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D.C. Circuit Vacates RMP Delay Rule

Prepared for the Katten Safety Advisory Group
Advisory | August 23, 2018

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") issued a per curiam decision vacating the Environmental Protection Agency's ("EPA") 20-month delay of its amended Risk Management Plan ("RMP") rule ("Delay Rule"). Air Alliance Houston, et al., v. EPA and Andrew Wheeler, No. 17-1155 (D.C. Circ. Aug. 17, 2018). The preamble to the Delay Rule states that EPA was authorized to take "an additional 20 months…to conduct reconsideration procedures and to consider other issues that may benefit from additional comment." 82 Fed. Reg. 27,133 (June 14, 2017). This reasoning, the D.C. Circuit determined, made a "mockery" of the Clean Air Act's three-month limitation on reconsideration proceedings, even if the agency followed notice-and-comment rulemaking procedures.

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