EPA’s Multi-Year Delay of Chemical Disaster Rule of 2017 Not Authorized Under CAA

On August 17, the U.S. Court of Appeals for the District of Columbia Circuit, in the case Air Alliance Houston, et al., v. EPA, vacated the Environmental Protection Agency’s (EPA) “Delay Rule.” The so-called “RMP” ( for risk management plan) rule was substantially amended after a number of plant explosions took place in the past few years. The amended rules were published a week before the new administration took office EPA had delayed the effective date of the Chemical Disaster Rule of 2017 on three separate occasions: January 26, 2017, March 16, 2017, and ultimately to June 14, 2017.

The Court of Appeals held that the actions taken by EPA were not authorized under the relevant provisions of the Clean Air Act (CAA) and were otherwise arbitrary and capricious. The Court of Appeals vacated the Delay Rule of June 14, 2017.

Section 7607 (d)(7)(B) of the CAA authorized a three-month stay when a petition for reconsideration had been filed, but no more than that according to the Court of Appeals. However, while the Delay Rule must be vacated, the Court of Appeals also stated that EPA retains authority under the CAA to “substantively amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise the effective and compliance dates, subject to arbitrary and capricious review.”

Regarding that last statement, it should be noted that EPA formally proposed substantive changes to this rule on May 30, 2018, and many comments should be filed. Since the initial promulgation of these Rules in 1996, thousands of response plans have been filed with EPA.

The Court of Appeals correctly notes that the new EPA management has taken its time to figure out how to proceed. Compliance with the 2017 rule is likely to be onerous for many facilities.