On August 17, 2018, the U.S. Court of Appeals for the District of Columbia vacated an Environmental Protection Agency (“EPA”)rule delaying the effective date of the Obama administration’s final rule updating EPA’s Risk Management Program regulations under the Clean Air Act (“RMP Update Rule”). The RMP Update Rule was finalized in 2017 in response to several “catastrophic” releases, including the explosion of a fertilizer plant in West, Texas in 2013. It was originally set to go into effect in March 2017. In response to several petitions for reconsideration from trade associations and states, EPA agreed to reconsider the RMP Update Rule and delayed its effective date while developing a replacement. EPA first issued a 90-day “administrative stay” under Section 307(d)(7)(B) of the Clean Air Act. Later, on June 14, 2017, EPA issued a final rule under its general rulemaking authority setting a new effective date of February 19, 2019 (the “Delay Rule”).

The August 17th ruling by the D.C. Circuit found the EPA did not have statutory authority to issue the Delay Rule under its general rulemaking authority. This ruling vacates the Delay Rule meaning the RMP Update Rule will go into effect as soon as the court’s mandate issues. Covered facilities will be immediately subject to the requirements whose compliance deadlines have already passed. The court’s mandate will issue as soon as October 9, 2018, when the period for the federal government to petition for rehearing has passed.