EPA-812-Z-95-001
Wednesday
June 28, 1995
Part X
40 CFR Part 142
National Primary Drinking Water
Regulations Implementation Primary
Enforcement Responsibility; Final Rule
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33658 Federal Register / Vol. 60, No. 12.4 / Wednesday, June 28, 1995 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 142
[FRL-5227-5]
RIN-2040-AC19
National Primary Drinking Water
Regulations Implementation Primary
Enforcement Responsibility
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: EPA is promulgating final
language revising 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
Program under the Safe Drinking Water
Act and making technical clarifying
amendments to other parts of the
primacy regulation. The revised
language clarifies issues of EPA's timing
and discretion in initiating the primacy
withdrawal process and simplifies some
of the rule language. The intended
effects of these revisions are to eliminate
confusion about the Agency's primacy
withdrawal policy and to respond to a
court ruling that requires a change to the
regulatory language on withdrawals.
These revisions reflect existing Agency
policy and therefore should not impose
any burden on States or otherwise affect
EPA-State relations.
EFFECTIVE DATE: The final rule will take
effect July 28,1995. In accordance with
40 CFR 23.7, this regulation shall be
considered final Agency action for
purposes of judicial review at 1 p.m.
eastern time on July 12, 1995.
ADDRESSES: Supporting documents for
this 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;
Drinking Water 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 (PWSS) program, as
authorized by section 1413 of the Safe
Drinking Water Act (SDWA). In 1989,
EPA promulgated amendments to these
regulations establishing procedures for
States to revise their primacy programs
to adopt the requirements of new or
revised EPA drinking water regulations.
(54 FR 52126, December 20, 1989) The
1989 rulemaking also modified the
regulatory language pertaining to EPA's
initiation of procedures that could lead
to withdrawal of primacy status. The
provision on withdrawals is contained
in § 142.17(a) and is the subject of
today's action.
As promulgated in 1989,
§ 142.17(a)(2) leaves to the
Administrator's discretion whether to
initiate primacy withdrawal
proceedings after he or she has
determined that a State no longer meets
federal primacy requirements. 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)
challenged several aspects of the 1989
regulatory amendments, including the
primacy withdrawal language.' Among
other challenges, 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.
The U.S. Court of Appeals for the D.C.
Circuit issued an opinion on December
11,1992, in response to this challenge.
National Wildlife Federation v. EPA,
980 F.2d 765. The Court found that
while EPA has broad discretion under
the SDWA on when to "determine" that
a State is out of compliance with
primacy requirements, 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 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.
1 The Notice of Proposed Rulemaking (59 FR
40458, August 8. 1994), a copy of which is in the
Docket, summarizes NWF's challenges to the 1989
rulemaking and the disposition of this litigation.
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).
In response to the Court's remand,
EPA published a Notice of Proposed
Rulemaking (59 FR 40458, August 8,
1994) seeking public comment on the
following proposed changes to the
language of Section 142.17(a):
1. Revise the wording of § 142.l7(a)(2)
to clarify that the Administrator "shall"
initiate primacy withdrawal
proceedings once he or she formally
"determines" that a State is out of
compliance with primacy requirements;
2. Revise the wording of § 142.17(a)(2)
to clarify that the Administrator intends
to take at least two relevant factors into
consideration, if appropriate, in making
a formal determination that a State no
longer meets primacy requirements.
These factors are: (1) Whether the State
has been granted, or is awaiting EPA's
decision on, an extension of up to two
years of the 18-month deadline for
having submitted a final program
revision application to EPA to address
a new or revised federal drinking water
regulation; and (2) whether the State is
taking corrective actions that the
Administrator may have required to
correct State program deficiencies;
3. Revise the wording of § 142.17(a)(2)
to clarify that the Administrator shall
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Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / Rules and Regulations 33659
notify the State in writing that "EPA is
initiating" (rather than "of EPA's '
intention to initiate") primacy
withdrawal proceedings;
4. Revise the wording of § 142.17(a)(4)
to clarify that EPA will make a "final
determination" regarding primacy
withdrawal after the State has had the
opportunity to respond to the
Adjninistrator's written notice initiating
primacy withdrawal; and
5. Clarify that States must meet all the
primacy requirements specified in 40
CFR 142, subpart B, by replacing
references to "§ 142.10" in
§§ 142.17(a)(l), 142.17(a){2), and
142.17(a)(4) with references to "40 CFR
142, subpart B."
