Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 80713 

1The phrase, ‘‘State(s) and Tribe(s)’’ will be used 

in this document hereafter. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 123 and 233 

[EPA–HQ–OW–2020–0517; FRL–10017–98– 

OW] 

RIN 2040–AG09 

Criminal Negligence Standard for State 

Clean Water Act 402 and 404 Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is requesting 

comment on proposed Clean Water Act 

(CWA or the Act) regulations to clarify 

that state or tribal programs approved 

pursuant to CWA Sections 402 and 404 

are not required to include the same 

criminal intent standard that is 

applicable to the EPA under Section 309 

of the CWA. The proposed regulations 

will provide clarity to states, tribes, 

regulated entities, and the public. 

DATES: Comments must be received on 

or before January 13, 2021. 

ADDRESSES: You may submit comments, 

identified by Docket ID No. EPA–HQ– 

OW–2020–0517, through the Federal 

eRulemaking Portal at: https://

www.regulations.gov/. Follow the online 

instructions for submitting comments. 

All submissions received must include 

the Docket ID No. for this rulemaking. 

Comments received may be posted 

without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are closed to the public, 

with limited exceptions, to reduce the 

risk of transmitting COVID–19.Our 

Docket Center staff will continue to 

provide remote customer service via 

email, phone, and webform. We 

encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail. Hand 

deliveries and couriers may be received 

by scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at: https://

www.epa.gov/dockets. 

EPA is offering one virtual public 

hearing so that interested parties may 

also provide oral comments on the 

proposed rulemaking. For more 

information on the virtual public 

hearing and to register to attend, please 

visit: https://www.epa.gov/npdes/. Refer 

to the SUPPLEMENTARY INFORMATION

section below for additional 

information. 

FOR FURTHER INFORMATION CONTACT: 

Nizanna Bathersfield, Office of 

Wastewater Management, Water Permits 

Division (Mail Code 4203M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW, Washington, DC 

20460; telephone number: (202) 564– 

2258; email address: 

Bathersfield.Nizanna@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. What action is the Agency taking? 

C. What are the incremental costs and 

benefits of this action? 

II. Public Participation 

A. Written Comments 

B. Virtual Public Hearing 

III. Background 

IV. Request for Comment 

V. Statutory and Executive Orders Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Costs 

C. Paperwork Reduction Act (PRA) 

D. Regulatory Flexibility Act (RFA) 

E. Unfunded Mandates Reform Act 

(UMRA) 

F. Executive Order 13132: Federalism 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

J. National Technology Transfer and 

Advancement Act 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action include States, U.S. territories, 

and Indian Tribes that are authorized 

and/or seek authorization to administer 

the Clean Water Act (CWA) Section 402 

National Pollutant Discharge 

Elimination System (NPDES) permitting 

program or the CWA Section 404 

dredged or fill permitting program. This 

table is not intended to be exhaustive; 

rather, it provides a guide for readers 

regarding entities that this action is 

likely to affect. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person identified in the preceding 

section. 

TABLE I–1—ENTITIES POTENTIALLY AFFECTED BY THIS ACTION

Category Examples of potentially affected entities 

Federal Government ............ EPA when conducting oversight of programs authorized under CWA Sections 402 and 404 in states, tribes, and 

U.S. territories. 

State, Territorial, and Indian 

Tribal Governments.

States, Tribes, and U.S. Territories 1 that are authorized or that seek authorization to administer the CWA Section 

402 NPDES permitting program and/or the CWA Section 404 dredged and fill permitting program. 

B. What action is the Agency taking? 

EPA proposes to amend its 

requirements in 40 CFR 123.27 and 

233.41 for criminal enforcement 

authorities to clarify that states and 

tribes that are authorized to or that seek 

authorization to administer the CWA 

Section 402 NPDES permitting program 

and/or the CWA Section 404 dredged 

and fill permitting program are not 

required to establish the same 

negligence standard that the CWA 

establishes for Federal criminal 

enforcement actions. Rather, EPA may 

approve state or tribal programs that 

allow for prosecution based on any 

negligence standard, including gross 

negligence or recklessness, as opposed 

to requiring that a state or tribe be able 

to establish criminal violations based on 


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80714 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 

