EPA Stays RMP Rule Amendments and Grants Petition for Reconsideration

by Beveridge & Diamond PC
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The U.S. Environmental Protection Agency has stayed the implementation of a significant revision of the Risk Management Program (RMP) rule pending the receipt of additional comments. Simultaneously, EPA has granted a request for a motion for reconsideration filed by several trade associations whose industry members would be affected by the rule changes, setting up the possibility that EPA will significantly amend the rule or rescind the rule amendment package.

The RMP rule imposes risk reduction and process management requirements on a wide array of industrial facilities that use or store chemicals. The rule includes a mixture of traditional EPA regulatory provisions and process safety management requirements from the rules adopted by the Occupational Safety and Health Administration, and it is therefore an unusual hybrid, containing both environmental and health and safety program elements. In recent years, EPA has substantially stepped up its enforcement of these requirements. 

As we discussed in a summary piece published in early January (click here to review), at the very end of the Obama Administration, EPA published a significant collection of revisions to the RMP rule, adopting program changes that included new requirements such as requiring many facilities to conduct root cause analyses following catastrophic releases, independent third-party audits following RMP reportable accidents, for a subset of industries safer technology and alternatives analyses as part of their five-year process hazard analyses, and enhanced emergency response activities. 

The amendment package was published in the Federal Register on January 13, 2017 and was scheduled to become effective sixty days thereafter, which would have been March 14, 2017. In the week after the Trump administration assumed office, EPA published a final rule extending the effective date of the amendments to March 21, 2017 in response to a January 20, 2017 memorandum from Reince Priebus, Assistant to the President and Chief of Staff, directing agencies to temporarily postpone the effective dates of any rule that had been published in the Federal Register but had not yet taken effect within 60 days. Subsequently, Scott Pruitt was confirmed as EPA Administrator, and a coalition of trade associations representing a wide array of industries subject to the rule filed a petition for reconsideration of the rule package. 

On March 13, one day before the original effective date of the amendments, Administrator Pruitt signed an administrative stay of the rule that delays the effective date until June 19, 2017, for the announced purposes of deciding whether to further delay the effective date and allowing reconsideration of the rule in light of the industry petition. On the same day, Administrator Pruitt issued a letter granting the pending motion for reconsideration of the rule, on the grounds that the petition had raised one or more objections that arose after the comment period for the rulemaking or that were impracticable to raise during the comment period and are of central relevance to the rule. 

In his letter granting the petition, the Administrator highlighted that the Bureau of Alcohol, Tobacco, Firearms, and Explosives issued a determination two days prior to the close of the comment period on the proposed rule in 2016, finding that a fire and explosion at the West, Texas fertilizer facility was the result of an intentional and criminal act, and not an accident as had been previously assumed, and that the timing made it impracticable for many commenters to meaningfully address this finding. The incident in West, Texas has previously been cited by EPA as the catalyst for the rule changes. 

The stay of the rule affects thousands of RMP facilities that were subject to the revised provisions. 

The effect of this administrative action may delay or end Congressional efforts to repeal the rule under the Congressional Review Act. A resolution to disapprove the rule, H.J. Res. 59, was introduced in the House of Representatives on February 1, 2017. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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