EPA to Rescind Most of the 2017 Risk Management Program Rule Amendments

On November 20, the U.S. Environmental Protection Agency (EPA) released a prepublication version of its long awaited final Clean Air Act (CAA) Risk Management Program (RMP) “reconsideration rule.” Publication of this final rule in the Federal Register, which is imminent, will cap a regulatory process that began over two years ago. The final rule will rescind the majority of the Obama administration’s January 2017 RMP amendments to 40 C.F.R. Part 68. The Trump administration had initially sought to stay those amendments pending reconsideration, but its “delay rule” was vacated by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Air Alliance Houston, et al. v. EPA, 906 F.3d 1049 (D.C. Cir. 2018), making the Obama-era amendments effective.

Once published in the Federal Register, the RMP reconsideration rule will be effective immediately. EPA acknowledged that good cause exists for not providing a 30-day waiting period because most of the regulatory provisions in the rule eliminate future regulatory requirements instead of imposing new regulatory obligations that would require time to prepare.

While not exhaustive, the prepublication final rule takes the following actions to rescind or strike elements added by the 2017 RMP amendments.