[Federal Register Volume 65, Number 82 (Thursday, April 27, 2000)]
[Rules and Regulations]
[Pages 24641-24653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8536]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-6571-7]
RIN 2040-AD33
EPA Review and Approval of State and Tribal Water Quality
Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This rule specifies that new and revised standards adopted by
States and authorized Tribes after the effective date of today's rule
become ``applicable standards for Clean Water Act purposes'' only when
approved by EPA. To facilitate transition to this approach, standards
in effect under State and Tribal law and submitted to EPA before the
effective date of the new rule may still be used for Clean Water Act
purposes, whether or not approved by EPA, until replaced by Federal
water quality standards or approved State or Tribal standards.
EFFECTIVE DATE: May 30, 2000.
ADDRESSES: This rule's administrative record is available for review
and copying from 9:00 to 4:00 p.m., Monday through Friday, excluding
legal holidays, at the Water Docket, East Tower Basement, Room EB57,
U.S. EPA, 401 M Street, SW, Washington DC. For access to materials,
please call (202) 260-3027 to schedule an appointment.
The Clean Water Act Water Quality Standards dockets discussed in
III.E.4 of the SUPPLEMENTARY INFORMATION below are available for
viewing in the Regional Offices. Regional contacts, addresses, and
phone numbers are included in the supplementary section of this
preamble.
FOR FURTHER INFORMATION CONTACT: William Morrow, Office of Science and
Technology, Standards and Applied Science Division, (202) 260-3657,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Potentially Regulated Entities
II. Background
III. Summary of final rule and response to major comments
A. General Approach
B. Integration with CWA Section 510
1. Proposed Rule
2. Major Comments and Responses
3. Final Rule
C. EPA Transition Strategy
1. Proposed Rule
2. Major Comments and Responses
3. Final Rule
D. Delay Related Comments
1. Default Approval/Disapproval
2. Integration with ESA
E. Other Issues
1. Integration with TMDL/NPDES Programs
2. Coordination between Federal and State and Tribal Processes
3. Standards subject to the rule
4. CWA WQS Docket
a. Proposed Rule
b. Major Comments and Responses
c. Final Rule
IV. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act
V. Unfunded Mandates Reform Act
VI. Regulatory Planning and Review, Executive Order 12866
[[Page 24642]]
VII. Federalism, Executive Order 13132
VIII. Consultation and Coordination with Indian Tribal Governments,
Executive Order 13084
IX. Paperwork Reduction Act
X. Protection of Children from Environmental Health Risks and Safety
Risks, Executive Order 13045
XI. National Technology Transfer and Advancement Act
XII. Congressional Review Act
I. Potentially Affected Entities
Citizens concerned with water quality may be interested in this
rulemaking. Entities discharging pollutants to waters of the United
States could be indirectly affected by this rulemaking since water
quality standards are used in determining National Pollutant Discharge
Elimination System (NPDES) permit limits. Potentially affected entities
include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
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States, Tribes, and Territories........ States, Territories, and Tribes
authorized to administer water
quality standards.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. 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
Section 303(c) of the Clean Water Act requires States, which as
defined include Territories and authorized Tribes, to review their
water quality standards periodically, to adopt new or revised standards
as needed, and to submit their standards for EPA review. Authorized
Tribes are Tribes that have approved CWA section 303 authority pursuant
to 40 CFR 131.8. EPA will approve or disapprove any such new or revised
standards. Section 303(c)(3) states that ``If the Administrator, within
sixty days after the date of submission of the revised or new standard,
determines that such standard meets the requirements of this Act, such
standard shall thereafter be the water quality standard for the
applicable waters.'' If the Administrator determines that the new or
revised standard does not meet those requirements, she shall take
specified steps to ensure that an adequate standard is in place. (See
preamble to proposed rule (64 FR 37072 (July 9, 1999)) for a more
detailed description of the statutory background.)
Notwithstanding this statutory language, EPA's 1983 water quality
standard regulations set out an interpretation of the Act which allowed
State and Tribal standards to go into effect for CWA purposes as soon
as they were adopted and effective under State or Tribal law, and to
remain in effect unless and until replaced by another standard. The
1983 rule reflected an Agency interpretation which dated back at least
to 1977. See Opinion of the General Counsel No. 58, Issue 2, In re
Bethlehem Steel Corporation, March 29, 1977. On July 8, 1997, the
district court issued an opinion in Alaska Clean Water Act Alliance v.
Clark, No. C96-1762R (W.D. Wash.) holding that the plain meaning of the
Clean Water Act was that new and revised state water quality standards
were not effective for Clean Water Act purposes until approved by EPA.
The parties to the lawsuit entered into a settlement agreement under
which EPA agreed to propose revisions to 40 CFR 131.21(c) consistent
with the Court's opinion no later than July 1, 1999, and to take final
action within nine months of the proposal. Today's final rule is issued
in accordance with this settlement agreement.
The proposed rule was published in the Federal Register on July 9,
1999, with a 45 day comment period. The public comments on the proposed
rule are available in the docket for this rule.
III. Summary of Final Rule and Response to Major Comments
A. General Approach
Like the proposal, the final regulation sets out a general rule
that if a State or authorized Tribe adopts a WQS that goes into effect
after the effective date of this rule, that standard becomes the
applicable WQS for purposes of the CWA when EPA approves it, unless or
until EPA has promulgated a more stringent Federal WQS for the State or
authorized Tribe. For example, where EPA has previously promulgated a
more stringent Federal standard, the newly approved State or Tribal
standard will go into effect for CWA purposes after EPA removes the
Federal rule. Another example is where EPA approves a State or Tribal
standard and at a later date, based on new information, determines that
a new or revised standard is necessary. If the State or Tribe does not
revise the previously approved standard, EPA would promulgate a Federal
standard to supercede the previously approved standard. EPA clarified
this in today's final rule by changing the heading in the table at
Sec. 131.21(c) from ``unless'' to ``unless or until.''
As discussed in section III.C., in response to comments, today's
final rule modifies the proposed transition provision (referred to in
the proposal as a grandfather provision) allowing standards which went
into effect prior to the effective date of today's rule to be used for
CWA purposes. The final rule also establishes an approach to integrate
the requirements of CWA sections 303 and 510 that is different than the
proposal. The following discussion summarizes the major comments, and
explains why EPA did or did not modify the proposal in response to
these comments. A complete response to comments is in the
administrative record for this rule--see ADDRESSES.
The comments were divided on the general approach in the proposal.
A number of commenters, especially environmental groups, strongly
supported the proposal in general as mandated by the Clean Water Act
and as ensuring that only standards which meet the requirements of the
CWA would be used for CWA purposes (although some objected to the
exceptions provided for standards adopted before the effective date of
the final rule and for new, not less stringent standards). Other
commenters indicated that the new approach would be acceptable if steps
were taken to address delays in EPA approval of standards (e.g.,
provide for default approvals if EPA did not act in a timely fashion).
Finally, a number of commenters expressed support for retaining the
current approach; particular commenters questioned the legal basis for
the new approach or felt that it infringed on States' rights; or
expressed concerns that the new approach would create a confusing
system of dual standards and/or result in gaps when a State repealed an
old standard.
The final rule retains the general approach of the proposed rule.
EPA agrees that this approach (that is, standards are not effective for
CWA purposes until approved by EPA)
[[Page 24643]]
reflects the plain language of CWA section 303(c)(3). While the
commenters have raised various practical issues concerning the
implementation of the proposed approach, EPA believes that these
problems can generally be addressed and do not justify a different
interpretation of the language of section 303(c)(3). EPA does not
believe that the final rule infringes on State or Tribal rights. States
and authorized Tribes will continue to have the flexibility to adopt
new and revised standards whenever deemed appropriate or necessary.
