[Federal Register: September 15, 2008 (Volume 73, Number 179)]
[Rules and Regulations]
[Page 53140-53143]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se08-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2007-93; FRL-8716-2]
Withdrawal of Federal Antidegradation Policy for All Waters of
the United States Within the Commonwealth of Pennsylvania
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to withdraw the federal
antidegradation policy for all waters of the United States within the
Commonwealth of Pennsylvania. We are withdrawing the federal
antidegradation policy to allow Pennsylvania to implement its own
antidegradation policy. Pennsylvania has adequately demonstrated that
its antidegradation policy protects all waters of the United States at
a level consistent with the federal requirements under the Clean Water
Act. Therefore, the federal antidegradation policy is redundant.
DATES: This rule is effective December 15, 2008 without further notice
unless EPA receives adverse comment by October 15, 2008. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect.
ADDRESSES: Submit your comments, identified by Docket Id. No. EPA-HQ-
OW-2007-0093, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: ow-docket@epa.gov.
Mail: Water Docket, USEPA, Mailcode: 2822T, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Ave., NW., Washington, DC 20004. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
93. EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web
[[Page 53141]]
site is an ``anonymous access'' system, which means EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an e-mail comment directly to EPA without
going through www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the OW Docket Center. This
Docket Facility is open from 8:30 a.m. until 4:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is (202)
566-2426 and the Docket address is OW Docket, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC 20004. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744.
FOR FURTHER INFORMATION CONTACT: Caroline Whitehead at EPA
Headquarters, Office of Water (4305T), 1200 Pennsylvania Ave, NW.,
Washington, DC 20460 (telephone: 202-566-2907, fax: 202-566-0409 or e-
mail: whitehead.caroline@epa.gov) or Denise Hakowski at EPA Region 3
(3WP30), 1650 Arch Street, Philadelphia, Pennsylvania 19103 (telephone:
215-814-5726, fax: 215-814-2318 or e-mail: hakowski.denise@epa.gov).
SUPPLEMENTARY INFORMATION: This section is organized as follows:
Table of Contents
I. Potentially Affected Entities
II. Background
III. Why Is EPA Using a Direct Final Rule?
IV. Statutory and Executive Order Review
A. Executive Order 12866 (Regulatory Planning and Review)
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations)
K. Congressional Review Act
I. Potentially Affected Entities
Citizens concerned with water quality in Pennsylvania may be
interested in this rulemaking. Entities discharging pollutants to the
surface waters of Pennsylvania could be indirectly affected by this
rulemaking since water quality standards are used in determining
National Pollutant Discharge Elimination System (NPDES) permit limits.
Because this action withdraws a redundant federal antidegradation
policy, the effect of this rulemaking should be insignificant.
Categories and entities which may ultimately be affected include:
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Examples of potentially
Category affected entities
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Industry.................................. Industries discharging
pollutants to surface
waters in Pennsylvania.
Municipalities............................ Publicly-owned treatment
works discharging
pollutants to surface
waters in Pennsylvania.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES-regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action.
II. Background
Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or Act)
directs States, with oversight by EPA, to adopt water quality standards
to protect the public health and welfare, enhance the quality of water
and serve the purposes of the CWA. Under section 303, States are
required to develop water quality standards for navigable waters of the
United States within the State. Section 303(c) and EPA's implementing
regulations at 40 CFR part 131 require State and Tribal water quality
standards to include the designated use or uses to be made of the
water, the water quality criteria necessary to protect those uses, and
an antidegradation policy. States are required to review their water
quality standards at least once every three years and, if appropriate,
revise or adopt new standards. The results of this triennial review
must be submitted to EPA, and EPA must approve or disapprove any new or
revised standards. Section 303(c) of the CWA authorizes the EPA
Administrator to promulgate water quality standards to supersede State
standards that EPA has disapproved or in any case where the
Administrator determines that a new or revised standard is needed to
meet the CWA's requirements.
