[Federal Register Volume 59, Number 151 (Monday, August 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19291]
[[Page Unknown]]
[Federal Register: August 8, 1994]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 142
National Primary Drinking Water Regulations Implementation Primary
Enforcement Responsibility; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 142
[FRL-5028-8]
RIN 2040-AC19
National Primary Drinking Water Regulations Implementation
Primary Enforcement Responsibility
AGENCY: Environmental Protection Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA is giving notice that it is considering revisions to the
regulation that sets forth EPA's process for initiating the withdrawal
of a State's primary enforcement responsibility (primacy) for the
Public Water System Supervision (PWSS) program under the Safe Drinking
Water Act. The Agency proposes to revise the language of this
regulation to clarify that once the Administrator has ``formally
determined'' that a State is out of compliance with primacy
requirements, EPA must initiate the primacy withdrawal process by
notifying the State of why such determination was made, allowing the
State 30 days to respond, and proceeding toward a final decision,
including public notice and opportunity for hearing on final decisions
to withdraw primacy. The Agency also proposes other minor revisions to
the withdrawal regulation to simplify some of the rule language and
clarify the points of EPA's discretion in determining when to initiate
primacy withdrawal. The intended effect of this revision is to
eliminate confusion about the Agency's primacy withdrawal policy. The
Agency solicits public comment on the proposed revised language.
DATES: Written comments should be postmarked or delivered by hand by
September 22, 1994.
ADDRESSES: Send written comments on the proposed rule to the Primacy
Rule Comment Clerk; Water Docket MC-4101; Environmental Protection
Agency; 401 M Street, SW., Washington, DC 20460. Commenters are
requested to submit any references cited in their comments. Commenters
also are requested to submit an original and 3 copies of their written
comments and enclosures. Commenters who want receipt of their comments
acknowledged should include a self-addressed, stamped envelope. No
facsimiles (faxes) will be accepted. The Agency would prefer for
commenters to type or print comments in ink. Commenters should use a
separate paragraph for each issue discussed. Supporting documents for
this proposed rulemaking are available for review at EPA's Water
Docket; 401 M Street, SW. Washington, DC 20460. For access to the
Docket materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for
an appointment.
FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll
free (800) 426-4791, or Judy Lebowich; Enforcement and Program
Implementation Division; Office of Ground Water and Drinking Water; EPA
(4604), 401 M Street, SW., Washington, DC 20460; telephone (202) 260-
7595.
SUPPLEMENTARY INFORMATION:
A. Background
40 CFR part 142, subpart B, sets out requirements for States to
obtain primacy for the Public Water System Supervision program, as
authorized by section 1413 of the Safe Drinking Water Act (SDWA). EPA
first promulgated these regulations on January 20, 1976. Prompted by
subsequent changes in the operation and scope of the PWSS program,
largely due to the 1986 Amendments to the SDWA, on December 20, 1989,
EPA published amendments to the primacy regulations. These regulatory
amendments established explicit procedures that States need to follow
to revise their approved primacy programs to adopt the requirements of
new or revised EPA drinking water regulations. The rule allowed primacy
States to request an extension of up to two years after the effective
date of new EPA drinking water regulations to adopt the regulations as
State law. The National Wildlife Federation (NWF), in a petition for
review filed in the U.S. Court of Appeals for the District of Columbia
Circuit (National Wildlife Federation v. Reilly, No. 90-1072),
contended that this extension period, during which primacy
responsibility is split between the federal and State governments, is
prohibited by the SDWA. NWF argued that a State's primacy for the
entire drinking water program necessarily ceases whenever a State fails
to adopt a new EPA regulation by its effective date. On February 15,
1991, however, the Court upheld the extensions regulation and found
that EPA's approach of allowing extensions is consistent with
Congressional intent that the Act primarily be a State and locally run
program. National Wildlife Federation v. EPA, 925 F.2d 470 (D.C. Cir.
1991). The 1989 rulemaking also modified the language of the regulation
that concerns EPA's initiation of procedures that could lead to
withdrawal of primacy status for States that EPA determines are not
continuing to meet the requirements for primacy (see
Sec. 142.17(a)(2)). The language of this provision is the subject of
today's action.
As promulgated in December 1989, this provision reads as follows:
When, on the basis of the Administrator's review or other
available information, the Administrator determines that a State no
longer meets the requirements set forth in Sec. 142.10, and the
State has failed to request or has been denied an extension under
Sec. 142.12(b)(2) of the deadlines for meeting those requirements,
or has failed to take corrective actions required by the
Administrator, the Administrator may initiate proceedings to
withdraw primacy approval. The Administrator shall notify the State
in writing of EPA's intention to initiate withdrawal proceedings and
shall summarize in the notice the information available that
indicates that the State no longer meets such requirements.
