EPA Withdraws Worst Case Discharge Rule ICR

Yesterday, the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that the EPA had withdrawn their information collection request (ICR) for “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations (Final Rule)”. This initial ICR would have supported the EPA’s Clean Water Act Hazardous Substance Facility Response Plans final rule that was published on March 28^th, 2024.

Without an approved ICR in place, the EPA would not be allowed to collect the information from the entities covered by the final rule necessary to enforce this regulation. Technically, the regulation remains in force, but it becomes essentially unenforceable. It will be interesting to see if/when the EPA resubmits this ICR.

This could become an unusual tool used by the Trump Administration to work around enforcing regulations required by consent decrees (as this rule was) or court orders. I expect that there will be inevitable lawsuits by the plaintiffs in this case, but it appears that the consent decree in this case only “requires EPA to sign a notice taking final action” on the rulemaking, but does not extend to enforcing the resulting regulations. DOJ lawyers are going to be kept busy defending actions by this administration. New question: Does the DOJ have enough lawyers to keep up with all of this litigation?

NOTE: The Biden Administration's OIRA set up this particular problem by not completing action on this ICR before January 20th. According to RegInfo.gov there are currently 137 new ICR’s pending in OIRA, none of those information collection requirements can proceed until those ICR’s are approved by OIRA.