More than five years after President Obama issued Executive Order (EO) 13650, sending us down this winding road, on August 17, 2018, the DC Circuit Court of Appeals vacated the RMP Delay Rule. The Court of Appeals stated, “Because EPA has not engaged in reasoned decision-making, its promulgation of the Delay Rule is arbitrary and capricious.” The Circuit Court listed three specific reasons to substantiate their rationale.
First, agencies regularly reconsider rules that are already in affect but as the Second Circuit Court stated, “a decision to reconsider a rule does not simultaneously convey authority to indefinitely delay the existing rule pending that reconsideration.” Basically, the EPA failed to provide any reasonable evidence to delay the rule past the 3-month delay explicitly authorized by CAA Section 7607(d)(7)(B)). The EPA had cited 7412(r)(7) as a basis for their 20-month delay; however, “the Delay Rule is not the type of amendment authorized by 7414(r)(7)….particularly where the statue requires the agency to assure compliance as expeditiously as practicable.”
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.” The panel had no objection to the 3-month stay.
Second, “the Delay Rule does not explain its departure from EPA’s previous conclusions regarding the appropriate and practicable timeline for implementing the Chemical Disaster Rule”. The Court found that EPA failed to explain how the compliance periods that were contained in the previous rule were now impractical when they were reached after soliciting and considering comments on the subject.
Third, the Court disagreed with EPA’s statement in the Delay Rule which cited the Texas fertilizer explosion was caused by arson rather than an accident, stating that was not a reasoned basis for delaying the entire Chemical Disaster Rule as the EPA cited many more incidents than the West, Texas disaster in promulgation of the rule.
Parties involved will be allowed time to file petitions for rehearing and the government has 45 days to respond. If the court grants a response, it could likely add at least another 30 days until the mandate issues.
Regardless of the Circuit Court’s decision, the EPA does have options moving forward: appeal the ruling, attempt to delay the rule for a period of time that can legally be defended, remove/modify certain Chemical Disaster Rule requirements, or allow the Chemical Disaster Rule to be implemented. The last option appears highly unlikely and its anyone’s best guess as to how the EPA moves forward, but everyone should stay tuned-in to this RMP rulemaking process.
It should be noted that EPA formally proposed substantive changes to this rule on May 30, 2018, and that proposal is likely to be the new RMP focal point for the EPA and Administration.
August 1, 2013 – President Obama issued Executive Order (EO) 13650
March 14, 2016 – EPA published the Proposed Rule
January 13, 2017, the Final Rule was published in the Federal Register
February 28, 2017 – EPA receives petition requesting reconsideration and stay for the Final Rule
March 16, 2017 – Final Rule provides 90-day stay of the effective date of the RMP amendments
April 3, 2017 – EPA Proposed Rule to further delay RMP amendments until February 19, 2019
June 9, 2017 – EPA Final Rule to further delay RMP amendments until February 19, 2019
May 17, 2018 – EPA Proposed Rule on several changes to the RMP amendments
August 17, 2018 – DC Circuit Court vacates the RMP Delay Rule