2The regulation at 40 CFR 123.27 includes a note 

that is absent from 40 CFR 233.41. This note 

provides: ‘‘[s]tates which provide the criminal 

remedies based on ‘‘criminal negligence,’’ ‘‘gross 

negligence’’ or strict liability satisfy the requirement 

of paragraph (a)(3)(ii) of this section.’’ See 40 CFR 

123.27(a)(ii). 

simple or ordinary negligence. EPA 

interprets its current regulations to 

allow for this approach and proposes to 

modify its regulations to make its 

interpretation of the statute clearer. 

Because the relevant CWA Section 402 

regulatory provisions are similar 2 to 

those in CWA Section 404 and raise the 

same issues, EPA proposes to make 

similar changes to the CWA Sections 

402 and 404 permitting program 

regulations. Refer to the BACKGROUND 

section below for a more detailed 

description of the context and purpose 

for this action. 

C. What are the incremental costs and 

benefits of this action? 

The proposed amendment clarifies 

EPA’s interpretation of the CWA 

enforcement requirements applicable to 

authorized state and tribal programs 

under CWA Section 402 and CWA 

Section 404. This action does not 

establish new requirements but instead 

provides clarity for states and tribes that 

have been approved to administer or are 

interested in obtaining EPA approval to 

administer their own NPDES or dredged 

and fill permitting program under the 

CWA. Therefore, the proposed 

rulemaking would impose no 

incremental change to current 

requirements that EPA measures as 

compliance costs or monetized benefits. 

EPA anticipates that states that 

already administer these CWA programs 

will not need to make any changes to 

their legal authority to conform with 

this regulatory change. Instead, these 

regulatory clarifications will provide 

assurance to approved states that their 

current criminal intent standards 

comport with EPA’s interpretation of 

the CWA criminal intent standard 

applicable to authorized state and tribal 

CWA Sections 402 and 404 programs. 

Additionally, this clarification will 

provide those states and tribes 

interested in seeking approval to 

administer the CWA Sections 402 and 

404 programs, respectively, with clarity 

regarding the legal authorities required 

for approval by EPA. 

II. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OW–2020– 

0517, at https://www.regulations.gov/. 

Follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit: http://

www2.epa.gov/dockets/commentingepa-dockets. 

EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that we can respond rapidly as 

conditions change regarding COVID–19. 

B. Virtual Public Hearing 

EPA intends to hold a virtual public 

hearing on the proposed rulemaking. 

EPA is deviating from its typical 

approach to public hearings because the 

President has declared a national 

emergency. Because of current CDC 

recommendations, as well as state and 

local orders for social distancing to limit 

the spread of COVID–19, EPA cannot 

hold in-person public meetings at this 

time. 

EPA will begin pre-registering 

speakers for the hearing upon 

publication of this document in the 

Federal Register. To register to speak at 

the virtual hearing, please use the 

online registration form available at 

https://www.epa.gov/npdes/ or contact 

Cortney Itle at cortney.itle@erg.com. 

EPA will make every effort to follow the 

schedule as closely as possible on the 

day of the hearing; however, please plan 

for the hearings to run either ahead of 

schedule or behind schedule. 

Each commenter will have three 

minutes to provide oral testimony. Note 

that the testimony time may be adjusted 

depending on the number of registered 

speakers. EPA encourages commenters 

to provide EPA with a copy of their oral 

testimony electronically (via email) by 

emailing it to Cortney Itle. EPA also 

recommends submitting the text of your 

oral comments as written comments to 

the rulemaking docket. EPA may ask 

clarifying questions during the oral 

presentations but will not respond to 

the presentations at that time. Written 

statements and supporting information 

submitted during the comment period 

will be considered with the same weight 

as oral comments and supporting 

information presented at the public 

hearing. 

