EPA Risk Management Program (RMP) Facility Safety Rule Delayed Again

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EPA’s Risk Management Program (RMP) Facility Safety Rule continues to face an uncertain future, particularly given EPA Administrator Pruitt’s historical opposition.[1]  On March 16, EPA again stayed the effective date of the Rule and “will prepare a notice of proposed rulemaking in the near future” that will allow industry groups and the public an opportunity to comment again.[2]  This new notice and comment period could also allow EPA to scrap the new Rule altogether if it so desired.  What’s more, a coalition of GOP states are asking Administrator Pruitt to delay the Rule for an additional 15 months, claiming that much additional time is needed to fully vet the Rule.  These policy related delays also coincide with a more practical problem for Administrator Pruitt when it comes to rules promulgated in the waning days of the Obama administration: the lack of staff.   The administration has yet to name a single sub-cabinet level official for EPA, though the Deputy Administrator slot will likely soon be filled by Andrew Wheeler, a former staff member of Sen. James Inhofe (R-OK).

All of these factors make the Rule’s future about as bright as its past.  Days after the administration turnover, the Rule—and others across multiple agencies—was delayed until March 21, 2017.  On February 17, Pruitt was sworn in as EPA Administrator.  On February 28, a broad group of industry opponents (the “RMP Coalition”) asked him to “reconsider and rescind” the RMP Rule.[3]  And on March 16, Administrator Pruitt responded with a Final Rule delaying the effective date of the RMP Rule for another 90 days so EPA can reconsider the Rule and receive a new round of comments.

The new RMP Rule requires increased accident prevention measures including auditing, hazard analysis and disclosure of facility data.  In some cases, the disclosure is required to be public.  Industry groups contend that the new measures are costly and do not provide the benefits of increased safety.  They also argue that public disclosure of chemical storage and handling protocols will not necessarily decrease the risk to first-responders at these facilities, but it certainly will increase the risk that a terrorist act aimed at one of these facilities is successful.

The new Rule is a product of a larger effort by the Obama administration to improve the safety and security of industrial facilities. On August 1, 2013, after an explosion at a warehouse facility in West, TX killed 15 people and wounded 200 others, President Obama issued Executive Order 13650, titled “Improving Chemical Facility Safety and Security.”  At the time, it was thought that the incident was an accident.

However, as Administrator Pruitt noted in his letter in response to the RMP Coalition, the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives later determined that the fire had been caused by an “intentional, criminal act,” i.e., arson.[4]  This determination was made only two days before the RMP Rule’s original comment period closed, so Pruitt reopened the rulemaking process to allow, among other things, submission of comments reflecting this newfound knowledge.  Those comments are not expected to support the updated RMP Rule, although environmental groups that have supported the Rule in the past will undoubtedly provide comments seeking the Rule’s adoption as is.

For additional information regarding this advisory, please contact Bruce Pasfield, Phil Sandick, or any other member of our Environment, Land Use & Natural Resources practice team.

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[1] See October 31, 2016 blog post at http://www.alstonenvironment.com/environmental-advisory-new-epa-facility-safety-rule-faces-uncertain-future/; December 22, 2016 blog post at http://www.alstonenvironment.com/epa-final-facility-safety-rule-still-faces-uncertain-future/; and January 25, 2017 blog post at http://www.alstonenvironment.com/epa-facility-safety-rule-others-delayed-march-21-2017/.

[2] Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date, 82 FR 13968 (Mar. 16, 2017) available at https://www.federalregister.gov/documents/2017/03/16/2017-05288/accidental-release-prevention-requirements-risk-management-programs-under-the-clean-air-act-further.

[3] Hogan Lovells on behalf of the RMP Coalition, Letter to Administrator Scott Pruitt (Feb. 28, 2017) available at https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0759.

[4] Letter to Hogan Lovells on behalf of the RMP Coalition, Administrator Scott Pruitt, U.S. Environmental Protection Agency (Mar. 13, 2017) available at https://www.regulations.gov/document?D=EPA-HQ-OEM-2015-0725-0758.