Air Alliance Houston v. EPA

906 F.3d 1049 (D.C. Cir. 2018)


Congress amended the CAA, and addressed multiple high-profile chemical accidents that harmed workers, local communities, and the environment. Congress established the Chemical Safety Board (CSB) to investigate major accidental releases and issue reports to D. 'Whenever the CSB submits a recommendation with respect to accidental releases to D, the Administrator shall respond to such recommendation . . . not later than 180 days after receipt,' indicating whether D will 'initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant to any timetable contained in the recommendation.' Id. § 7412(r)(6)(I). Even if D does not act D must provide a statement 'setting forth the reasons for such determination.' Section 7412(r)(7) authorizes D to 'promulgate release prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, training, vapor recovery, secondary containment, and other design, equipment, work practice, and operational requirements.' Under Section 307(d)(7)(B) of the CAA, 42 U.S.C. § 7607(d)(7)(B), D must convene a proceeding to reconsider a rule if a person 'raising an objection can demonstrate to D that [1] it was impracticable to raise such objection within [the notice and comment period] . . . and [2] if such objection is of central relevance to the outcome of the rule.' 'Such reconsideration shall not postpone the effectiveness of the rule.' 42 U.S.C. § 7607(d)(7)(B). 'The statute also provides that the 'effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.'' A coalition petitioned D for a rulemaking under Section 7412(r)(7) to 'require the use of inherently safer technologies, where feasible, by facilities that use or store hazardous chemicals.' Soon after, several chemical accidents occurred that received significant public attention and became subjects of CSB investigations. Obama issued an executive order establishing a Chemical Facility Safety and Security Working Group co-chaired by D and the Secretaries of Labor and Homeland Security. One year later, D published a request for information in the Federal Register seeking comment on 'potential revisions to its [accidental release] regulations and related programs.' In March 2016, D issued a Notice of Proposed Rulemaking proposing amendments to the accidental release prevention regulations. D promulgated a final rule on January 13, 2017. The final rule revised dozens of Section 7412(r)(7) requirements. The final rule set an overall effective date of March 14, 2017, sixty days after promulgation. Some provisions related to clarifying regulatory definitions went into effect on that date. Others became effective in one year, on March 14, 2018. The requirements for emergency response exercises, public information-sharing and post-accident public meetings, third-party audits, more rigorous post-incident analyses, and safer technology requirements became effective three years later, on March 15, 2021. Id. The compliance deadline for covered facilities to submit an updated RMP was March 14, 2022. Trump became president and D delayed the effective date of the final Chemical Disaster Rule three times. On February 28, 2017, a coalition of industry groups submitted a petition for reconsideration of the Chemical Disaster Rule. D announced his determination that the criteria for reconsideration under Section 7607(d)(7)(B) had been met and, pursuant to that section, administratively stayed the Chemical Disaster Rule's effective dates for ninety days, until June 19, 2017. D issued a notice of proposed rulemaking proposing to delay the effective date of the Chemical Disaster Rule by an additional 20 months, until February 19, 2019. D promulgated the final rule on June 14, 2017, delaying the effective date of the Chemical Disaster Rule until February 19, 2019. The Delay Rule recounted that D has received three petitions for reconsideration of the Chemical Disaster Rule 'as provided for in [Section 7607(d)(7)(B)],' and that D issued a three-month stay under that section because 'the criteria for reconsideration ha[d] been met for at least one of the three objections.' Ps petitioned for review of the Delay Rule. A group of industry interests intervened on D's behalf.