09/27/2017 - Regulatory Rollback

Chemical Disaster Rule – Risk Management Plan / Accidental Release Prevention Requirements

by Hana Vizcarra, Robin Just

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

In April 2013, an explosion in a West Texas fertilizer factory killed 15 people and injured another 180. In early 2017, during the Obama Administration, EPA amended chemical facility risk management rules in part to prevent more accidents like this.

Current Status

The rule was delayed several times prompting states and environmental groups to sue the Environmental Protection Agency (EPA) over these delays. The D.C. Circuit vacated EPA’s delay of the Chemical Disaster Rule on Aug. 17, 2018. The court called the agency’s repeated delays of the rule a “mockery” of the Clean Air Act “calculated to enable non-compliance.” On Sep. 21, 2018 the D.C. Circuit placed its order eliminating the delay into effect. Following this court order, EPA announced the original rule issued on Jan. 13, 2017 (the “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act” rule) was in effect on Dec. 3, 2018EPA’s proposal to reconsider the rule remains a proposal, as EPA has yet to issue a final rule.

May 17, 2018 EPA releases the proposed Risk Management Plan Reconsideration rule to reduce the potential burden on companies.

May 30, 2018 The proposed rule is published.

Aug. 23, 2018 The comment period ends.

History

Jan. 13, 2017 EPA publishes the final Accidental Release Prevention Requirements of the Clean Air Act Risk Management Program.

March 14, 2017 The rule is set to take effect.

Trump Era

Jan. 26, 2017 EPA publishes notice that it will delay the Risk Management Program rules until March 21, 2017.

Feb. 28, 2017 Several industry groups ask EPA to halt the rule entirely and reconsider the rule.

March 16, 2017 EPA publishes a final rule delaying the effective date of the Risk Management Rule to June 19, 2017.

June 14, 2017 EPA publishes notice in the Federal Register that it will further delay implementation 20 months, until Feb. 19, 2019.

June 15, 2017 Environmental groups sue in the D.C. Circuit Court to stop the rule delays.

July 24, 2017 Eleven states sue EPA over the delays: Rhode Island, New York, Illinois, Maine, Maryland, Massachusetts, New Mexico, Oregon, Vermont, and Washington.

May 17, 2018 EPA releases a proposed rule to reduce preventative measures and reporting requirements on companies regulated under the rule. The proposed rule, published on May 30, 2018, says “EPA is proposing to rescind amendments relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor regulatory changes”. The rule is initially open for public comment until June 29, 2018.

July 24, 2018 EPA extends the comment period for its proposed Risk Management Program Reconsideration rule through Aug. 23, 2018 and supplements the record for the proposed rule with the risk management plan data it used to compare the number of facilities reporting in the February 2015 version of the risk management plan database to those reporting in the November 2017 version.

Aug. 17, 2018 The D.C. Circuit calls EPA’s repeated delays of the Obama-era Risk Management Plan rule (sometimes referred to as the Chemical Disaster Rule) a “mockery” of the Clean Air Act “calculated to enable non-compliance” when it vacates the delay rule as arbitrary and capricious. The court finds the 20-month delay, well beyond the three months allowed under the act, outside the scope of EPA’s authority.

Sep. 21, 2018 The D.C. Circuit grants petitioners’ request to issue its mandate without delay, placing its order eliminating the delay of the Chemical Disaster Rule into effect.

Dec. 3, 2018 EPA announces that the final rule issued on Jan. 13, 2017 (the “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act” rule) is in effect. This follows multiple attempts by EPA under the Trump Administration to delay the rule and a court ruling ordering EPA to place the rule in effect.

More Information

See Save EPA’s page on the rule, and see Laura Bloomer and Kate Konschnik’s white paper on the Risk Management Plan and the Arkema plant, “Arkema Explosion & the 2017 Risk Management Program Amendments.”