Reed Smith Client Alerts

The U.S. Environmental Protection Agency (EPA) has finalized a reconsideration rule rescinding many of the agency’s changes and additions made during the Obama administration to strengthen the Risk Management Program (RMP) regulations that address facilities using highly hazardous chemicals. This rulemaking follows the D.C. Circuit’s decision in 2018 that the EPA's previous effort to rescind the new RMP elements was not justified by sufficient rationale, and so includes additional information regarding the basis for the agency's decision. The new reconsideration rule specifically rescinds requirements relating to root cause analysis incident investigations, third-party audits, safer technology and alternatives analysis (STAA), and public availability of information, but retains certain requirements relating to emergency response and coordination.

Authors: Benjamin H. Patton Jessica I. Wilson

On November 20, 2019, the EPA finalized its reconsideration of RMP provisions that had been promulgated in 2017 during the Obama administration (Reconsideration Rule). The RMP rule, found at 40 C.F.R. part 68, requires facilities, or “stationary sources” under the Clean Air Act (CAA), that use, manufacture, and store particular hazardous chemicals above a threshold quantity (TQ) to implement program elements that are intended to integrate technologies, procedures, and management practices. Prior to 2017, the RMP rule requirements had mirrored the requirements found in the Occupational Safety and Health Administration (OSHA) Process Safety Management standard, with some minor exceptions.

In 2015, the EPA initiated a rulemaking to update and strengthen the RMP regulations, and, on January 13, 2017, the agency issued a final rule (82 Fed. Reg. 4594) amending 40 C.F.R. part 68 (2017 Rule). The 2017 Rule added and modified elements of the RMP rule, including incident investigation, third-party audits, STAA, emergency response preparedness requirements, information availability, and various other minor changes to clarify or otherwise technically correct the rule. Following the change in presidential administration, the EPA rescinded the majority of the newly added regulatory provisions in June 2017 for various reasons, including lack of stakeholder engagement. This action was subsequently challenged through petitions for reconsideration and in court. Following arguments on behalf of both industry and a group of states, in August 2018, the Court of Appeals for the D.C. Circuit issued its opinion vacating the EPA’s decision to rescind the 2017 Rule. An accompanying per curiam order reinstated the regulatory requirements of the 2017 Rule.