Today's action promulgates all of the
revisions to the primacy withdrawal
provisions that were proposed on
August 8,1994.
B. Summary of Comments and EPA
Responses
Four groups (consisting of a State, an
association of State drinking water
programs, and two drinking water trade
associations) submitted comments on
the proposed regulations. These
comments and EPA's response are part
of the public Docket. Three of the
commenters fully support the proposed
rule because they believe it continues to
provide EPA broad discretion in
considering whether to initiate
withdrawal. They stress the need for
this discretion and note the importance
of the Agency considering whether the
conditions for not meeting the
requirements for continued primacy are
temporary and likely to be corrected or
are of an on-going long-term nature. One
of these commenters also notes that
public health protection should be the
key factor in any primacy withdrawal
decision.
The fourth commenter agrees that
EPA should have broad flexibility in
making primacy withdrawal
determinations. This commenter
expressed concerns, however, that the
proposed regulatory changes would
severely restrict this flexibility, and this
commenter opposes any such change in
flexibility. This commenter reads the
proposal to say, for example, that EPA
must initiate primacy withdrawal if the
State exceeds the two-year extension
period, even if the State is making a
good faith effort towards compliance.
The commenter could support changes
to the primacy regulations if more
weight were given to the two listed
factors that the Administrator considers
in making the determination that a State
is out of compliance with primacy
requirements. Specifically, according to
the commenter, the regulations should
say that EPA "must" or "shall" consider
the two listed factors (which are
relevant to a State's good faith efforts
toward compliance) rather than that
EPA "intends" to consider these factors.
The commenter has misinterpreted
the meaning and effect of the regulatory
changes that were proposed and are
now promulgated. To reiterate, even
after today's revisions, the primacy
regulations afford broad discretion to
EPA. They do not set forth any specific
factual situation in which the
Administrator is required to determine
that the State no longer meets primacy
requirements and to initiate primacy
withdrawal. For example, even where a
State fails to have an approved program
revision in place within the two-year
extension period, the regulations do not
require the Administrator to determine
that the State no longer meets primacy
requirements. It is still within the
Administrator's discretion to make this
determination, in light of factors that
include the extent and timeliness of the
State's continuing good faith efforts to
adopt the revisions. EPA will judge each
case on its own merits. EPA emphasizes,
however, that it ordinarily intends to
consider this particular example—i.e.,
where the State misses the two-year
extension deadline—to be a strong
candidate for initiating primacy
withdrawal. Indeed, although the
commenter cites specific problems that
may prevent a State from meeting this
deadline, there have been past instances
in which States have resolved such
problems only after receiving notice of
EPA's intent to initiate primacy
withdrawal. When the State provides a
reasonable schedule for adopting the
regulations and submitting a final
primacy revision package to the Agency,
the Agency's policy is to cancel the
primacy withdrawal proceedings. The
revised regulations will not alter this
policy.
C. Summary and Explanation of
Today's Action
After carefully considering all of the
public comments, EPA is retaining the
changes to §§ 142.17(a)(l), 142.17(a)(2),
and 142.17(a)(4) that were proposed on
August 8, 1994. In addition, the Agency
is making technical amendments to the
language of §§ 142.11 and 142.13 to
clarify the timing of the process for
public notice and opportunity for
comment.
1. Changes to Primacy Withdrawal
Provisions
Today's action results in the following
changes to the primacy withdrawal
provisions.
First, EPA is modifying the language
of § 142.17(a)(2) by substituting the term
"shall" for "may". Specifically, the
language of § 142.17(a)(2). as
promulgated in December 1989, 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.
Today's action requires the
Administrator to initiate primacy
withdrawal proceedings once the
Administrator makes this formal
determination.
The language of § 142.17(a)(2), as
promulgated in December 1989,
contains the clause, "When, * * *,the
Administrator determines * * *, and
the State has failed to request or has
been denied an extension under
§142.12(b)(2) of the deadlines for
meeting those requirements, or has
failed to take other corrective action
required by the Administrator, * * *."
EPA is modifying § 142.17(a)(2) to
delete this clause. In its place, EPA is
revising the paragraph to read as
follows: "When, * * *, the
Administrator determines * * *, 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 § 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."
