Burr & Forman

08.1.2017   |   Blog Articles, Chemical Safety, Environmental Law Matters

Chemical Safety Rule Delay Challenged in D.C. Circuit

Attorneys General for eleven states filed a challenge in the U.S. Circuit Court of Appeals for the District of Columbia seeking to vacate a recently announced 2-year delay in implementation of chemical safety rules. (Reuters). EPA Administrator Scott Pruitt initially announced a delay in the rule in March and then promulgated a rule modification announced in June which provides that the rule will not become effective before February, 2019. (The Hill). In the interim, the Agency will assess the rule’s potential impact on businesses.

The rule was finalized at the end of the Obama Administration and was scheduled to become effective on March 14. It was prompted principally by a chemical plant disaster in Texas in 2013, where fifteen people, including some first responders, died as a result of explosion and fire. (EHS Today). Interestingly, an EPA fact sheet issued at the time of the announcement of the delay in the rule primarily focuses on the reasons for proceeding with the rule and its potential protective benefits, noting other recent incidents at chemical plants and facilities. (EPA Fact Sheet). Nonetheless, the rule had generated substantial concern among industry officials who urged the new Administration and Congress to reject the rule outright. Congress did not act to prevent the rule from taking effect so the Administration promulgated a rule to delay implementation. It is this “delay rule” that is challenged by the recent lawsuit. The suit claims the delay is unlawful and asks the court to reverse the action pursuant to judicial review authority granted under Section 307 (d)(9) of the Clean Air Act.

Regardless of the eventual outcome of the litigation, the original chemical safety rule is not currently enforceable. This will, at the least, give the regulated community additional time to prepare compliance efforts. If EPA prevails in the litigation, the additional time will afford the opportunity to seek changes in the rule itself during the Agency’s planned review.

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