more detailed justification than what would suffice for a new policy created on a blank slate is required (0861).

The joint submission from advocacy groups also argued that the proposed delay is arbitrary and capricious because the reconsideration process the agency claims justifies this delay does not meet the statutory test for such a process or for EPA’s use of its authority to extend a rule’s effective date pending reconsideration. Specifically, the commenter stated that the CAA includes a specific test for when EPA may initiate reconsideration proceedings, and argued that EPA never met that test. The commenter concluded that the EPA’s desire to delay a rule so that it may perform a reconsideration proceeding that does not fit the CAA’s criteria for such a process provides no justification for the agency’s proposed delay, and EPA has not proposed any other justifications (0861). Similarly, an advocacy group stated that EPA has not identified which issues met the criteria for reconsideration, concluding that EPA’s proposal to stay the rule so that it can reconsider some unknown issues is hopelessly vague and insufficient to explain the statutory basis for staying the rule (0857).

Citing various court cases, an advocacy group argued that the stay would be arbitrary and capricious because EPA has not explained why it is appropriate to forgo the benefits of the Risk Management Rule during the period of the stay. The commenter argued that to justify this delay, EPA must address whether denying the public the benefits of the 2017 RMP Amendments is worth it and why (0857).

A joint submission from advocacy groups also argued that the rule is arbitrary and capricious because EPA has failed to explain why its reconsideration of the 2017 RMP Amendments warrants such a lengthy delay (0861).

Commenters claim that EPA has not shown that a delay of 20 months assures compliance “as expeditiously as practicable”, as required under CAA section 112(r)(7)(A) or provides to “the greatest extent practicable” for prevention, detection, and response, as required under CAA section 112(r)(7)(B). One commenter also stated that EPA appeared “to pick the duration it proposes – 20 months – out of a hat,” and provided no explanation or justification for this timeframe.

Response: EPA disagrees that this rulemaking is arbitrary and capricious. In order to conduct a rulemaking that is reasonable, and therefore not arbitrary and capricious, the courts have held that an agency must “set forth its reasons” for its decision and “establish a rational connection between the facts found and the choice made.4” EPA has done so here. First, the reconsideration process that EPA has initiated does meet the statutory test for such a process. As EPA stated in the proposed rule, under CAA section 307(d)(7)(B), the Administrator must commence a reconsideration proceeding if, in the Administrator’s judgement, the petitioner raises an objection to a rule that was impracticable to raise during the comment period or if the grounds for the objection arose after the comment period but within the period for judicial review, and the objection is of central relevance to the outcome of the rule.

The Administrator’s letter of March 13, 2017, specified at least one issue – BATF’s West finding – met the CAA section 307(d)(7)(B) standard for reconsideration. The letter does not reach

4 See Tourus Records, Inc. v. D.E.A., 259 F.3d 731, 736 (D.C. Cir. 2001).

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conclusions on other issues in the RMP Coalition petition that meet this standard, but notes that at least some issues may have lacked notice and would benefit from additional comment and response. All three petitioners argued that the final rule included new requirements that were not included in the proposed rule, requirements that petitioners would have strongly objected to if they had been afforded an opportunity to comment. In particular, the petitioners cited a provision in the final rule requiring regulated facilities to disclose any information relevant to emergency planning to local emergency planners and a requirement to perform a third-party audit when an implementing agency requires such an audit due to “conditions at the stationary source that could lead to the release of a regulated substance.” Without conceding that these provisions lacked adequate notice, EPA recognizes that these provisions include core requirements for major rule provisions, and so are of central relevance to the outcome of the rule. Thus, BATF’s West finding meets the criteria for reconsideration under CAA section 307(d)(7)(B), and it makes practical sense for EPA to provide an opportunity for comment on these other issues in the reconsideration proceeding. 5

EPA also disagrees with one commenter’s assertion that the lack of discussion in the proposed rule of the forgone benefits of the rule during the period of the delay of effectiveness makes the delay arbitrary and capricious. As an initial matter, the regulatory impact analysis for the Risk Management Program Amendments was unable to conclusively show that the benefits of the final rule exceeded its costs. The lack of a quantification of benefits in the final rule regulatory impact analysis would make a quantification of forgone benefits during the period of a delay speculative at best. However, as noted above, most provisions have a compliance date of 2021, therefore any benefits from compliance would not be impacted.

In deciding whether to implement a regulation, EPA may reasonably consider not only its benefits, but also its costs. Petitioners have claimed that the final Risk Management Program Amendments’ new provisions that were not included in the proposed rule may actually increase the risks and burdens to states, local communities, emergency responders, and regulated entities rather than fixing the problems identified in the proposed rule. It is completely reasonable for EPA to delay implementation of and reexamine the Risk Management Program Amendments when the Agency becomes aware of information, such as that provided by petitioners, that suggests one or more of these provisions may potentially result in harm to regulated entities and the public.

Also, the petitioners’ claims that the new final rule provisions may cause harm to regulated facilities and local communities, and the speculative but likely minimal nature of the forgone benefits, form an additional rational basis for EPA to delay the effectiveness of the Risk Management Program Amendments and determine whether it remains consistent with the policy goals of the Agency and Administration.

EPA also disagrees with a commenter’s assertion that delaying the final rule’s effective date by 20 months violates the requirement under CAA section 112(r)(7)(A) to assure compliance as expeditiously as practicable, or the requirement under CAA section 112(r)(7)(B) to promulgate

5 Even if no issue met the statutory standard for when the Administrator must convene a proceeding for reconsideration under CAA section 307(d)(7)(B), the Administrator retains the discretion to convene a reconsideration process. See Trujillo v. Gen. Elec. Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (“Administrative agencies have an inherent authority to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider.”); Dun & Bradstreet Corp. Found. V. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir. 1991) (“It is widely accepted that an agency may, on its own initiative, reconsider its interim or even its final decisions, regardless of whether the applicable statute and agency regulations expressly provide for such review.”)

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reasonable regulations to the greatest extent practicable. EPA believes that the language of these sections of the CAA gives the Administrator broad authority to determine what factors are relevant to establishing effective dates that are practicable (unlike other sections of the CAA, where Congress constrained “as practicable” to include certain defined time limits). In exercising this authority, EPA believes effective dates must account for all relevant factors. In this case, delaying the effective date of the rule during the reconsideration proceeding is reasonable and practicable because the Agency does not wish to cause confusion among the regulated community and local responders by requiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration. This is particularly true for provisions that might result in unanticipated harm to facilities and local communities, as petitioners have alleged may occur. The Agency notes that compliance with most major provisions in the final rule would not be required until 2021, so delaying the effective date of the final rule would have minimal effect for these provisions.

Lastly, EPA disagrees that it picked the 20-month duration for the proposed delay in effective date “out of a hat,” or provided no explanation or justification for this timeframe. As EPA explained in the proposed rule (82 FR 16148 – 49): “As with some of our past reconsiderations, we expect to take comment on a broad range of legal and policy issues as part of the Risk Management Program Amendments reconsideration…,” and,

“This timeframe would allow the EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, consider other issues that may benefit from additional comment, and take further regulatory action. This schedule allows time for developing and publishing any notices that focus comment on specific issues to be reconsidered as well as other issues for which additional comment may be appropriate. A delay of the effective date to February 19, 2019, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise the Risk Management Program amendments, as appropriate.”

This rationale for the proposed duration of the effective date is neither arbitrary nor capricious.

Comment: Because of Administrator Pruitt’s previous actions as Oklahoma’s Attorney General, a joint submission from advocacy groups argued that he lacks impartiality, which the commenter concluded prevents the rulemaking proceedings “from having any of the trappings of reasoned decision-making” and makes the proposed delay arbitrary and capricious, an abuse of discretion, and an unconstitutional violation of the Due Process Clause. In particular, the comment argued it was an abuse of the Administrator’s discretion not to recuse himself (0861).

Response: The commenter has not demonstrated that Administrator Pruitt is disqualified from participating in this rulemaking or the reconsideration of the RMP Rule.

With respect to the commenters Constitutional Due Process concerns, the court decision cited by the commenter says that an individual should be disqualified from rulemaking “only when there has been a clear and convincing showing that the Department member has an unalterably closed mind on matters critical to the disposition of the proceeding." Air Transp. Ass’n of Am., Inc. v. Nat’l Mediation Bd., 663 F.3d 476, 487 (D.C. Cir. 2011). The commenter has not made a clear and convincing showing that the Administrator has an unalterably closed mind on the matter of the extension of the effective date of the RMP rule and the matters to be considered during the reconsideration process to follow.

