A federal appeals court in August vacated a delay in Obama-era changes to the Environmental Protection Agency’s Risk Management Program (RMP) that would add compliance requirements to regulated facilities. Shortly after taking office, the Trump Administration issued a series of delays to the effective date of the RMP amendments, resulting in a final effective date of February 19, 2019.

The International Institute for Ammonia Refrigeration (IIAR) supported the delay in public meetings and provided written comments to the EPA.

While many industry groups joined IIAR in backing the delay, environmental groups challenged the 20-month delay. On August 17th, the District of Columbia Circuit Court of Appeals ruled that EPA acted in an arbitrary and capricious manner in delaying the effective date until February 19, 2019.

SUMMARY OF COURT RULING

The appeals court found that EPA exceeded its authority in going beyond the 90-day delay authorized under the Clean Air Act and did not provide sufficient reasoning for why an extended delay was necessary.

The court criticized the delay rule by stating that EPA neglected to explain why allowing the amendments rule to go into effect would prevent EPA from undertaking notice and comment or other tasks for reconsideration and why a delay was needed to prevent impediments to reconsideration.

The court also stated that nothing in the delay rule explained EPA’s departure from its stated reasoning in setting the original effective date and compliance dates. The court also rejected EPA’s claim that a Bureau Alcohol, Tobacco, and Firearms nding that a 2013 Texas fertilizer plant explosion was caused by arson rather than by an accident supported the need for a 20-month delay. “Because EPA has not engaged in reasoned decision making, its promulgation of the Delay Rule is arbitrary and capricious,” The court ruled.

RECONSIDERATION RULE STILL MOVING FORWARD

While vacating the delay, the court specifically acknowledged that EPA does retain authority to change regulations pertaining to RMP through its normal notice and comment rulemaking process. EPA has already begun a rulemaking effort by proposing a rule to reconsider the regulation. The reconsideration rule proposes rescission of problematic provisions included in the amendments rule, included removal of provisions related to third-party audits, root-cause analysis, information sharing and safer-technology analysis.

IIAR has presented oral and written comments to EPA supporting the reconsideration rule.

PRACTICAL IMPACT OF RULING AND NEXT STEPS

From the date of the ruling, EPA has 45 days to petition for a rehearing or appeal to the Supreme Court. While the delay has technically been lifted, the rule will not go into effect until at least 45 days after the ruling. EPA has yet to indicate how it will respond to the ruling.

In addition to actions by EPA, there is a potential that industry will challenge the court’s decision or reactivate litigation that had previously been filed challenging the amendments rule. Prior to the 20-month delay, industry groups sued EPA challenging the amendments rule. The lawsuit was put on hold when the delay went into effect. Industry could restart its lawsuit and request the courts to stay the effectiveness of the amendments rule while the litigation moves through the legal process.

Even if the amendments rule were to become effective 45 days after the court ruling, the immediate impacts on regulated facilities would be limited to only those provisions with effective dates that have already passed. The only major provision with a compliance date that has passed is the requirement for emergency response coordination activities.

If the amendments rule becomes effective during the fall of 2018, regulated facilities will be immediately required to have documentation that they are coordinating with their local emergency responders. The reconsideration rule proposes to maintain the coordination requirements, so such coordination will eventually be required by RMP.

IIAR has long been encouraging members to engage with local responders and document their coordination, regardless of whether it is a regulatory requirement. IIAR continues to urge members to build and document relationships with their local responders.

The compliance date for the other major provisions, including third-party audits, root-cause analysis, information sharing and emergency response exercises is March 15, 2021.

All of those provisions are subject to rescission or significant change as a part of the reconsideration rule.EPA is expected to finalize the reconsideration rule well before the 2021 compliance dates for these provisions. Even if the amendments rule goes into effect this year, there will not be an immediate impact on regulated facilities related to these provisions.

While some uncertainty remains about the effect of the court’s ruling to vacate the delay of the RMP amendments rule, the immediate impacts appear to be minimal. Potential appeals or other legal actions may cause a reinstatement of the delay, and EPA is continuing efforts to complete the reconsideration rule, which would rescind the problematic provisions. Facilities not currently coordinating with the local emergency responders are strongly encouraged to build and document those relationships in the near future, regardless of the regulatory outcome. IIAR will continue to actively engage with EPA and its industry partners as the process moves forward.