Please note that any updates made to 

any aspect of the hearing is posted 

online at https://www.epa.gov/npdes/. 

While EPA expects the hearing to go 

forward as set forth above, please 

monitor our website or contact Cortney 

Itle at cortney.itle@erg.com to determine 

if there are any updates. EPA does not 

intend to publish a document in the 

Federal Register announcing updates. If 

you require the services of a translator 

or special accommodations such as 

audio description, please pre-register for 

the hearing with Cortney Itle and 

describe your needs at least two weeks 

prior to the announced public hearing 

date. EPA may not be able to arrange 

accommodations without advanced 

notice. 

III. Background 

The CWA provides that states and 

tribes seeking approval for a permitting 

program under CWA Section 402 and 

CWA Section 404 must have adequate 

authority ‘‘[t]o abate violations of the 

permit or the permit program, including 

civil and criminal penalties and other 

ways and means of enforcement.’’ 33 

U.S.C. 1342(b)(7) and 1344(h)(1)(G). 

These provisions do not establish 

specific mens rea standards or penalties 

for state and tribal programs and thus do 

not provide specific criteria on which 

basis EPA could disapprove a program 

for lack of authority to impose criminal 

sanctions. In contrast, CWA Section 

309(c) specifically provides EPA with 

enforcement authority to establish 

misdemeanor criminal liability in 

Subsection (c)(1) and a range of 

penalties for ‘‘[n]egligent violations’’ of 

specified provisions, as well as felony 

liability and a higher range of penalties 

for ‘‘knowing violations’’ of the CWA in 

Subsection (c)(2). Beginning in 1999, 

three circuit courts of appeal 

determined that criminal negligence 

under CWA Section 309(c)(1) is 

‘‘ordinary negligence’’ rather than gross 

negligence or any other negligence 

standard. U.S. v. Hanousek, 176 F.3d 

1116, 1121 (9th Cir. 1999); U.S. v. Ortiz, 

427 F.3d 1278, 1282 (10th Cir. 2005); 

U.S. v. Pruett, 681 F.3d 232, 242 (5th 

Cir. 2012). Though courts have 

interpreted EPA’s enforcement authority 

under CWA 309(c)(1) to encompass 

violations committed with ordinary 

negligence, these courts did not address 


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whether this provision implicates state 

or tribal programs implementing CWA 

Sections 402 or 404. 

EPA’s regulations currently provide 

that a state or tribal agency 

administering a program under CWA 

Section 402 must provide for criminal 

fines to be levied ‘‘against any person 

who willfully or negligently violates any 

applicable standards or limitations; any 

NPDES permit condition; or any NPDES 

filing requirement.’’ 40 CFR 

123.27(a)(3)(ii). Similarly, EPA’s 

regulations currently provide that any 

state or tribal agency administering a 

program under Section 404 of the CWA 

shall have authority to seek criminal 

fines against any person who ‘‘willfully 

or with criminal negligence discharges 

dredged or fill material without a 

required permit or violates any permit 

condition issued under section 404 

. . .’’ 40 CFR 233.41(a)(3)(ii). The 

regulations implementing both statutory 

programs also provide that the ‘‘burden 

of proof and degree of knowledge or 

intent required under State law for 

establishing violations under paragraph 

(a)(3) of this section, shall be no greater 

than the burden of proof or degree of 

knowledge or intent EPA must bear 

when it brings an action under the Act.’’ 

40 CFR 123.27(b)(2); 40 CFR 

233.41(b)(2). Additionally, the 

implementing regulations for CWA 

Section 402 include a note, not present 

in the CWA Section 404 implementing 

regulations, that states, ‘‘[f]or example, 

this requirement is not met if State law 

includes mental state as an element of 

proof for civil violations’’ 40 CFR 

123.27(b)(2). 