EPA explained its rationale for making
this change in the August 8, 1994
proposal. EPA's intent in making this
change is to clarify the Administrator's
discretion and to note two cases where
the Agency generally expects to find no
reason to initiate primacy withdrawal
since the State is taking timely and
appropriate action to remedy program
deficiencies. As discussed above, EPA
does not believe that this language
limits the Administrator's discretion to
determine whether or when a State no
longer meets the requirements for
retaining primacy.
Section 142.17"(a)(2) also requires the
Administrator to provide the State
written notification that the Agency is
initiating primacy withdrawal
proceedings. EPA is modifying the
language of § 142.17(a)(2) to replace 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
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33660 Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / Rules and Regulations
does not clearly state whether EPA is or
is not initiating withdrawal as of that
date.
These changes to the language of
§ 142.17(a)(2) require the Administrator
to initiate primacy withdrawal
proceedings once the Administrator
makes a formal determination that the
State no longer meets the requirements
for primacy. EPA emphasizes that the
Agency still retains full discretion to
decide whether and when to reach diis
formal determination. For example, as
explained in the August 8, 1994,
proposal there may be no reason to
formally determine that a State program
no longer meets the requirements for
primacy 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 § 142.12. Similarly,
there may be no reason to makes this
formal determination if the State is
otherwise carrying out any corrective
actions that EPA may have ordered that
would eliminate the deficiencies in the
State program. Nevertheless, EPA
wishes to make clear its general policy
and intention to continue to vigorously
pursue the need for: corrections to State
programs; and initiating primacy
withdrawal whenever a State is not
acting in good faith to maintain the
requirements for primacy.
EPA also is making a minor change to
the language of § 142.17(a)(4). As
promulgated in December 1989, this
provision states that after reviewing a
State's submission made in response to
the notice that EPA is initiating primacy
withdrawal proceedings, " * * * the
Administrator shall either determine
that the State no longer meets [primacy]
requirements * * * or that the State
continues to meet those requirements
* * *. Any determination that the State
no longer meets the requirements * * *
shall not become effective except as
provided in § 142.13." EPA is modifying
the language of § 142.17(a)(4) by
substituting the phrase "make a final
determination either" for the phrase
"either determine." EPA also is
substituting the phrase "Any final
determination" for the phrase "Anv
determination." This change, which was
discussed in the August 8,1994
proposal, clarifies that the
Administrator's "final determination"
under § 142.17(a)(4) is distinct from the
initial determination made under
§ 142.17(a)(2) and is preceded by an
opportunity for public comment.
EPA emphasizes that these changes
do not alter the primacy withdrawal
process. That process consists of the
following sequential steps.
1. EPA's receipt of information, either
through its annual review of the State
program (§ 142.17(a)(l)) 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
meets the primacy requirements and
notification to the State that primacy
withdrawal is being initiated
(§142.17(a)(2)).
3. The State's response to EPA's
notice (§ 142.17(a)(3)).
4. Final EPA determination that the
State meets or does not meet the
primacy requirements 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 State does not meet primacy
requirements. (§ 142.17(a)(4)).
Finally, EPA is replacing the
references to "§ 142.10" contained in
§§ 142.17(a)(l), 142.17(a)(2), and
142.17(a)(4) with references to "40 CFR
part 142, subpart B." Section 142.10 no
longer contains all of the requirements
a State must meet to obtain/retain
primacy. Section 142.10 contains the
basic requirements, however, other
portions of 40 CFR part 142, subpart B,
contain additional primacy
requirements associated with individual
drinking water regulations. EPA is
therefore revising the language of
§ 142.17(a) to clarify that States are
expected to meet all primacy
requirements contained in 40 CFR part
142, subpart B.
2. Other Technical Amendments
EPA is today also making two
technical clarifying amendments to the
language of §§ 142.11(b)(l) and
142.13(a). First. EPA is replacing the
word "determination" whenever it
occurs in § 142.13(a) with the words
"final determination" to clarify that the
public notice and opportunity for public
hearing requirements specified in
§ 142.13 occur after the Administrator
has made a final determination on a
State's or Tribe's primacy application
under § 142.11, program revision
application under § 142.12, or to
withdraw primacy under § 142.17.
