DC Circuit Vacates EPA's Delay of Chemical Plants Rule

EPA promulgated the rule in on Jan. 13, 2017, to revise requirements for Risk Management Programs under the Clean Air Act, in the wake of the West explosion and other chemical accidents. When the Trump administration took over soon afterward, EPA delayed the rule three times.

A panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit has rebuffed EPA's lengthy delay of the "Chemical Disaster Rule," an EPA rule promulgated on Jan. 13, 2017, just before President Donald J. Trump took office and his administration's new agency heads were in place. EPA issued the rule to revise requirements for Risk Management Programs under the Clean Air Act, in the wake of the West, Texas fertilizer plant explosion and other chemical accidents.

EPA had acted after President Obama issued an executive order directing EPA's administrator and the secretary of Labor to review the chemical hazards covred by the Risk Management Program and determine, in light of the accidents, they should be expanded to address additional hazards.

When the Trump administration took over soon afterward, EPA delayed the rule three times. The third delay would have pushed back the rule's effective date to Feb. 19, 2019.

In a per curiam decision, a two-judge panel of the court held that the EPA's decision to delay the effective date by 20 months for the purpose of reconsidering it was arbitrary and capricious. They vacated the third delay rule, which was issued June 14, 2017.

Only two judges participated in the decision because Judge Brett Kavanaugh, currently a nominee for the U.S. Supreme Court, was a member of the panel when the case was argued but did not participate in the opinion.

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