Under the Obama Administration, the Environmental Protection Agency (EPA) issued a rule on January 13, 2017 amending parts of the Clean Air Act’s (CAA) Risk Management Plan (RMP) program, which regulates facilities that use hazardous substances. Among other things, the Obama Administration’s 2017 RMP Rule implemented new requirements related to technology and alternatives analyses, third-party audits, disclosure requirements, and incident investigations. Similarly to other areas of environmental law, the Trump Administration expressed its intention to repeal these requirements shortly after entering office. After issuing a May 30, 2018 proposed rule and considering nearly 77,360 submitted comments, the EPA recently made good on its intention by releasing the pre-publication version of final RMP Reconsideration Rule that, among other things, repeals the Obama Administration regulations.
The final rule incorporates most of the substantive provisions in the proposed rule. In addition to repealing much of the 2017 RMP Rule, the RMP Reconsideration Rule modifies the requirements related to local emergency coordination and compliance dates for some provisions. The Reconsideration Rule will become immediately effective upon its publication in the Federal Register, which should occur soon. Parties are also expected to challenge the RMP Reconsideration Rule in court, potentially resulting in the delay of the rule’s effective date or its reversal. One potential challenger is a contingent of fourteen state attorney generals that submitted negative comments on the proposed rule. More recently, the states submitted another comment listing chemical incidents that have occurred since the proposed rule, which they argue further evidences the need to keep the 2017 RMP Rule.