[Federal Register Volume 66, Number 9 (Friday, January 12, 2001)]
[Rules and Regulations]
[Pages 2823-2825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-693]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 35
[FRL-6931-8]
RIN 2040-AD20
Drinking Water State Revolving Funds Rule
AGENCY: Environmental Protection Agency.
ACTION: Adoption of interim final rule as final rule.
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SUMMARY: The Environmental Protection Agency (EPA) promulgated an
interim final rule on August 7, 2000 (65 FR 48286) which codified and
implemented requirements for the Drinking Water State Revolving Fund
(DWSRF) program. The interim final rule was effective on the date of
publication in the Federal Register, but included a 60-day comment
period to give interested parties an opportunity to comment. EPA
indicated that comments would be considered and, if necessary, the
Agency would issue a revised final rule changing the interim final rule
to respond to comments. After careful consideration of the comments
received on the interim final rule, EPA has determined that it will not
make changes to the interim final rule.
DATES: The interim final rule became effective on August 7, 2000.
ADDRESSES: Public comments and the comment response document on the
interim final rule have been established under Docket W-00-11, which
includes supporting documentation, and is available for review at the
Water Docket, U.S. Environmental Protection Agency, 401 M Street, SW,
East Tower Basement, Room EB57, Washington, DC 20460. For access to the
Docket materials, please call (202) 260-3027 between 9 a.m. and 3:30
p.m. (Eastern Time), Monday through Friday, for an appointment and
reference Docket W-00-11.
FOR FURTHER INFORMATION CONTACT: For technical inquiries, contact
Kimberley Roy, Drinking Water Protection Division, Office of Ground
Water and Drinking Water (MC-4606), U.S. Environmental Protection
Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington,
DC 20460. The telephone number is (202) 260-2794 and the e-mail address
is [email protected]. For general information, contact the Safe
Drinking Water Hotline, toll free at (800) 426-4791. The Safe Drinking
Water Hotline is open Monday through Friday, excluding Federal
holidays, from 9:00 a.m. to 5:30 p.m. (Eastern Time). DWSRF program
information, including
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a copy of the interim final rule, are available on EPA's Office of
Ground Water and Drinking Water website at http://www.epa.gov/safewater/dwsrf.html.
SUPPLEMENTARY INFORMATION:
I. Background
Section 1452 of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-
12, establishes a national DWSRF program to assist public water systems
in financing the cost of drinking water infrastructure projects needed
to achieve or maintain compliance with SDWA requirements and to further
the public health objectives of the Act. Section 1452(g)(3) of the SDWA
states that ``the Administrator shall publish guidance and promulgate
regulations as may be necessary to carry out the provisions of this
section.''
On August 7, 2000, the EPA promulgated an interim final rule (65 FR
48286) which codified the DWSRF Program Final Guidelines (EPA-816-R-97-
005) published on February 28, 1997. The interim final rule
establishes: what States must do to receive a capitalization grant;
what States may do with capitalization grant funds intended for
infrastructure projects; what States may do with funds intended for
set-aside activities; and the roles of both the States and EPA in
managing and administering the program. Both the DWSRF Program Final
Guidelines and the interim final rule were the result of a thorough
stakeholder consultation process.
The interim final rule was effective on the date of publication in
the Federal Register, but included a 60-day comment period to give
interested parties an opportunity to comment. EPA indicated that
comments would be considered and, if necessary, the Agency would issue
a revised final rule changing the interim final rule to respond to
comments. EPA received comments from 15 parties by the close of the
comment period on October 6, 2000. After careful consideration of the
comments received on the interim final rule, EPA has determined that it
will not make changes to the interim final rule. Accordingly, the
interim final rule is adopted as a final rule without change.
II. Comments on Interim Final Rule
EPA received comments on the interim final rule from 15 parties
representing a variety of interests. The majority of commentors
represented State government and finance agencies that administer State
DWSRF programs (10 commentors). Other commentors included trade
associations (2 commentors); environmental/citizen groups (2
commentors); and a State association (one commentor). Commenters raised
several key issues which are discussed below. The complete response to
comments document has been established under Docket W-00-11 and is
available for review.