On September 10, 2020, the Ninth 

Circuit Court of Appeals issued an 

unpublished decision that granted in 

part and denied in part the Idaho 

Conservation League’s petition for 

review of EPA’s approval of Idaho’s 

NPDES permitting program. Idaho 

Conservation League v. US EPA, no. 18– 

72684 (September 10, 2020). Relying on 

the Ninth Circuit case law cited above, 

which holds that EPA enforcement 

actions are subject to a simple 

negligence standard, the court 

determined that EPA abused its 

discretion in approving a mens rea 

standard of gross negligence because it 

is ‘ ‘‘greater than the burden of proof or 

degree of knowledge or intent EPA must 

provide when it brings an action . . .’ 

40 CFR 123.27(b)(2).’’ The court 

recognized that ‘‘a state program need 

not mirror the burden of proof and 

degree of knowledge or intent EPA must 

meet to bring an enforcement action,’’ 

citing EPA’s Consolidated Permit 

Regulations, 45 FR. 33290, 33382 (May 

19, 1980), but held that EPA’s current 

regulations at 40 CFR 123.27(b)(2) 

require a state plan to employ a 

standard ‘‘no greater than’’ simple 

negligence, such as strict liability or 

simple negligence. Slip op. at 3. Because 

the decision is unpublished, it is not 

precedential except for as the law of the 

case. See Ninth Cir. Rule 36–4. 

Overview of This Proposal 

The CWA and its implementing 

regulations require that in order to avoid 

EPA disapproval, States and tribes must 

have certain legal authorities in place 

pertaining to permit issuance, and 

compliance and enforcement, including 

criminal enforcement. EPA does not 

interpret the CWA to require that states 

and tribes establish the same negligence 

standard that the CWA establishes for 

Federal enforcement actions. The 

current regulations describing the 

criminal intent standard applicable to 

state and tribal programs at 40 CFR 

233.41(a)(3)(ii) and 40 CFR 

123.27(a)(3)(ii) do not clearly articulate 

EPA’s interpretation of the statute that 

it may approve state or tribal programs 

that allow for prosecution based on any 

negligence standard, including those 

negligence standards with a gross 

negligence mens rea requirement. This 

proposal sets forth regulatory revisions 

that are consistent with this 

interpretation. 

Statutory and Regulatory Framework for 

EPA’s Interpretation 

While EPA’s own enforcement 

authority under CWA Section 309(c)(1), 

33 U.S.C. 1319(c)(1), as interpreted by 

the courts, requires only proof of 

ordinary negligence, that provision does 

not apply to state or tribal programs. As 

noted above, the CWA requires that EPA 

‘‘shall approve’’ a state’s application if 

it determines that the state has the 

authority to ‘‘abate violations of the 

permit or the permit program, including 

civil and criminal penalties and other 

ways and means of enforcement.’’ 33 

U.S.C. 1342(b)(7); 1344(h)(1)(G). EPA 

has consistently maintained that 

nothing in the text of CWA Sections 402 

or 404 requires identical enforcement 

authority between states or tribes and 

EPA. See NRDC v. U.S. EPA, 859 F.2d 

156, 175, 181 (D.C. Cir. 1988) 

(upholding EPA’s decision not to 

require state or tribal programs to 

incorporate the maximum penalty 

amounts in CWA Section 309 as a 

‘‘reasonable accommodation’’ of ‘‘the 

competing objectives of regulatory 

uniformity and state autonomy’’) (citing 

Chevron U.S.A. v. NRDC, 467 U.S. 837, 

865 (1984). 

In addressing the enforcement 

requirements for state programs, 

Congress did not use the words ‘‘all 

applicable,’’ ‘‘same,’’ or any phrase 

specific to any mens rea standard, let 

alone the Federal standard, as it did in 

other parts of CWA Sections 404(h) or 

402(b). See 33 U.S.C. 1344(h), 1342(b). 

Indeed, when ‘‘Congress includes 

particular language in one section of a 

statute but omits it in another section of 

the same Act, it is generally presumed 

that Congress acts intentionally and 

purposely in the disparate inclusion or 

exclusion.’’ Sebelius v. Cloer, 569 U.S. 

