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EPA Delays Effective Date of RMP Rule Amendments, Environmental Groups File Challenge

On June 14, 2017, EPA published a final rule in the Federal Register delaying the effective date of its Risk Management Program (RMP) rule amendment package for twenty months, until February 19, 2019.[1] EPA’s decision was immediately challenged by a coalition of environmental groups.

The final rule delays the effective date of a package of amendments to the RMP rule that were published as final on January 13, 2017, just one week before the change in presidential administrations. Since that time, EPA has twice extended the effective date of the amendments.  The new twenty-month extension follows the filing of three petitions for reconsideration from industry groups and a coalition of eleven states, a decision by EPA Administrator Scott Pruitt to convene a reconsideration proceeding (see EPA Stays RMP Rule Amendments and Grants Petition for Reconsideration), and the filing of a notice of rulemaking in which EPA evaluated different options in response to the petitions and proposed to extend the effective date for twenty months, until February 19, 2019.    

EPA’s final rule amendment package has generated significant public interest. The proposed rule generated over 61,500 public comments, and the notice of rulemaking on the reconsideration petitions resulted in over 54,000 comments. Interest in the rule changes arises from the unique positioning of the RMP program at the intersection of chemical process regulation, national security issues and worker and community safety. 

The final rule amendments include requirements for larger facilities to conduct root cause analyses following major releases or near misses, conduct third party audits following certain reportable incidents, adopt certain enhanced emergency response activities, and for only a few industrial sectors, conduct safer technology and alternatives analyses as part of ongoing process hazard reviews. Generally, industry groups have expressed concerns that EPA’s changes will create disincentives for public collaboration, interfere with effective process safety programs and increase security concerns, while environmental groups have argued that EPA’s changes will accomplish the opposite.  For more information on the final rule, see our rule summary. 

EPA indicated in both its proposed and final rulemaking notices that the twenty-month delay will provide it the opportunity to evaluate the objections raised by the various petitions, consider other issues that may benefit from additional comment, and take further regulatory action, including developing and publishing notices, evaluating and responding to comments and taking regulatory action, which could include revisions to the RMP amendments. 

A number of environmental organization commenters argued that when EPA evaluates a petition for reconsideration, it does not have the authority to delay implementation of the rule for twenty months, asserting that EPA’s delay authority under the Clean Air Act is limited to 90 days.[2]  EPA disagreed with this interpretation and indicated that it believes it has the right to delay implementation through a rulemaking notice and comment process, as with any rule amendment, which it has just completed.  

On June 15, 2017, the day after the publication of the twenty-month implementation delay, a coalition of thirteen environmental organizations challenged the decision in a petition for review filed in the U.S. Court of Appeals, D.C. Circuit. While the petition does not state the reasons for the challenge, it is expected that EPA’s interpretation of its delay authority will be a central issue.

[1] 82 Fed. Reg. 27133 (June 14, 2017).

[2] Section 307(d)(7)(B) of the Clean Air Act states: “(t)he effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator  or the court for a period not to exceed three months.”

© 2019 Beveridge & Diamond PC


About this Author

Stephen M. Richmond, Environmental Attorney, Beveridge Diamond Law FIrm

Stephen M. Richmond is an environmental lawyer and a Principal of Beveridge & Diamond, P.C. He is resident in the Firm’s Massachusetts office where for eight years he was the Managing Principal. Mr. Richmond's practice is focused on regulatory compliance counseling, and he concentrates on complex air, waste, and permitting issues. He has significant experience working on facility siting and due diligence projects, negotiation of transactional documents, and enforcement defense on federal and state environmental cases.

Mark Duvali, Environmental Attorney, Beveridge Diamond PC

Mark Duvall has over two decades of experience working in-house at large chemical companies.  His focus at Beveridge & Diamond, P.C. has been on product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.  He co-chairs the Firm's Chemicals, Products, and Nanotechnology practice group. 

He heads the Firm’s Toxic and Harmful Substances/Toxic Substances Control Act practice.  His experience under TSCA includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions.  He chairs the TSCA Dialogue Group, an informal group of companies that manufacture, import, distribute, and/or sell chemicals, and related trade associations, that address possible legislation to amend TSCA and alternatives to legislation.  He also works with foreign counterparts to TSCA, including REACH and CEPA.

Jayni A. Lanham, Beveridge Diamond Law firm, Environmental Attorney

Jayni Lanham maintains a general environmental, litigation, and regulatory practice.  Ms. Lanham represents clients in litigation arising under a broad range of federal and state environmental statutes, as well as state common law.  Ms. Lanham manages key aspects of litigation defense, including pre-trial motions practice, complex discovery, and the development of effective technical defenses.