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This case cited by commenter follows earlier cases by the U.S Court of Appeals for the District of Columbia Circuit that have held that "the mere discussion of policy or advocacy on a legal question . . . is not sufficient to disqualify an administrator." C&W Fish Co., Inc. v. Fox, 931 F.2d 1556, 1565 (D.C. Cir. 1991); Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1171 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980). In the C&W Fish case, the court addressed a substantially similar circumstance involving a decision on the regulation of fishing with gillnets by an Assistant Administrator for Fisheries in the National Oceanic and Atmospheric Association who had previously advocated a position on the use of gillnets when he served in state government as the chairman of the Florida Marine Fisheries Commission. The court wrote that “the facts in this case do not even approach a ‘clear and convincing showing’ that [the Assistant Administrator] had an ‘unalterably closed mind.’ Id. at 1565.

Furthermore, an attorney’s prior advocacy of particular positions on behalf of a client does not demonstrate that the attorney has an unalterably closed mind on that topic when serving in a different capacity. An attorney functions as a representative of clients, and when serving as an advocate for a client, an attorney is obligated to zealously assert the position of the client he represents. Preamble: A Lawyer’s Responsibilities, American Bar Association, Model Rules of Professional Conduct; Preamble: A Lawyer’s Responsibilities, Oklahoma Rules of Professional Conduct. But “[a] lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” Rule 1.2(b), American Bar Association, Model Rules of Professional Conduct; See also Rule 1.2, Comment 5 Oklahoma Rules of Professional Conduct, (“representing a client, including representation by appointment, does not constitute approval or endorsement of the client's political, economic, social or moral views or activities.”)

The Administrator’s participation in this matter or the reconsideration proceeding to come is not restricted under Federal ethics laws or regulations or Executive Order 13770. The May 4, 2017 recusal statement from Administrator Pruitt articulated his ethics obligations based on consultation with the EPA’s Office of General Counsel’s Ethics Office (OGC/Ethics). The statement explains that restrictions in the President’s Ethics Pledge regarding former employer and former client do not apply to state governments. Mr. Pruitt is therefore not subject to Section 6 of Executive Order 13770. See Office of Government Ethics advisories LA-17-03, “Guidance on Executive Order 13770” (3/20/17); LA-17-02, “Executive Order 13770” (2/6/17); and DO-09-011 “Ethics Pledge: Revolving Door Ban—All Appointees Entering Government. The May 4, 2017 recusal statement also explains that the one-year cooling off period set forth under Federal impartiality standards preclude personal and substantial participation in particular matters involving specific parties (emphasis added) only. The restriction at 5 C.F.R. § 2635.502(b)(1)(iv) does not extend to “particular matters of general applicability,” such as rulemaking, or to the broad category of “matters,” such as Clean Air Act Section 112(r) Risk Management Plans. Therefore, agency ethics officials confirm that the Administrator is permitted under the Federal ethics laws and regulations to participate in the RMP rulemaking process.

With respect to the Administrator’s ethical obligations to his former client under rule 1.11 of the Oklahoma Rules of Professional Conduct, this rule defines a “matter” as “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.” Rule 1.11(e), Oklahoma Rules of Professional Conduct. The RMP Rule is a matter of general applicability, and not a matter involving a specific party or parties. Thus, rule 1.11 is not applicable to the Administrator’s participation in the reconsideration of the RMP rule or this rule to extend the effective date of the RMP rule.

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Comment: A form letter campaign joined by approximately 43,670 commenters more generally argued that EPA provided no valid justification for delaying the effective date (0856).

Response: EPA disagrees that the Agency provided no valid justification for delaying the effective date of the Risk Management Program Amendments rule. The Administrator’s letter of March 13, 2017, specified at least one issue – BATF’s West finding – met the CAA section 307(d)(7)(B) standard for reconsideration. The letter does not reach conclusions on other issues in the RMP Coalition petition that meet this standard, but notes that at least some issues may have lacked notice and would benefit from additional comment and response. As EPA explained in the proposed rule (82 FR 16148 – 49): “As with some of our past reconsiderations, we expect to take comment on a broad range of legal and policy issues as part of the Risk Management Program Amendments reconsideration…,” and,

“This [20 month] timeframe would allow the EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, consider other issues that may benefit from additional comment, and take further regulatory action. This schedule allows time for developing and publishing any notices that focus comment on specific issues to be reconsidered as well as other issues for which additional comment may be appropriate. A delay of the effective date to February 19, 2019, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise the Risk Management Program amendments, as appropriate.”

Comment: Several commenters, including a joint submission from advocacy groups, commented that EPA’s attempt to rest its proposed delay on a change regarding the potential cause of the West, Texas incident fails utterly because the findings of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were announced during the comment period and received broad media attention. The commenters argued that EPA could not find that it was impracticable to raise this issue during the comment period because many groups did just that (0861, 0841). These commenters indicated that Executive Order 13650 was not specifically based on the West Fertilizer event, and that EPA did not justify the Risk Management Program Amendments rule on that single incident, but rather that EPA indicated an average of approximately 150 chemical accidents have occurred each year, and the rule’s provisions were intended to address all such accidents (0841, 0778, 0861, 0859, 0851). Furthermore, other commenters noted that the 2017 RMP Amendments would address conditions at West Fertilizer that enabled the fire to escalate into a massive detonation, and the communication issues that arose in West, Texas, and contributed to the needless deaths of emergency responders (0841, 0834).

Response: As an initial matter, the Agency’s decision to convene a proceeding for reconsideration was made in a separate action – the Administrator’s Letter of March 13, 2017. The merits of that decision are not properly subject to collateral attack in this rule. The substantive impact of the BATF finding on the policy issues opened in the reconsideration-related proposed rule may be addressed in the notice and comment period for that rule. The focus of this delay of effectiveness rule is to provide sufficient time to conduct a proceeding on the complex set of issues identified by the petitions as well as other issues that merit additional comment.

EPA disagrees that the BATF finding of arson as the cause of the West Fertilizer explosion does not provide grounds for reconsideration of the Risk Management Program Amendments final rule. While EPA agrees that the incident was not the sole justification for Executive Order 13650, and the Agency did not solely rely on it as justification for the Risk Management Program Amendments, there is no question that the event was the proximate trigger for Executive Order

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136506 and prominently featured in the Agency’s Risk Management Program Amendments proposed rule7. EPA believes the prominence of the incident in the policy decisions underlying Executive Order 13650 and the Risk Management Program Amendments rule makes the BATF finding regarding the cause of the incident of central relevance to the rule amendments. If the cause of the West Fertilizer explosion had been known sooner, the Agency may have possibly given greater consideration to potential security risks posed by the proposed rule amendments. All three of the petitions for reconsideration and many of the commenters discuss potential security concerns with the rule’s information disclosure requirements to LEPCs and the public. The RMP Coalition petition and some commenters argue that knowing that the West TX incident was an intentional, rather than an accidental act, would likely have resulted in more focus on enhanced facility security measures and justifications for the need for third-parties to obtain facility information, with protections on data use and further disclosure.

Clearly, EPA does not desire to establish regulations that increase security risks. While EPA has not concluded that the final rule would increase such risks, the petitioner’s concerns, which are echoed by many other commenters, require careful consideration, and cannot be dismissed out of hand.

1.3 Other legal arguments on the effective date extension rulemaking

Comment: Commenters provided various other legal arguments on the proposed rule to delay the effective date. An advocacy group argued that the delay is impermissible because the EPA failed to seek notice and comment on the previous delays to the effective date. The commenter argued that the problem with the current rulemaking is that EPA already delayed the rule’s effective date two times without public comment and is now trying to roll those two stays into this third stay without receiving public comment on delaying the rule in the first place (0857).

Response: While one commenter criticizes the initial delay of effectiveness for relying on the good cause exception (arguing that, in lieu of the initial good cause delay, we should have used a notice and comment procedure to delay the effective date), and the subsequent 90-day stay for continuing that delay, neither of those actions were challenged. There is no reasonable dispute that the RMP Amendments are not yet in effect. EPA has explained in both the proposed rule and in the Administrator’s letter of March 13, 2017, that part of its purpose in proposing to delay the effective date 20 months is to not only to conduct a reconsideration on the issue identified in that letter but also to solicit comment on any other matter that will benefit from additional comment. We note that, were no reconsideration involved, a rule with a future effective date could have its effective date delayed simply by a timely rulemaking amending its effective date before the original date. Cf. NRDC v. EPA, 683 F.2d 752, 764 (3d Cir. 1982) (discussing application of rulemaking procedures to action to postpone effective date of rule); NRDC v. Abraham, 355 F.3d 179, 203 (2d Cir. 2004) (discussing amendment of effective date of rule through notice-and-

6 See Executive Order 13650, Actions to Improve Chemical Safety and Security – A Shared Commitment; Report for the President, May, 2014, pp 1: “The West, Texas, disaster in which a fire involving ammonium nitrate at a fertilizer facility resulted in an explosion that killed 15 people, injured many others, and caused widespread damage, revealed a variety of issues related to chemical hazard awareness, regulatory coverage, and emergency response. The Working Group has outlined a suite of actions to address these issues…” 7 In the proposed rule, EPA referred to the West Fertilizer event more than 15 times. For example, see 81 FR 13640, column 1: “In response to catastrophic chemical facility incidents in the United States, including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013 that killed 15 people, President Obama issued Executive Order 13650, “Improving Chemical Facility Safety and Security,” on August 1, 2013.”

