By Lee Vail
On June, 9, 2017, Scott Pruitt signed a final rule delaying the effective date of the RMP rule until February 19, 2019. The Environmental Protection Agency” (“EPA”) stated that it had received 54,117 public comments, 54,000 of which were part of a mass mail campaign, leaving 108 submissions with unique content. A final rule is expected to be published in the Federal Resister in the near future.
A significant portion of the final rule is dedicated to authority issues: can EPA stay effectiveness during reconsideration? In response to comments, the EPA affirmed that it had authority to delay implementation as required. Specifically the EPA stated:
- EPA notes that CAA section 112(r)(7)(A) does not contain any language limiting “as expeditiously as practicable” to an outside date (e.g., “in no case later than date X”).
- A natural reading of the language is that the act of convening reconsideration does not, by itself, stay a rule, but the Administrator, at his discretion, may issue a stay if he has convened a process.
- The statutory framework for a discretionary rule under CAA section 112(r)(7) differs greatly from the “highly circumscribed schedule” analyzed by the NRDC [Natural Resources Defense Council v. Reilly, 976 F.2d 36 (D.C. Cir. 1992] court. Absent an otherwise controlling provision of the CAA, CAA section 307(d) allows EPA to set reasonable effective date.
Whereas the EPA did not address substantive comments (as reconsideration is another rule making action), it did agree that sufficient issues were raised to justify reconsideration. Specifically the timing of the Bureau of Alcohol, Tabaco, Firearms and Explosives’ (“BATF”) West Fertilizer finding justifies reconsideration:
- If the cause of the West Fertilizer explosion had been know sooner, the Agency may have possibly given greater consideration to potential security risks posed by the proposed rule amendments. All three of the petitions for reconsideration and many of the commenters discussed potential security concerns with the rule’s information disclosure requirements to LEPC and the public.
In conclusion, the effective date of the RMP revisions, published on January 13, 2017, has been delayed to February 19, 2019.