Today's final rule does not affect the basis for EPA review and
approval/disapproval. The substantive requirements of the CWA and EPA's
implementing regulations remain unchanged. Today's final rule only
affects the timing of the effectiveness, for CWA purposes, of State and
Tribal revisions to standards.
Many commenters noted that EPA has not always been able to meet its
CWA deadlines when reviewing and taking action on (i.e., approving and/
or disapproving) WQS submissions and expressed concern that such delays
would cause problems under the new rule. EPA acknowledges this concern
and is working with its EPA Regional offices and States and authorized
Tribes to streamline the EPA review and approval/disapproval process.
For example, EPA has identified Endangered Species Act (ESA)
consultations as one source of delay in EPA approval actions. EPA is
working with both the Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) to streamline the consultations. One
key outcome of these discussions will be the finalization of the
Memorandum of Agreement (MOA) that EPA, NMFS, and FWS solicited public
comment on in January of 1999 (see 64 FR 2741). EPA, NMFS, and the FWS
believe the final MOA will provide a framework for streamlining
consultations in the Regional and Field offices. EPA is also discussing
with States and authorized Tribes how they can assist EPA in assuring
that the needs of threatened and endangered species are addressed in
the development of State and Tribal standards. Although consultation
under the ESA is EPA's obligation, in discussions with EPA, States have
acknowledged they have a role in assuring that State standards
adequately protect aquatic life and the environment, including
threatened and endangered species.
EPA is also working with States and authorized Tribes to determine
if it needs to further clarify the WQS program requirements in 40 CFR
Part 131 (see 63 FR 36742). At a minimum, EPA will jointly develop
guidance with States and authorized Tribes to improve the current State
and Tribal adoption and EPA review and approval/disapproval process.
EPA believes that, once completed, this guidance will inform EPA
Regional offices and States and authorized Tribes on how to identify
and resolve concerns early in the process, so that when new or revised
State and Tribal WQS are submitted to EPA, there are no unexpected
issues and EPA can act in a timely fashion. In addition, EPA will
continue to provide technical assistance and training for the water
quality standards program. Such training and workshops will reflect the
joint strategy developed by EPA, States and authorized Tribes in the
aforementioned guidance.
Several commenters expressed concern that when States adopt new or
revised standards, the old ones expire as a matter of State law. They
wanted to know how the old standards can be used for CWA purposes when
the new or revised standards are the only standards in effect for State
purposes. The old standards remain the applicable CWA standards and
will be retained in the CWA WQS docket until EPA approves the State or
Tribal revisions, or until EPA promulgates a more stringent standard
(see also section 131.21(e) of today's final rule). There are several
things States and authorized Tribes can do to avoid or minimize using
such old standards pending EPA action on their replacement. First and
foremost, States and authorized Tribes should submit new and revised
standards to EPA for review and approval/disapproval as soon as duly
adopted into State or Tribal law. Such a submission, meeting the
requirements of 40 CFR 131.6, will start EPA's 60/90 day clock for
review and approval/disapproval respectively under the CWA. Secondly,
States and Tribes should coordinate with EPA's Regional Offices early
in the State and Tribal standards development process. This will help
avoid any confusion as to what is ``approvable.'' EPA believes that
early and frequent communication will help ensure that States and
authorized Tribes submit standards revisions that are scientifically
defensible and consistent with the CWA, thus avoiding a disapproval
once officially submitted to EPA. For more information on coordinating
State and Tribal actions with EPA's CWA review see section E. Starting
(and completing) EPA's review process as quickly as possible will
minimize the number of regulatory actions a State or authorized Tribe
is likely to take prior to a new or revised standard being approved by
EPA. In addition, States and authorized Tribes may consider changing
their procedures so that a revision to a State or Tribe's standard is
not effective under State or Tribal law until after EPA approves or
after a period of time--such as 90 days--that provides an opportunity
for submittal and completion of EPA review while the old standard
remains on the State or Tribal books. In addition, some States and
authorized Tribes may decide to delay any regulatory actions (e.g.,
draft NPDES permits) until EPA approval of revised standards.
In the (hopefully rare) event that a State or authorized Tribe does
need to take a regulatory action before EPA review of a revision is
complete, there are several options available. Some States or
authorized Tribes may propose regulatory actions based on newly adopted
standards not yet approved by EPA. For example, a State might develop a
draft permit based on new or revised, less stringent standards. If the
revised standards are not approved by EPA by the end of the permit
review period, then EPA could object to the proposed permit, or the
State could decide to withdraw and re-propose the permit based on the
previous standards. Alternatively, the State could develop, and take
public comment on, limits calculated from both the old and new
standards with the final limits contingent on EPA's standards approval
decision. This approach may avoid the need to withdraw and reissue the
permit if EPA disapproves the changes to the water quality standards.
EPA believes that, as a practical matter, these timing issues will only
apply to new and revised standards that are less stringent than the
previous standard. If the State or authorized Tribe's new and revised
standard is equal to, or more stringent than the previous standard,
both standards would be satisfied by implementing the more stringent
standard pusuant to State or Tribal law.
B. Integration With CWA Section 510
1. Proposed Rule
Section 131.21(f) of the proposed rule specified that State or
Tribal water quality standards which are not less stringent than the
``applicable water quality standards'' (that is, not less stringent
than approved (or grandfathered) standards may be adopted and enforced
within the boundaries of the adopting State or authorized Tribe. The
preamble also specified that, under CWA sections 301(b)(1)(C) and 510,
NPDES permits within the State or Tribe in question were required to
assure compliance
[[Page 24644]]
with such a ``510 standard'' even prior to EPA approval.
2. Major Comments and Responses
The comments were almost uniformly critical of the proposed
Sec. 131.21(f) and the interpretation of section 510 which it
reflected, although the nature of the objections varied.
Comment: Several commenters argued that even ``not less stringent''
standards required EPA approval before they could be used in any way
under the CWA. EPA interprets these comments to argue that section 510
did not preempt EPA's section 303(c) approval requirement in such cases
but simply made it clear that an approved standard could be more
stringent than a minimum requirement established by the CWA. Some of
these commenters also argued that the district court had already
rejected the approach set out in the proposal. Others who argued that
all standards needed approval before being used assumed that EPA could
disapprove a ``more stringent'' standard as unjustified; and these
commenters wanted EPA approval as a pre-requisite for any standard
going into effect to ensure that overly stringent standards did not
become effective. Commenters in both camps were concerned that making
stringency determinations could be difficult, time-consuming, or open
to abuse.
Response: The preamble to the proposed rule implicitly assumed that
section 510 effectively waived the requirement that State and Tribal
water quality standards be approved before they were used as CWA
standards as long as they were ``not less stringent.'' Section 510 is a
savings provision. However, as some commenters pointed out, section 510
starts with the words, ``Except as expressly provided in this Act.''
Since section 303(c)(3) expressly specifies that new or revised
standards do not become the effective standards until approved by EPA,
it is reasonable to read section 510 as meaning that EPA cannot
disapprove a standard simply for being overly stringent, rather than
that more stringent standards are effective whether or not approved by
EPA. If section 510 is read this way, the reference in section
301(b)(1)(C) to standards ``established under State law under authority
preserved under section 510'' is to approved standards which are more
stringent than required, not--as in the proposal--to unapproved ``not
less stringent'' standards. EPA agrees that this is a reasonable
construction of the relevant provisions of the Act, and one that better
serves the purposes of the Act.
Under this reading, one avoids the problems associated with
determining whether a new or revised standard is ``not less stringent''
(under the proposal, unapproved ``not less stringent'' standards had to
be reflected in a permit). If standards are not required to be used for
CWA purposes until approved, there is no need to make comparative
judgments of stringency. At the time of approval, the test is whether
the new or revised standards meet the requirements of the CWA and EPA's
implementing regulations, not whether they are more or less stringent
than predecessor standards. Once such standards are approved, they are
the applicable water quality standards for CWA purposes regardless of
relative stringency.
