Are Changes to EPA’s Risk Management Program “Ripe for the Picking” in the Early Days of the Biden Administration?

January 11, 2021
Michael Dillon, Esq. and Michael C. Nines, P.E., LEED AP, Technical Consultant
MGKF Special Alert - Federal Forecast 2021

In the waning days of the Obama administration on January 13, 2017, EPA published its substantive final rule amendments to the Risk Management Program (RMP) regulations at 40 C.F.R. Part 68.  The final rule came in response to Executive Order 13650, which ordered federal agencies to take actions to improve chemical facility safety and security.  The amendments to the RMP regulations applied to any facility holding more than a threshold quantity of a “regulated substance,” and included facilities in the chemical manufacturing, oil and gas extraction, agricultural, petroleum refining, and food and beverage sectors among others.  The 2017 RMP Amendments made significant enhancements to the RMP program’s accident prevention, emergency response, and data availability provisions including obligations for certain facilities to conduct root cause analyses in response to certain release events and to perform third-party audits after an RMP reportable accident; enhanced coordination between regulated facilities and local emergency response agencies; and mandatory public meetings with local communities impacted by RMP reportable accidents. 

Almost immediately upon taking office, the Trump administration temporarily delayed the effective date of the 2017 RMP Amendments before signing a final rule on June 9, 2017 delaying the effective date of the RMP rule amendments until February 19, 2019.  After having delayed the effective date of the 2017 RMP Amendments, EPA formally modified the rule through publication of the RMP Reconsideration Rule on December 19, 2019. The 2019 RMP Reconsideration Rule modified the 2017 RMP Amendments by removing what the Trump administration deemed burdensome, costly, and unnecessary amendments while maintaining appropriate protections and ensuring first responders have access to all the necessary safety information. Most significantly, the 2019 RMP Reconsideration Rule rescinded all major accident prevention program provisions of the 2017 RMP Amendments (i.e., third party audits, safer technology and alternatives analyses, incident investigation root cause analysis), and most other minor changes to the prevention program.  The 2019 RMP Reconsideration Rule also rescinded the public information availability provisions of the 2017 RMP Amendments.

Based on this recent history, it seems highly likely that the incoming Biden administration will take a hard look at the RMP program and consider undoing the recent rollback of RMP requirements promulgated under the Trump administration.  Although further change to the RMP program may be inevitable, this type of push/pull can have significant ramifications to the regulated community who would be tasked with complying with shifting legal requirements.  While management of change is a central feature of accident prevention as it relates to ever-changing processes, chemicals, equipment, and related hazards, it is not normally one found within the confines of an established regulatory framework such as RMP.