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EPA’s Final Risk Management Program Reconsideration Rule More In-Step with OSHA’s Process Safety Management Standards

The Environmental Protection Agency recently announced a final rule rescinding major amendments to the Clean Air Act §112(r) Risk Management Program (RMP) regulations that were promulgated at the end of the Obama Administration in 2017. The 2017 revisions were promulgated partially in response to a 2013 explosion at a fertilizer company in West Texas, which caused 15 fatalities and injured more than 260 people,1 and had yet to go fully into effect due to administrative and court challenges and because most of the compliance deadlines had not yet been triggered.

The provisions of the 2017 rule that have been rescinded include requirements:

  • To assess theoretically safer technology and alternative analysis of risk management measures targeting process hazards;

  • For third-party compliance audits after a reportable RMP accident; and

  • To perform root cause analyses after RMP accidents or near misses.

In rescinding the 2017 amendments, EPA noted that it was maintaining (actually returning to) consistency with the related Process Safety Management (PSM) program administered and enforced by the Occupational Safety and Health Administration (OSHA). While PSM is intended to address occupational exposures to the risk of chemical accidents, and RMP deals with the public and environmental exposures to those same risks, as a practical matter there is considerable technical and jurisdictional overlap between the two programs.

However, sufficient differences remain such that facilities should not assume compliance with one program ensures compliance with the other. There can also be significant differences in penalty outcomes, with EPA’s RMP penalties frequently orders of magnitude larger than parallel OSHA PSM penalties arising from the same incident.

This “rollback” does not mean the RMP program has gone away: it remains in effect in its pre-2017 form, and the regulated industry should expect and be prepared for its enforcement. EPA has announced that enforcement of the RMP regulations and the companion Clean Air Act §112(r)(1) “general duty clause” will be national enforcement priorities in the coming years. Enforcement actions under the pre-2017, and now current, RMP regulations have generated penalties in the hundreds of thousands and sometimes millions of dollars, and have also led to criminal indictments. See October 2019 GT Alert, United States Indicts Facility Owner Under Clean Air Act General Duty Clause. The same can be true regarding OSHA enforcement of the PSM standard, depending on the alleged safety infractions found during the inspection.

1 U.S. Chemical Safety Board, West Fertilizer Explosion and Fire, Final Report (Jan. 28, 2016).

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About this Author

Christopher Bell, Greenberg Traurig Law Firm, Houston, Washington DC, Environmental Law Litigation Attorney

Chris Bell represents clients in civil and criminal enforcement and investigations, litigation, compliance counseling, emergency incident response, and legislative and regulatory advocacy (including appellate challenges to rulemakings) under all of the major environmental, health, safety and natural resource laws. His enforcement experience includes internal investigations, responding to grand jury investigations and agency information requests, and negotiating consent, probation, and debarment agreements. He is currently the EPA Independent Monitor overseeing the nation...

Michael Taylor, Greenberg Traurig Law Firm, Northern Virginia, Labor and Employment, Energy Law Attorney

Michael T. Taylor is Chair of the firm's Labor & Employment Practice's OSHA group. He focuses his practice on the representation of employers in a variety of industries regarding Occupational Safety and Health Administration (OSHA) matters across the country. Over the last fourteen years, Michael has defended scores of employers during enforcement litigation, many of which have involved a significant injury, fatality, or catastrophic event in the workplace. Michael also provides OSHA compliance counseling, OSHA inspection counseling, OSHA whistleblower representation, and OSHA due diligence reviews for clients. Michael has wide-ranging experience in the OSHA world, including his prior public service as General Counsel to the Occupational Safety and Health Review Commission, the federal agency in charge of the trials and appeals of workplace safety and health disputes between federal OSHA and the regulated community. In 2013, EHS Today named Michael as one of the Top 50 People Who Most Influenced Environmental, Health, and Safety. A highly committed advocate, Michael's clients can rely on him to be present and engaged regarding any workplace safety and health issue in any state across the country.


  • Energy & natural resources
  • OSHA
  • Process safety management

Genus Heidary focuses much of her practice on environmental, health, and safety-related matters, providing both proactive compliance counseling, as well as strategic advocacy at times of enforcement litigation. She has comprehensive experience counseling clients through major industrial accidents, workplace fatalities, agency inspections, and crisis management at times of potential toxic releases. Genus works with technical experts and auditors, providing compliance counseling in relation to the development and improvement of environmental, health, and safety programs. Much of this work...