Comment: Some commenters argued that ``more stringent'' standards
should never need EPA review and approval.
Response: EPA does not believe that it is reasonable to interpret
section 510 to dispense altogether with EPA review of such standards.
Section 303(c) clearly requires States and authorized Tribes to submit
all new or revised standards to EPA for review and approval or
disapproval. Since section 510 begins ``Except as expressly provided in
this Act,'' the authority preserved under section 510 is limited by,
and does not override, the requirements for EPA review set out in
section 303(c).
Comment: Many commenters argued that the proposal would lead to
confusion and be difficult to implement since it would not always be
obvious whether a new or revised standard was more stringent. Some of
these commenters suggested that this confusion could be eliminated by
having EPA review and approve or disapprove all new or revised
standards regardless of stringency.
Response: EPA agrees that it is not always easy to determine
whether a new or revised standard is more stringent than its
predecessor, and that under the proposal there could have been a need
to decide the relative stringency of a new or revised, but not yet
approved, WQS. Because the proposal regarded unapproved ``not less
stringent'' standards as standards adopted under authority preserved by
section 510 standards, such standards would have been required to be
implemented in NPDES permits under section 301(b)(1)(C) prior to
approval. Accordingly, States, authorized Tribes, and the regulated
public would have been forced to determine the relative stringency of
as-yet-unapproved standards in pending NPDES permit proceedings to know
whether permits had to assure compliance with such standards. As
discussed previously in response to the first comment, the final rule
addresses this issue.
Comment: Under the proposal, stringency comparisons were to be made
between the new or revised standard and the previous ``applicable water
quality standard'' (i.e., approved or ``grandfathered'' standard). The
final rule should also allow new or revised standards to be used prior
to approval if they are at least as stringent as EPA's corresponding
section 304(a) ambient water quality criteria, or whenever there are no
corresponding section 304(a) criteria, even if the new or revised
standards are less protective than the previous applicable standard in
the CWA docket.
Response: As discussed above, the final rule requires that all new
or revised standards be approved by EPA, regardless of stringency,
before they are required to be used under the CWA. Therefore, the issue
of how to make stringency comparisons is moot.
3. Final rule
The final rule deletes proposed 131.21(f). As discussed in response
to previous comments, the proposal was based on an overly broad reading
of CWA section 510 and would have led to substantial confusion.
However, EPA does not want to leave the impression that States and
authorized Tribes will have no means to achieve the objectives of more
stringent criteria while awaiting EPA approval. In the case of a
proposed State or Tribal NPDES permit, as long as the permit assures
compliance with approved water quality standards, EPA would not object
to it as not meeting the requirements of the Act (e.g., section
301(b)(1)(C)) merely because the State or authorized Tribe included
effluent limitations which also meet an as-yet unapproved but more
stringent State or Tribal standard. (Similarly, EPA would not
disapprove a TMDL on the grounds that it was more stringent than needed
to meet the applicable water quality standard.) In the case of a
federally issued NPDES permit, EPA's obligation would be to include
permit conditions which assured compliance with approved standards and
with any conditions in a State or Tribal section 401 certification. As
part of a section 401 certification, if a State or authorized Tribe
includes not only water quality-based effluent limits (WQBELs) required
under section 301(b)(1)(C) but also conditions needed to meet ``other
appropriate requirement[s] under State law'' under section 401(d), EPA
would also include those supplemental conditions in the permit.
Finally, as
[[Page 24645]]
EPA improves the timeliness of its water quality standards actions
(i.e., approval and/or disapproval), more stringent standards will
become the applicable standards sooner after adoption.
C. EPA Transition Strategy
1. Proposed Rule
Under the proposal, State and Tribal standards in effect (under
EPA's 1983 rule) before the effective date of this new final rule would
remain in effect until superseded by a standard approved or promulgated
by EPA. Under the proposal, this transitional provision (referred to as
``grandfathering'' in the proposal) applied to all such pre-existing
standards, whether or not they had been submitted to EPA, and, if
submitted, whether or not they had been disapproved or were merely
awaiting EPA approval/disapproval. This reflected the fact that under
the 1983 rule such distinctions did not affect the effectiveness of
State and Tribal standards.
2. Major Comments and Responses
Comment: Such a transition provision is necessary if EPA proceeds
with the general approach, given EPA's backlog and the difficulty in
``resurrecting'' the previous approved standards.
Response: EPA agrees. After reviewing all the comments, EPA
believes that its original conclusion--that, given the previous
implementation of section 303(c), identifying and resurrecting the
previous approved standards would often be difficult and in some cases
impossible--is still correct. Furthermore, if no such previous standard
could be identified, there could be a gap in standards to apply. None
of the commenters seriously disputed those conclusions. Given the
current backlog in unapproved and disapproved standards and the state
of previous record keeping (e.g., no CWA WQS docketing system), the
only practicable way to put the new rule into effect at this time
without causing serious disruption is to provide a transition
provision. Moreover, some commenters mentioned their reliance on the
old rule. Furthermore, the effort that would be expended in identifying
previously approved water quality standards would likely detract from
EPA's ability to promptly review new and revised standards submissions
and to promulgate Federal water quality standards where needed.
Comment: The transition provision is inconsistent with CWA section
303(c)(3) as interpreted by the court.
Response: EPA now accepts the court's interpretation of section
303(c)(3), and also does not take the position that section 303(c)(3)
itself establishes a transition provision. However, logically, that
does not foreclose the use of a limited transition provision when
implementing a new or revised regulation. Today's rule is not written
on a blank slate. EPA believes that in revising its regulation to
reflect the court's interpretation of section 303(c)(3), EPA has some
discretion in constructing a transition from its longstanding previous
approach. Significantly, many of the commenters who objected to the
transition provision as proposed, citing its inconsistency with section
303(c)(3), nonetheless recognized the need for some transition and were
accepting of, as one put it, ``a limited accommodation in light of past
practices,'' e.g., a grandfather or transition provision with a defined
end date. However, by making such alternative suggestions, these
commenters are implicitly acknowledging that having a transition
provision is not per se illegal. For the reasons discussed in the
preambles to the proposed and final rules, EPA believes that such a
transition provision is needed here and that the transition provision
in the final rule is a reasonable exercise of such discretion.
The water quality standards being grandfathered or transitioned are
a small fraction of all State and Tribal standards currently in effect
(i.e., most existing standards have been approved). Further, the
absolute numbers will decrease over time as EPA completes its review
and takes action on (i.e., approves/disapproves) backlogged submissions
or, in the case of backlogged disapprovals, obtains satisfactory
revisions from the State or promulgates superseding Federal standards.
Most States and Territories have had their base program in place and
approved by EPA for many years now. EPA is current in its review and
approval of standards revisions for 19 States, 14 Tribes, 4
Territories, and the District of Columbia. EPA's backlog of unapproved
standards in the remaining States consist primarily of recent
refinements made by States to keep up with the latest science (e.g.,
site-specific criteria, changes to designated uses for specific
waterbodies) and to tailor standards to specific watersheds.
Accordingly, EPA believes that in practice the transition provision
will be fairly narrow in scope relative to approved State and Tribal
standards, and that it will expire over time as EPA completes its
review of the outstanding standards.
Comment: The grandfather provision should be more limited, e.g.,
should not apply to disapproved standards or to standards which have
never been submitted to EPA, should apply only to standards which were
submitted more than 3 years ago, or should expire 6 months after the
effective date of the rule.
Response: EPA considered ways to narrow the transition provision.
