The Environmental Protection Agency (EPA) announced today (12/4/2018) that the amendments to the Risk Management Program under the Clean Air Act put forward in a final rule published in the Federal Register on January 13, 2017 are now in effect.
The rule amending 40 CFR part 68, published at 82 FR 4594 (January 13, 2017) and delayed at 82 FR 8499 (January 26, 2017), 82 FR 13968 (March 16, 2017), and 82 FR 27133 (June 14, 2017), is EFFECTIVE December 3, 2018.
History of the Amendments and Facts that got us to this point
On January 13, 2017, EPA finalized amendments to the Accidental Release Prevention Requirements for Risk Management Programs under the Clean Air Act, Section 112(r)(7) (RMP Amendments rule; 82 FR 4594).
On January 26, 2017, the EPA published an action in the Federal Register that initially delayed the effective date of the RMP Amendments rule for a short period of time (82 FR 8499). The EPA further delayed the effective date of the RMP Amendments rule through additional EPA actions published in the Federal Register on March 16, 2017 and June 14, 2017 (82 FR 13968 and 82 FR 27133, respectively).
On August 17, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision vacating the June 14, 2017 rule (82 FR 27133) that had delayed the effective date of the RMP Amendments rule until February 19, 2019.
On September 21, 2018, the Court issued its mandate which makes the RMP Amendments rule now effective.
Section 553(b)(3)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this rule announcing the effectiveness of the RMP Amendments rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary.
Specifically, updating the Code of Federal Regulations (CFR) to reflect the requirements of the RMP Amendments rule is a ministerial act (A ministerial act is a government action “performed according to legal authority, established procedures or instructions from a superior, without exercising any individual judgment.”) The Court specifically identified as vacated the June 14, 2017 rule that had delayed the effectiveness of the RMP Amendments rule until February 19, 2019.
The rule published today simply implements the decision of the Court. Since EPA lacks discretion to do otherwise, it would serve no useful purpose to provide an opportunity for public comment on this issue. The requirements of CAA section 307(d), including the requirement for public comment and a hearing on proposed rulemakings, do not apply to this action because 5 U.S.C. 553(b)(3)(B) applies.
Moreover, the agency finds that the considerations outlined above to support issuance of this rule without prior notice and comment also provide good cause for making this action effective immediately under section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 553(d).
Section 553(d) provides in pertinent part that final rules shall not become effective until 30 days after publication in the Federal Register, “except… as otherwise provided by the agency for good cause.” The purpose of section 553(d) of the APA is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” In determining whether good cause exists to waive the 30-day effective date under the APA, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Here, the decision of the Court vacating the Delay Rule and the issuance of the mandate have taken the issue of timing out of EPA’s control. As noted above, we are simply implementing the Court’s mandate by undertaking the ministerial act necessary to update the Code of Federal Regulations.
Accordingly, this rule will take effect upon publication in the Federal Register. 5 U.S.C. 553(d).
CLICK HERE for the official CFR posting