On August 17, 2018, the D.C. Circuit Court of Appeals issued a ruling that vacated the Environmental Protection Agency’s (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 added requirements to facilities regulated under the RMP program. The Trump Administration issued a rule delaying the effective date of the regulation to February 2019. Groups supporting the changes to RMP successfully challenged the delay on grounds that EPA was only authorized to delay the effective date by 90 days. The Court issued a narrow ruling stating that EPA was arbitrary and capricious by issuing the delay beyond the 90 days allowed in the Clean Air Act.
While the RMP rule became immediately effective upon the court’s ruling, the practical impacts of the ruling are uncertain. EPA is currently in the rulemaking process to reconsider many of the provisions in the RMP amendments rule. The new Proposed Rule would rescind most of the provisions in the RMP amendments rule, including those of most concern to the cold chain industry. The court’s ruling specifically stated that EPA retains the authority to change the RMP regulation through the normal rulemaking process. In addition, the compliance dates for the more troubling provisions are still more than 2 years away, so EPA should have ample time to finalize the reconsideration rule and rescind problematic provisions. It is also possible that court’s ruling will be appealed.
GCCA is coordinating a coalition of industry partners in support of the reconsideration rule and group comments will be submitted on August 23. GCCA will continue to actively engage with EPA and industry as the process moves forward.