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comment process). We are using the notice and comment procedure before the rule becomes effective, and that is all CAA section 307(d) requires.

Comment: Some commenters including a legal institute affiliated with a law school and a joint submission from advocacy groups argued that EPA has violated the procedural requirements of the CAA by failing to explain why its reconsideration of the 2017 RMP Amendments warrants such a lengthy delay (0857, 0861). The commenters reasoned that this omission of justification was problematic because the vagueness of the proposal denies interested parties a meaningful opportunity to comment on the proposed rule. One commenter also stated that EPA appeared “to pick the duration it proposes – 20 months – out of a hat,” and provided no explanation or justification for this timeframe (0861). One commenter stated that further delay makes it more likely that another incident like the West Fertilizer explosion and other events discussed in the record, will occur (0792).

Response: The three petitions for reconsideration cover numerous policy and legal issues with the Risk Management Program Amendments. As stated in the April 3, 2017 proposal (82 FR 16148-16149) these issues may be difficult and time consuming to evaluate, and given the expected high level of interest from stakeholders in commenting on these issues, we proposed a longer delay of the effective date to allow additional time to open these issues for review and comment. Additionally, in both the Administrator’s letter of March 13, 2017 as well as the proposed delay of effectiveness rule, EPA indicated it may raise other matters we believe will benefit from additional comment (82 FR 16148 – 16149). Resolution of issues may require EPA to revise the amendments through a rulemaking process, which would involve a developing a proposal to focus comment of specific issues as well as other issues for which additional comment may be appropriate, allowing sufficient opportunity for public comment, review and respond to comments, and develop any final revisions. The rulemaking process also must allow time for Agency, inter-agency and OMB review of the proposed and final rule. Based on EPA rulemaking experience, EPA decided that a 20-month delay was warranted. Some industry commenters have pointed out that without such a delay, regulated parties would need to expend resources to prepare for compliance with the Risk Management Program Amendments final rule provisions while further changes to the program are being contemplated.

EPA disagrees that it picked the 20-month duration for the proposed delay in effective date “out of a hat,” or provided no explanation or justification for this timeframe. As EPA explained in the proposed rule (82 FR 16148 – 16149): “As with some of our past reconsiderations, we expect to take comment on a broad range of legal and policy issues as part of the Risk Management Program Amendments reconsideration…,” and,

“This timeframe would allow the EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, consider other issues that may benefit from additional comment, and take further regulatory action. This schedule allows time for developing and publishing any notices that focus comment on specific issues to be reconsidered as well as other issues for which additional comment may be appropriate. A delay of the effective date to February 19, 2019, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise the Risk Management Program amendments, as appropriate.”

EPA has explained in both the proposed rule and in the Administrator’s letter of March 13, 2017, that part of its purpose in proposing to delay the effective date 20 months is to not only to conduct a reconsideration on the issue identified in that letter but also to solicit comment on any other matter that will benefit from additional comment.

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Given the degree of complexity with the issues under review, and the likelihood of significant public interest in this reconsideration, we believe the delay we are adopting in this action is consistent with a realistic and achievable schedule for the reconsideration. While it is possible that we may require less time to complete the reconsideration, we believe delaying the effective date by a full 20 months is reasonable and prudent. This additional delay of the effective date enables EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise or rescind the Risk Management Program Amendments, as appropriate.

Comment: A joint submission from advocacy groups argued that the delay in the effective date would violate section 7412(r) of the CAA because the proposed rule does not consider, address, or show how delaying the effective date could be consistent with the statutory objectives of preventing accidental releases and “provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regulated substances and for response to such releases by the owners or operators of the sources of such releases.” (0861) These commenters contend that EPA already determined that its pre-existing regulations were failing to protect human health and the environment by listing in its March 2016 proposal of the RMP Amendments examples of disasters prior rule failed to prevent and they maintain that the delay of the effective date of the Rule’s protections for 20 months will fail to “protect human health and the environment” from the risks EPA identified. The commenters argue that the emergency coordination and exercises provisions in the RMP Amendments modified existing provisions that provide for “response to such release by the owners or operators of the sources of such releases” as required by CAA section 112(r)(7)(B)(i), but that EPA does not show how its proposal for delay meets this requirement. The commenters also argued that EPA has not shown that a delay of 20 months provides to “the greatest extent practicable” for prevention, detection, and response, as required by CAA section 112(r)(7)(B).

The commenters also argue that the proposed rule also fails to meet the requirements for action pursuant to CAA section 112(r)(7)(A), which requires that any such regulations “shall have an effective date, as determined by the Administrator, assuring compliance as expeditiously as practicable.”

The commenters also contend that the RMP Amendments “shall be applicable to a stationary source 3 years after the date of promulgation” (as required by CAA section 112(r)(7)(B)(i)) and that extending the effective date by 20 months will inevitably result in pushing some or all of the compliance deadlines far beyond three years, and be in violation of the Act’s directive – and Congress’s express intent that such regulations become effective promptly (0861).

Response: EPA disagrees that delaying the effective date is inconsistent with the statutory objectives of preventing accidental releases and providing to “the greatest extent practicable” for prevention, detection, and response to such releases. The existing RMP rule has been effective in preventing and mitigating chemical accidents, and these protections will remain in place during EPA’s reconsideration of the Risk Management Program Amendments.8 EPA notes that delaying the effective date of the Risk Management Program Amendments rule simply maintains the status quo, which means that the existing RMP rule remains in effect. EPA also notes that compliance dates for most major provisions of the Risk Management Program Amendments rule were set for

8 See 82 FR 4595, January 13, 2017.

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four years after the final rule’s effective date, so EPA’s delay of that effective date has no immediate effect on the implementation of these requirements.

EPA disagrees that the proposed rule violates the requirement under CAA section 112(r)(7)(B) to promulgate reasonable regulations to the greatest extent practicable. While CAA section 112(r)(7)(B) contains a requirement that EPA’s regulations “provide, to the greatest extent practicable,” for prevention, detection, and response to accidental releases, that subparagraph places this requirement in the context of a mandate for the regulations to be “reasonable.” The requirement to promulgate reasonable regulations “to the greatest extent practicable,” in itself, does not prohibit weighing the difficulties of compliance planning and other implementation issues.

EPA also disagrees with a commenter’s assertion that delaying the final rule’s effective date by 20 months violates the requirement under CAA section 112(r)(7)(A) to assure compliance as expeditiously as practicable. EPA believes that the language of both CAA section 112(r)(7)(A) and (B) gives the Administrator broad authority to determine what factors are relevant to establishing effective dates that are practicable (unlike other sections of the CAA, where Congress constrained “as practicable” to include certain defined time limits). In exercising this authority, EPA believes effective dates must account for all relevant factors. In this case, delaying the effective date of the rule during the reconsideration proceeding is reasonable and practicable because the Agency does not wish to cause confusion among the regulated community and local responders by requiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration. This is particularly true for provisions that might result in unanticipated harm to facilities and local communities, as petitioners have alleged may occur. The Agency notes that compliance with most major provisions in the final rule would not be required until 2021, so delaying the effective date of the final rule would have minimal effect on the benefits of compliance with these provisions.

We view the provision in CAA section 112(r)(7)(B) regarding when regulations shall be “applicable” to a stationary source to not prohibit the delay of effectiveness we promulgate in this rule. First, we note that February 2019 is before January 2020 (three years after the January 2017 promulgation), so even assuming the provision in question requires compliance by three years after promulgation of the Risk Management Program Amendments9, it is speculative to say that it is “inevitable” that some compliance dates will be “pushed off far beyond three years” from promulgation. Even if the commenter’s intuition is correct, the argument is premature. A challenge to compliance dates after January 2020 should be brought in litigation over a rule that establishes such a date. Second, the appropriate rule to challenge compliance dates set in the Risk Management Program Amendments would be the underlying rule that established compliance dates (i.e., litigation over the January 13, 2017 rule). This rule does not impact compliance dates except for those dates that would be triggered prior to February 2019. If EPA proposes amending compliance dates beyond January 13, 2020, then this issue will need to be addressed.

9 EPA does not concede that the provision requires all compliance deadlines to be set 3 years from the date of any rule under CAA 112(r)(7)(B)(i). This provision more naturally is read to refer to the earliest possible compliance date for a newly-regulated stationary source. This reading is confirmed by the rest of the sentence, which refers to when a stationary source with a newly-listed substance must comply with CAA 11(r)(7)(B) regulations. The Risk Management Program Amendments itself describes the rationale for when already-regulated sources must comply with the Amendments.

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Comment: An advocacy group argued that EPA must explain how and why this proposed suspension of the RMP Amendments, a rule that EPA found “economically significant”, is not significant itself (0857).

