EPA Facility Safety Rule (and Others) Delayed until March 21, 2017

Written by and

Yesterday, EPA posted a pre-publication version of a new final rule (the Delay Rule) delaying the effective date of the Risk Management Program (RMP) Facility Safety Rule until March 21, 2017.[1]  The RMP Rule is one of 30 regulations listed in the Delay Rule that have been published in the Federal Register but have not yet taken effect—so-called “Midnight Rules” promulgated at the end of the Obama administration.  As a result of the Delay Rule, the new effective date for all 30 Midnight Rules is now March 21, though EPA left open the possibility that effective dates could be further delayed.

The Delay Rule was issued pursuant to the President’s directive as expressed in a January 20, 2017 memorandum from the Assistant to the President and Chief of Staff entitled, “Regulatory Freeze Pending Review.”  Freezing regulations before they take effect buys the Trump administration some time to consider which of the Obama EPA’s last-minute rules the Trump administration will target for withdrawal or modification.  The RMP Rule was one of the most hotly contested of the delayed rules, so it will surely be getting a hard look in the coming weeks.

As a published final rule, though, EPA’s options for withdrawal or modification of the RMP Rule are somewhat limited.  EPA could propose a new rule revoking the RMP Rule through a notice of proposed rulemaking accompanied by the standard 30-day notice and comment period.  EPA could also shorten the notice and comment period for “good cause.”  Another viable option is the “interim final” rulemaking procedure, which permits a new final rule to become effective immediately but provides for public comments thereafter.  Even if the Trump administration does not act by March 21, Congress could vote down the RMP Rule by simple majority votes in both houses under the Congressional Review Act.[2]

The other delayed EPA rules are:

  • 81 FR 74927 – State of Kentucky Section 1425 Underground Injection Control (UIC) Program Primacy Approval;
  • 81 FR 95047 – Approval and Promulgation of Implementation Plans; New York Prevention of Significant Deterioration of Air Quality and Nonattainment New Source Review; Infrastructure State Implementation Plan Requirements;
  • 81 FR 95041 – Air Plan Approval; KY; RACM Determination for the KY Portion of the Louisville Area 1997 Annual PM2.5;
  • 81 FR 95043 – Air Plan Approval; Wisconsin; Infrastructure SIP Requirements for the 2012 PM2.5 NAAQS;
  • 81 FR 95051 – Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Louisiana; Redesignation of Baton Rouge 2008 8-Hour Ozone Nonattainment Area to Attainment;
  • 81 FR 95480 – State of Kentucky Underground Injection Control (UIC) Class II Program; Primacy Approval;
  • 81 FR 95475 – Air Plan Approval; Illinois; Volatile Organic Compounds Definition;
  • 81 FR 95473 – Approval of California Air Plan Revisions, Great Basin Unified Air Pollution Control District;
  • 81 FR 95472 – Approval of California Air Plan Revisions, South Coast Air Quality Management District;
  • 82 FR 729 – Partial Approval and Partial Disapproval of Attainment Plan for the Idaho Portion of the Logan, Utah/Idaho PM2.5 Nonattainment Area;
  • 82 FR 2760 – Addition of a Subsurface Intrusion Component to the Hazard Ranking System;
  • 82 FR 2237 – Approval and Promulgation of Implementation Plans; Rhode Island; Clean Air Act Infrastructure State and Federal Implementation Plans;
  • 81 FR 89746 – Renewable Fuel Standard Program: Standards for 2017 and Biomass-Based Diesel Volume for 2018;
  • 81 FR 89674 – Formaldehyde Emission Standards for Composite Wood Products;
  • 82 FR 3171 – Approval and Promulgation of Implementation Plans; Texas; Control of Air Pollution from Visible Emissions and Particulate Matter;
  • 81 FR 89868 – Determination of Attainment of the 2012 Annual Fine Particulate Matter Standard; Pennsylvania; Delaware County Nonattainment Area;
  • 82 FR 3639 – Air Plan Approval; TN Infrastructure Requirements for the 2010 NO2 NAAQS;
  • 82 FR 3637 – Approval and Promulgation of Implementation Plans; Alabama; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard;
  • 82 FR 5182 – Revisions to the Guideline on Air Quality Models: Enhancements to the AERMOD Dispersion Modeling System and Incorporation of Approaches to Address Ozone and Fine Particulate Matter;
  • 81 FR 91839 – Air Plan Approval; Michigan; Part 9 Miscellaneous Rules;
  • 81 FR 94262 – National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the North Penn Area 6 Superfund Site;
  • 81 FR 93624 – Determination of Attainment of the 2008 Ozone National Ambient Air Quality Standards; Mariposa County, California;
  • 81 FR
  • Adequacy of Washington Municipal Solid Waste Landfill Permit Program – Direct Final Rule;
  • 81 FR 95477 – Approval and Promulgation of Implementation Plans; Louisiana; State Boards;
  • 82 FR 952 – Pesticides; Certification of Pesticide Applicators;
  • 82 FR 1206 – Air Plan Approval; Georgia: Procedures for Testing and Monitoring Sources of Air Pollutants;
  • 82 FR 2230 – Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation/ Termination or Suspension of Permits; Procedures for Decisionmaking;
  • 82 FR 2239 – Approval of Arizona Air Plan Revisions; Ajo and Morenci, Arizona; Second 10-Year Sulfur Dioxide Maintenance Plans and Technical Correction; and
  • 82 FR 5142 – Revisions to National Emission Standards for Radon Emissions from Operating Mill Tailings.

For any additional questions regarding this advisory, please contact Bruce Pasfield, Phil Sandick, or any other member of the Environmental team at Alston & Bird.

[1]  Available at https://federalregister.gov/d/2017-01822.

[2]  We have twice written about the RMP Rule’s uncertain future.  See New EPA Facility Safety Rule Faces Uncertain Future (Oct. 31, 2016), http://www.alstonenvironment.com/environmental-advisory-new-epa-facility-safety-rule-faces-uncertain-future/; EPA Final Facility Safety Rule Still Faces Uncertain Future (Dec. 22, 2016), http://www.alstonenvironment.com/epa-final-facility-safety-rule-still-faces-uncertain-future/.