369, 378 (2013) (internal quotations 

omitted). In contrast to the broad 

authority that CWA Sections 

404(h)(1)(G) and 402(b)(7) provide to 

determine whether states and tribes 

have demonstrated adequate authority 

to abate violations, other aspects of state 

and tribal programs are explicitly 

required to have authority that is 

equivalent to or more stringent than 

EPA’s authority. For example, states 

must have the authority ‘‘[t]o inspect, 

monitor, enter, and require reports to at 

least the same extent as required in 

section 1318 of this chapter,’’ 33 U.S.C. 

1344(h)(1)(B); 1342(b)(2)(B) (emphasis 

added). Similarly, CWA Section 

404(h)(1)(B) requires state-issued 

permits to ‘‘apply, and assure 

compliance with, any applicable 

requirements of this section, including, 

but not limited to, the guidelines 

established under subsection (b)(1) of 

this section, and sections 1317 and 1343 

of this title . . .’’ 33 U.S.C. 

1344(h)(1)(A)(i) (emphasis added); and 

CWA Section 402(b)(1)(A) requires 

states to issue permits in compliance 

with ‘‘sections 1311, 1312, 1316, 1317, 

and 1343 of this title.’’ 33 U.S.C. 

1342(b)(1)(A). The more general 

language used to address required state 

and tribe authorities to abate violations, 

and the absence of any citation to CWA 

Section 309, indicates that Congress 

allowed for variability between state or 

tribal approaches to certain aspects of 

enforcement. See 33 U.S.C. 1342 (b)(7). 

EPA interprets the Agency’s 

implementing regulations for CWA 

Sections 402 and 404 to allow for 

approved state and tribal programs to 

have different approaches to criminal 

enforcement than the Federal 

government’s approach. As noted above, 

EPA’s interpretation is consistent with 

the D.C. Circuit’s decision in NRDC, 859 

F.2d at 180–81. There, the petitioner 

challenged the validity of 40 CFR 

123.27(a)(3) on the theory that it did not 

require states to have the same 

maximum criminal penalties as the 

federal program. NRDC, 859 F.2d at 180. 

The court reasoned that the petitioner’s 

argument involved a ‘‘logical infirmity’’ 


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because it ‘‘presume[d] an unexpressed 

congressional intent that state 

requirements must mirror the federal 

ones,’’ which is ‘‘inconsistent with the 

elements of the statutory scheme 

limiting operation of the provisions to 

enforcement efforts at the national level 

and explicitly empowering the 

Administrator to set the prerequisites 

for state plans.’’ Id. at 180 (discussing 33 

U.S.C. 1314(i)(2)(C)). The D.C. Circuit 

recognized EPA’s ‘‘broad[ ] discretion to 

respect state autonomy in the criminal 

sector’’ and that the regulations ‘‘reflect 

the balancing of uniformity and state 

autonomy contemplated by the Act.’’ Id. 

at 180–81. The court therefore declined 

‘‘to divest the Administrator of this 

authority’’ in the face of congressional 

silence. Id. 

EPA’s interpretation is also consistent 

with the Ninth Circuit’s decision in 

Akiak Native Community v. EPA, in 

which the Ninth Circuit declined to 

require that states have authority to 

impose administrative penalties 

identical to federal authority. See Akiak 

Native Community, 625 F.3d 1162, 

1171–72 (9th Cir. 2010). In that case, the 

petitioner argued that the State of 

Alaska did not have adequate authority 

to abate violations because Alaska had 

to initiate a legal proceeding to assess 

civil penalties, whereas EPA could do 

so administratively. Id. at 1171. The 

Court held that because ‘‘[t]here is no 

requirement in the CWA . . . that state 

officials have the authority to impose an 

administrative penalty’’ and ‘‘[t]he 

language of the statute says nothing 

about administrative penalties,’’ ‘‘there 

is no reason to conclude that Alaska 

lacks adequate enforcement 

authorities.’’ Id. 1171–72. 