Response: The RMP Amendments rule is considered an “economically significant” rule because its annualized costs were estimated to exceed $100 million. Executive Order 12866, Regulatory Planning and Review, defines a “significant regulatory action” as any regulatory action that is likely to result in a rule that may “have an annual effect on the economy of $100 million or more...” and it requires that significant regulatory actions be submitted to OMB for review. EPA estimated annualized costs of the final RMP Amendments to be $131.2 million at a 3% discount rate and $131.8 million at a 7% discount rate.

For the final rule further delaying the effective date of the RMP Amendments by 20 months, EPA stated in section VI. Statutory and Executive Orders, A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review, that this action is a significant regulatory action. It was therefore submitted to the Office of Management and Budget (OMB) for review. However, this determination of significance does not mean that the final rule is an economically significant rule under EO 12866, as the final rule to delay the effective date of the RMP Amendments does not impose any costs on the economy.

2. Support for extending the effective date until February 2019

2.1. Lack of sufficient notice and comment period on 2016 RMP proposed amendments

2.1.1 New provisions added to the final rule that were not in the 2016 RMP proposed amendments

Comment: Several commenters, including industry trade associations, argued that the effective date should be delayed because the 2017 RMP Amendments included provisions on which the public was never given an opportunity to comment (0776, 0798-19, 0798-21, 0809, 0826, 0833, 0843, 0844). An industry trade association argued that the final rule expanded the proposed requirements, depriving stakeholders of the ability to comment on the costs and implications of the newly added provisions (0826). Another industry trade association argued that for some provisions there was no logical outgrowth from what was proposed to what was finalized (0833). Commenters identified the following provisions as examples of requirements included in the final rule on which commenters were never given an opportunity to provide input: (1) information disclosure requirement that different from that which was proposed and (2) criterion for requiring a third-party audit that differ from what was proposed (0809, 0826, 0843, 0844).

Response: EPA agrees that the final rule included some rule provisions that may have lacked notice and would benefit from additional comment and response. Finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule will allow EPA to conduct a reconsideration process that will address commenters’ issues as appropriate.

2.1.2 Docket materials not posted at beginning of the comment period

Comment: Several commenters, including industry trade associations, argued that a delay in the effective date is needed to rectify errors in the rulemaking process associated with the 2017 RMP Amendments, including concerns related to the availability of docket materials during the comment period (0798-16, 0835, 0842, 0850). Industry trade associations asserted that more than a hundred new documents were added to the docket after the close of the 2017 RMP Amendments comment period, several of which were used to justify key provisions of the rule (0835, 0850). A joint submission from industry trade associations stated that interested parties were not able to provide comment on the documents that were added to the docket after the comment period closed (0850). An industry trade

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association commented that a Freedom of Information Act (FOIA) request revealed to the commenter that numerous documents were omitted from the rulemaking docket during the comment period. The commenter concluded that additional time is needed before the 2017 RMP Amendments should become effective for EPA to provide stakeholders with the information needed to submit informed comments on any revisions to the RMP program (0855).

Response: Without taking a position on whether these documents required additional comment under the rulemaking procedures of CAA section 307(d), a benefit of reopening comment on the topics that meet the reconsideration standard of CAA section 307(d)(7)(B) will be to allow for comment on some or all of these documents.

2.1.3 Other comments on lack of sufficient notice and comment period on 2016 RMP proposed amendments

Comment: A few commenters, including a facility and industry trade associations, stated that a delay is needed to provide stakeholders a meaningful opportunity to comment on the 2017 RMP Amendments, which the commenters argued was not provided prior to the publication of the final rule (0798-04, 0829, 0833). An industry trade association commented that there were procedural deficiencies in the 2017 RMP Amendments that deprived commenters of effective notice and comment (0833). A facility stated that EPA had not allowed for enough time to adequately comment on important topics such as third-party audits and the security implications around information availability to the public (0829). An industry group contends that the record does not support the final RMP Amendments, failing in numerous instances to even respond to comments submitted on fundamental aspects of and incorrect assumptions that underlay the proposal (0843).

A few commenters, including industry trade associations, noted that multiple requests for an extension of the comment period were denied (0798-12, 0798-16, 0835, 0842). A joint submission from industry trade associations stated that EPA’s refusal to extend the comment period is an example of the hurried nature of the rulemaking process for the 2017 RMP Amendments (0850). A trade association claims that despite OMB’s recommendation for a 90-day comment period, EPA provided a mere 60 days to comment on a complex proposal that would have a major impact on regulated facilities and included more than 70 explicit topics, almost 300 supporting documents for the proposal, including a lengthy regulatory impact analysis (0835).

Response: While EPA does not now concede that the Agency provided insufficient notice and opportunity to comment on the 2016 proposed RMP Amendments or made errors in its rulemaking procedures, we note that commenters have raised substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. Therefore, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding that will allow EPA to address commenters’ issues as appropriate.

2.2 Changing circumstances necessitating additional opportunity for comment

2.2.1 Information about criminal cause of West, Texas incident

Comment: Several commenters, including industry trade associations, stated that a delay in the effective date is needed to allow for reconsideration of the 2017 RMP Amendments in light of the ATF’s announcement that the West, Texas explosion was the result of an act of arson (0798-06, 0826, 0833, 0855). An industry trade association commented that the timing of ATF’s announcement precluded the

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development and submission of meaningful comments that address this change in circumstances and its implications. The commenter stated that ATF’s announcement could impact the way stakeholders would recommend striking the balance between the need for dissemination of sensitive, facility-specific information and facility security (0826).

Response: EPA agrees that the timing of the BATF finding on the West Fertilizer incident made it impracticable for many commenters to meaningfully address the significance of this finding in their comments on the rule. Additionally, delaying the effective date of the final rule to February 19, 2019, will give the Agency an opportunity to consider comments on the BATF finding and take further action to reconsider the rule, propose any necessary changes, and provide opportunity for public comment on any changes made.

2.3 Safety and security concerns related to implementation of the final rule

Comment: Many commenters, including a facility, industry trade associations, and a joint submission from State Attorneys General, argued that the effective date should be delayed because the revised RMP rule creates significant security risks (0776, 0777, 0798-06, 0798-19, 0798-21, 0809, 0815, 0826, 0831, 0838, 0839, 0840, 0842, 0843, 0844, 0850, 0855). Many commenters argued that the security risks would result from the information disclosure requirements in the 2017 RMP Amendments (0776, 0777, 0798-06, 0798-19, 0809, 0815, 0826, 0831, 0838, 0840, 0842, 0843, 0850, 0844). For example, an industry trade association commented that the information sharing and public meeting requirements could create security risks by requiring the disclosure of information that could undermine the overall safety and security of the facility (0840). Similarly, another industry trade association expressed concern about the provisions allowing members of the public to request information directly from facilities that do not offer the facility the ability to deny such a request if it presents a security risk. Additionally, the commenter expressed concern with the open-ended ability of local emergency planning committees (LEPCs) to request information they deem relevant to emergency response planning and the lack of process to determine if requests are proper or to ensure security-sensitive information is adequately protected (0843). An industry trade association argued that EPA should reconsider the inherently safer technologies (IST) requirement because it could expose facilities to new and potentially greater risks (0826).

Response: While it is not necessary for EPA to address the substance of these claims in this rulemaking, we note they represent a wide-ranging and complex set of policy and procedural issues. Some of these issues would not meet the standard for reconsideration under CAA section 307(d)(7)(B), but present substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. Whether or not EPA agrees with commenters on the merits of these claims, the Agency believes the existence of such a large set of unresolved issues demonstrates the need for careful reconsideration and reexamination of the Risk Management Program Amendments. Therefore, while EPA does not now concede that it should make the particular regulatory changes that these commenters have recommended, or that the Agency made errors in its regulatory impact analysis or rulemaking procedures, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding. That proceeding will allow EPA to address commenters’ issues as appropriate.

In deciding whether to implement a regulation, EPA may reasonably consider not only its benefits, but also its costs. Petitioners have claimed that the final Risk Management Program Amendments’ new provisions that were not included in the proposed rule may actually increase the risks and burdens to states, local communities, emergency responders, and regulated entities rather than fixing the problems identified in the proposed rule. It is completely reasonable for EPA to delay implementation of and reexamine the Risk Management Program Amendments

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when the Agency becomes aware of information, such as that provided by petitioners, that suggests one or more of these provisions may potentially result in harm to regulated entities and the public.

2.4 Cost burden to regulated facilities and emergency response organizations

Comment: Several commenters, including a professional organization and industry trade associations, argued that the delay was needed so that facilities were not required to take steps to achieve compliance with the various provisions of the rule that may change as EPA reconsiders the 2017 RMP Amendments (0776, 0814, 0828, 0835, 0836, 0843, 0844, 0847, 0850). An industry trade association commented that failing to extend the RMP rule’s effective date beyond the initial 90-day extension would mean that covered entities would begin taking steps and incurring costs to comply with the new rule for a short period of time, and then incur additional costs to comply with future revisions to the rule that are likely to be substantial (0844). Similarly, another industry trade association commented that to proceed with implementing a stayed rule that will likely soon be changed would require hundreds of facilities to spend significant employee and financial resources to change internal systems, only to have to change them yet again when the rule is revised (0828).

