United States: Stay Or Go: D.C. Circuit Halts EPA's Stay Of Obama-era Risk Management Plan Amendments


On August 17, 2018, the United States Court of Appeals for the District of Columbia Circuit vacated a rule that delayed the effective date of the 2017 Risk Management Program (RMP) Rule amendments issued by the U.S. Environmental Protection Agency (EPA) at the end of the Obama administration.1 One week later, on August 23, 2018, the comment period concluded on a proposed EPA rule that would effectively rescind or substantially revise many provisions of the 2017 amendments. The ruling, coupled with EPA's proposed rule, generates uncertainty for facilities that handle hazardous chemicals.


In 2013, President Obama issued Executive Order 13650, "Improving Chemical Facility Safety and Security," in response to dangerous chemical-facility incidents in the United States, including the explosion at a fertilizer plant in West, Texas. Following this order, EPA promulgated amendments to the RMP Rule to improve chemical process safety; assist local emergency authorities in planning for, and responding to, accidents; and improve public awareness of chemical hazards. EPA published these rules in the Federal Register on January 13, 2017. While some of the rule's provisions were to take effect on March 14, 2017,2 the rule's primary provisions were to take effect over the course of the following five years. In March 2018, provisions requiring local emergency-response coordination were to become effective. In March 2021, the bulk of the rule's provisions were to become effective, including those requiring emergency-response exercises, public information-sharing and post-accident public meetings, third-party audits, more rigorous post-incident analyses and safer technologies. The final date for regulated facilities to submit an updated RMP was March 14, 2022.3

The 2017 RMP Rule classifies three program levels of regulated facilities that are subject to the rule amendments.4 Program Level 1 applies to the facilities with the lowest risk to the public in the event of an accident. This level imposes minimal hazard assessment, accident prevention and emergency response requirements. Program Level 2 applies to facilities with an intermediate risk to the public, requiring a more streamlined accident-prevention program and greater hazard assessment, management and emergency response requirements. Lastly, Program Level 3 applies to facilities with a higher frequency of serious accidents and imposes the Occupational Safety and Health Administration's Process Safety Management standard, as well as greater hazard assessment, management, and emergency-response requirements.

However, one week after President Donald Trump took office in January 2017, EPA delayed the first effective date of the RMP Rule amendments by one week. One month later, the agency received a petition from the RMP Coalition on behalf of several trade associations.5 In this petition, the Coalition argued that the RMP Rule amendments undermine safety, create significant security risks and do nothing to further prevent criminal acts that threaten facilities. Following the petition, EPA convened a proceeding for reconsideration of the RMP Rule amendments and subsequently instituted a 90-day administrative stay of its original effective date.6 After this stay, EPA received two additional petitions and subsequently published a notice in the Federal Register that it would further delay the effective date of the amendments by another 20 months.7 EPA finalized this rule on June 14, 2017, delaying the effective date of the RMP Rule amendments to February 19, 2019.8 Finally, in May 2018, EPA proposed to rescind or revise almost all of the amendments' new requirements.9

The Court Vacates EPA's Stay

In the case decided in mid-August 2018, the D.C. Circuit determined that EPA lacked authority under the Clean Air Act to delay the RMP Rule amendments. Specifically, the court held that EPA's rule to delay the new chemical and safety requirements was "arbitrary and capricious" because the agency did not provide adequate reasons to justify its 20-month stay of the 2017 amendments, given the Clean Air Act's strict limitation that EPA may issue a stay for only a maximum of 90-days after considering a regulated party's objection.10 To permit EPA to do otherwise, according to the court, would be to allow the agency to "render illusory" the Clean Air Act's restriction on EPA's authority to stay its own rules. Moreover, the court found that the 20-month stay contained no provisions to accomplish the goals of preventing or reducing disasters and protecting human and environmental health. Ultimately, the court vacated EPA's stay, accusing the agency of making "a mockery" of the law and restoring the original amendments for the time being.

What This Means for Regulated Facilities

The D.C. Circuit's ruling produces uncertainty for those who are subject to the 2017 RMP Rule amendments. The amendments apply to a wide range of facilities, referred to as ''stationary sources,'' which are subject to the chemical-accident prevention requirements of the Clean Air Act. In total, 12,542 facilities are affected by the rule across all sectors, according to RMP reporting in February 2015.11 EPA has already stated that it plans to rescind a number of the RMP Rule amendments' key provisions, including the requirements related to safer technology and alternatives analyses, third-party audits, incident investigations and information availability.12 In addition, the agency has expressed a desire to revise the amendments' compliance dates, as well as requirements related to local emergency coordination, emergency exercises and public meetings.

With respect to EPA's proposed rule to rescind or revise many of the RMP Rule amendments' provisions, the D.C. Circuit made clear that its holding is narrow and that the court cannot prevent the agency from making substantive changes to the 2017 amendments.13 The court's decision to vacate EPA's 20-month stay restores only the status quo, which means that the 2017 amendments' requirements with past-due compliance dates are now legally enforceable.14 The provisions with past-due compliance dates, however, include only minor definitional changes to the RMP Rule and requirements for local emergency-response coordination. Although the current EPA is unlikely to vigorously enforce such provisions, given its demonstrated hostility to the Obama-era amendments, the RMP Rule is subject to citizen suit enforcement under the Clean Air Act.15 Owners of impacted facilities will undoubtedly be watching and hoping that the agency will work quickly to finalize its regulatory pullback of the 2017 amendments well before the most burdensome provisions become effective and enforceable.


Air Alliance Houston, et al. v. EPA, No. 17-1155 (D.C. Cir. 2018).

2 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, 82 Fed. Reg. (January 13, 2017).

Id. at 4678.

4 Clean Air Act Section 112(r): Accidental Release Prevention /Risk Management Plan Rule Fact Sheet (March 2009).

5 "Petition for Reconsideration and Request for Agency Stay Pending Reconsideration and Judicial Review of Final Rule titled Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act." RMP Coalition. (February 28, 2017).

8 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date, 82 Fed. Reg. 13968 (March 16, 2017).

7 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date, 82 Fed. Reg, 16146 (April 3, 2017).

8 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Further Delay of Effective Date, 82 Fed. Reg. 27,133 (June 14, 2017).

9 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, 83 Fed. Reg. 24850 (May 30, 2018).

10 Supra note 1.

11 Supra note 2 at 4596.

12 Supra note 7.

13 Supra note 1.

14 Compliance dates become enforceable following a mandate on the ruling.  On August 24, 2018, environmentalists sought an expedited mandate of the decision, arguing that further postponing the implementation rewarded EPA's illegal conduct. On August 31, 2018, the D.C. Circuit "inadvertently" issued that mandate and quickly withdrew it following a flurry of emergency requests from states and industry. Replies to the environmentalists' request were permitted to be filed by September 5, 2018, and a new ruling on the mandate is anticipated shortly.

15 See 42 U.S.C. § 7412 (r)(7)(E) (2018).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions