Update on EPA’s Accidental Release Prevention Requirements: Risk Management Program under the Clean Air Act, Section 112(r):

On January 13, 2017, the EPA promulgated its final rule amending the Clean Air Act’s Risk Management Program (RMP) in light of Executive Order No. 13650 (Executive Order on Improving Chemical Facility Safety and Security).  Subsequently, under EPA’s Delay Rule, the effective date of the 2017 RMP Rule Amendments was delayed on June 9, 2017, for 20 months until February 19, 2019.  However, a coalition of environmental groups, labor unions, and states filed a lawsuit challenging the Delay Rule in the U.S. Court of Appeals for the D.C. Circuit Court in a case entitled, Air Alliance Houston v. EPA, 906 F.3d 1049 (D.C. Cir. 2018).

On August 17, 2018, the D.C. Circuit issued it decision in Air Alliance Houston vacating EPA’s Delay Rule.  Importantly, on September 21, 2018, the D.C. Circuit issued its mandate which made the 2017 RMP Rule Amendments effective.  EPA confirmed this with a Federal Register Notice dated December 3, 2018, stating that the 2017 Rule Amendments are in effect.  Therefore, all facilities subject to Section 112(r) of the Clean Air Act must comply with the 2017 RMP Rule Amendments.

In the interim, on May 30, 2018, EPA issued a proposed rule to change the RMP rules again.  83 Fed. Reg. 24850 (May 30, 2018).  Due to pressure from several stakeholders, EPA extended the comment period for the May 2018 Rule to August 23, 2018.  However, at this time, the status of the changes proposed in the May 2018 Rule is still unresolved.  To date, EPA has not issued a final rule amending the 2017 RMP Rule Amendments so the 2017 RMP Rule Amendments still govern.

With the May 2018 Rule, EPA proposes to rescind virtually all of the improvements under the 2017 RMP Rule Amendments.  Promulgating these proposed changes presents EPA with a significant challenge as the D.C. Circuit concluded in striking down the Delay Rule that it was arbitrary and capricious for EPA to delay the protections afforded by the 2017 RMP Rule Amendments.  We anticipate that any new final rule will be subject to further litigation.  

The RMP Rule Amendments’ twisted history highlights how EPA’s rollback of Obama era regulations has not always gone smoothly.  Several other rollbacks have been challenged in court creating regulatory uncertainty for health, safety, and environmental professionals as these rules first proceed through the court system and then through new rulemaking by EPA, OSHA and MSHA.  OSETG’s Regulatory Bootcamp will update you on such important regulatory challenges and allows you to understand the implications for your facility.  Stay tuned for more changes ahead!