EPA Proposes New Minimum State Criminal Standards
EPA is proposing to update its 1984 state program authorization regulations that apply to both 402 and 404 programs to allow the states to implement lower criminal negligence standards. This rulemaking is brought about by the recent 9th Cir. decision invalidating EPA's approval of the Idaho NPDES permit program on the grounds that Idaho's criminal mens rea standards did not comply with EPA's standards in 40 C.F.R. 123.27. See my Sept. 13 Blogpost for more on that case (where I was counsel of record for plaintiff).
The current regulations governing EPA approval of state programs under section 402 and 404 require that the state criminal mens rea standard be no less than the standard EPA must comply with, which is simple negligence. This new proposal, which has not yet published in the Federal Register, provides that "a State may establish criminal violations based on any form or type of negligence."
Given the timing of the proposed 30-day public comment period, this one will likely go final, if at all, just before the end of the administration. It'll be interesting to see if they can get it published in the Fed. Reg. before Dec. 19.
The rule notice is attached below.
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