The United States Court of Appeals, FOR THE DISTRICT OF COLUMBIA CIRCUIT has reversed EPA’s delay of the RMP Amendments. In its decision the courts states:
Second, nothing in the Delay Rule explains EPA’s departure from its stated reasoning in setting the original effective date and compliance dates. In promulgating the Chemical Disaster Rule, EPA considered comments specifically about the rule’s proposed effective date and the compliance timeline for various requirements, and explained why it adopted or rejected the comments. See Chemical Disaster Rule, 82 Fed. Reg. at 4675–78. For example, EPA “received comments supporting the proposed one-year compliance date for emergency response coordination activities,” and “EPA agree[d] with commenters and [was] finalizing a one-year compliance date for emergency response coordination activities.” Id. at 4,677. As another example, one commenter objected to a four-year compliance date for emergency-response exercises and argued the deadline should be one year; EPA disagreed because four years would “allow owners and operators to develop an exercise program,” train personnel, and familiarize themselves with guidance EPA expected to develop after promulgation of the Chemical Disaster Rule. Id.
The Delay Rule does not explain its departure from EPA’s previous conclusions regarding the appropriate and practicable timeline for implementing the Chemical Disaster Rule. Nor does it explain why the detailed factual findings regarding the harm that would be prevented upon implementation of the Chemical Disaster Rule are now only “speculative,” id. at 27,139, or why the entire rule must be delayed wholesale despite its many different provisions with different effective and compliance dates. Although EPA need not show that “the reasons for the new policy are better than the reasons for the old one,” it must provide “a reasoned explanation . . . for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox, 556 U.S. at 515–16. EPA has not done so. Instead, EPA attempts to minimize the impact of the Delay Rule by asserting that by merely delaying the overall effective date until February 2019, it leaves the major compliance dates unaffected. Delay Rule, 82 Fed. Reg. at 27,137 (“This rule does not impact compliance dates except for those dates that would be triggered prior to February 2019.”). This assertion is incompatible with the EPA’s statement in the Delay Rule — and the common-sense conclusion — that “[a] delay of effectiveness will allow EPA time for a comprehensive review of objections to the [Chemical Disaster Rule] without imposing the rule’s substantial compliance and implementation resource burden when the outcome of the review is pending.” Id. at 27,136. EPA and the Industry Intervenors contend that the Delay Rule has no significant costs because it merely maintains the “status quo,” as regulated sources are not required to comply with all but one “major” provision until 2020. Putting aside EPA’s concession that the Delay Rule immediately delays multiple “minor” provisions and would delay the “major” first-responder coordination provisions, the baseline for measuring the impact of a change or rescission of a final rule is the requirements of the rule itself, not the world as it would have been had the rule never been promulgated. See Consarc Corp. v. OFAC, 71 F.3d 909, 913 (D.C. Cir. 1995) (“The legal definition of status quo ante [is] . . . the last uncontested status which preceded the pending controversy.” (quotations marks omitted)). The status quo would be a Chemical Disaster Rule that went into effect on March 14, 2017, with the ongoing compliance efforts by regulated parties to meet the compliance deadlines set in that rule.
EPA cannot have it both ways. Either there would be “substantial compliance and implementation” efforts by regulated parties absent the Delay Rule, or the rule has no effect on compliance requirements and does nothing more than maintain the status quo with “speculative but likely minimal . . . foregone benefits.” Delay Rule, 82 Fed. Reg. at 27,139. Therefore, EPA has failed to rationally explain its departure from its previous conclusions about appropriate compliance periods that it reached after specifically soliciting and considering comments on the subject. See NRDC, Inc. v. EPA, 683 F.2d 752, 760–61 (3d Cir. 1982) (“By postponing the effective date of the amendments, EPA reversed its course of action up to the postponement. That reversal itself constitutes a danger signal.”).
Third, contrary to EPA’s statement in the Delay Rule that “the timing” of a “finding by the Bureau of Alcohol, Tobacco, and Firearms . . . that the West Fertilizer explosion was caused by arson” rather than an accident supports delay, that is not a reasoned basis for delaying the entire Chemical Disaster Rule. See 82 Fed. Reg. at 27,137–38. EPA cited many more incidents than just the West, Texas disaster throughout the development and promulgation of the rule. See, e.g., Chemical Disaster Rule NPRM, 79 Fed. Reg. at 44,608 (“An April 8, 2011 explosion at [a plant in] Hawaii killed five workers who were disposing of fireworks.”); id. at 44,616 (“In October2007, five contractor workers were killed [at a plant] in Georgetown, Colorado, when a fire occurred inside a tunnel . . . . The CSB found that inadequate contractor safety practices and oversight contributed to the accident.”); id. at 44,618 (citing the “CSB’s findings concerning a lack of rigorous compliance audits in the 2005 BP Texas City Refinery explosion” that killed fifteen plant workers); Chemical Disaster Rule, 82 Fed. Reg. at 4599 (citing, in a section titled “Events Leading to This Action,” “[i]n addition to the tragedy . . . in West, Texas,” “an explosion and fire at the Tesoro Refinery in Anacortes, Washington,” a fire “at the Chevron Refinery in Richmond, California,” and “a fire and explosion at Williams Olefins in Geismar, Louisiana.”). Even were the court to agree for purposes of argument that the cause of the West, Texas disaster being arson is relevant to some of the accident-prevention provisions of the Chemical Disaster Rule, it is irrelevant to the emergency-response and information-sharing provisions, including those that have indisputably been delayed from the original March 14, 2018 effective date. Given that twelve of the fifteen fatalities in the West, Texas disaster were local volunteer firefighters and other first responders, this would be a fairly weak explanation for delaying provisions that EPA previously determined would help keep first responders safe and informed about emergency-response planning.
Because EPA has not engaged in reasoned decisionmaking, its promulgation of the Delay Rule is arbitrary and capricious.
Accordingly, the court grants the petitions for review and vacates the Delay Rule.