Second, in order to clarify the Agency's
intent that there be an opportunity for
public notice and comment on a State's
or Tribe's initial primacy application,
regardless of whether the
Administrator's final determination is to
approve or disapprove that application,
EPA is revising § 142.11(b)(2)as follows:
(1) insert the word "final" before the
word "determination"; replace the
words "has met the requirements" with
the words "has met or has not met the
requirements"; and insert the words
"the public notice requirements and
related procedures under" before the
word "§ 142.13." This change is simply
a clarification since § 142.13(a) already
requires an opportunity for a public
hearing in either case.
Because these changes to section
§ 142.11(b)(2) and § 142.13(a) are simply
minor clarifications and are non-
substantive, good cause exists for
finding that an additional notice and
comment period is unnecessary (see
§ 553 of the Administrative Procedures
Act). Moreover, these changes are
logical outgrowths of the proposal,
which made it clear that through this
rulemaking, EPA is distinguishing
between its final determinations and the
earlier formal determinations that
require initiation of primacy
withdrawal. Therefore, an additional
comment period is unnecessary in any
event.
D. Impact of These Revisions
1. 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.
2. 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
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Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / Rules and Regulations
33661
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.
3. Paperwork Reduction Act
This rulemaking contains 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 under the Paperwork
Reduction Act, 44 U.S.C. 3501 etseq.
4. Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA),
Public Law 104-4, which was signed
into law on March 22,1995, sets
requirements for EPA with respect to
rules that contain federal mandates that
may result in certain specified costs to
State, local, or tribal governments. Also,
before EPA establishes regulatory
requirements that may significantly or
uniquely affect small governments'
including tribal governments, it must
develop under section 203 of the UMRA
a small government agency plan.
The UMRA generally defines a federal
mandate for regulatory purposes as one
that imposes an enforceable duty upon
State, local, or tribal governments or the
private sector. Today's rule simply
addresses the subject of EPA's
discretion to initiate primacy
withdrawal when a State is not
maintaining the requirements for
primacy and sets forth the
circumstances in which EPA must begin
the withdrawal process. This rule does
not change the actual requirements that
States must meet to maintain primacv or
otherwise impose an enforceable duty
on States. Similarly, this rule does not
impose an enforceable duty on any
other entities. Thus, there are no federal
mandates in this rule for purposes of the
UMRA. In addition, today's action does
not establish any regulatory
requirements that may significantly or
uniquely affect small governments,
including tribal governments, and so
does not require a small government
agency plan under UMRA section 203.
List of Subjects in 40 CFR Part 142
Environmental protection,
Administrative practices and
procedures, Intergovernmental relations.
Reporting and recordkeeping
requirements, Water supply, Indians.
Dated: June 21,1995.
Fred Hansen,
Acting Administrator.
For the reasons set forth in the
preamble, part 142, chapter 1, title 40 of
the Code of Federal Regulations is
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-l, 300g-
2. 300g-3, 300g-i. 300g-5, 300g-6, 300J-4
and 300J-9.
§142.11 [Amended]
2. Section 142.11 is amended by
revising paragraph (b)(2) to read as
follows:
§ 142.11 Initial determination of primary
enforcement responsibility.
*****
(bj * * *
(2) A final determination by the
Administrator that a State has met or
has not met the requirements for
primary enforcement responsibility
shall take effect in accordance with the
public notice requirements and related
procedures under § 142.13.
§142.13 [Amended]
3. Section 142.13 is amended by
inserting the word "final" before the
word "determination" in each of the
three places where the word
"determination" occurs in paragraph
(a).
§142.17 [Amended]
4. Section 142.17 is amended by
revising the word "§ 142.10" in
paragraph (a)(l) to read "40 CFR part
142, subpart B," and by revising
paragraphs (a)(2) and (a)(4) to read as
follows:
§ 142.17 Review of State programs and
procedures for withdrawal of approved
primacy programs.
(a)(l) * * *
(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 § 142.12(b)(2) of
the deadlines for meeting those
requirements; and whether the State is
taking corrective actions that may ha"'3
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 final determination
that the State no longer meets the
requirements of 40 CFR part 142,
subpart B, shall not become effective
except as provided in § 142.13.
*****
[FR Doc. 95-15872 Filed 6-27-95; 8:45 am]
BILLING CODE 6560-60-P
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