Response: EPA agrees that the effective date of the RMP Amendments should be further delayed in order to prevent industry expending resources to comply with changes that warrant further review and would potentially be revised. In this case, delaying the effective date of the rule during the reconsideration proceeding is reasonable and practicable because the Agency does not wish to cause confusion among the regulated community and local responders by requiring these parties to prepare to comply with, or in some cases, immediately comply with, rule provisions that might be changed during the subsequent reconsideration. The Agency notes that compliance with most major provisions in the final rule would not be required until 2021, so delaying the effective date of the final rule would have minimal effect on the benefits derived from compliance with these provisions.

Comment: Several commenters, including industry trade associations and a joint submission from State Attorneys General, stated that a delay is needed to reconsider the rule, including reevaluating the economic analysis performed, which the commenters argued was flawed (0798-21, 0809, 0826, 0835, 0839, 0844, 0855). An industry trade association provided a detailed explanation of what they believe to be the flaws in EPA’s cost-benefit analysis (0844). An industry trade association stated that the cost-benefit analysis should be reconsidered consistent with Executive Orders (EOs) 13771 and 13777 (0826).

A few commenters, including industry trade associations, supported a delay in the effective date in part because they believe that some of the finalized provisions will add costs for regulated facilities but do not provide equivalent benefits (0777, 0809, 0826, 0831, 0798-04). An industry trade association expressed concern for the implementation of the RMP amendments because they overlapped and conflicted with other federal programs, concluding that the rule would be duplicative and add regulatory burdens with no additional benefits (0777). Another industry trade association commented that what appears to be missing from the rulemaking is an analysis of the overall effectiveness of the current chemical safety regulatory regime, why major incidents continue to occur, and what is the best mechanism for minimizing their frequency and severity in the most-cost effective manner consistent with EPA’s and the Occupational Safety and Health Administration’s (OSHA) statutory authority (0838). Another industry trade association commented that EPA needs to ensure that the RMP regulations do not overlap or create inconsistency with OSHA’s PSM regulations and the U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program. The commenter asserted that the 2017 RMP Amendments, if effective, would be duplicative of those standards and add regulatory burdens,

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costs, confusion, and inefficiencies with minimal or no improvement in safety or security at facilities (0842). Some commenters identified specific provisions included in the 2017 RMP Amendments that they believe would create significant or undue burdens (0798-16, 0842). For example, an industry trade association commented that the new third-party auditing provisions may create undue burdens for small businesses (0798-16). Another industry trade association commented that the coordination and emergency response exercise requirements would impose significant burdens on LEPCs and local emergency responders (0842).

Response: While it is not necessary for EPA to address the substance of these claims in this rulemaking and some would not meet the standard for reconsideration under CAA section 307(d)(7)(B), they present substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. While EPA does not now concede that the Agency made errors in its regulatory impact analysis or rulemaking procedures, or that the RMP Amendments conflict with other Federal programs, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding. That proceeding will allow EPA to address commenters’ issues as appropriate.

2.5 Insufficient coordination with OSHA by EPA

Comment: A few commenters argued that the effective date of the 2017 RMP Amendments should be stayed because EPA failed to participate in sufficient coordination with OSHA throughout the rulemaking process (0838, 0843, 0844). An industry trade association commented that EPA neglected to engage with OSHA as necessary to ensure consistency between RMP and PSM requirements, creating an increased compliance burden for regulated entities subject to both regulatory schemes (0843). An industry trade association commented that EPA’s failure to engage in any meaningful coordination with OSHA, as required by the CAA, is evidenced by the fact that the 2017 RMP Amendments diverge in significant ways from the requirements of OSHA’s PSM standard (0844).

A facility argued in favor of a delay in the effective date in order to provide sufficient time to harmonize RMP amendments with anticipated changes to OSHA’s PSM program (0815). Similarly, an industry trade association stated that delaying the effective date would provide EPA and OSHA with sufficient time to better align the requirements to best promote safety and reduce unnecessary regulatory burdens (0828).

Response: While EPA notes that it is not necessary for the Agency to address the substance of these claims in this rulemaking, and some would not meet the standard for reconsideration under CAA section 307(d)(7)(B), they present substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. Therefore, while EPA does not now concede that the Agency conducted insufficient coordination with OSHA, made errors in its rulemaking procedures, or should make the particular regulatory changes that these commenters have recommended, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding. That proceeding will allow EPA to address commenters’ issues as appropriate.

2.6 Insufficient coordination with stakeholders or consideration of stakeholder comments

2.6.1 SBREFA concerns

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Comment: Several commenters, including a professional organization and industry trade associations, commented that the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) process was rushed (0798-12, 0798-16, 0777, 0835, 0845, 0850). A professional organization and an industry trade association commented that EPA ignored its obligations under SBREFA by submitting the proposed rule to the Office of Management and Budget (OMB) before the Small Business Advocacy Review (SBAR) panel completed its report. The commenters asserted that EPA’s failure to wait until the completion of the SBAR panel report raises serious questions about EPA’s commitment to the public comment process that is central to EPA’s rulemaking authority under the CAA (0777, 0845).

An industry trade association commented that EPA violated the spirit of the Regulatory Flexibility Act (RFA), which requires EPA to convene a SBAR panel when a proposed action will have a significant impact on a substantial number of small business entities, by failing to follow the procedures outlined, ignoring the SBAR panel’s recommendations, and not fully considering the impact of the regulation on small businesses (0842).

Response: While EPA notes that it is not necessary for the Agency to address the substance of these claims in this rulemaking, and some would not meet the standard for reconsideration under CAA section 307(d)(7)(B), they present substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. Therefore, while EPA does not now concede that the Agency failed to meet its obligations under the SBREFA or the RFA, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding. That proceeding will allow EPA to address commenters’ issues as appropriate.

2.6.2 Other comments on insufficient coordination with stakeholders or consideration of stakeholder concerns

Comment: Several commenters, including a facility and industry trade associations, stated that EPA did not adequately consider or address public comments in the final rule (0776, 0777, 0829, 0837, 0842, 0843, 0844). Industry trade associations stated that EPA failed in numerous instances to respond to comments submitted on fundamental aspects of and incorrect assumptions that formed the basis of the 2017 RMP Amendments (0776, 0843). Another industry trade association questioned whether the rushed process associated with the 2017 RMP Amendments may have resulted in EPA inadequately considering the public comments and concerns raised during interagency review (0842). Another industry trade association commented that the final rule does not adequately address concerns raised in comments submitted during the rulemaking process regarding the shortage of qualified auditors who satisfy the rule’s competence and independence criteria (0844).

Response: While it is not necessary for the Agency to address the substance of these claims in this rulemaking, and some would not meet the standard for reconsideration under CAA section 307(d)(7)(B), the Agency believes they present substantial policy concerns that EPA may wish to address while it conducts the reconsideration process for issues that meet that reconsideration standard. Therefore, while EPA does not now concede that the Agency failed to adequately consider or address public comments in the RMP Amendments final rule, EPA concurs with commenters to the extent that they argue for finalizing the proposed delay in the effective date of the Risk Management Program Amendments rule in order to conduct a reconsideration proceeding. That proceeding will allow EPA to address commenters’ issues as appropriate.

2.7 Other comments in support of extending the effective date

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Comment: Many commenters, including a facility, industry trade associations, and a joint submission from State Attorneys General, argued that the effective date should be delayed to give EPA adequate time to provide full consideration of the issues raised in petitions for reconsideration (0777, 0804, 0814, 0826, 0831, 0833, 0835, 0837, 0839, 0842, 0843, 0844). An industry trade association stated that delaying the implementation date would allow EPA to continue its solicitation process on particular aspects of the rule (0836). Some of the commenters making this argument described what they believed to be the flaws in the 2017 RMP Amendments (0777, 0814, 0837, 0842, 0844). An industry trade association commented that the delay was appropriate in order to give the new Administration enough time to transition into their new roles at EPA and then reconsider the RMP amendments (0831).

Without necessarily linking their argument to the petitions for reconsideration, many commenters identified flaws in the 2017 RMP Amendments and argued that EPA should delay the effective date in order to make needed revisions (0798-04, 0809, 0815, 0838, 0840, 0850).

Several commenters noted that there is a robust regulatory framework already in place to promote safety and minimize the impacts of chemical incidents during the stay of the effective date (0798-06, 0809, 0831, 0845, 0855).