In the same lawsuit, NWF challenged the primacy withdrawal
language, both procedurally and substantively. The procedural challenge
alleged that EPA provided insufficient opportunity for the public to
comment on the revision to Sec. 142.17(a)(2), in violation of
requirements of the Administrative Procedure Act (APA). Substantively,
NWF alleged that EPA was without statutory authority to promulgate a
revision making explicit that it is within EPA's discretion whether to
initiate proceedings to withdraw a State's PWSS primacy program.
In response to NWF's procedural complaint, the Agency issued a
Notice of Proposed Rulemaking to allow additional public comment and
reconsideration by EPA of the language of Sec. 142.17(a)(2) (55 FR
49398, November 28, 1990). On June 3, 1991, the Agency published a
notice of final rulemaking retaining in Sec. 142.17(a)(2) the language
on initiating primacy withdrawals that was previously adopted in the
December 1989 rulemaking (56 FR 25046, June 3, 1991).
The U.S. Court of Appeals for the D.C. Circuit issued an opinion on
December 11, 1992, in response to NWF's substantive challenge to
Sec. 142.17(a)(2). National Wildlife Federation v. EPA, 980 F.2d 765.
The Court found that EPA has broad discretion under the SDWA on when to
``determine'' that a State is out of compliance with primacy
requirements. The Court ruled, however, that once the Administrator has
made this determination, the SDWA requires EPA to initiate the primacy
withdrawal process by notifying the State of why such a determination
was made, allowing the State 30 days to respond, and proceeding toward
a final decision, including public notice and opportunity for hearing
on final decisions to withdraw primacy. The Court found EPA's primacy
withdrawal regulation to be invalid because it does not require the
Agency to take these steps--instead, the regulation says that after
``determining'' that the State is out of compliance with primacy, the
Administrator ``may'' initiate withdrawal proceedings. The Court
therefore remanded the regulation to EPA for modification.
The Court emphasized that its review focused only on what EPA ``may
do following a formal determination of noncompliance and does not
require delving into the Administrator's complex decision-making
process regarding whether to make such a determination in the first
instance.'' Id. at 774. The Court acknowledged that the Agency is
``free to decide that technical, temporary or otherwise unimportant
violations of the primacy requirements do not warrant a `determination'
of noncompliance, or that the better approach for meeting the Act's
goals is to negotiate with the offending state or to permit more time
for the state to come back into compliance.'' Thus, EPA may ``negotiate
with the state as long as necessary before determining that the primacy
requirements are no longer met.'' Id. at 771.
The Court also noted that ``even where a `determination' of
noncompliance is made, the statute does not require the Agency to
immediately withdraw primacy. Rather, the EPA is directed to provide
notice and a public hearing before its determination of nonconformity
with the primacy standards becomes effective. As a consequence of
evidence adduced at the hearing, the EPA is entitled to conclude that
its original decision was in error or that the State has remedied any
deficiency and to decide against withdrawal.'' Id. at 771 (citations
omitted).
B. EPA Response to Court Remand and Other Conforming Changes
EPA proposes today to modify the language of Sec. 142.17(a)(2) to
respond to the Court remand by substituting the term ``shall'' for
``may.'' Specifically, the existing language of Sec. 142.17(a)(2)
states that the Administrator ``may'' initiate primacy withdrawal
proceedings once he or she determines that a State's primacy program
fails to continue to meet federal requirements for primacy. Under the
proposed change, the Administrator would be required to initiate
primacy withdrawal proceedings once this formal determination is made.
Nevertheless, EPA emphasizes that under this proposed revision, the
Agency still retains full discretion to decide whether and when to
reach this formal determination. For example, as explained further
below, there may be no reason to formally determine that a State
program is out of compliance if the State has missed a deadline for
adopting new drinking water regulations but has been granted or is
seeking an extension of that deadline under Sec. 142.12. Similarly,
there may be no reason to formally determine that a State program is
out of compliance if the State is otherwise carrying out any corrective
actions that EPA may have ordered that would eliminate the deficiency
in the State program.
With the change to Sec. 142.17(a)(2) proposed above, the primacy
withdrawal process would consist of the following sequential steps.
1. EPA's receipt of information, either through its annual review
of the State program (Sec. 142.17(a)(1)) or otherwise, that the State
program may no longer be in compliance with the requirements for
primacy.
2. EPA's formal determination, made at its discretion, that the
State no longer complies with primacy requirements and notification to
the State that primacy withdrawal is being initiated
(Sec. 142.17(a)(2)).
