Under the Obama Administration, the Environmental Protection Agency (EPA) issued a rule on January 13, 2017 amending parts of the Clean Air Act’s (CAA) Risk Management Plan (RMP) program, which regulates facilities that use hazardous substances. Among other things, the Obama Administration’s 2017 RMP Rule implemented new requirements related to technology and alternatives analyses, third-party audits, disclosure requirements, and incident investigations. Similarly to other areas of environmental law, the Trump Administration expressed its intention to repeal these requirements shortly after entering office. After issuing a May 30, 2018 proposed rule and considering nearly 77,360 submitted comments, the EPA recently made good on its intention by releasing the pre-publication version of final RMP Reconsideration Rule that, among other things, repeals the Obama Administration regulations.
The final rule incorporates most of the substantive provisions in the proposed rule. In addition to repealing much of the 2017 RMP Rule, the RMP Reconsideration Rule modifies the requirements related to local emergency coordination and compliance dates for some provisions. The Reconsideration Rule will become immediately effective upon its publication in the Federal Register, which should occur soon. Parties are also expected to challenge the RMP Reconsideration Rule in court, potentially resulting in the delay of the rule’s effective date or its reversal. One potential challenger is a contingent of fourteen state attorney generals that submitted negative comments on the proposed rule. More recently, the states submitted another comment listing chemical incidents that have occurred since the proposed rule, which they argue further evidence the need to keep the 2017 RMP Rule.
The EPA states that it analyzed over a decade of emergency planning data to justify its conclusions in the RMP Reconsideration Rule. As further reasoning for the rule, the Agency pointed to the fact that multiple federal agencies took issue with the potential national security risks associated with the previous rule’s disclosure requirements. According to the Agency, while the final rule streamlines facilities’ obligations under the program, it will still require the same level of information be available to first responders as under any previous versions of the RMP Program.
According to the Agency, the RMP Reconsideration Rule also makes the CAA RMP program more consistent with similar requirements under the Occupational Health and Safety Act (OSHA) related to the management of regulated chemicals. As detailed in our recent Law360 article, despite the two programs regulating similar activities, penalties brought under the CAA can greatly exceed those brought under OSHA. As such, the 2017 RMP Rule’s compliance measures not found within OSHA would have most likely complicated compliance efforts as well as presented a risk of large penalties for any noncompliance. These complications are further compounded by the fact that, unlike other environmental laws, the Trump Administration’s EPA has enforced these requirements with a similar frequency as the Obama Administration.