In addition to other reasons, an industry trade association argued that the effective date should be stayed to permit EPA to issue additional guidance to eliminate the existing confusion regarding the nature and scope of the compliance obligations imposed by the new incident investigation requirements. The commenter also argued that a stay of the final rule would permit EPA to re-evaluate the rule to ensure that the requirements are harmonized with current industry standards to the maximum extent practicable, which the commenter asserted is required under the CAA (0844).

An industry trade association stated that the delay in the effective date would promote the EPA’s mission of protecting communities and the environment (0798-17).

Response: EPA agrees that the effective date of the RMP Amendments final rule should be delayed until February 19, 2019, in order to give EPA adequate time to conduct a reconsideration proceeding. That proceeding will address petitioners’ issues that meet the reconsideration standard under CAA section 307(d)(7)(B), as well as other issues that may benefit from additional comment. As EPA has previously indicated, the existing RMP rule has been effective in preventing and mitigating chemical accidents, and these protections will remain in place during EPA’s reconsideration of the Risk Management Program Amendments.10

3. Opposition to extending the effective date until February 2019

3.1 Safety concerns with existing RMP rule

Comment: Many commenters expressed concern that delaying the effective date of the 2017 RMP Amendments will prolong the safety and security issues associated with the existing RMP rule and with the status quo before the RMP Amendments. Several commenters, including some advocacy groups, numerous private citizens, and form letter campaigns joined by approximately 48,290 individuals, said that the 2017 RMP Amendments will improve safety and delaying the effective date will put the public and the environment at risk from avoidable accidents, particularly if the historic rate of approximately 150 RMP incidents per year continues during the delay (0767, 0771, 0772, 0787, 0791, 0792, 0794, 0795, 0796, 0806, 0807, 0808, 0813, 0816, 0818, 0819, 0820, 0821, 0822, 0825, 0834, 0841, 0856, 0859, 0848, 0853, 0851, 0854, 0798-07, 0798-09, 0798-13, 0798-14, 0798-20, 0798-26, 0798-27, 0861). A form letter campaign joined by approximately 5,630 residents near high-risk chemical facilities urged EPA not

10 See 82 FR 4595, January 13, 2017.

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to delay or rescind the RMP amendments, stating that it is EPA’s legal mandate to reduce injuries, deaths, and property damage from chemical accidents (0785). Some commenters, including an advocacy group and a form letter campaign joined by approximately 43,670 individuals, argued that delaying the rule puts the best interests of industry ahead of human health (0772, 0787, 0856). A few advocacy groups said that a delay in implementation will delay the ability of affected communities to obtain needed information, hampering their ability to know about, prepare for, and respond to chemical risks (0772, 0861).

Some commenters expressed particular concern about national security risks. An industry professional commented that the 2017 RMP Amendments would make facilities less vulnerable to terrorism (0798-15). An advocacy group and a private citizen commented that RMP facilities could be used in a chemical attack, either by being attacked or by being a source of chemicals used in an attack, and said that the fact that the West, Texas explosion was likely caused by sabotage highlights the need for urgent action (0778, 0851). A joint submission from advocacy groups argued that the use of hydrofluoric acid at refineries could be phased out with the use of safer technologies as required by the 2017 RMP Amendments, and a decrease in this highly toxic chemical will dramatically reduce the harm caused by any fire or explosion at those refineries, regardless of cause (0861). A private citizen commented that releases from chemical facilities are capable of causing the same kind of harm as chemical weapons and, therefore, they should be treated as such (0798-10).

A private citizen commented that several of the provisions in the 2017 RMP Amendments provisions, including increasing communication between facilities and first responders, conducting incident investigations and root cause analyses, and independent third-party audits, are concepts that are considered common sense in other disciplines and should not be delayed for RMP facilities (0773). An anonymous commenter and some advocacy groups agreed that the 2017 RMP Amendments are a commonsense update of the existing rules that will prevent the severe consequences of chemical releases, regardless of cause (0791, 0816, 0861).

Several commenters discussed how certain provisions of the 2017 RMP Amendments are needed to improve safety. A joint submission from advocacy groups provided a list of explosions, fires, and other releases at RMP facilities since 1998 that involved either (1) a lack of preventive maintenance that was determined to be the root cause of the incident, or (2) inadequate emergency response and planning that led to avoidable injuries, deaths, or other harm (0861). A union said that implementing inherently safer technologies can prevent catastrophic incidents that cause injury or death to workers from occurring (0859). An advocacy group commented that the provisions in the 2017 RMP Amendments will improve safety conditions and information access for first responders, thereby protecting communities and first responders (0851). A chemical engineer and an advocacy group said that this delay will put off worst case scenario planning even further, putting many lives and property at risk due to inadequate emergency planning (0817, 0858). A private citizen and several advocacy groups said that while the cause of the explosion may not have been preventable, conditions at the West Fertilizer facility and poor communication contributed to the deaths of emergency responders (0841, 0853, 0851, 0798-14). A chemical engineer expressed opposition to the proposed delayed effective date, commenting that the public needs EPA to ensure that corporations are held accountable to environmental hazards and proper safety protocols (0810).

An advocacy group also stated that the Center for Chemical Process Safety of the American Institute of Chemical Engineers published a report highlighting the usefulness of incident investigations and root cause analyses, among other findings, and commented that the effectiveness of PSM programs in the United States has plateaued or declined since 1992 (0813). Another advocacy group said that third-party audits are essential because internal audits have been found to be insufficient in identifying key safety deficiencies (0851). A private citizen who has experience assisting with onsite inspections and compliance evaluations stated that many facility owners and operators took a cavalier attitude with respect to RMP requirements, and noncompliance with the requirements could be catastrophic (0792).

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Response: When implementing the goal of reducing deaths, injuries, and significant property damage resulting from accidental releases, EPA’s legal mandate under CAA section 112(r)(7) is not to ratchet up regulatory requirements to prevent all conceivable accidental releases regardless of the burden of implementation and regardless of how such regulations fit in overall chemical safety. CAA section 112(r)(7)(B) explicitly requires EPA’s regulations to be “reasonable.” In contrast to provisions like CAA section 112(d)(3), which establishes minimum stringency standards for source categories emitting hazardous air pollutants listed under CAA section 112(b), CAA section 112(r)(7)(A) provides no such minimum stringency for “release prevention, detection, and correction requirements” under that paragraph. The 20-month delay of effectiveness in the final rule will allow for assessment of the reasonableness of the Risk Management Program Amendments in light of the issues highlighted in the petitions for reconsideration and those that otherwise would benefit from additional comment and consideration.

EPA disagrees that further delaying the final rule’s effective date will put the public at risk of accidents or cause the other types of harm claimed by these commenters. EPA notes that the regulatory impact analysis for the Risk Management Program Amendments was unable to conclusively show that the benefits of the final rule exceeded its costs. The lack of a quantification of benefits in the final rule regulatory impact analysis would make a quantification of forgone benefits during the period of a delay speculative at best. However, as noted above, most provisions have a compliance date of 2021, therefore any benefits from compliance with these provisions would not be impacted. The major set of requirements with compliance dates that will be delayed are certain additional emergency coordination requirements. For these requirements, we note that alternative mechanisms, such as authorities under EPCRA and the existing emergency response coordination requirement under the pre-Amendments 40 CFR 68.95(c) will still be in place.

EPA notes that some of these commenters claims – e.g., that the RMP Amendments would require implementation of inherently safer technologies or phase-out of hydrofluoric acid at refineries – are not actually requirements of the RMP Amendments final rule. Therefore, commenters’ claims of forgone benefits of these alleged provisions are specious.

While some commenters express concern about potential national security risks of delay, the petitioners’ and some commenters have claimed that some new final rule provisions may result in unanticipated harm to regulated facilities and local communities (e.g., petitioners and commenters have alleged that the information disclosure provisions may create security risks). While taking no position on the substance of these concerns, it is reasonable for EPA to delay the effectiveness of the rule in order to conduct a reconsideration proceeding that vets and analyzes the merits of these concerns. EPA notes that most provisions of the RMP Amendments final rule have a compliance date of 2021, so EPA’s delay of that effective date has no immediate effect on the implementation of these requirements. As EPA has previously indicated, the existing RMP rule has been effective in preventing and mitigating chemical accidents, and these protections will remain in place during EPA’s reconsideration of the Risk Management Program Amendments.11

3.2 Environmental justice concerns with status quo

Comment: Several advocacy groups commented that fence line communities near chemical facilities face the highest risks of death, injury, and other harm from chemical accidents and disasters at RMP facilities,

11 See 82 FR 4595, January 13, 2017.

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along with facility workers and first responders. These groups further explained that many of these fence line communities that face a disproportionate threat due to their proximity to RMP facilities comprise low-income communities, communities of color, and other communities that can lack representation, collectively known as environmental justice communities. The advocacy groups argued that delaying the effective date of this rule causes these communities to continue to be at risk from the effects of accidents and disasters at RMP facilities (0772, 0816, 0861, 0798-07, 0798-09, 0798-13, 0798-18, 0798-27). A form letter campaign joined by approximately 5,630 residents near high-risk chemical facilities stated that delaying or weakening the RMP requirements will sacrifice the health of residents in these communities, as well as the health of workers and emergency responders (0785). A few advocacy groups also said that many such communities have been advocating and petitioning for improvements to the RMP rules for many years (0772, 0816, 0861, 0798-09).

