Obama Era RMP Rule Amendments Effective December 3, 2018, For Now…

In the final days of the Obama administration, the Environmental Protection Agency (EPA) adopted a package of revisions to its Accident Prevention/Risk Management Plan rules under the Clean Air Act at 40 CFR Part 68 (the RMP Rule Amendments). The RMP Rule Amendments contained a number of provisions that regulated industries were uncomfortable with and the rule making process leading up to adoption of the amendment package was contentious.

Following adoption of the RMP Rule Amendments, industry groups and a coalition of eleven states filed three petitions for reconsideration, and EPA’s former Administrator, Scott Pruitt, convened a reconsideration proceeding. EPA subsequently published a series of delay notices, including a final rule published in June 2017 that announced a delay in the effective date of the RMP Amendments Rule until February 19, 2019. EPA then issued a proposed rule on May 30, 2018, that would rescind the majority of the adopted amendments (Proposed Repeal Rule). For more information on the Proposed Repeal Rule, click here.

EPA’s actions to delay and amend the RMP Rule Amendments were challenged in the U.S. Court of Appeals for the D.C. Circuit in Air Alliance Houston et al. v. EPA et al., No. 17-1155 (DC Cir.), and in a fairly stinging rebuke to EPA the Court of Appeals issued a per curiam decision on August 17, 2018 vacating the June 2017 rulemaking. The Court found that Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), unambiguously limited EPA to a maximum three-month delay of its own rule.

…regardless whether EPA “believe[s] that three months [is] insufficient to complete the necessary steps in the reconsideration process,” … that is not EPA’s call. Congress saw fit to place a three-month statutory limit on “such reconsideration,” 42 U.S.C. § 7607(d)(7)(B), and this court “must give effect to the unambiguously expressed intent of Congress”… .

On September 21, 2018, the Court of Appeals issued its mandate, which made the RMP Rule Amendments effective immediately.

EPA’s recent action, published in the Federal Register on December 3, 2018, therefore simply confirmed that the Court had vacated the agency’s stay of its own rule. In this rulemaking, which EPA calls a “ministerial act”, EPA adopted the RMP Rule Amendments in their entirety into the RMP rule at 40 CFR Part 68, as required by the Court’s decision. 

The RMP Rule Amendments themselves contain staggered implementation dates, so while the rule package is now adopted into Part 68, it is not actually fully in effect. Some of the new provisions are effective immediately while others are scheduled to become effective over time. 

However, it is not at all clear whether those provisions will ever become effective, or whether the RMP Rule Amendments will remain in place. As noted above, EPA’s Proposed Repeal Rule is still pending and if adopted as expected, this pending rule would likely strip Part 68 of the vast majority of changes that were incorporated into the RMP Rule Amendments. EPA’s initial strategy to delay the effective date of the amendments failed when subjected to judicial scrutiny, but the agency’s battle to rescind its own rule is far from over.

Beveridge & Diamond’s Air and Climate Change practice group helps private and municipal clients navigate all aspects of compliance with Clean Air Act regulations for criteria pollutants, hazardous air pollutants, greenhouse gases, and permitting processes. For more information, please contact the authors.