3. The State's response to EPA's notice (Sec. 142.17(a)(3)).
4. Final EPA determination that the State is in or out of
compliance and notification to the State, including a notice to the
public and opportunity for a hearing when the EPA's final determination
is that the States does not meet primacy requirements.
(Sec. 142.17(a)(4)).
These provisions provide EPA broad discretion on when to
``determine'' that a State is out of compliance with primacy
requirements. This discretion allows EPA to work with a State that is
acting in good faith to rectify the deficiencies in its program without
having the Agency spend needless time and resources on withdrawal
proceedings when it appears that the State will soon resolve the
problems with its program. The legal basis and policy considerations
underlying this policy are further explained in the June 1991
rulemaking.
For reasons discussed below, EPA also is proposing several minor
revisions to the language of Secs. 142.17(a)(1), (a)(2), and (a)(4).
The purpose of these revisions is to clarify the points of EPA's
discretion in determining when to initiate primacy withdrawal and to
simplify some of the rule language.
When 40 CFR part 142, subpart B, was amended in 1989, Sec. 142.10
set forth the requirements a State must meet to obtain/retain primacy.
Some National Primary Drinking Water Regulations published since that
time have added additional primacy requirements in other provisions,
e.g., the Special Primacy Requirements listed in Sec. 142.16. EPA
therefore proposes to replace the references to ``Sec. 142.10''
contained in Secs. 142.17(a)(1), (a)(2) and (a)(4) with references to
``40 CFR part 142, subpart B.''
The language of Sec. 142.17(a)(2) contains the clause, ``* * *, and
the State has failed to request or has been denied an extension under
Sec. 142.12(b)(2) of the deadlines for meeting those requirements, or
has failed to take other corrective actions required by the
Administrator, * * *.'' The intent of this clause is simply to indicate
that, even though the State is out of compliance with primacy
requirements, there are two cases when there generally is no reason to
initiate primacy withdrawal. First, there generally is no reason to
initiate primacy withdrawal when a State has missed the deadline for
revising its drinking water regulations to incorporate new EPA
regulations but has applied for, and has been granted, or is awaiting
EPA's decision on, an extension of time in accordance with
Sec. 142.12(b)(2). Second, there generally is no reason to initiate
primacy withdrawal when the State is out of compliance for any reason
but is taking any corrective actions that may have been ordered by EPA
to bring the program back into compliance.
The existing regulatory language was not addressed by the Court in
its decisions, however, there could be some confusion over its meaning,
as evidenced in NWF's briefs to the D.C. Circuit. NWF read this
language as creating two ``new'' (and improper) conditions that must be
met before primacy withdrawal may be initiated. For example, NWF
stated, this language could be read to mean that EPA may not even
consider sending a letter to the State reflecting a determination that
the State is not meeting primacy requirements (and thereby initiating
primacy withdrawal) unless EPA has first required the State to take
certain corrective actions. NWF's interpretation is not what the
language is intended to mean. EPA did not intend to create new
conditions for primacy withdrawal with this language. EPA realizes
there are cases in which neither extensions of time to adopt new
regulations nor corrective actions will be relevant, in which case the
existing regulatory language is not intended to have any effect.
EPA proposes to clarify its intent by revising the language to read
as follows: ``When, * * *, the Administrator determines that a State no
longer meets the requirements set forth in 40 CFR part 142, subpart B,
the Administrator shall initiate proceedings to withdraw primacy
approval. Among the factors the Administrator intends to consider as
relevant to this determination are the following, where appropriate:
Whether the State has requested and has been granted, or is awaiting
EPA's decision on, an extension under Sec. 142.12(b)(2) of the
deadlines for meeting those requirements; and whether the State is
taking corrective actions that may have been required by the
Administrator.''
In developing language to clarify the Administrator's discretion,
the Agency considered two other alternatives. The Agency considered
replacing the clause with the more general language: ``* * * and that
the State is not taking steps acceptable to EPA toward meeting the
requirements, * * *.'' EPA believes, however, that the language of this
option is overly vague and unnecessary given EPA's broad discretion to
determine whether and when a State is out of compliance. The Agency
also considered just deleting the clause. EPA believes, however, that
States might inappropriately interpret this approach as a change in
EPA's policy to attempt to negotiate or order corrective actions before
it formally determines that a State program is out of compliance and
initiates primacy withdrawal.
EPA also proposes to replace in Sec. 142.17(a)(2) the term ``of
EPA's intention to initiate'' with ``that EPA is initiating'' to be
more direct about the action being taken. The Agency believes the
phrase ``intention to initiate'' may be confusing since it does not
clearly state whether EPA is or is not initiating withdrawal as of that
date. The proposed revision does not affect the primacy withdrawal
process itself, which includes an opportunity for the State to respond
to the initial notification that primacy withdrawal is being initiated
prior to the Agency making a ``final determination'' on State primacy.