Finally, EPA’s longstanding 

interpretation that CWA Sections 402 

and 404 do not require states and tribes 

to have identical authorities to EPA’s 

under CWA Section 309 is consistent 

with the Ninth Circuit’s 

acknowledgement in Idaho 

Conservation League v. EPA that ‘‘a 

state program need not mirror the 

burden of proof and degree of 

knowledge or intent EPA must meet to 

bring an enforcement action.’’ Slip op. at 

3, citing Consolidated Permit 

Regulations, 45 FR at 33382 (May 19, 

1980). While EPA does not agree with 

the Ninth Circuit’s unpublished 

interpretation of the Agency’s 

regulations, this proposed rulemaking 

would clarify the criminal intent 

standards for existing and prospective 

state and tribal enforcement programs 

under CWA Sections 402 and 404. 

As discussed above, this proposed 

rulemaking would codify the 

interpretation of state and tribal 

criminal intent requirements that EPA 

presented to the Ninth Circuit in the 

Idaho Conservation League v. EPA, 

which is itself consistent with EPA’s 

longstanding interpretation that state 

and tribal programs are not required to 

have the identical enforcement 

authority to EPA’s under CWA Section 

309. To the extent this interpretation is 

viewed as different from any earlier 

interpretations of CWA Sections 402 

and 404 and implementing regulations, 

EPA has ample authority to change its 

interpretation of ambiguous statutory 

language. An ‘‘initial agency 

interpretation is not instantly carved in 

stone.’’ Chevron, 467 U.S. at 863; see 

also Encino Motorcars, LLC v. Navarro, 

136 S. Ct. 2117, 2125 (2016) 

(‘‘[A]gencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change.’’) 

(citations omitted). Rather, a revised 

rulemaking based on a change in 

interpretation of statutory authorities is 

well within federal agencies’ discretion. 

Nat’l Ass’n of Home Builders v. EPA, 

682 F.3d 1032, 1038 (D.C. Cir. 2012) 

(citing FCC v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009)). The 

agency must simply explain why ‘‘the 

new policy is permissible under the 

statute, that there are good reasons for 

it, and that the agency believes it to be 

better,’’ Fox Television Stations, 566 

U.S. at 515. This preamble meets this 

standard, providing a reasoned 

explanation for EPA’s proposal and its 

consistency with the CWA. 

Though under this proposal EPA is 

not requiring states or tribes to have the 

same criminal enforcement authority 

that courts have interpreted EPA to 

have, the state or tribal standard would 

still be based on the term ‘‘negligence’’ 

in the text of CWA Section 309. 

Allowing states or tribes flexibility in 

the degree of negligence for which they 

are authorized to bring criminal cases 

balances the CWA’s priorities of 

allowing for state and tribal autonomy 

with adherence to the purposes of the 

Act. As noted above, neither CWA 

Section 402(b)(7) nor CWA Section 

404(h)(1)(G) requires states to abate 

violations in the same manner as 

required under CWA Section 309. The 

absence of any citation to CWA Section 

309 in CWA Sections 402(b) and 404(h) 

indicates that variability may be 

permitted between Federal and state or 

tribal approaches to enforcement. 

The proposed regulatory clarification 

reflects EPA’s experience in approving 

and overseeing CWA state programs for 

over thirty years. Many states 

administering or seeking to administer 

the programs do not currently have a 

simple negligence standard, and indeed, 

may have statutory or constitutional 

barriers to such standards. The absence 

of simple negligence standards has not 

served as a bar to effective state 

enforcement programs, but the 

requirement to have such a standard 

could dissuade states and tribes from 

seeking to administer these programs in 

the future. Clarifying that states and 

tribes do not need a simple negligence 

standard in their criminal enforcement 

programs therefore advances the 

purposes of CWA Sections 402(b) and 

404(g) to balance the need for 

uniformity with state autonomy. See 

NRDC, 859 F.2d at 181 (D.C. Cir. 1988). 

This proposal does not change the 

standard applicable to EPA’s criminal 

enforcement of the CWA. Under CWA 

Section 309, EPA retains its civil and 

criminal enforcement authority 

notwithstanding the authorization status 

of a state or tribal permit program. 