EPA agrees with the suggestion that the grandfather provision be
limited to standards which have been submitted to EPA as of the
effective date of the final rule, and has modified the rule
accordingly. As revised, the transition provision will eliminate any
incentive for States and authorized Tribes not to submit pre-existing
standards to EPA for review. 40 CFR 131.20(c) currently requires States
and authorized Tribes to submit standards containing new or revised
provisions within 30 days of adoption. If States or authorized Tribes
do not comply with this requirement, EPA's review of those standards
may be delayed. EPA believes it is inappropriate for States and
authorized Tribes to have those standards covered by the transition
policy because of their failure to submit the standards to EPA. States
or authorized Tribes who have made timely submissions will not be
affected by this change from the proposal.
EPA also considered whether to exclude disapproved standards from
the transition provision. However, the practical difficulties in
resurrecting the previous approved standard are just as likely to arise
in the case of a disapproved standard as in the case of a standard for
which EPA review is incomplete. In addition, because of evolving
science, the previous approved standard--even if identical--may not
necessarily be significantly more protective than the recently
disapproved standard. Moreover, it is EPA's judgment that in the long
run its resources would be better spent resolving disapprovals (either
by helping the State remedy the problem or by promulgating a Federal
standard) than by a time-consuming and perhaps fruitless search for the
previous approved standard. It is EPA's expectation that the number of
disapproved standards covered by the grandfather provision will
diminish and ultimately disappear as States make acceptable revisions
to the disapproved standards or EPA promulgates superseding Federal
standards. While EPA acknowledges that this approach leaves inadequate
standards in place temporarily, EPA believes that, on balance and
considering all the factors
[[Page 24646]]
discussed above, this approach is the one best calculated to obtain the
ultimate goal--timely approval or replacement of all new and revised
water quality standards.
EPA also considered whether to provide a sunset for the transition
provision. Commenters suggested times ranging from 60 days to 2 years.
One commenter said EPA has not demonstrated the need for an unlimited
grandfather provision for submitted but not-yet-reviewed standards,
arguing that there are only 60 or so submissions awaiting EPA action,
and for about half of those EPA has completed its review and is waiting
for ESA consultation to conclude, and that EPA has not shown that it
cannot muster the resources to complete the job in a relatively short
time, such as 60 days. EPA agrees that the standards which will be
covered by the transition provision are limited and believes that fact
helps make the provision reasonable. However, it does not follow that a
60-day limit should be placed in the provision. EPA hopes to have a
substantial part of the backlog of pending submissions dealt with by
the effective date of this rule. For this reason, EPA expects the
practical effect of the grandfather provision to be limited. However,
it is unrealistic to expect the backlog to be eliminated entirely
within the 60 days suggested by the comment. The remaining items are
more complicated, e.g., situations where more information is needed
from the State or authorized Tribe to evaluate the adequacy of the
standard or where the standard in question raises novel and unique
National issues that EPA has not spoken to before (i.e., precedent
setting). Moreover, the 60 submissions referred to by the commenter are
simply those on which EPA action is overdue; EPA staff are also engaged
in reviewing more recent submissions, as well as working on resolution
of previously disapproved items, where rulemaking procedures take
longer than 60 days. Under the circumstances, it is impractical to
specify a date certain by which all the backlogs will be completely
resolved.
Comment: If the final rule contains a transition provision, it
should not apply to pending water quality standards that create
exceptions, variances, or exemptions from other standards. In this
situation, there is no problem identifying what would be in place in
lieu of the pending standard.
Response: While in theory this suggestion has some appeal, in
practice implementing it would not be so simple. Water quality
standards changes are not always as clear-cut or obvious as the comment
suggests. Variances and other exceptions from standards are not always
labeled as such. In addition, some standards submissions which create
variances and exceptions from standards also modify the underlying
standard (e.g., add a variance process as quid pro quo for making a
standard more stringent). If the applicability of the transition
provision depends on subjective judgments--as opposed to an objective
comparison of dates--then resources which should be spent reviewing
standards would be diverted into resolving the applicability of the
transition provision and suggested exception to the transition
provision would be counterproductive. It is EPA's judgment that a
relatively simple transition provision will in the long run result in
the most expeditious and efficient elimination of the backlog.
3. Final Rule
The final rule retains a transition provision for standards adopted
prior to the effective date of today's rule, but modifies it by
requiring that standards must have also been submitted to EPA, that is,
submitted to EPA pursuant to and consistent with the submission
requirements of 40 CFR Part 131.6, by May 30, 2000 in order to qualify.
A State or Tribal standard must be (1) Duly adopted, (2) in effect
under State or Tribal law, and (3) submitted to EPA by May 30, 2000 in
order to be in effect for CWA purposes prior to EPA approval. All three
eligibility criteria must be met in order to be covered by the
transition provision contained in today's rule at 131.21(c).
D. Delay Related Comments
1. Default Approval/Disapproval
A number of commenters suggested that EPA modify the final rule to
specify that State and Tribal water quality standards submissions be
deemed approved if EPA does not act within the 60 or 90 days required
by the CWA. There were variations on the suggested default time period,
and some commenters suggested a ``conditionally approved'' or ``interim
approval'' label, but the general approach advocated in several of the
comments was a ``default approval'' if EPA fails to take timely action.
In such instances, it was suggested that the State submittal could
serve as the record of decision for EPA's ``approval.'' Commenters were
concerned about having to comply with outdated standards while EPA was
in a prolonged review. Several commenters suggested that the
``conditionally approved'' status would allow new and revised State and
Tribal standards to be used for CWA purposes unless and until
subsequently disapproved by EPA. Alternatively, some commenters
suggested that EPA could use its discretionary authority later on to
remedy standards that it would have disapproved if it had had the
resources to review and approve them on time. Conversely, a few
commenters suggested that if EPA fails to act within 90 days, the WQS
should be ``constructively disapproved.''
EPA acknowledges the commenters' concerns regarding the timeliness
of EPA's approval action. However, the concept of a default approval of
State and Tribal WQS submissions is not consistent with section 303 of
the CWA. Section 303(c)(3) requires EPA to make an affirmative finding
that standards revisions submitted to EPA are consistent with the CWA.
EPA has responsibility to determine that State and Tribal standards
revisions are protective of human health and the environment. EPA must
explain its approval actions; such actions are judicially reviewable.
Any type of default approval approach would result in approval actions
that EPA could not justify or explain. Similarly, EPA rejects any type
of default disapproval approach. Disapprovals trigger other CWA
requirements for the State or authorized Tribe to rectify the
disapproval and for EPA to act if the State or authorized Tribe takes
no action to revise the disapproved standards. Triggering these actions
by a ``default'' disapproval would cause much more confusion than any
type of potential delay on EPA's part. EPA believes that section 303(c)
of the CWA requires it to make an affirmative finding on whether or not
a State or Tribal standard is consistent with the CWA.
The commenters advocating default approaches did so out of concern
about EPA's ability to make timely WQS approvals. As explained in the
preamble to the proposed rule (see 64 FR 37078), EPA has initiated a
number of activities to improve the timeliness of its review and
approval actions. EPA will be working closely with States and
authorized Tribes over the next year to develop guidance for improving
coordination between EPA and States and Tribes. Such coordination will
also involve the National Marine Fisheries Service and the Fish and
Wildlife Service (collectively, the Services). As explained in
III.D.2., the Services have a key role in assisting EPA in timely WQS
approval actions. In addition, as suggested by some commenters, EPA can
always partition State or Tribal submissions and approve the
unquestionable portions while continuing to address any contested or
difficult issues. EPA also agrees with
[[Page 24647]]
comments that encouraged EPA to work with states during their
promulgation process and to speak with one voice. One commenter noted
that feedback on what is ``approvable'' varies depending on which EPA
office is contacted. EPA is evaluating its internal coordination
process as part of its overall efforts to streamline EPA review and
approval of Standards submissions. EPA will work to ensure that its
feedback is both timely and coordinated.
