[Federal Register Volume 77, Number 96 (Thursday, May 17, 2012)]
[Proposed Rules]
[Pages 29271-29275]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11843]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2009-0596; FRL-9670-7]
RIN 2040-AF41
Effective Date for the Water Quality Standards for the State of
Florida's Lakes and Flowing Waters
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed delay of effective date.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
extend the July 6, 2012, effective date of the ``Water Quality
Standards for the State of Florida's Lakes and Flowing Waters;
[[Page 29272]]
Final Rule'' (inland waters rule) for three months to October 6, 2012.
EPA also is soliciting comment on extending the July 6, 2012, effective
date by one year to July 6, 2013. EPA's inland waters rule as
promulgated on December 6, 2010, included an effective date of March 6,
2012, for the entire regulation except for the site-specific
alternative criteria provision, which took effect on February 4, 2011.
This proposal to extend the July 6, 2012, effective date for the inland
waters rule does not affect or change the February 4, 2011, effective
date for the site-specific alternative criteria provision. On March 5,
2012, EPA extended the March 6, 2012, effective date to July 6, 2012.
In this proposal, EPA is requesting comment on extending the effective
date for the ``Water Quality Standards for the State of Florida's Lakes
and Flowing Waters; Final Rule'' from July 6, 2012 to October 6, 2012,
or in the alternative from July 6, 2012 to July 6, 2013.
DATES: Comments must be received on or before June 18, 2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0596, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: ow-docket@epa.gov.
3. Mail to: Water Docket, U.S. Environmental Protection Agency,
Mail code: 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460,
Attention: Docket ID No. EPA-HQ-OW-2009-0596.
4. Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Avenue NW., Washington, DC 20004, Attention Docket ID No.
EPA-HQ-OW-2009-0596. 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-2009-
0596. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://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 http://www.regulations.gov or email. The http://www.regulations.gov Web 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 email comment directly to EPA without
going through http://www.regulations.gov, your email 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 EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov to view public comments,
access the index listing of the contents of the official public docket,
and access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although listed in the index, some information is not
publicly available, i.e., Confidential Business Information (CBI) or
other information with disclosure restricted by statute. Certain other
material, such as copyright material, is not placed on the Internet and
will be publicly available only in hard copy form. Publicly available
docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Docket Facility. The Office
of Water (OW) Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The OW Docket Center
telephone number is 202-566-1744, 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: For information concerning this
rulemaking, contact: Tracy Bone, U.S. EPA, Office of Water, Mailcode
4305T, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone
number 202-564-5257; email address: bone.tracy@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
Does this action apply to me?
Citizens concerned with water quality in Florida may be interested
in this rulemaking. Entities discharging nitrogen or phosphorus to
lakes and flowing waters of Florida could be indirectly affected by
this rulemaking because water quality standards (WQS) are used in
determining National Pollutant Discharge Elimination System (NPDES)
permit limits. Categories and entities that may ultimately be affected
include:
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Category Examples of potentially affected entities
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Industry..................... Industries discharging pollutants to
lakes and flowing waters in the State of
Florida.
Municipalities............... Publicly-owned treatment works
discharging pollutants to lakes and
flowing waters in the State of Florida.
Stormwater Management Entities responsible for managing
Districts. stormwater runoff in Florida.
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This table is not intended to be exhaustive, but rather provides a
guide for entities that may be directly or indirectly affected by this
action. This table lists the types of entities which EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table, such as nonpoint source contributors to
nitrogen/phosphorus pollution in Florida's waters may be affected
through implementation of Florida's water quality standards program
(i.e., through Basin Management Action Plans (BMAPs)). Any parties or
entities conducting activities within watersheds of the Florida waters
covered by this rule, or who rely on, depend upon,
[[Page 29273]]
influence, or contribute to the water quality of the lakes and flowing
waters of Florida, may be affected by this rule. To determine whether
your facility or activities may be affected by this action, you should
carefully examine the language in 40 CFR 131.43, which is the final
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
On December 6, 2010, EPA's final inland waters rule, entitled
``Water Quality Standards for the State of Florida's Lakes and Flowing
Waters; Final Rule,'' was published in the Federal Register at 75 FR
75762, and codified at 40 CFR 131.43. The final inland waters rule
established numeric nutrient criteria in the form of total nitrogen,
total phosphorus, nitrate+nitrite, and chlorophyll a for the different
types of Florida's inland waters to assure attainment of the State's
applicable water quality designated uses. More specifically, the
numeric nutrient criteria translate Florida's narrative nutrient
provision at Subsection 62-302-530(47)(b), Florida Administrative Code
(F.A.C.), into numeric values that apply to lakes and springs
throughout Florida and flowing waters outside of the South Florida
Region. (EPA has distinguished the South Florida Region as those areas
south of Lake Okeechobee and the Caloosahatchee River watershed to the
west of Lake Okeechobee and the St. Lucie watershed to the east of Lake
Okeechobee.) The December 2010 final action seeks to improve water
quality, protect public health and aquatic life, and achieve the long-
term recreational uses of Florida's waters, which are a critical part
of the State's economy.