Consistent with the CWA’s 

requirement that states and tribes 

administering CWA Sections 402 or 404 

permitting programs have the authority 

to abate civil and criminal violations, 

EPA is proposing to include language to 

clarify in 40 CFR 123.27(a) and 

233.41(a)(3) that states and tribes must 

have the authority to ‘‘establish 

violations.’’ This new language simply 

confirms EPA’s longstanding 

interpretation of the effect of its 

regulations. EPA also proposes to 

remove the term ‘‘appropriate’’ from the 

current references to the degree of 

knowledge or intent necessary to 

provide when bringing an action under 

the ‘‘appropriate Act’’ from the CWA 

Sections 402 and 404 implementing 

regulations, as these regulations only 

refer to actions under the CWA and no 

other statute. Therefore, the term 

‘‘appropriate’’ is unnecessary. Finally, 

in 40 CFR 233.41(a)(3), which currently 

requires states and tribes to have the 

authority ‘‘[t]o establish the following 

violations and to assess or sue to recover 

civil penalties and to seek criminal 

remedies,’’ EPA proposes to replace the 

word ‘‘remedies’’ with ‘‘penalties,’’ as 

‘‘penalties’’ is a more precise 

description of the type of relief sought 

in criminal enforcement actions. None 

of the proposed changes listed in this 

paragraph are intended to change the 

substantive effect of the regulations, but 

simply to clarify existing requirements. 

IV. Request for Comment 

EPA is proposing regulations at 40 

CFR 123.27 and 233.41 to clarify that 

authorized state and tribal programs 

under CWA Sections 402(b) and 404(g) 

are not required to establish the same 

negligence standard for criminal 

enforcement actions that the CWA 


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establishes for Federal enforcement 

actions. The Agency solicits comments 

on the proposed rulemaking. Refer to 

Section II.A of this preamble for 

instructions on submitting written 

comments. Comments are most helpful 

when accompanied by specific 

examples and supporting data. 

V. Statutory and Executive Orders 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and therefore was not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Executive Order 13771: Reducing 

Regulations and Controlling Regulatory 

Costs 

This action is not expected to be an 

Executive Order 13771 regulatory action 

because this action is not significant 

under Executive Order 12866. 

C. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. This proposal would provide 

regulatory clarity for approved state and 

tribal CWA Sections 402 and 404 

programs as well as for states and tribes 

that seek approval for their own CWA 

Sections 402 or 404 programs. This 

proposal does not create new 

information collection activities. 

D. Regulatory Flexibility Act (RFA) 

The Agency certifies that this action 

will not have a significant economic 

impact on a substantial number of small 

entities under the RFA. This action will 

not impose any requirements on small 

entities. This action does not impose 

new requirements on any entities but 

instead provides clarity for states and 

tribes that have been approved to 

administer or seek approval for their 

own CWA Sections 402 or 404 

programs. 

E. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. The 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. 

F. Executive Order 13132: Federalism 

This action 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. This action may 

be of significant interest to states that 

administer CWA Sections 402 and 404 

programs as well as for states seeking 

approval to administer CWA Sections 

402 or 404 programs because it clarifies 

the appropriate criminal intent standard 

states must have to enforce these 

programs. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does have tribal 

implications as specified in Executive 

Order 13175. Although there are no 

federally recognized tribes that, at this 

time, have been approved to administer 

the CWA programs under either section 

402 or section 404, this rulemaking will 

assist tribes in better understanding the 

applicable criminal intent standard for 

nearby approved state programs. This 

could assist tribes as they participate in 

state permitting processes. Additionally, 

this rulemaking will also inform tribes 

about the applicable criminal negligence 

intent standard as they consider 

whether to pursue approval for the 

NPDES permitting program and/or 

assumption of the dredged and fill 

permitting program. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because 

EPA does not believe that there are 

environmental health or safety risks 

addressed by this action that present a 

disproportionate risk to children. This 

proposal does not change the 

programmatic requirements of the CWA 

Sections 402 and 404 programs and has 

no direct impacts on the environment. 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

J. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes that this action does not 

have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629, February 16, 1994). 

