Chemical Disaster Rule (Risk Management Plan / Accidental Release Prevention Requirements)

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

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 other accidents like this.

Current Status

The rule was delayed several times, the latest delay being effective until February, 2019. Several states and environmental groups sued the Environmental Protection Agency (EPA) over these delays. The D.C. Circuit vacated EPA’s delay of the Chemical Disaster Rule on August 17, 2018. The court called the agency’s repeated delays of the rule “mockery” of the Clean Air Act “calculated to enable non-compliance.” On September 21, 2018 the D.C. Circuit granted petitioners’ request to issue its mandate without delay, placing its order eliminating the delay into effect.

EPA’s proposal to reconsider the rule remains a proposal. EPA has yet to issue a final rule. EPA released the proposed Risk Management Plan Reconsideration rule oMay 17, 2018 to reduce the potential burden on companies. The proposed rule was published on May 30, 2018 and the comment period ended August 23, 2018.

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History

On January 13, 2017 EPA published the final Accidental Release Prevention Requirements of the Clean Air Act Risk Management Program.

The rule was set to take effect on March 14, 2017.

Trump Era

On January 26, 2017 EPA published notice that it would delay the Risk Management Program rules until March 21, 2017.

On February 28, 2017 several industry groups asked EPA to halt the rule entirely  and reconsider the rule.

On March 16, 2017 EPA published a final rule delaying the effective date of the Risk Management Rule for another 3 months, to June 19, 2017.

On June 14, 2017 EPA published notice in the Federal Register that it would further delay implementation 20 months, until February 19, 2019.

On June 15, 2017 environmental groups sued in the D.C. Circuit Court to stop the rule delays.

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

On May 17, 2018 EPA released a proposed rule to reduce preventative measures and reporting requirements on companies regulated under the rule. The proposed rule, published on May 30, 2018, said “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 was initially open for public comment until June 29, 2018.

On July 24, 2018, EPA extended the comment period for its proposed Risk Management Program Reconsideration rule published on May 30, 2018 through August 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.

The D.C. Circuit called 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 vacated the delay rule as arbitrary and capricious on August 17, 2018. The court found the 20 month delay, well beyond the 3 months allowed under the act, outside the scope of its authority. On September 21, 2018 the D.C. Circuit granted petitioners’ request to issue its mandate without delay, placing its order eliminating the delay of the Chemical Disaster Rule into effect.

For More Information

For more on the Risk Management Plan and the Arkema plant see our white paper “Arkema Explosion & the 2017 Risk Management Program Amendments” and Save EPA’s page on the rule.  

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