As stated in 75 FR 75807 (December 6, 2010), the rule was scheduled
to take effect on March 6, 2012, except for the site-specific
alternative criteria (SSAC) provision at 40 CFR 131.43(e), which took
effect on February 4, 2011. EPA selected the March 6, 2012, effective
date for the criteria part of the rule to allow time for EPA to work
with stakeholders and the Florida Department of Environmental
Protection (FDEP) on important implementation issues; to help the
public and all affected parties better understand the final criteria
and the basis for those criteria; and for EPA to engage and support, in
full partnership with FDEP, the general public, stakeholders, local
governments, and sectors of the regulated community across the State in
a process of public outreach education, discussion, and constructive
planning, (75 FR 75787, December 6, 2010).
On December 22, 2011 (76 FR 79604), EPA proposed to extend the
March 6, 2012, effective date of the inland waters rule to June 4,
2012. EPA received six comments on its proposal. EPA considered the
public comments and the continued progress by the FDEP toward adoption
of nutrient water quality standards. EPA decided that a four month
extension was warranted (77 FR 13497), and thus extended the effective
date of the inland waters rule to July 6, 2012.
III. Proposed Extension of July 6, 2012 Effective Date
A. Current Inland Waters Rule Effective Date and Rationale
The current effective date for the inland waters rule is July 6,
2012 except, as noted earlier, for the site-specific alternative
criteria (SSAC) provision, which became effective February 4, 2011.
As discussed at length in the December 22, 2011, proposal to extend
the effective date of the inland waters rule (76 FR 79604), EPA at both
the Headquarters and Regional levels has worked in collaboration with
the State on outreach and education efforts. In the same proposal, EPA
also discussed that a further extension of the effective date of the
inland waters rule might be needed to allow FDEP to submit the recently
established State numeric nutrient rules to EPA for review and action
under section 303(c) of the CWA, for EPA to complete its review of the
State rules, and for EPA to withdraw any Federal numeric nutrient
criteria corresponding to any State-adopted numeric nutrient criteria
that have been approved by EPA.
B. Rationale for Extending the July 6, 2012 Effective Date
EPA is proposing to extend the effective date of the inland waters
rule (with the exception of the SSAC provision, which is already in
effect) for three months to October 6, 2012 for the reasons discussed
in this section. EPA also requests comment on the possibility of
extending the July 6, 2012 effective date for one year to July 6, 2013
or further.
Since the promulgation of the December 6, 2010 final rule for
Florida's inland waters, EPA has continued to work in close
coordination with the State of Florida as the State develops its own
rulemaking for numeric nutrient criteria (NNC rules) that are
consistent with requirements of the Clean Water Act (CWA), address the
water quality needs of the State, and support effective permit
implementation, water body assessment and listing, and development of
TMDLs. The State legislature has exempted the state NNC rules from
legislative ratification and directed the FDEP to submit the rules to
the EPA for review. On February 20, 2012, the FDEP sent the rules to
EPA, which sets numeric nutrient criteria for lakes, spring vents,
streams, and certain estuaries in Florida. The FDEP also submitted
material supporting those criteria. EPA looks forward to receiving
notification from the State of Florida that the rules have been
officially adopted as revisions to the State's water quality standards.
