Key Contacts
Practice Areas
Clean Air Act Risk Management Program Rule and Predictions for 2025
On March 11, 2024, EPA promulgated updates to the Clean Air Act Risk Management Program (RMP). See Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention (Final RMP), 89 Fed. Reg. 17622 (Mar. 11, 2024). This finalization was one of several that has occurred between changing presidential administrations since 2017, and marked the Biden administration’s attempt to strengthen the RMP requirements for facilities that use extremely hazardous substances. Perhaps most notable was the inclusion of a requirement to consider ‘‘natural hazards,” defined as “meteorological, environmental, or geological phenomena that have the potential for negative impact, accounting for impacts due to climate change,” during hazard evaluations. Other noteworthy revisions among several include the safer technologies and alternatives analysis, third-party compliance audits, and root cause analysis incident investigation.
Since its finalization, the Final RMP has been the subject of several challenges. On May 9, 2024, several States filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit (“Court” or “D.C. Circuit”) and were assigned case number 24-1125. A day later, a coalition of industry members collectively referred to as the “RMP Coalition” filed a separate petition for judicial review in the D.C. Circuit and simultaneously petitioned EPA to reconsider the Final RMP. The D.C. Circuit consolidated both cases under case number 24-1125. On July 30, 2024, the Court granted the parties’ joint motion to hold the litigation in abeyance pending EPA’s reconsideration of the Final RMP and stipulated that the parties “file motions to govern within 10 days of [EPA’s] ruling on the pending motion for reconsideration or by December 6, 2024, whichever occurs first.” On December 18, 2024, the Court extended the abeyance period by 90 days and ordered the parties to file motions to govern future proceedings by March 6, 2025.
On December 30, 2024, EPA formally denied the RMP Coalition’s petition for reconsideration in a final rule published in the Federal Register. See Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention; Final Action on Petition for Reconsideration, 89 Fed. Reg. 106479 (Dec. 30, 2024). Given this outcome, the RMP Coalition can reasonably be expected to file motions to govern further proceedings and lift the abeyance in case number 24-1125 by or before March 6, 2025. For now, the Final RMP remains effective, but the fight over it is likely to continue into 2025.