In June 1994, EPA disapproved Pennsylvania's antidegradation
regulation after determining the regulation was not consistent with the
federal antidegradation regulation found at 40 CFR 131.12. When the
Pennsylvania Department of Environmental Protection (PADEP) did not act
within the statutory timeframe to address EPA's findings, EPA
promulgated a federal antidegradation policy for all waters of the
United States within the Commonwealth of Pennsylvania at 40 CFR 131.32
on December 9, 1996. In August 1999, PADEP submitted revisions to its
antidegradation policy found in 25 Pa. Code Chapter 93 to EPA. On March
17, 2000, EPA approved most of the revisions to Pennsylvania's
regulations as meeting the requirements of federal regulations at 40
CFR 131.12(a)(1) and 131.12(a)(2), but withheld action on Section
93.4b, PADEP's Exceptional Value (EV) Waters designation, or Tier 3,
until PADEP ensured that EV designated waters would be protected at the
level consistent with federal regulations at 40 CFR 131.12(a)(3). In
2003, PADEP published ``Water Quality Antidegradation Implementation
Guidance'' (Document Number 391-0300-002). In it, PADEP provides
[[Page 53142]]
guidance to its staff and information to help the regulated community
and the public understand the implementation of the antidegradation
policy in Pennsylvania. Based on a review of the document in
combination with the PADEP's antidegradation regulation, EPA approved
PADEP's antidegradation policy for Tier 3 waters on March 7, 2007.
Because Pennsylvania now has an EPA-approved antidegradation policy
meeting the federal requirements at 40 CFR 131.12, the federal
antidegradation regulation promulgated by EPA for Pennsylvania is no
longer needed and EPA is withdrawing it with this action.
III. Why Is EPA Using a Direct Final Rule?
EPA is publishing this final rule without a prior proposed rule
because we view this rulemaking as a noncontroversial action and
anticipate no adverse comment. This action withdraws the federally
promulgated antidegradation rule because Pennsylvania has developed
regulations that protect the waters of the United States within the
Commonwealth at a level consistent with the federal requirements.
However, in the ``Proposed Rules'' section of today's Federal Register,
we are publishing a separate document that will serve as a proposed
rule to withdraw the federal antidegradation regulation for
Pennsylvania if any adverse comment is received regarding this direct
final rule. We will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.
For further information about commenting on this rule, see the
ADDRESSES section of this document.
If EPA receives adverse comment on this direct final rule, we will
publish a timely withdrawal in the Federal Register informing the
public that this direct final rule will not take effect. We would
address all public comments in any subsequent final rule based on the
proposed rule.
IV. Statutory and Executive Order Review
A. Executive Order 12866 (Regulatory Planning and Review)
This action withdraws federal requirements applicable to
Pennsylvania and imposes no regulatory requirements or costs on any
person or entity. It does not interfere with the action or planned
action of another agency, and does not have any budgetary impacts or
raise novel legal or policy issues. Thus, it has been determined that
this rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore
not subject to Office of Management and Budget (OMB) review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
because it is administratively withdrawing federal requirements that no
longer need to apply to Pennsylvania. However, the Office of Management
and Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations 40 CFR part 131
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2040-0049. The OMB control
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, generally requires an agency to prepare a regulatory flexibility
analysis of a rule that is subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have
significant economic impact on a substantial number of small entities.
This action imposes no regulatory requirements or costs on any small
entity. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 104-
4) establishes requirements for federal agencies to assess the effects
of their regulatory actions on State, Tribal, and local governments and
the private sector. Today's rule contains no federal mandates (under
the regulatory provisions of Title II of the UMRA) for State, Tribal,
or local governments or the private sector because it imposes no
enforceable duty on any of these entities. Thus, today's rule is not
subject to the requirements of UMRA sections 202 and 205 for a written
statement and small government agency plan. Similarly, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and is
therefore not subject to UMRA section 203.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure State
and local government officials have an opportunity to provide input in
the development of regulatory policies that have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of governments. This rule
imposes no regulatory requirements or costs on any State or local
governments; therefore, it does not have federalism implications under
Executive Order 13132.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This rule imposes no regulatory requirements or costs on any Tribal
government. It does not have substantial direct effects on Tribal
governments, on the relationship between the federal government and
Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, as specified in
Executive Order 13175, entitled ``Consultation and Coordination with
Indian Tribal Governments'' (65 FR 67249, November 6, 2000).
G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
This rule is not subject to E.O. 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997) because it is not economically significant and
EPA has no reason to believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act of 1995
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply
because this rule does not involve technical standards.
[[Page 53143]]
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule does not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. EPA approved Pennsylvania's antidegradation policy, which
is consistent with 40 CFR 131.12(a) and provides the same level of
protection as the federally promulgated antidegradation policy. This
rule withdraws a redundant antidegradation policy.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2) and will be effective on December 15, 2008.
List of Subjects in 40 CFR Part 131
Environmental protection, Antidegradation, Water quality standards.
Dated: September 9, 2008.
Stephen L. Johnson,
Administrator.
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For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 131--WATER QUALITY STANDARDS
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1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 131.32 [Removed and Reserved]
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2. Section 131.32 is removed and reserved.
[FR Doc. E8-21464 Filed 9-12-08; 8:45 am]
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