2. Integration With the Endangered Species Act
As discussed in the preamble to the proposed rule, EPA's approval
of new and revised State and Tribal water quality standards is a
Federal action subject to the consultation requirements of section 7 of
the Endangered Species Act (ESA) (see 64 FR 37078 for further
discussion). Commenters were particularly concerned with EPA's ability
to make timely WQS approval/disapproval decisions in light of its ESA
obligations. Several commenters suggested that in instances where the
delay is attributable to the ESA consultation, EPA approve the WQS
submission ``subject to'' successful completion of ESA consultation.
Another commenter encouraged EPA to streamline the ESA consultation
process.
EPA agrees with commenters that, in many instances, ESA
consultation delays EPA's CWA approval of water quality standards
revisions. EPA and the Services (NMFS & FWS) are engaged in discussions
to finalize the draft Memorandum of Agreement between the Agencies to
establish a clear set of guidelines for conducting ESA consultations.
EPA also agrees with the comments suggesting that EPA consider
utilizing ``subject to ESA'' approvals where ESA concerns cannot be
resolved in a timely manner. EPA is committed to fulfilling its
obligations under the ESA, and, as articulated in the draft MOA, will
work with the Services early in the State and Tribal standards adoption
process to ensure that the needs of threatened and endangered species
are addressed when new or revised standards are being contemplated.
This early coordination should help streamline the review and approval/
disapproval process once the standards revisions are officially
submitted to EPA for review and approval/disapproval under the CWA.
E. Other Issues
1. Integration With TMDL/NPDES Program
EPA advocates that States and authorized Tribes refine their water
quality standards to more precisely reflect site-specific conditions
and local species (see 63 FR 36741). Sometimes such refinements take
place concurrently with the development of a Total Maximum Daily Load
(TMDL) for a specific water body or when issuing a National Pollution
Discharge Elimination System (NPDES) permit for a discharge to a
specific water body. In these instances the regulatory authority may
obtain information that can be used to more precisely define the
appropriate standard. For example, a State may be establishing a TMDL
for a water body with a fish advisory and after reviewing ambient water
quality data realize that a site-specific criterion is necessary to
address accelerated bio-magnification occurring at the site. In this
example, the regulatory authority could revise the standard
concurrently with establishment of the TMDL. By law, TMDLs must be
reviewed and approved by EPA. The CWA specifies 30 days for EPA to
review and approve TMDLs and 60 days for EPA to review and approve
standards revisions. When EPA receives a WQS revision to review and
approve/disapprove in conjunction with its review and approval of a
TMDL, EPA expects to complete both reviews within 30 days which will
satisfy the CWA requirements for both actions. In these situations, it
will be particularly important for the State or authorized Tribe to
coordinate with EPA early in the development process to ensure approval
of the revised water quality standard because the TMDL must be
established for the ``applicable'' water quality standard, which is the
approved water quality standard. Similarly, in the context of drafting
an NPDES permit, a regulatory authority may obtain information that
shows a particular aquatic life species protected by the current
criteria is absent, and as a result, adopt site-specific criteria that
better reflect the indigenous aquatic life. In such instances, the
regulatory authority could adopt the site-specific criteria
concurrently with public notice of the draft NPDES permit. In such a
case, EPA should review the site-specific criteria during the same time
frame in which it reviews the draft permit. If EPA disapproves the
criteria, it could also object to the permit. During the 90 day period
allowed by CWA Sec. 402(d), the State or authorized Tribe could then
modify the permit to reflect the previously approved WQS, or fix the
criteria to address the disapproval and modify the permit to reflect
the newly revised criteria. If a State or authorized Tribe submits a
draft permit based on site-specific criteria, but does not submit the
criteria itself, EPA may object to the permit. Again, early
coordination with EPA will expedite review and approval when the final
standard is officially submitted to EPA.
Today's rule applies to the Great Lake States as well as to the
rest of the nation. In 1995, EPA promulgated the Great Lakes Water
Quality Guidance at 40 CFR Part 132. In that rulemaking, EPA, among
other things, indicated that States and authorized Tribes may adopt
variances concurrently with development of an NPDES permit and have the
permit reflect the variance. Under today's rule, such variances, like
other standards revisions, must be approved by EPA before they are
relied on in final NPDES permits or other CWA purposes, in the Great
Lakes basin as well as anywhere else.
2. Coordination Between Federal and State and Tribal Processes
EPA acknowledges the concerns expressed by some States and
authorized Tribes regarding EPA's ability to make approval/disapproval
decisions in the CWA time frames. However, in addition to EPA's efforts
to expedite its review, States and authorized Tribes can also
facilitate more timely action by EPA. For example, States and
authorized Tribes are encouraged to submit advance copies of new or
revised water quality standards as soon as they are considered final,
even though the State or Tribe may still need time to complete certain
administrative requirements (e.g., Attorney General certification).
These advance copies of revised standards should be sent directly to
the Regional Water Quality Standards Coordinators (see table in section
III.E.4). Submission of advance copies will not trigger the CWA
timeframes for EPA action; however, it will allow EPA to initiate its
substantive review of the new or revised standard before the complete
package is officially submitted. States and authorized Tribes should
also consider adopting new or revised standards with delayed effective
dates, or with an effective date keyed off of EPA approval or the CWA
60 day timeframe for EPA approval. All these measures will allow closer
synchronization between the transition from one standard to another
under State or Tribal law and under the CWA.
As a general matter, States and authorized Tribes should also
examine their administrative and rulemaking
[[Page 24648]]
procedures to identify opportunities by which their adoption of
criteria, as well as EPA's approval, can be streamlined. One way to do
this is through State or Tribal adoption of a ``performance-based''
approach. A performance-based approach relies on adoption of a process
(i.e., a criterion derivation methodology) rather than a specific
outcome (i.e., concentration limit for a pollutant) consistent with 40
CFR 131.11 & 131.13. When such a ``performance-based'' approach is
sufficiently detailed and has suitable safeguards to ensure
predictable, repeatable outcomes, EPA approval of such an approach can
also serve as approval of the outcomes as well. If a particular State
or Tribe's approach is not sufficiently detailed or lacks appropriate
safeguards, then EPA review of a specific outcome is still necessary.
However, even a more general performance-based approach would still
help guide EPA review of specific outcomes.
The ``performance-based'' approach is particularly well suited to
the derivation of site-specific numeric criteria and for interpreting
narrative criteria into quantifiable measures. Proper construction and
implementation of such an approach can result in consistent application
of State and Tribal narrative water quality criteria and defensible
site-specific adjustments to numeric ambient water quality criteria.
Changes to a designated use (including temporary changes, e.g.,
variances) do not lend themselves to a ``performance-based'' approach.
Designated use changes and variances differ from criteria changes in
that they modify the intended level of protection. In contrast, site
specific translations of narrative water quality criteria and site-
specific adjustments to numeric ambient water quality criteria take
additional information into account while protecting the designated
use. As such the intended level of protection is no way modified. In
addition, making use changes and issuing variances must include an
evaluation of ``attainability'' of a designated use, taking into
account factors such as natural conditions or economic and social
impacts. See 40 CFR 131.10(g).
