EPA RMP update “Delay” rule vacated by DC District Court

EPA retains authority under Section 7412(r)(7) to substantively amend the programmatic requirements of the Chemical Disaster Rule, and pursuant to that authority, revise its effective and compliance dates, subject to arbitrary and capricious review.

. . . the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational explanation of the facts found and the choice made.” When an agency reverses itself, it “must show that there are good reasons for the new policy,” but it need not show that “the reasons for the new policy are better than the reasons for the old one.” However, if the “new policy rests upon factual findings that contradict those which underlay its prior policy,” it must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.”

What does it mean? 

The district court said they could have made a new rule which struck down the Obama-era updated rule, but they can’t delay that Obama-era rule longer than the 90 days in the CAA statute. So, the EPA has a few options here:

  1. Appeal the decision
  2. Follow the statutory rule-making process  and delay the rule for a period they can defend.
  3. Follow the statutory rule-making process and remove / modify the requirements of the Obama-era updated rule effectively replacing it with a Trump-era one.
  4. Implement the Obama era rule (This isn’t quite possible as some of the compliance dates have passed or are very close.)

My guess is that it’s a combination of the first 3 options.

You can read the court’s ruling in its entirety online.

The following is my opinion, and you are welcome to skip over it: I have a hobby of reading court rulings and was a bit surprised that the wording the court used. In my opinion, they make a strong case on the law, but have really fluffed it up their ruling with a lot of dramatic language that’s unnecessary.

You almost get the impression they believe that the Obama-era updated rule is going to have a dramatic positive impact on the safety of the chemical industry. If implemented, I believe it will have a dramatic positive impact on the process safety consulting industry but might actually have a negative impact on process safety as it requires people to spend a LOT of time and money on things that haven’t been shown to significantly affect process safety.

Furthermore, there is very little evidence that the changes in the Obama-era updated rule would have prevented or significantly mitigated any of the accidents the court discusses. Just one example is West Texas, which the court discusses but the chemicals involved in the the explosion are not regulated under the RMP rule. The entirety of the updates seems to be more “process safety theatre” than an actual improvement to the regulation.

About Brian Chapin

PSM / RMP Compliance Consultant
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