A few advocacy groups commented that the listening session and comment process for this rulemaking to delay the effective date has not provided an opportunity for fence line communities to engage and collaborate with EPA, as was done during the development of the 2017 RMP Amendments (0798-07, 0798-09, 0798-18). One of these groups was joined by a private citizen in urging EPA to conduct additional outreach to these communities (0798-09, 0798-28).

Some advocacy groups related stories of chemical releases at RMP facilities that impacted the neighboring communities. Examples of these stories included an accidental release in Salt Lake City, Utah, that required an entire elementary school to be evacuated; an explosion and fire in 2010 that killed seven people at the Tesoro Refinery in Anacortes, Washington; a fire in 2012 at the Chevron Refinery in Richmond, California, that caused 15,000 nearby residents to seek medical treatment; and an explosion in 2008 at Bayer CropScience in Institute, West Virginia, that led to a shelter-in-place order, among many other examples (0816, 0861, 0798-09, 0798-13, 0798-27).

A joint submission from advocacy groups provided details on how the provisions of the 2017 RMP Amendments would help environmental justice communities. The groups said that the rule will allow fence line communities to participate more effectively in emergency preparedness exercises and improve communication between facilities and first responders, potentially reducing the severity of incidents. Further, the groups argued that fence line communities will have greater awareness of hazards and how to respond in an emergency to protect themselves, in addition to assurance that the facilities are adequately prepared to handle an emergency (0861).

Response: EPA disagrees that further delaying the final rule’s effective date will put minority, low-income, or other underrepresented communities at increased risk of accidents or cause the other types of harm claimed by these commenters. EPA notes that the regulatory impact analysis for the Risk Management Program Amendments was unable to conclusively show that the benefits of the final rule exceeded its costs. The lack of a quantification of benefits in the final rule regulatory impact analysis would make a quantification of forgone benefits during the period of a delay speculative at best. Also, petitioners’ and some commenters have claimed that some new final rule provisions may result in unanticipated harm to regulated facilities and local communities (e.g., petitioners and commenters have alleged that the information disclosure provisions may create security risks). These impacts would potentially affect environmental justice communities. While taking no position on the substance of these claims, it is reasonable for EPA to delay the effectiveness of the rule, in order to conduct a reconsideration proceeding that examines the merits of these concerns. EPA notes that most provisions of the RMP Amendments final rule have a compliance date of 2021, so EPA’s delay of that effective date has no immediate effect on the implementation of these requirements. As EPA has previously indicated, the existing RMP rule has been effective in preventing and mitigating chemical

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accidents, and these protections will remain in place during EPA’s reconsideration of the Risk Management Program Amendments.12

Regarding comments that this rulemaking to delay the effective date had not provided an opportunity for communities to engage with EPA, a delay of the effective date will allow EPA to develop and publish any notices that focus comment on specific issues to be reconsidered as well as other issues for which additional comments may be appropriate. The public will then have sufficient opportunity to comment on the reconsideration in accordance with the requirements of CAA section 307(d).

3.3 Rulemaking provides needed clarification

Comment: An anonymous commenter said that the regulation should not be delayed because it will provide needed clarity for businesses, particularly concerning submission of risk management plans. The commenter argued that any regulation that clarifies requirements of regulatory compliance is beneficial to business (0771).

Response: Delaying the effective date of the RMP Amendments final rule will have no immediate effect on its modified risk management plan requirements. If the final rule were to go into effect on June 19, 2017, the owner or operator of a regulated source affected by these revised requirements would not be required to correct or resubmit RMPs to reflect new and revised data elements until 2022. During the reconsideration proceeding, the existing risk management plan submission requirements remain in effect. If EPA proposes to amend compliance dates in a subsequent rulemaking, then this issue may need to be revisited.

3.4 Other comments opposing extending the effective date

Comment: Several commenters, including private citizens and advocacy groups, argued that since the process to develop and finalize the 2017 RMP Amendments was lengthy and provided opportunities for ample input from all stakeholders via public forums and comment periods, EPA should not delay the effective date of the rule (0792, 0813, 0816, 0832, 0834, 0861, 0853, 0851, 0798-07, 0798-09, 0798-13, 0798-14, 0798-15, 0798-26, 0798-27). A joint submission from advocacy groups commented that the proposed 20-month delay is inconsistent with the agency’s prior factual determinations regarding the importance of the rule (0861). The same groups also said that the delay will render substantial parts of the rule obsolete, requiring parts of the rule to be rewritten (0861).

A few commenters, including a private citizen and a joint submission from advocacy groups, said that arguments from industry stating that EPA needs to extend the effective date based on an alleged lack of time for commenters to consider ATF’s announcement of the cause of the West Fertilizer incident are invalid. The rationale provided by the commenters is that since ATF concluded the cause of the incident via a “negative corpus” process that the National Fire Protection Association has deemed impermissible, ATF’s announcement should not be a factor for extending the effective date (0841, 0861). Further, the joint submission from advocacy groups cited the 2017 RMP Amendments Response to Comments document that states, “it would be inappropriate to suspend the rulemaking based on outcomes of the incident investigation of the West Fertilizer Explosion” (0861).

Response: Regarding these commenters claims that the BATF relied on an invalid form of reasoning (i.e., “negative corpus”) to reach its conclusion regarding the cause of the West Fertilizer explosion, EPA cannot evaluate these commenters claims without obtaining detailed

12 See 82 FR 4595, January 13, 2017.

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information on the BATF investigation. The decision to reconsider simply acknowledges the fact that BATF made this finding, that the finding went to issues of central relevance to the Risk Management Program Amendments and that the finding was late enough in the comment period to make it impracticable for many commenters to meaningfully comment on the finding’s significance for the rule. The substantive merits of the BATF methodology and its conclusion would be more appropriate to consider in a reconsideration rulemaking process addressing the Risk Management Program Amendments issues impacted by the finding. To the extent questions remain concerning the cause of the West Fertilizer explosion, EPA believes these argue for finalizing the delay of effective date of the Risk Management Program Amendments in order to give the Agency time to better understand the basis for BATF’s conclusions.

Comment: A few commenters stated that EPA and the petitioners for reconsideration failed to identify objections that either arose after the period for public comment or were impracticable to raise during this period, as required under CAA section 307(d)(7)(B). One of these commenters stated that most of the objections that were raised by petitioners were “simply recycled from the comment period” and that the “remainder address issues that cannot possibly be considered ‘of central relevance’ to the Chemical Disaster Rule” (0861). These commenters also indicated that several parties commented on the BATF finding during the public comment period for the Risk Management Program Amendments rulemaking, and one commenter concluded that this demonstrated that it was not impracticable to raise the issue during the comment period (0841, 0861). This commenter noted that EPA had responded to these comments and found that “it would be inappropriate to suspend the rulemaking based on outcomes of the incident investigation of the West Fertilizer explosion.”

Response: EPA disagrees that petitioners have failed to identify one or more objections that either arose after the period for public comment or were impracticable to raise during that period. The decision to convene a proceeding for reconsideration was made in the Administrator’s letter of March 13, 2017. The substance of that decision is a separate action from this rule on the length of a delay of effectiveness. Petitioners, as well as numerous commenters, including industry trade associations, regulated facilities, state government agencies, and others asserted the final rule imposed extensive new requirements on covered facilities that were not contained in the proposed rule. These commenters maintained that two major provisions of the final rule were not contained in the proposal, including a new provision in the final rule requiring regulated facilities to disclose any information relevant to emergency planning to local emergency planners, and a new trigger for third-party audits. EPA agrees that these concerns may warrant additional public comment and can be incorporated into the reconsideration process for the Risk Management Program Amendments rule.

While EPA acknowledges that several commenters included the BATF arson finding in their comments on the RMP amendments proposed rule, the Agency does not view two days (i.e., the amount of time between BATF’s announcement of its arson finding and the close of the public comment period for the Risk Management Program Amendments proposed rule) as a sufficient time period to evaluate the full implications of such important new information. Several commenters also noted that the BATF’s arson finding was announced too late for them to adequately consider this information within their comments to EPA.

Also, when EPA stated, in responding to comments on the proposed Risk Management Program Amendments, that it would be inappropriate to suspend the rulemaking based on outcomes of the incident investigation of the West Fertilizer explosion, the Agency had not yet received the petitions that prompted its reconsideration proceeding, as well as comments on the proposal to delay the rule’s effective date, both of which assert that the information disclosure provisions contained in the final Risk Management Program Amendments may actually increase or

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introduce new security risks to RMP facilities, emergency responders, and communities. EPA believes it would be remiss for the Agency to allow the final rule to become effective without fully evaluating this new information. As previously indicated, EPA does not desire to establish regulations that increase security risks.