A petition was filed with the Florida Department of Administrative
Hearings challenging the validity of FDEP's NNC rules. A hearing was
held the week of February 27, 2012, and the Administrative Law Judge
has not yet issued an order in the case. EPA anticipates that the judge
will issue a ruling in May. At the time of this proposal, the outcome
of the administrative challenge is uncertain. The three month extension
of the effective date of the inland waters rule would allow time for
the administrative challenge to be resolved, and, if FDEP prevails, for
FDEP to notify EPA that the NNC rules have been officially adopted as
revisions to the State's water quality standards. If EPA were to
approve Florida's rules, EPA would then consider proposing and
finalizing an additional extension to allow time for EPA to withdraw
any Federal numeric nutrient criteria that correspond to criteria that
have been adopted by Florida and approved by EPA.
Final State numeric nutrient criteria could have significant
implications for many interested parties and members of the public in
the State. In the event that alternative Florida numeric nutrient
criteria are established that assure attainment of State designated
uses consistent with applicable CWA provisions, there could be
uncertainty regarding implementation of EPA's inland water numeric
criteria. Successful State action on this issue could also affect the
obligations and expectations of a wide range of affected stakeholders
whose actions relate to the discharge or contribution of nitrogen and
phosphorus pollution to State waters. Extending the effective date of
EPA's inland waters rule from July 6, 2012, to October 6, 2012, would
avoid the confusion and inefficiency that could occur should Federal
criteria become effective while EPA reviews State criteria for approval
or disapproval under CWA section 303(c). Further,
[[Page 29274]]
extending the effective date to July 6, 2013, would avoid the confusion
and inefficiency that could occur should Federal criteria take effect
after State criteria have been approved and while EPA is in the process
of withdrawing Federal criteria for corresponding waters.
Should EPA decide to extend the effective date of the inland waters
rule, the Agency will continue to work with Florida towards
implementation of either Federal or State numeric nutrient criteria. As
EPA stated in the preamble to the final inland waters rule, the
opportunity presented by numeric nutrient criteria--for substantial
nitrogen and phosphorus loadings reductions in the State--``would be
greatly facilitated and expedited by strongly coordinated and well-
informed stakeholder engagement, planning, and support before a rule of
this significance and broad scope begins to take effect and be
implemented through the State's regulatory programs'' (75 FR 75787,
December 6, 2010).
EPA solicits comments regarding the proposed extension of three
months to October 6, 2012, for the effective date of the inland waters
rule, as well as a proposed extension of one year to July 6, 2013, for
the same.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993), since it
merely extends the effective date of an already promulgated rule, and
is, therefore, not subject to review under Executive Order 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b). This action does not impose any
information collection burden, reporting or record keeping requirements
on anyone.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule 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. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of this action on small entities, small entity
is defined as: (1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
This proposed rule does not establish any requirements that are
applicable to small entities, but rather merely extends the date of
already promulgated requirements. Thus, I certify that this rule will
not have a significant economic impact on a substantial number of small
entities.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. This action merely extends
the effective date of an already promulgated regulation. Therefore,
this action is not subject to the requirements of sections 202 or 205
of the UMRA.
E. Executive Order 13132 (Federalism)
This action does not have Federalism implications. It will not 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 government, as
specified in Executive Order 13132. This action merely extends the
effective date of an already promulgated regulation.
F. Executive Order 13175
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). In the State of
Florida, there are two Indian Tribes, the Seminole Tribe of Florida and
the Miccosukee Tribe of Indians of Florida, with lakes and flowing
waters. Both Tribes have been approved for treatment in the same manner
as a State (TAS) status for CWA sections 303 and 401 and have
federally-approved WQS in their respective jurisdictions. These Tribes
are not subject to this proposed rule. This rule will not impact the
Tribes because it merely extends the date of already promulgated
requirements. Thus, Executive Order 13175 does not apply to this
action.
EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO 12866
and because the Agency does not believe this action includes
environmental health risks or safety risks that would present a risk to
children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994))
establishes Federal executive policy on environmental justice. Its main
provision directs agencies, to the greatest extent practicable and
permitted by law, to
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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. This proposed action is not subject to E.O. 12898
because this action merely extends the effective date for already
promulgated requirements.
List of Subjects in 40 CFR Part 131
Environmental protection, Water quality standards, Nitrogen/
phosphorus pollution, Nutrients, Florida.
Dated: May 5, 2012.
Lisa P. Jackson,
Administrator.
[FR Doc. 2012-11843 Filed 5-16-12; 8:45 am]
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