25 February 2020

New Administrative Petitions for Reconsideration on the RMP Reconsideration Rule: What Does It Mean for Process Safety?

On February 18, 2020, a group of states and a national trade union filed separate petitions seeking administrative reconsideration of the United States Environmental Protection Agency’s (EPA or Agency) recently finalized Clean Air Act Risk Management Plan (RMP) reconsideration rule (the Reconsideration Rule). The Reconsideration Rule became effective on December 19, 2019, and rescinds numerous provisions of the Obama administration’s January 2017 amendments to EPA’s RMP regulations under the Clean Air Act (the Amendments).

The petition for reconsideration filed by a coalition of states including the City of Philadelphia alleges that EPA (1) ignored recent events at industrial sites and an April 2019 U.S. Chemical Safety and Hazard Investigation Board (CSB) letter regarding the use of hydrogen fluoride at refinery sites and (2) failed to consider a December 2019 report from the Agency’s Office of Inspector General regarding the impact of extreme weather events on hazardous material releases at industrial sites. The United Steelworkers trade union also bases its petition for reconsideration on recent industrial accidents and the CSB letter as well as on other information it asserts arose after the public comment period on the proposed reconsideration rule closed. Both petitions seek three-month stays of the Reconsideration Rule.

It is highly unlikely that EPA would grant the petitions. The scope of issues the petitions can raise at this stage of the RMP rulemaking process is narrow — the Reconsideration rule is itself the result of petitions for reconsideration following issues that arose after the comment period for the Obama-era Amendments — thus reducing the likelihood that EPA would revisit or stay the rulemaking on these narrow issues. It is unclear when EPA would act on the petitions, as no express statutory deadline applies. If EPA denies the petition, the states and United Steelworkers could seek judicial review in the D.C. Circuit, although arguably any petition for review could be limited to EPA’s refusal to reconsider rather than the substantive issues raised in the reconsideration petitions.

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