Comment: Several commenters, including advocacy groups and professional organizations, rejected other concerns that industry has cited as justification for extending the effective date, including the difficulty of finding third-party auditors, concerns about safeguarding classified national security information, and EPA’s consideration of unquantified benefits (0851, 0857, 0798-02, 0798-14, 0798-20). Several commenters expressed general opposition to extending the effective date without providing a substantive argument explaining their rationale (0783, 0784, 0800, 0801, 0802, 0803, 0824, 0846).

Response: EPA disagrees that the effective date of the final rule should not be extended. This additional delay of the effective date enables EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise or rescind the Risk Management Program Amendments, as appropriate.

4. Other comments on the proposed rule

4.1 Comments suggesting alternate timeframes for extension

Comment: An association of state and local emergency planning officials suggested that EPA could implement some of the provisions from the 2017 RMP Amendments on schedule while extending the effective date for the rest of the provisions. The commenter suggested immediately implementing § 68.93 (emergency response coordination between the facility, local responders, and LEPCs) and § 68.95 Subpart C (emergency response program amendments) (0830). This association argued that these two requirements are simple, direct, not burdensome, and in the case of § 68.95(c), essentially identical to requirements contained in the Emergency Planning and Community Right-to-Know Act (EPCRA).

Response: EPA disagrees that the emergency response coordination activities provisions of § 68.93 should immediately go into effect. These provisions contain language (i.e., “Coordination shall include providing to the local emergency planning and response organizations…any other information that local emergency planning and response organizations identify as relevant to local emergency response planning”) for which two petitioners (the RMP Coalition and Chemical Safety Advocacy Group) specifically objected, based on their concerns that the rule included no limitations on the information requested to be disclosed or how sensitive information can be protected. In agreeing to convene a proceeding for reconsideration of the final rule, EPA agreed to provide the public with an opportunity to comment on other issues that may benefit from additional comment and response. By finalizing these provisions immediately, EPA would not be allowing the public an additional opportunity to comment on them. Additionally, § 68.93(b) requires coordination to include consulting with local emergency response officials to establish appropriate schedules and plans for field and tabletop exercises required under § 68.96(b). As § 68.96(b) is a new section created in the final rule, EPA cannot finalize § 68.93(b) as currently written without also finalizing § 68.96(b).

Regarding this commenter’s recommendation that EPA allow the emergency response program provisions of § 68.95, and particularly paragraph (c), to immediately go into effect, EPA notes that § 68.95(a)(4) also contains a reference to the new exercise requirements of § 68.96, and

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therefore this provision cannot go into effect without § 68.96. However, § 68.95(c) is already contained in the existing rule. In the Risk Management Program Amendments final rule, EPA simply replaced the phrase “local emergency planning committee” with the acronym “LEPC.” therefore, this requirement will remain in effect with or without the Risk Management Program Amendments final rule becoming effective.

Comment: An advocacy group expressed support for inherently safer technologies, third-party audits, and coordination with emergency management and personnel as three provisions of the 2017 RMP Amendments that should be implemented as soon as possible (0798-18).

Response: EPA disagrees that these three provisions of the final rule should go into effect prior to the Agency conducting a reconsideration proceeding. Petitioners specifically object to these (and other) provisions. In agreeing to convene a proceeding for reconsideration of the final rule, EPA agreed to provide the public with an opportunity to comment on issues that may benefit from additional comment and response. By finalizing these provisions immediately, EPA would not be allowing the public an additional opportunity to comment on them. EPA notes that under the final Amendments rule, the initial compliance dates for the STAA and third party audit provisions are in 2021.

Comment: An industry trade association disagreed with the idea of implementing the provisions in a piecemeal fashion due to the time and resources that will be required and the likelihood that some provisions will be reconsidered (0843).

Response: EPA agrees that final rule provisions should not be implemented in a piecemeal fashion. In agreeing to convene a proceeding for reconsideration of the final rule, EPA agreed to provide the public with an opportunity to comment on issues that may benefit from additional comment and response. By finalizing certain provisions immediately, EPA would not be allowing the public an additional opportunity to comment on them.

4.2 Other comments on the proposed rule

Comment: A few industry trade associations encouraged EPA to coordinate with OSHA on their PSM standard, since that rule is so similar to the RMP requirements (0798-01, 0855). Another industry trade association suggested that EPA and OSHA develop a joint rulemaking that addresses both programs (0840).

Some commenters, including a group of state elected officials and industry trade associations, said that EPA should clarify in any amended rule that compliance dates will be extended by at least the amount of time the effective date is extended (0839, 0843, 0847).

A group of state elected officials said that EPA should proceed with greater input from states when reconsidering RMP provisions, and be willing to understand current disaster management planning and response (0839).

An industry trade association argued that any revisions to the existing RMP regulations must be supported by data, a sound rationale, and an analysis showing that the additional cost from that requirement is outweighed by the benefits from that requirement. The industry trade association also urged EPA to take final action quickly on this proposed extension to avoid significant confusion in the regulated community (0833).An advocacy group asked EPA to include all files from Docket ID EPA-HQ-OEM-2014-0328 (“Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7); Rule Modernization Under Executive Order 13650; Request for Information”(RFI)) in

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the docket for this rulemaking and attached to their comment request, 274 files comprising 231 documents from the RMP RFI docket (DRAFT-0832).

Response: Recommendations that EPA develop a joint rulemaking with OSHA, obtain greater input from states, or make improvements in cost-benefit analysis are premature. EPA would consider these actions, if appropriate, when considering future regulatory action. EPA did not propose and is not taking any action on any compliance dates at this time, as EPA plans to propose amendments to the compliance dates as necessary, when considering future regulatory action. Compliance with all of the RMP Amendments is not required as long as the rule is not effective.

EPA has included all files from Docket ID EPA-HQ-OEM-2014-0328 attached to the comment into the rulemaking docket. In addition, EPA has submitted a memorandum to the docket that incorporates by reference, all the RFI docket comments and support documents into the current rulemaking docket.

5. Comments outside the scope of the proposed rule

5.1 Rescission of the 2017 RMP Amendments [w/o relating to the extension of the effective date]

Comment: A professional association, without referencing the proposed rule to delay the effective date, commented that EPA should rescind the 2017 RMP Amendments and replace them with a different rule that recognizes the unique properties of some local governments (0847).

Response: This comment is outside the scope of this rulemaking.

5.2 Substantive comments on content of 2017 RMP Amendments [w/o relating to the extension of the effective date]

Comment:

- Without relating the comments to the proposed extension of the effective date, several individuals and organizations offered suggestions for modifying the 2017 RMP Amendments. These suggestions included: including requirements for facilities to use the safest cost-effective chemicals and technology available, and a revised cost-benefit analysis; eliminating requirements for root cause analyses, inherently safer technologies, and third-party audits; and addressing overlaps with other agencies’ authority and clarifying what determines compliance with the new requirements (0769, 0779, 0797, 0845, 0847, 0852).

- Without referencing the proposed rule, an advocacy group provided examples of accidents that motivated key elements of the 2017 RMP Amendments (0851). Response: These comments are outside the scope of this rulemaking.

5.3 Substantive comments on supporting documents for the 2017 RMP Amendments (e.g., cost-benefit analysis) [w/o relating to the extension of the effective date]

Comment:

- Without relating the comments to the proposed extension of the effective date, some industry trade associations provided critiques of how EPA analyzed the data used in the Regulatory Impact Analysis for the 2017 RMP Amendments (0798-06, 0798-23).

- Without referencing the proposed rule, an advocacy group identified the source for a statistic quoted by many stakeholders during the April 19, 2017 public hearing (0798-27).

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Response: These comments are outside the scope of this rulemaking.

5.4 Other comments outside the scope of the proposed rule

Comment:

- Without referencing the proposed rule, several individuals and organizations asked EPA to revise or review other federal programs, initiatives, and rules, including Tier Two reports and the Storage and Handling Regulations for anhydrous ammonia and the voluntary Responsible Ag program (0798-05, 0798-25, 0814).

- Without referencing the proposed rule, a commenter said that the protections in the 2017 RMP Amendments should be monitored and enforced by state and local governments, rather than the federal government (0780).

- Without referencing the proposed rule, an advocacy group provided an explanation of the rationale for the original RMP rule (0851).

- Without referencing the proposed rule, a private citizen commented that air pollution is poisoning children and adults (0811).

- An advocacy group simply concurred with their May 2016 comments submitted on the proposed RMP amendments rule, attaching those May 2016 comments. (0860)

Response: These comments are outside the scope of this rulemaking.

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Documents

Response to Comments on the 2017 Proposed Rule Further Delaying the … · · 2017-06-12Response to Comments on the 2017 Proposed Rule Further Delaying the ... American Fuel and