[co-author: Maya Ward - Summer Associate]
The D.C. Circuit Court of Appeals placed the challenges to the U.S. Environmental Protection Agency’s (“EPA”) risk management regulation on hold for 120 days while the EPA reconsiders the concerns raised by challengers. Order, Oklahoma v. EPA, No. 24-1125 (D.C. Cir. July 30, 2024). The underlying revisions to the rule, in effect on May 10, 2024, are unchanged by this action. While both the Court and the EPA have authority to stay the rule pending reconsideration, neither have done so.
On March 11, 2024, the EPA published a final rule in the Federal Register updating the Clean Air Act Risk Management Program (“RMP”) regulations. The final rule, titled Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention (“Final Rule”), 89 Fed. Reg. 17622 (Mar. 11, 2024), requires facilities with processes that contain threshold quantities of hazardous chemicals to provide backup power for accidental release monitors; requires third-party compliance audits in certain circumstances, with final reports to company Boards of Directors; requires facilities to provide justification for declining certain audit recommendations; increases the employee participation requirements; requires facilities to provide more information about the covered processes available to the public; and alters language to “emphasize” certain provisions that the EPA believes have always been required by the regulations.
Generally, facilities have three years from the effective date of the Final Rule, May 10, 2024, to comply with the new obligations established by the Final Rule. Facilities have four years to revise their risk management plans to include the new data elements contained in Subpart G of the regulations.
On May 9, 2024, states and industry groups filed Petitions for Review of the Final Rule in the U.S. Court of Appeals for the D.C. Circuit challenging the Final Rule as unlawful, arbitrary, and capricious, and asked that the Final Rule be vacated. The petitions for review were consolidated in Oklahoma v. EPA, No. 24-1125.
On May 10, 2024, states and industry groups also sent a Petition for Reconsideration to the EPA. In the petition, the states and industry groups argue that the EPA imposed certain requirements that were not described in the proposed rule, failed to justify the economic impacts of the Final Rule, imposed requirements that put facility safety at risk, and exceeded its statutory authority under the Clean Air Act.
After the Petition for Review was filed, the parties jointly moved the D.C. Circuit to hold the case in abeyance to allow the EPA to address the Petition for Reconsideration, which the Court granted. Notably, although the case is stayed for 120 days, the Court has not stayed implementation of the Final Rule. While both the Court and the EPA have authority to stay the rule pending reconsideration, neither have done so. As a result, the Final Rule remains fully in effect, and RMP-covered facilities should plan to comply with the rule pending further action by the EPA or the Court.
