Thursday, February 22, 2024

OMB Approves EPA Worst Case Discharge Final Rule

Yesterday, the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved a final rule for the EPA’s “Clean Water Act Hazardous Substance Facility Response Plans”. The final rule was sent to OMB on October 11th, 2023. The notice of proposed rulemaking was published on March 28th, 2022.

According to the Fall 2023 Unified Agenda entry for this rulemaking:

“The Clean Water Act (CWA) provides that regulations shall be issued "which require an owner or operator of a tank vessel or facility ... to prepare and submit ... a plan for responding, to the maximum extent practicable, to a worst-case discharge, and to a substantial threat of such a discharge, of … a hazardous substance." EPA was sued for failure to fulfill this mandatory duty imposed by Congress. This regulatory action is being conducted under the terms of a consent decree entered into on March 12, 2020, which requires that a proposed action is signed within 24 months of the final agreement and that a final action follow within 30 months of the publication of the proposed rule. Subsequently, the Environmental Protection Agency proposed a regulatory action to require planning for worst case discharges of CWA hazardous substances under section 311(j)(5)(A). EPA plans to promulgate a final rule by Spring 2024 meet the terms of the Consent Decree.”

The final rule should be published in the Federal Register next week.

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