Appeals Court Vacates the Rule Delaying RMP Changes

In mid-August 2018, the United States Court of Appeals for the District of Columbia Circuit issued a ruling that vacated the Environmental Protection Agency (EPA) delay in implementing changes to the Risk Management Program (RMP). One of the last regulations finalized at the end of the Obama Administration was a rule that amended the RMP program and added requirements to regulated facilities. Shortly after taking office, the Trump Administration issued a series of delays to the effective date of the RMP amendments. The final such delay spanned 20 months, placing the effective date at February 19, 2019. GCCA spoke in support of the delay during EPA public meetings and provided written comments to that effect. While many industry groups joined GCCA in supporting the delay, a number of environmental groups opposed the move and challenged the 20-month delay rule in court. In August, the D.C. Circuit Court of Appeals ruled that EPA acted in an arbitrary and capricious manner in delaying the effective date until February 19, 2019. 

Summary of Court Ruling

The court found that the EPA has exceeded its authority in going beyond the 90-day delay authorized under the Clean Air Act and did not provide sufficient reasoning for why an extended delay was necessary. In the delay rule, EPA claimed that the additional 20 months were needed to conduct reconsideration proceedings and to consider other issues that may benefit from additional comment. The Clean Air Act provides that reconsideration of a final rule pursuant to that section “shall not postpone the effectiveness of the rule” and thatthe “effectiveness of the rule may be stayed during such reconsideration. . . for a period not to exceed three months.” The court criticized the delay rule by stating that the EPA neglected to explain why allowing the amendments rule to go into effect prevents the EPA from undertaking notice and comment or other tasks for reconsideration, and why a delay is needed to prevent impediments to reconsideration. The court further stated that nothing in the Delay Rule explains why the EPA departed from its stated reasoning in setting the original effective date and compliance dates. The court also rejected the EPA claim that the Bureau of Alcohol, Tobacco, and Firearms finding that the West Fertilizer explosion was caused by arson, rather than an accident, supports the need for a 20-month delay. The court summarized the ruling by stating that, “Because EPA has not engaged in reasoned decision making, its promulgation of the Delay Rule is arbitrary and capricious.” 

Reconsideration Rule Moving Forward 

It is important to note that the court specifically acknowledged that the EPA retains the authority to change regulations pertaining to RMP through the normal notice and comment rulemaking process. The EPA has already begun a rulemaking effort by proposing a rule to reconsider the regulation finalized at the end of the Obama Administration. The reconsideration rule proposes the rescission of problematic provisions included in the amendments rule, included the removal of provisions related to third party audits, root cause analysis, information sharing, and safer technology analysis. The Proposed Rule was published in May 2018 and the public comment period closed August 2018. The GCCA gave oral comments supporting the rule at an EPA public meeting and, along with a coalition of industry partners, submitted written comments supporting the reconsideration rule.

Practical Impact of Ruling

While the court vacated the delay rule on August 17, 2018, EPA has 45 days to petition for a rehearing or appeal the decision to the Supreme Court. This means that even though the delay to the amendments rule has technically been lifted, the rule will not go into effect until at least the end of the 45-day period in which the EPA decides on petitions or appeals. The EPA has yet to indicate how it will respond to the ruling. In addition to actions by the EPA, there is a potential that industry will challenge the court’s decision or reactivate litigation that has previously been filed challenging the amendments rule. Prior to the 20-month delay, industry groups sued the EPA challenging the amendments rule. The lawsuit was put on hold when the delay went into effect. It is possible that industry will restart the lawsuit and request the courts to stay the effectiveness of the amendments rule while the litigation moves through the legal process. Even if the amendments rule were to become effective 45 days after the court ruling, the immediate impacts on regulated facilities will be limited to those provisions of the amendments rule that had effective dates that have already passed. The only major provision with a compliance date earlier than 2021 is the requirement for emergency response coordination activities, which has a compliance date of March 14, 2018. Should the amendments rule become effective during the fall of 2018, regulated facilities will be immediately required to have documentation that they are coordinating with their local emergency responders. Even if the amendments rule does not go into effect in the near future, the reconsideration rule proposes to maintain the coordination requirements, so such coordination will eventually be required by RMP. For quite some time, the GCCA has been encouraging members to engage with local responders and document their coordination, regardless of whether this is a regulatory requirement. The GCCA continues to urge all members to build relationships with their local responders and maintain records of their engagement. The compliance date for the other major provisions within the amendments rule is March 15, 2021. This date applies to requirements related to:

• Third Party Audits

• Root Cause Analysis

• Safer Technologies Analysis

• Emergency Response Exercises

• Information Sharing

All of the above provisions are subject to rescission or significant change as a part of the reconsideration rule. It is highly likely that the EPA will finalize the reconsideration rule well before the 2021 compliance dates for these provisions. So, even if the amendments rule goes into effect this year, there will not be an immediate impact on regulated facilities related to these provisions. While there remains some uncertainty about the effect of the court’s ruling to vacate the delay of the RMP amendments rule, the immediate impacts on regulated facilities appear to be minimal. Potential appeals or other legal actions may cause a reinstatement of the delay, and EPA is continuing its efforts to complete the reconsideration rule that would rescind problematic provisions within the amendments rule. Facilities that are not currently coordinating with the local emergency responders are strongly encouraged to build and document those relationships in the near future, regardless of the regulatory outcome. The GCCA will continue to actively engage with the EPA and its industry partners as the process moves forward. 

Registration Renewal Due December 31

Under the Food Safety Modernization Act (FSMA), domestic food facilities and foreign food facilities exporting food to the United States are required to renew their registration with the Food and Drug Administration (FDA) every two years. The 2018 Biennial Registration Renewal period runs from October 1 through December 31, 2018. GCCA members are strongly encouraged to ensure that their accounts with FDA are up to date with a valid password. Due to security reasons, password resets are required every 90 days. If you need to reset your password, you can call the FDA FURLS Helpdesk at 1-800- 216-7331 or 240-247-8804 for assistance. The FDA also recently published an updated Guidance for Industry: Questions and Answers Regarding Food Facility Registration, which can assist members with the registration process. Members can find additional information on FSMA regulations in the GCCA FSMA Compliance Guide and by contacting GCCA headquarters.