White House Rule Freeze Impacts Environmental Regulations

As previously reported by Winston & Strawn’s Labor & Employment Department on January 20, 2017, the White House Chief of Staff issued a Memorandum for the Heads of Executive Departments and Agencies instructing individuals in those positions to take the following steps, in part:

1. Send no regulation to the Office of the Federal Register (OFR) until a department or agency head appointed or designated by the President after noon on January 20, 2017, reviews and approves the regulation, subject to certain exceptions.
2. Immediately withdraw regulations that have been sent to the OFR but not yet published in the Federal Register for review and approval as described above.
3. With respect to regulations that have been published in the OFR but have not taken effect temporarily postpone, as permitted, their effective date for 60 days from the date of the memorandum. Following the delay in effective date:

a. for those regulations that raise no substantial questions of law or policy, no further action needs to be taken; and
b. for those regulations that raise substantial questions of law or policy, agencies should notify the Office of Management and Budget (OMB) Director and take further appropriate action in consultation with the OMB Director.

In accordance with the directive, on January 24, 2017, U.S. EPA released a notice temporarily delaying the effective date of 30 regulations until March 21, 2017. Rules whose deadlines are being temporarily delayed include these final rules:

• The rule adding vapor and water intrusion as a contaminant pathway for placing a site on the National Priorities List (NPL);
• The rule revising portions of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for radon emission from operating mill tailings;
• The rule revising U.S. EPA’s Consolidated Rules of Practice governing the administrative assessment of civil penalties and various other administrative adjudicatory hearings, and appeals from such hearings and from permit decisions;
• The rule amending the Accidental Release Prevention Requirements for Risk Management Programs under the Clean Air Act;
• The Renewable Fuel Standard rule setting targets for renewable fuels for 2017; and
• The rule placing limits on formaldehyde emissions from composite wood products.

The notice was published in the Federal Register on January 26, 2017. The notice states that U.S. EPA may consider delaying the effective dates of the 30 listed regulations beyond March 21, 2017; if the Agency proposes a later effective date, it would publish the proposed rule for public comment.