US Court of Appeals for the District of Columbia Rescinds Delay of the 2017 Risk Management Program Amendments

On August 17, 2018, the US Court of Appeals for the District of Columbia rescinded EPA’s delay of the 2017 Risk Management Rule amendments (known as the Chemical Disaster Rule). As a result of this decision, EPA is now required to reassess how it will proceed with modifying their attempts to change the proposed amendments.

In January 13, 2017, EPA finalized multiple amendments to the Clean Air Act’s Risk Management Program found in 40 CFR part 68. These new amendments imposed requirements in the following major areas: (1) accident prevention, including expanded post-accident investigations, more rigorous safety audits, safety training, and safer technology requirements; (2) emergency response, including more frequent coordination with local first responders and emergency response committees, and more intensive incident-response exercises; and (3) public information disclosure, including public disclosure of safety information and public-meeting requirements. These rules were first set to become effective on March 14, 2017 with the local emergency-response coordination requirements becoming effective on March 14, 2018, and additional requirements becoming effective on March 15, 2021 and March 14, 2022. However, in June 2017 the EPA, under the Trump administration and after delaying the rule twice prior, issued a rule delaying the effective date to June 19, 2019.

In this decision, the US Court of Appeals found that EPA had violated the Clean Air Act by improperly delaying the Chemical Disaster Rule. The court reasoned that EPA failed to properly issue its rule delaying the amendments in accordance with Section 7607(d)(7)(B) of the Clean Air Act because it did not identify the damages that failure to delay the rule would cause nor did it propose substantive changes to the programmatic requirements of the Chemical Disaster Rule. The court also found that the delay rule is not the type of substantive amendment authorized by Section 7412(r)(7).

As a result of this decision, EPA’s May 30th proposal to modify the 2017 amendments is likely nullified. However, EPA will likely be able to initiate a new successful rulemaking delaying the 2017 amendments if it includes the substantive changes in the May 30th proposal and such a proposal is not arbitrary and capricious.

Source:

US Court of Appeals for the District of Columbia Rescinds Delay of the 2017 Risk Management Program Amendments, Air Alliance Houston v. EPA, (D.C. Cir. August 17, 2018).