On June 14, 2017, EPA finalized a delay of the effective date of the Obama administration’s Risk Management Program (RMP) Amendments until February 19, 2019. 82 Fed. Reg. 27133 (June 14, 2017). As reported in prior editions of the Air Quality Letter, the amendments, finalized on January 13, 2017, addressed revisions to the RMP rule including prevention programs at stationary sources, emergency response preparedness, information availability and various other changes intended to streamline, clarify and otherwise technically correct the underlying rules. The amendments were in accordance with an Executive Order from former President Obama ordering enhanced safety procedures in the wake of the West, Texas fertilizer fire in 2013. EPA received petitions for reconsideration of the rule from a coalition of industry groups and from a group of 11 states, including Kentucky and West Virginia, raising a variety of objections to the rule including increased cost and resource burden without corresponding benefit and the lack of time to comment considering the U. S. Bureau of Alcohol, Tobacco and Firearms finding, two days before the end of the public comment period on the amendments, that the West, Texas fire was the result of arson. The states’ petition requested a 15-month delay of the rule. On March 16, 2017, EPA published notice the amendments would undergo reconsideration and administratively delayed the effective date of the amendments for 90 days. On April 3, 2017, EPA published a proposal to delay the effective date of the rule until February 19, 2019 (an additional 20 months).

EPA believes a 20-month extension is reasonable given the difficult and time consuming reconsideration process of evaluating issues related to the amendments. During the delay, the pre-amendment rules will remain in place. EPA noted “compliance dates for most major provisions of the Risk Management Program Amendments rule were set for four years after the final rule’s effective date, so EPA’s delay of that effective date has no immediate effect on the implementation of these requirements.”

On June 15, 2017, various environmental groups joined to challenge the delay in the United States Court of Appeals for the District of Columbia. Labor groups opposing the delay have been granted leave to intervene. At the end of June, industry groups that petitioned EPA for reconsideration filed to intervene in the action and, on July 7, 2017, the group of states including Kentucky and West Virginia also moved to intervene in support of the delay

The environmental and labor petitioners filed a motion on June 22, 2017, requesting the court stay the 20-month delay, arguing the delay violates the Clean Air Act (CAA) provision that “reconsideration shall not postpone the effective date of the rule” and that EPA was limited to a three-month delay of the rule. Petitioners also argue further delay could result in irreparable harm from additional accidents. In the final rule delaying the effective date, EPA explained its position that the three month limit applies to delays that do not undergo notice and rulemaking. “A natural reading of the language is that the act of convening reconsideration does not, by itself, stay a rule but that the Administrator, at his discretion, may issue a stay if he has convened a proceeding. The three-month limitation on stays issued without rulemaking under CAA section 307(d)(7(B) does not limit the availability or length of stays issued through other mechanisms.” The final rule also addressed comments that the delay would cause harm to workers and members of the public noting compliance dates in the amendments extend beyond the delay period and that the underlying RMP rule has been effective in preventing and mitigating chemical accidents and will remain in place during the delay.

We will continue to monitor and report as the litigation and reconsideration process continues.