On August 17, 2018 the DC Circuit Court vacated the RMP Delay Rule, impacting the effective date of the January 2017 Final Rule provisions. The court held that EPA was inconsistent in its actions and did not have statutory authority for a delay beyond 90 days. Furthermore, the court held that the EPA failed to adequately disprove the prior factual findings made as part of the Amendments. In addition, this decision allows some provisions of the amendments to become effectively immediately, impacting industry in the short term:

  1. Facilities to conduct 3 year compliance audits to cover all elements of each covered process (Original Effective Date: March 14, 2017); and
  2. Facilities to coordinate with local responders on Emergency response activities (Original Effective Date March 14, 2018).

The effective date of this decision continues to evolve, as the court listens to arguments from both sides on the timing of the vacate issuance. In addition, parties involved will be allowed time to file petitions for rehearing which may further delay the vacate issuance.

Parties involved will be allowed time to file petitions for rehearing and the government has 45 days to respond. If the court grants a response, it could likely add at least another 30 days until the mandate issues. One other potential impact for Program Level 3 facilities (NAICS codes 322, 324, and 325 only) is the timing for implementing the Safer Technology Alternatives Analysis (STAA) provision. It is uncertain whether affected facilities will need to incorporate STAA into their PHA if it occurs before 2021.

Trinity will continue to follow the RMP Rule legal case proceeding. Any questions regarding the Reconsideration Rule or the January 2017 Final Rule, please reach out to Ms. Natalie VanLiew at (913) 894-4500 or at nvanliew@trinityconsultants.com.