EPA-812-Z-94002
Monday
August 8, 1994
AWBEHC UBhsARY U.S. E.PA
Part III
Environmental
Protection Agency
40 CFR Part 142
National Primary Drinking Water
Regulations Implementation Primary
Enforcement Responsibility; Proposed
Ruie
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40458
Federal Register / Vol. 59, No. 151 / Monday, August 8, 1994 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 142
[FRL-5028-8]
RIN 204Q-AC19
National Primary Drinking Water
Regulations Implementation Primary
Enforcement Responsibility
AGENCY: Environmental Protection
Agency.
ACTION: Notice of proposed rulemaking.
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 § 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
§ 142.10, 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
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 § 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 § 142.17(a)(2) (55 FR 49398,
November 28, 1990). On June 3,1991,
the Agency published a notice of final
rulemaking retaining in § 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 § 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
AWBERC LIBRARY
U.S. EPA
26 W. MARTIN LUTHER KING OR,
CINCINNATI, OHIO 45268
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Federal Register / Vol. 59, No. 151 / Monday, August 8, 1994 / Proposed Rules 40459
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 § 142.17(a)(2) to respond to
the Court remand by substituting the
term "shall" for "may." Specifically, the
existing language of § 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 § 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 § 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 (§ 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
complies with 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 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.
(§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
§§ 142.17(a)(l), (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, § 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
§ 142.16. EPA therefore proposes to
replace the references to "§ 142.10"
contained in §§ 142.17(a)(l), (a)(2) and
(a)(4) with references to "40 CFR part
142, subpart B."
The language of § 142.17(a)(2)
contains the clause, "* * *, 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 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
§ 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.
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40460 Federal Register / Vol. 59, No. 151 / Monday, August 8, 1994 / Proposed Rules
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 § 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
§ 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
§ 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 § 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
§ 142.10 shall not become effective except as
provided in § 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 § 142.17(a)(4).
The proposed change clarifies that the
Administrator's "final determination"
in § 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
§ 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 §§ 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.
I). 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-l, 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)(l), (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) 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
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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 § 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 § 142.13.
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[FR Doc. 94-19291 Filed 8-5-94; 8:45 am]
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