Author: Stephen M. Richmond, Mark N. Duvall, Jayni A. Lanham
Beveridge & Diamond, P.C. , June 16, 2017
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.  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 Releases Final RMP Amendments, Awaits Response of New Administration ).
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.  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.
Beveridge and Diamond counsels clients on a wide range of matters relating to the Clean Air Act’s Risk Management Plan requirements, OSHA Process Safety Management requirements, and the general duty clauses that exist under both the Clean Air Act and the OSHA statute. Our work includes compliance strategies, assistance with program development and implementation, and enforcement response. For further information on the RMP amendment package, or on our RMP and OSHA compliance practices, please contact Steve Richmond , Mark Duvall , or Jayni Lanham .
 82 Fed. Reg. 27133 (June 14, 2017).
 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.”