On June 15, 2017 — only one day after the EPA delayed the effective date of the updated Risk Management Plan (“RMP”) rule — thirteen environmental groups (including the Clean Air Council, Sierra Club and the Union of Concerned Scientists) filed suit to prevent the delay. Five weeks later, eleven states — New York, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont and Washington — filed their own challenge to the delay.

Finalized in the final days of the Obama administration, the updated RMP rule requires facilities to:

  • Conduct root cause analyses of catastrophic releases or near-miss incidents as part of the facility’s accident-prevention program.
  • Use an independent third-party auditor for required compliance audits rather than conducting self-audits.
  • Coordinate and conduct notification exercises with local emergency authorities annually.
  • Conduct emergency response field exercises every 10 years and tabletop exercises every three years.
  • Provide the public with basic chemical hazard information.
  • Conduct a public meeting after a reportable accident.

Additionally, paper, chemical, coal and petroleum products manufacturers must conduct a “safer technologies and alternatives” analysis as part of their five-year review.

The original effective date for the rule was March 14, 2017. However, the EPA delayed the effective date as part of the Trump administration’s regulatory “freeze.” On March 13, 2017, after receiving a petition from several industry groups, new EPA Administrator Scott Pruitt began reconsidering the RMP rule amendments. On April 3, 2017, the EPA proposed a rule to delay the effective date until February 19, 2019 (the “Delay Rule”) so the EPA can fully evaluate the various petitions for reconsideration and take public comments on issues in question. The Delay Rule was finalized on June 14, 2017.

One day later, the environmental groups filed a petition for review of the EPA’s Delay Rule with the D.C. Circuit Court of Appeals. The environmental groups were joined by the United Steelworkers (“USW”) union, which moved to intervene, arguing that the Delay Rule is inappropriate because RMP-regulated chemicals pose a real and immediate threat to USW members and their families who work, reside or recreate near these facilities.

The environmental groups and the USW then moved to stay the Delay Rule until the court takes full review of it, arguing that a stay is warranted because the Delay Rule postpones critical protections from chemical disaster. The groups ultimately argued that the Delay Rule is impermissible because the Clean Air Act only allows the EPA to delay the effective date of a promulgated rule for up to the three months — not 20. The environmental groups also argued that the Delay Rule violates section 112(r) of the Clean Air Act (the provision authorizing the RMP rule) because it reduces the requirements for facilities to prevent and minimize accidental releases of hazardous chemicals. The D.C. Circuit consolidated the states’ challenge filed on July 24, 2017, with the environmental groups’ case.

Although the D.C. Circuit has yet to weigh in on the respective petitions, another recent D.C. Circuit decision may be instructive. On July 3, the D.C. Circuit vacated the EPA’s initial 90-day stay of new methane emissions standards for certain oil and gas facilities. Much like with the updated RMP rule, the EPA convened a proceeding to reconsider certain aspects of the methane emission standards and stayed the effective date of those standards for 90 days. Eleven days after convening the reconsideration proceeding, the EPA proposed a rule to delay the effective date of the methane standards another two years. Environmental groups sued, claiming that the EPA’s basis for issuing the initial stay was unlawful under the Clean Air Act.

The D.C. Circuit agreed, finding that it was not impracticable for industry groups to have provided comments during the original rulemaking process on the issues that the EPA cited as the basis for the reconsideration and stay. Rather, the court found that the EPA had solicited comments directly related to those issues, and that many industry petitioners did indeed provide comments. The court also rejected the EPA’s argument that it has “inherent authority” to issue a brief stay of a final rule (i.e., not to enforce the rule) while the EPA reconsiders it.

However, the D.C. Circuit left the door open for the EPA to delay the methane rule’s effective date through a new rulemaking action. At the end of its opinion, the court emphasized that nothing in its opinion limits the EPA’s authority to reconsider the rule and proceed with the proposed rule to delay the methane standards another two years. The D.C. Circuit will now have the opportunity to pass on the EPA’s decision to delay a rule through the formal rulemaking process.