Many of the comments that EPA received addressed issues that go
beyond the scope of the interim final rule because they would involve
changes to requirements found in the SDWA. Several commentors stated
that the requirement that four percent of the allotment can be set
aside for administration of the DWSRF program is insufficient for
program administration oversight by States. This restriction on the
amount of allotment that can be set aside for administration of the
program is a requirement in section 1452(g)(2) of the SDWA. Several
commentors stated that EPA should support extending the deadline for
appropriations for the DWSRF program beyond fiscal year 2003 because of
the success of the program. The preamble to the interim final rule
reflects the language in section 1452(m) of the SDWA whereby Congress
authorized appropriations for the DWSRF program through fiscal year
2003. One commentor stated that refinancing should be allowed for
privately-owned systems and that the deadline for transfer of funds
between the DWSRF and Clean Water SRF programs should be removed. The
interim final rule reflects the provision in section 1452(f)(2) the
SDWA which allows refinancing only for publicly-owned systems and the
provision in section 302 of the SDWA that funds may not be transferred
between the two SRF programs after September 30, 2001.
Several of the comments that EPA received asked for modifications
to provisions that were discussed during development of the DWSRF
Program Final Guidelines and which EPA indicated would not change as
part of the rule development process. Specifically, five commentors
disagreed with EPA's decision to include the requirement in the interim
final rule that certain types of infrastructure projects are ineligible
for assistance from the DWSRF program. One commentor agreed with EPA's
decision. EPA maintains the position established during the development
of the DWSRF Program Final Guidelines and reflected in the interim
final rule that certain types of projects are ineligible for DWSRF
program assistance because they do not further the objectives Congress
set out in the SDWA to the same extent as other projects that are
eligible.
EPA received mixed comments on the level of public involvement that
the interim final rule should require for States to have in their DWSRF
programs. Several commentors stated that the rule should have more
stringent requirements for public review and comment on State DWSRF
programs. For instance, one commentor indicated that the rule should
require a State to do more proactive outreach and education to small
and disadvantaged communities and that the rule should require a State
to use a percentage of its State program management set-aside for
public outreach during the development of its Intended Use Plan (IUP).
Other commentors indicated that the rule requires too much public
review and comment as part of the IUP process. For instance, one
commentor indicated that the rule should not require State decisions on
the use of the set-aside funds to go through public comment as part of
the IUP process because public input is already received as part of the
State budget process. EPA believes that the public involvement
requirements in the interim final rule allow for a balance between the
need for the public to have sufficient opportunities to provide input
on State DWSRF programs and the need for States to implement their
programs in an efficient manner.
Several of the comments EPA received reflected a misunderstanding
of the provisions in the interim final rule. One commentor stated that
the rule should not require a State to include in its Biennial Report a
demonstration of how it is complying with operator certification and
capacity development provisions to avoid withholding of funds. In
actuality, the rule does not require a State to demonstrate in its
Biennial Report how it is complying with the withholding requirements.
The rule only requires a State to agree as part of its capitalization
grant agreement that it will provide the annual program submittals that
are required in the capacity development and operator certification
programs. Several commentors stated that the provision to allow set-
aside funds to be used for planning and design costs associated with
infrastructure projects for small systems is too narrow and that it
precludes a State from funding the development of comprehensive water
system plans for systems of all sizes. In actuality, the language in
the rule does not preclude a State from providing funds for the
development of comprehensive water system plans as part of capacity
development assistance since these would not be considered
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planning and design costs. Thus, a State could use the State program
management set-aside to fund water system plans for systems of all
sizes, not just small systems.
EPA received mixed comments on the level of stakeholder involvement
provided for during the rule development process. Several commentors
commended EPA for the level of stakeholder input on many policy matters
in the rule and for the Agency's responsiveness to comments received on
the rule. Other commentors stated that stakeholder involvement in the
rule should have been broader and more inclusive. EPA believes that the
interim final rule gives States a high degree of flexibility to operate
their programs and is the result of a thorough stakeholder consultation
process that went beyond what is required under the Administrative
Procedures Act. The rule is primarily a codification of the DWSRF
Program Final Guidelines which went through an extensive public comment
and review process. Any additions or modifications to the Final
Guidelines that are reflected in the rule went through rounds of public
comment and revisions in memoranda, guidance documents, or were
published in the Federal Register for comment. Stakeholders were also
given multiple opportunities to provide comments during the rule
development process and all comments received were carefully
considered.
III. Administrative Requirements
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, does not
apply because this action is not a rule, for purposes of 5 U.S.C.
804(3).
List of Subjects in 40 CFR Part 35
Drinking water, Environmental protection, Grant programs--
environmental protection, Public health, Safe drinking water act, State
revolving funds, Water supply.
Dated: December 27, 2000.
J. Charles Fox,
Assistant Administrator, Office of Water.
Accordingly, the interim final rule is adopted as a final rule
without change.
[FR Doc. 01-693 Filed 1-11-01; 8:45 am]
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