A ``performance-based'' approach relies on the State or authorized
Tribe specifying implementation procedures (methodologies, minimum data
requirements, and decision thresh holds) in its water quality standards
regulation. Adopting implementation procedures into State and Tribal
regulations establishes a structure or decision-making framework that
is binding, clear, predictable, and transparent. During the adoption of
the detailed procedures, all stakeholders and EPA have an opportunity
to make sure that important technical issues or concerns are adequately
addressed in the procedures. The State or Tribal implementation
procedures must also consider any special needs of federally listed
threatened or endangered species or their critical habitat. Under
section 7 of the ESA, EPA would have to consult with the Services on
the detailed implementation procedures as part of its approval process
if EPA's approval may affect a listed species. State and authorized
Tribal water quality standards programs which include appropriate
performance-based approaches for water quality criteria could benefit
the authorized Tribe or State by better positioning them to tailor
standards to specific watersheds and ecosystems by streamlining
administrative processes associated with refining criteria necessary to
protect designated uses. This approach is particularly useful for
criteria which are heavily influenced by site-specific factors such as
nutrient criteria or sediment guidelines. Such procedures must include
a public participation step to provide all stake-holders and the public
an opportunity to review the data and calculations supporting the site-
specific application of the implementation procedures. The State or
Tribe would need to maintain a publically available, comprehensive list
of all site-by-site decisions made using the procedures; however, such
decisions would not, as a Federal matter, have to be codified in State
or Tribal regulation. Although the State or authorized Tribe would not
need to obtain separate EPA approval for criteria derived through an
approved performance-based approach, such criteria would nonetheless
need to be provided to EPA for inclusion in the CWA WQS Docket. When
EPA reviews the results of a State or authorized Tribes' triennial
review, EPA expects to evaluate a representative subset of the site-
specific decisions to ensure that the State or authorized Tribe is
adhering to the EPA approved procedure.
Since the procedures would be adopted into State or Tribal
regulation, the State or authorized Tribe would be bound by the
decision-making framework contained therein. Any water quality criteria
which were not derived in accordance with the approved implementation
procedures would need separate approval from EPA to be the applicable
CWA standard. If a State or authorized Tribe failed to follow those
procedures and did not obtain separate EPA approval of the criteria,
EPA would have a basis for disapproving a TMDL or objecting to an NPDES
permit for not deriving from or complying with applicable standards
(see 40 CFR 122.44(d)). Both TMDL development and NPDES permit issuance
have mandatory public participation, which provides further safeguards
over implementation of a performance-based approach.
EPA used this approach to ensure consistency in future ambient
water quality criteria development among the eight Great Lakes States
in the Great Lakes Initiative (see 40 CFR Part 132). EPA, the eight
Great Lake States, and stakeholders (e.g., regulated community, general
public, environmental groups) developed detailed criteria methodologies
that States and authorized Tribes in the Great Lakes basin are required
to adopt and utilize for criteria derivation. These methodologies
ensure scientific integrity and transparency in decision-making among
the Great Lakes States as new or revised criteria are derived. EPA also
authorized this approach in the National Toxics Rule (see 57 FR 60848).
States in the NTR are allowed to modify the Federal criteria site-
specifically using EPA's Water Effects Ratio (WER) methodology. EPA's
WER methodology is sufficiently detailed so that its site-specific
application is formulaic and predictable.
In sum, the key to a ``performance-based'' WQS program is adoption
of implementation procedures of sufficient detail, and with suitable
safeguards, so that additional oversight by EPA would be redundant. EPA
will be developing more detailed guidance on ``performance-based''
water quality standards programs in the near future.
3. Standards Subject to Today's Rule
The preamble to the proposed rule stated that State and Tribal
implementation policies and procedures are subject to EPA review and
approval/disapproval and should be included in the CWA WQS docket. Many
commenters claimed this exceeded EPA's statutory authority. Commenters
asserted that this was a change and not appropriate because it would
capture guidance that was never intended to be regulatory under State
law. Some commenters did acknowledge that implementation procedures
help determine the effectiveness of the standards.
EPA's reference to including policies and procedures in the CWA
docket was intended only to reflect the existing requirements at 40 CFR
131.11 and 131.13, which have been in EPA's regulations since 1983.
EPA's regulations at 40 CFR 131.11(a)(2)
[[Page 24649]]
provide that where a State adopts narrative criteria for toxic
pollutants to protect designated areas, the State must provide
information identifying the method by which the State intends to
regulate point source discharges based on such narrative. Section
131.13 provides that, if States or authorized Tribes include in their
standards policies generally affecting the application and
implementation of standards (such as policies on mixing zones, low
flows, and variances), those policies are subject to EPA review. EPA's
intent is not to assert that all State and Tribal guidance is
regulatory, but rather to lock in policies and procedures that were
approved as part of a standards submission. EPA will coordinate with
State and authorized Tribes individually to determine which
implementation policies and procedures should be included in the CWA
WQS docket. EPA's approval practice will determine what is or is not
``locked in'' as a WQS, and the CWA WQS docket will reflect that.
Some commenters were concerned that including mixing zone
procedures in the docket would mean that site-specific application of
the mixing zone procedure would be considered a form of site-specific
standard subject to EPA review and approval. This is not EPA's intent.
Mixing zone procedures must be included in the standards because
otherwise a permit with a mixing zone would not assure compliance with
the standards. However, once mixing zones are authorized through such
an approved procedure, the calculation of permit limits consistent with
such procedures does not change the water quality standard and does not
need approval under CWA section 303(c). Individual mixing zones are
reviewable under the NPDES process to ensure, among other things, that
all applicable standards, including any procedures, have been followed.
It should be noted that in the case of variances both a State or
Tribe's variance policy and its adoption of specific variances are
subject to EPA review and will be included in the CWA WQS docket. A
variance is a short term, facility-specific modification of the
underlying standard and must be supported by a facility-specific
analysis demonstrating that one of the six reasons at 40 CFR Part
131.10(g) apply. Hence, each variance is a change to standards (see 48
FR 51400).
EPA will be developing more detailed guidance with States and
authorized Tribes on the types of modifications that require specific
approval by EPA and the level of detail necessary to incorporate into
State and Tribal standards. However, the bottom line is that today's
rule does not change which State and Tribal policies and procedures
need to be submitted for review and approval under 40 CFR 131.11 and
131.13.
4. CWA WQS Docket
a. Proposed Rule
Under the proposal, EPA proposed discontinuing its annual Federal
Register publication of approval actions by deleting the annual
reporting requirement at 40 CFR 131.21(d). EPA explained that the
formation of a CWA WQS docket would eliminate the need for the annual
Federal Register notice. (See 64 FR 37077 for further discussion.)
b. Major Comments and Responses
In general, most commenters supported the establishment of a CWA
docket. Most supported the eventual transfer to the Internet. Comments
were mixed with respect to EPA's proposed deletion of its annual
Federal Register notice, with some comments supporting that and others
advocating that EPA maintain FR notices.
Comment: Keeping a paper docket is the most effective way to make
the information available in the short term; however, commenter
supports effort to move towards putting the information on the
Internet. There is no reason to continue EPA's annual Federal Register
notice of approved State and Tribal water quality standards.
Response: EPA agrees with the comment, and will have a paper CWA
docket available as of the effective date of this rule. EPA recognizes
that paper CWA WQS dockets in the Region require some effort to access
(e.g., phone calls, mailings), though such effort is not any more
burdensome than what would be required to obtain a copy from the State
or authorized Tribe. Actually, it would be more efficient because the
CWA WQS docket also contains any applicable Federal standards (e.g.,
Federal criteria contained in the National Toxics Rule, 40 CFR Part
131.36) whereas the State or authorized Tribe may or may not supply
applicable Federal standards. EPA agrees with the comment that the
annual Federal Register notice of approved State and Tribal water
quality standards is unnecessary in light of the CWA WQS docket. The
CWA WQS docket is far more informative than a listing of EPA approval
actions. In addition, the CWA WQS docket will be updated on a continual
basis as opposed to annually EPA also agrees with the commenter that
publication on the Internet would increase access to the CWA WQS
docket. EPA has begun work on an electronic version of the CWA WQS
docket and is designing a website for easy public access. EPA is
designing the electronic CWA WQS docket to be user friendly. For
example, users will be able to perform basic text searches to locate
specific provisions. Over time, as EPA receives feedback from users of
the electronic CWA WQS docket, EPA will revise the system to support
increased search capabilities and a higher degree of organization and
automation. EPA expects to publish the first version of the electronic
docket on the Internet in the Spring of 2001. EPA will announce the
availability of the electronic docket in the Federal Register at that
time. The paper docket will be available in the meanwhile.