Finally, EPA proposes to make a minor change to the language of
Sec. 142.17(a)(4). As promulgated in December 1989, this provision
reads as follows:
After reviewing the submission of the State, if any, made
pursuant to paragraph (a)(3) of this section the Administrator shall
either determine that the State no longer meets the requirements of
Sec. 142.10 or that the State continues to meet those requirements,
and shall notify the State of his or her determination. Any
determination that the State no longer meets the requirements of
Sec. 142.10 shall not become effective except as provided in
Sec. 142.13.
EPA proposes to substitute the phrase ``make a final determination
either'' for the phrase ``either determine'' and to substitute the
phrase ``Any final determination'' for the phrase ``Any determination''
in Sec. 142.17(a)(4).
The proposed change clarifies that the Administrator's ``final
determination'' in Sec. 142.17(a)(4) on whether the State is continuing
to meet the requirements for primacy is distinct from the initial
``formal determination'' made under Sec. 142.17(a)(2) and is preceded
by an opportunity for public comment. Although the term
``determination'' is used in two sections of the current regulation,
the different events that they refer to are clear in their respective
contexts and this issue has not been a point of legal contention.
Nevertheless, the Agency believes the minor adjustment proposed today
would prevent misinterpretations in the future.
C. Request for Comments
The Agency invites all interested persons to submit comments within
45 days on all aspects of this proposal to revise the language of
Secs. 142.17(a)(2) and 142.17(a)(4). After carefully considering all
public comments, EPA will promulgate final language for these
provisions. If EPA decides to change the language today proposed, the
Agency may also make minor conforming changes to other parts of Part
142 at the same time.
D. Executive Order 12866
Under Executive Order 12866, (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(a) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(b) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(c) Materially alter the budgetary impact on entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
E. Regulatory Flexibility Act
Pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), EPA
certifies that this rule will not have a significant economic impact on
a substantial number of small entities because it merely revises
existing procedural requirements for initiating withdrawal of State
primacy by clarifying the extent of EPA discretion in initiating the
process; States are not considered small entities under this rulemaking
for RFA purposes.
F. Paperwork Reduction Act
The proposed regulations contain no new or additional information
collection activities and, therefore, no information collection request
will be submitted to the Office of Management and Budget for review in
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 142
Environmental protection, Administrative practices and procedures,
Indians, Intergovernmental relations, Reporting and recordkeeping
requirements, Water supply.
Dated: July 27, 1994.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 142, chapter 1,
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for part 142 continues to read as
follows:
Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4 and 300j-9.
2. Section 142.17 is amended by revising paragraphs (a)(1), (a)(2)
and (a)(4) to read as follows:
Sec. 142.17 Review of State programs and procedures for withdrawal of
approved primacy programs.
(a)(1) At least annually, the Administrator shall review, with
respect to each State determined to have primary enforcement
responsibility, the compliance of the State with the requirements set
forth in 40 CFR part 142, subpart B, and the approved State primacy
program. At the time of this review, the State shall notify the
Administrator of any State-initiated program changes (i.e., changes
other than those to adopt new or revised EPA regulations), and of any
transfer of all or part of its program from the approved State agency
to any other State agency.
(2) When, on the basis of the Administrator's review or other
available information, the Administrator determines that a State no
longer meets the requirements set forth in 40 CFR part 142, subpart B,
the Administrator shall initiate proceedings to withdraw primacy
approval. Among the factors the Administrator intends to consider as
relevant to this determination are the following, where appropriate:
whether the State has requested and has been granted, or is awaiting
EPA's decision on, an extension under Sec. 142.12(b)(2) of the
deadlines for meeting those requirements; and whether the State is
taking corrective actions that may have been required by the
Administrator. The Administrator shall notify the State in writing that
EPA is initiating primacy withdrawal proceedings and shall summarize in
the notice the information available that indicates that the State no
longer meets such requirements.
* * * * *
(4) After reviewing the submission of the State, if any, made
pursuant to paragraph (a)(3) of this section, the Administrator shall
make a final determination either that the State no longer meets the
requirements of 40 CFR part 142, subpart B, or that the State continues
to meet those requirements, and shall notify the State of his or her
determination. Any determination that the State no longer meets the
requirements of 40 CFR part 142, subpart B, shall not become effective
except as provided in Sec. 142.13.
* * * * *
[FR Doc. 94-19291 Filed 8-5-94; 8:45 am]
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