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National Propane Gas Ass'n v. Department of Transp.

ELR Citation: 29 ELR 21261
Nos. No. Civ.A 3:97-CV-2576-D, 43 F. Supp. 2d 665/48 ERC 1554/(N.D. Tex., 03/17/1999)

The court upholds the Research and Special Programs Administration's (RSPA's) final emergency discharge control rule for cargo tank motor vehicles and its interpretation of the attendance regulation requiring an operator to be in attendance during the loading and unloading of cargo tanks. Gas companies sought to enjoin the RSPA's enforcement of the regulations. The court first holds that the case is ripe, even though the 1999 Department of Transportation and Related Agencies Appropriations Act prohibited the RSPA's use of appropriated funds to enforce the regulations at issue. The case presents a purely legal issue. Moreover, the challenged regulations constitute final agency actions. They have the status of law and carry penalties for noncompliance, and the RSPA expects immediate compliance with the regulations. In addition, the regulations will impact the gas companies concretely, and the court's decision will foster effective administration of the regulations.

The court next holds that the RSPA demonstrated reasoned decisionmaking and a rational basis for the final emergency discharge control rule under the Administrative Procedure Act (APA). The RSPA promulgated the rule within its authority, thus, the court will defer to the RSPA's expertise. And the record demonstrates that the RSPA understood the problem, demonstrated the need for the final rule, and relied on valid information in promulgating it. The court next rejects the gas companies' argument that the RSPA knew, on the effective date of the final rule or reasonably thereafter, that none of the three alternative methods of compliance was feasible and that the final rule, therefore, violates the APA. It is clear from the rulemaking that the RSPA had concluded that at least two of the three alternatives were available on the date that the final rule became effective. Because the rule permits compliance by satisfying only one alternative, the final rule is not arbitrary and capricious by reason of the third unavailable option. The court also rejects the gas companies' claim that the regulation neglects the importance of having an attendant stationed at the customer tank. Nothing in the administrative record establishes that attendance at the customer's tank is more important than attendance at the cargo tank. The court similarly rejects the contention that the rule imposes an enormous cost that will be added to many propane deliveries by the requirement of a second attendant. A second attendant is not required on many propane deliveries under the final rule.

The court then holds that the RSPA did not violate the Regulatory Flexibility Act (RFA). The RSPA satisfied each of the requirements under the RFA when it promulgated the final rule. The court further holds that the RSPA's interpretation of the attendance regulation did not violate the APA. The gas companies argued that the RSPA essentially promulgated a new rule when it rejected industry's interpretation in the preamble to the final rule. The preamble, however, merely reiterates the purposes of the attendance regulation and is consistent with the rule's plain language and past interpretations. Because defendants did not effectively promulgate a new regulation or alter their interpretation or the meaning of an old one, the APA is inapplicable.

Counsel for Plaintiffs
Eric A. Kuwana
Patton Boggs
2550 M St. NW, Washington DC 20037
(202) 457-6000

Counsel for Defendants
Sandra M. Schraibman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000