Comment: EPA's CWA WQS docket should warn people there may be other
applicable standards (CWA section 510 or groundwater) which need to be
addressed and direct them to the State or authorized Tribe.
Response: EPA agrees. The CWA WQS docket is intended to capture
applicable water quality standards adopted pursuant to CWA section
303(c). EPA recognizes that there may be other requirements applicable
to a waterbody under State or Tribal law. EPA's CWA WQS docket will
identify the scope of the docket and include instructions for
contacting the appropriate State or Tribal official for information
regarding the applicability of additional State or Tribal requirements.
Comment: EPA should publish the initial CWA WQS docket in the
Federal Register to facilitate public comment and scrutiny.
Response: EPA disagrees. EPA assembled a draft CWA WQS docket and
solicited public comments on its content as part of the proposal for
today's final rule (see 64 FR 37077). In addition, EPA consulted with
States and authorized Tribes individually to confirm the contents of
EPA's draft CWA WQS docket. As part of finalizing the draft CWA WQS
docket, EPA is working with States and authorized Tribes to include any
State or Tribal revisions that have occurred since the proposal. EPA
believes that the current CWA WQS docket contains all applicable
standards that have been adopted, are in effect, and have been
submitted to EPA for review and approval/disapproval. Maintaining the
docket will be an ongoing process for EPA because States and authorized
Tribes will continue to revise their standards as part of the triennial
review process, and in order to keep up with
[[Page 24650]]
scientific advances. The public is encouraged to provide comments or
questions on the contents of the docket at any time. The utility of the
docket depends on its completeness and accuracy. Additional comments or
questions regarding the contents of the CWA WQS docket should be
directed to the appropriate Regional contact listed in section
III.E.4.c. below.
Comment: EPA should wait until the electronic CWA WQS docket is up
and running before discontinuing the annual Federal Register notice of
approvals.
Response: EPA disagrees. EPA believes its Federal Register notice
of approvals is redundant with the paper CWA WQS docket. The CWA WQS is
more informative and comprehensive than the Federal Register notice of
approvals. However, there will be one additional Federal Register
notice reporting all of the approval actions that occurred up to May
30, 2000. EPA expects to publish this last report later this summer.
c. Final Rule
Today's final rule deletes EPA's annual reporting requirement of
approval actions. As explained above, EPA believes that the formation
of a CWA WQS docket eliminates the need for the annual Federal Register
notice. Anyone interested in viewing the docket for a particular State
or authorized Tribe should contact one of the EPA Regional offices
listed below to make arrangements.
EPA is in the process of converting this hardcopy docket into an
electronic format so that it can be published on the Internet. EPA is
designing the electronic CWA WQS docket to be user friendly. For
example, users will be able to perform basic text searches to locate
specific provisions. Over time, as EPA receives feedback from users of
the electronic CWA WQS docket, EPA will revise the system to support
increased search capabilities and a higher degree of organization and
automation. EPA expects to publish the first version of the electronic
docket on the Internet in the Spring of 2001. EPA will announce the
availability of the electronic docket in the Federal Register at that
time. In the meantime, hardcopy CWA WQS dockets for local State and
Tribal standards are available in the following EPA Regional offices
during normal business hours.
----------------------------------------------------------------------------------------------------------------
State EPA regional office EPA contact
----------------------------------------------------------------------------------------------------------------
Connecticut, Maine, EPA Region 1, 1 Congress Bill Beckwith, 617-918-1544.
Massachusetts, New Hampshire, Street, Suite 1100, CWQ,
Rhode Island, and Vermont. Boston, MA 02114-2023.
New Jersey, New York, Puerto EPA Region 2, 290 Wayne Jackson, 212-637-3807.
Rico, Virgin Islands. Broadway, New York, NY
10007.
Delaware, District of Columbia, EPA Region 3, 1650 Arch Denise Hakowski, 215-814-5726.
Maryland, Pennsylvania, Street, Philadelphia, PA
Virginia, West Virginia. 19103-2029.
Alabama, Florida, Georgia, EPA Region 4, Water Fritz Wagener, 404-562-9267.
Kentucky, Mississippi, North Division--15th Floor,
Carolina, South Carolina, Atlanta Federal Center,
Tennessee. 61 Forsyth Street SW,
Atlanta, GA 30303.
Illinois, Indiana, Michigan, EPA Region 5, Water David Pfeifer, 312-353-9024.
Minnesota, Ohio, Wisconsin. Division, 77 West
Jackson Boulevard,
Chicago, IL 60604-3507.
Arkansas, Louisiana, New Mexico, EPA Region 6, Water Russell Nelson, 214-665-6646.
Oklahoma, Texas. Division, 1445 Ross
Avenue, First Interstate
Bank Tower, Dallas, TX
75202.
Iowa, Kansas, Missouri, Nebraska. EPA Region 7, 726 Ann Jacobs, 913-551-7930.
Minnesota Avenue, Kansas
City, KS 66101.
Colorado, Montana, North Dakota, EPA Region 8, 999 18th Bill Wuerthele, 303-312-6943.
South Dakota, Utah, Wyoming. Street, Suite 500,
Denver, CO 80202-2466.
Arizona, California, Hawaii, EPA Region 9, Water Phil Woods, 415-744-1997.
Nevada, American Samoa, Guam. Division, 75 Hawthorne
Street, San Francisco,
CA 94105.
Alaska, Idaho, Oregon, Washington EPA Region 10, Water Lisa Macchio, 206-553-1834.
Division, 1200 Sixth
Avenue, Seattle, WA
98101.
----------------------------------------------------------------------------------------------------------------
IV. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act
The 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 a
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 today's rule on small
entities, small entity is defined as: (1) A small business according to
RFA default definitions for small business (based on SBA size
standards); (2) a small governmental jurisdication 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.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
will not impose any requirements on small entities.
Under the CWA water quality standards program, States (and Tribes)
must adopt water quality standards for their waters that must be
submitted to EPA for approval. These State or Tribal standards (or EPA-
promulgated standards) are implemented through various water quality
control programs, including the NPDES program which limits discharges
to navigable waters in compliance with an EPA permit or permit issued
under an approved State or Tribal NPDES program. The CWA requires that
all NPDES permits include any limits on discharges that are necessary
to meet State or Tribal water quality standards. A State or Tribe has
discretion in deciding how to achieve compliance with its water quality
standards and in developing discharge limits as needed to meet the
standards. For example, in circumstances where there is more than one
discharger to a water body that is subject to a water quality standard,
a State or Tribe has discretion in deciding which dischargers will be
subject to permit discharge limits necessary to meet the revised
standards.
As explained earlier, this rule merely defers the effectiveness of
State or Tribal
[[Page 24651]]
water quality standards pending EPA approval. Under existing NPDES
regulations, where a State or Tribe has, as a matter of State or Tribal
law, modified an existing water quality standard, a State or Tribal
Authority may not modify existing NPDES permit limits to take account
of the revised standard until EPA has approved the standard. As a
result, until EPA approves the revised standard and a State or Tribe
has decided how it will implement the revised standard among the
dischargers on that water body, each discharger must continue to comply
with its permit limits that were designed to meet the more stringent
standard. Moreover, just as under the previous rule, there is no
certainty that, even after EPA approval of the revised standard, the
permitting agency will necessarily amend a particular discharger's
permit to modify its limitation. Instead, a State or Tribe may choose
to allocate the loading associated with the less stringent standard to
a new or different discharger. Given these circumstances, the impact of
today's rule on individual dischargers will depend on State or Tribal
actions that EPA neither controls nor can predict.
