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 11^th, 2023. The notice of proposed rulemaking was published on March 28^th, 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.