Courts have consistently held that the RFA imposes no obligation on
an agency to prepare a small entity analysis of effects on entities it
does not regulate. Motor & Equip. Mrfrs. Ass'n v. Nichols, 142 F.3d
449, 467 & n.18 (D.C. Cir. 1998)(quoting United States Distribution
Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996); see also
American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir.
1999). This final rule will have a direct effect only on States and
authorized Tribes which are not small entities under the RFA. The rule
establishes requirements that are applicable to water quality standards
submitted by States and authorized Tribes to EPA for approval. The rule
defers the effective date for CWA purposes of any new or less-
stringent, revised water quality standard until EPA has approved the
standard. Individual dischargers, including small entities, are not
directly subject to the requirements of the rule. Moreover, because of
State and Tribal discretion in adopting and implementing their water
quality standards, EPA cannot assess the extent to which the
promulgation of this rule may subsequently affect any dischargers,
including small entities. Consequently, certification under section
605(b) is appropriate. State of Michigan, et al. v. U.S. Environmental
Protection Agency, No. 98-1497 (D.C. Cir. Mar. 3, 2000), slip op. at
41-42.
V. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's final rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
Tribal governments or the private sector. The final rule does not
affect the process by which State or Tribal water quality standards are
adopted under State or Tribal law, but simply specifies when a State or
Tribal adoption will be recognized as the applicable water quality
standard for general CWA purposes. The rule imposes no enforceable duty
on any State, local or Tribal governments or the private sector. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA's final rule will only address a single administrative
aspect of the water quality standards approval process (i.e., the
timing of the ``effectiveness'' of State or Tribal standards under the
CWA). There will be no revisions to existing submission requirements
and no revisions to EPA's standards for review. Thus, this final rule
is not subject to the requirements of section 203 of UMRA.
VI. Regulatory Planning and Review, 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:
(1) 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;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) 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.
VII. Federalism, Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
[[Page 24652]]
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This final rule 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 rule merely specifies when
new or revised State or Tribal-adopted standards will be recognized as
the applicable WQS for CWA purposes, as mandated by section 303(c)(3)
of the CWA. It does not address the process by which States and Tribes
adopt standards, nor does it alter the grounds for approving or
disapproving such new or revised standards. States and Tribes continue
to have the primary responsibility for deciding when and in what way to
revise their standards. If a State or Tribe fails to promulgate a
needed standard or to revise a standard which has been disapproved by
EPA, EPA will, as under the previous rule, exercise its authority to
promulgate a Federal standard. This rule will not impose substantial
direct compliance costs on State or local government, nor will it
preempt state law. Thus, the requirements of section 6 of the Executive
Order do not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of State and local
governments early in the process of developing the proposed regulation
to permit them to have meaningful and timely input into its
development. Since the court's ruling in 1997, EPA has met with State
government representatives on several occasions in various forums and
discussed implications for State programs. From those discussions, EPA
learned that States are primarily concerned with EPA streamlining its
review and approval process to avoid delays after this rule goes final.
EPA believes that today's rule is necessary to conform Part 131 to the
court's opinion and to section 303(c)(3), but agrees that streamlining
the review and approval process will facilitate implementation of the
rule. EPA has already taken steps to reduce the backlog pending at the
time of proposal. In addition, EPA is considering modifying its
regulations to clarify Federal WQS requirements in greater detail (see
63 FR 36742), and at a minimum will be jointly developing with State
representatives guidance to improve the current State and Tribal
adoption and EPA review and approval process. EPA believes that, once
completed, this guidance will inform EPA Regional offices and States on
how to get concerns identified and resolved early in the process so
that, when revised State WQS are submitted to EPA, there are no
unexpected issues and EPA can act in a timely fashion.
VIII. Consultation and Coordination With Indian Tribal Governments,
Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's final rule does not significantly or uniquely affect the
communities of Indian tribal governments, nor does it impose
substantial direct compliance costs on them. Today's final rule only
addresses a single administrative aspect of the WQS approval process
(i.e., the timing of the ``effectiveness'' of State and Tribal WQS
under the CWA). There will be no revisions to existing submission
requirements and no revisions to EPA's standards for review.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
IX. Paperwork Reduction Act
This action requires no new information collection activities.
Thus, this rule is not subject to the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
X. Protection of Children From Environmental Health Risks and
Safety Risks, Executive Order 13045
Executive Order 13045: ``Protection of Children from Environmental
health Risks and Safety Risks'' (62FR19885, April 23, 1997) applies to
any rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This final
rule is not subject to Executive Order 13045 because it is not
economically significant as defined under Executive Order 12866.
Further, it does not concern an environmental health or safety risks
that EPA has reason to believe may have a disproportionate effect on
children. This rule merely defers the effectiveness of State or Tribal
water quality standards pending EPA approval.
XI. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, section 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. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This final rule does not involve technical standards. Therefore,
EPA did
[[Page 24653]]
not consider the use of any voluntary consensus standards.
XII. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 30, 2000.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians-lands, Intergovernmental
relations, Water pollution control, Water quality standards.
Dated: March 30, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, 40 CFR Part 131 is
amended as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for Part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart C--[Amended]
2. Existing 131.21 is amended by revising paragraphs (c) and (d)
and by adding paragraphs (e), and (f) to read as follows:
Sec. 131.21 EPA review and approval of water quality standards.
* * * * *
(c) How do I determine which water quality standards are applicable
for purposes of the Act? You may determine which water quality
standards are applicable water quality standards for purposes of the
Act from the following table:
----------------------------------------------------------------------------------------------------------------
If-- Then-- Unless or until-- In which case--
----------------------------------------------------------------------------------------------------------------
(1) A State or authorized Tribe . . . the State or . . . EPA has . . . the EPA-
has adopted a water quality Tribe's water quality promulgated a more promulgated water
standard that is effective under standard is the stringent water quality quality standard is the
State or Tribal law and has been applicable water quality standard for the State applicable water
submitted to EPA before May 30, standard for purposes of or Tribe that is in quality standard for
2000 . . . the Act . . . effect . . . purposes of the Act
until EPA withdraws the
Federal water quality
standard.
----------------------------------------------------------------------------------------------------------------
(2) A State or authorized Tribe . . . once EPA approves . . . EPA has . . . the EPA
adopts a water quality standard that water quality promulgated a more promulgated water
that goes into effect under standard, it becomes the stringent water quality quality standard is the
State or Tribal law on or after applicable water quality standard for the State applicable water
May 30, 2000 . . . standard for purposes of or Tribe that is in quality standard for
the Act . . . effect . . . purposes of the Act
until EPA withdraws the
Federal water quality
standard.
----------------------------------------------------------------------------------------------------------------
(d) When do I use the applicable water quality standards identified
in paragraph (c) above?
Applicable water quality standards for purposes of the Act are the
minimum standards which must be used when the CWA and regulations
implementing the CWA refer to water quality standards, for example, in
identifying impaired waters and calculating TMDLs under section 303(d),
developing NPDES permit limitations under section 301(b)(1)(C),
evaluating proposed discharges of dredged or fill material under
section 404, and in issuing certifications under section 401 of the
Act.
(e) For how long does an applicable water quality standard for
purposes of the Act remain the applicable water quality standard for
purposes of the Act?
A State or authorized Tribe's applicable water quality standard for
purposes of the Act remains the applicable standard until EPA approves
a change, deletion, or addition to that water quality standard, or
until EPA promulgates a more stringent water quality standard.
(f) How can I find out what the applicable standards are for
purposes of the Act?
In each Regional office, EPA maintains a docket system for the
States and authorized Tribes in that Region, available to the public,
identifying the applicable water quality standards for purposes of the
Act.
[FR Doc. 00-8536 Filed 4-26-00; 8:45 am]
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