The proposed action does not change 

existing programmatic CWA Sections 

402 and 404 requirements. Instead this 

proposed rulemaking clarifies the 

current requirements for the criminal 

intent standard that is applicable to 

state and tribal programs. 

List of Subjects 

40 CFR Part 123 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Indians—lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Water pollution control. 

40 CFR Part 233 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Indian—lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Water pollution control, 

Endangered and threatened species. 

Andrew Wheeler, 

Administrator. 

For the reasons set forth in the 

preamble, EPA proposes to amend 40 

CFR parts 123 and 233 as follows: 

PART 123—STATE PROGRAM 

REQUIREMENTS 

■ 1. The authority citation for part 123 

continues to read as follows: 

Authority: Clean Water Act, 33 U.S.C. 1251 

et seq. 

Subpart B—State Program 

Submissions 

■ 2. Section 123.27 is amended by: 

■ a. Revising paragraphs (a) 

introductory text, (a)(3) introductory 

text, and (a)(3)(ii); 

■ b. Removing the note that appears 

after paragraph (a)(3)(ii); and 

■ c. Revising paragraph (b)(2). 

The revisions read as follows: 


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80718 Federal Register / Vol. 85, No. 240 / Monday, December 14, 2020 / Proposed Rules 

§ 123.27 Requirements for enforcement 

authority. 

(a) Any State agency administering a 

program shall have the authority to 

establish the following violations and 

have available the following remedies 

and penalties for such violations of 

State program requirements: 

* * * * * 

(3) To assess or sue to recover in court 

civil penalties and to seek criminal 

penalties as follows: 

* * * * * 

(ii) Criminal fines shall be recoverable 

against any person who willfully or 

negligently violates any applicable 

standards or limitations; any NPDES 

permit condition; or any NPDES filing 

requirement. These fines shall be 

assessable in at least the amount of 

$10,000 a day for each violation. 

* * * * * 

(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

* * * * * 

PART 233—404 STATE PROGRAM 

REGULATIONS 

■ 3. The authority citation for part 233 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq. 

■ 4. Section 233.41 is amended by 

revising paragraphs (a)(3) introductory 

text, (a)(3)(ii), and (b)(2) to read as 

follows: 

§ 233.41 Requirements for enforcement 

authority. 

(a) * * * 

(3) To establish the following 

violations and to assess or sue to recover 

civil penalties and to seek criminal 

penalties, as follows: 

* * * * * 

(ii) To seek criminal fines against any 

person who willfully or with criminal 

negligence discharges dredged or fill 

material without required permits or 

violates any permit condition issued 

under section 404 in the amount of at 

least $10,000 per day of such violation. 

* * * * * 

(b) * * * 

(2) The burden of proof and degree of 

knowledge or intent required under 

State law for establishing violations 

under paragraph (a)(3) of this section, 

shall be no greater than the burden of 

proof or degree of knowledge or intent 

EPA must provide when it brings an 

action under the Act, except that a State 

may establish criminal violations based 

on any form or type of negligence. 

* * * * * 

[FR Doc. 2020–26777 Filed 12–11–20; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 257 

[EPA–HQ–OLEM–2020–0107; FRL–10015– 

46–OLEM; 10018–00–OLEM] 

Hazardous and Solid Waste 

Management System: Disposal of Coal 

Combustion Residuals From Electric 

Utilities; Legacy CCR Surface 

Impoundments; Extension of Comment 

Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advance notice of proposed 

rulemaking; extension of comment 

period. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

extending the comment period on the 

advance notice of proposed rulemaking 

for legacy coal combustion residuals 

(CCR) surface impoundments. The 

original advance notice of proposed 

rulemaking was published on October 

14, 2020, and the public comment 

period was originally scheduled to end 

on December 14, 2020. With this 

document, EPA is extending the public 

comment period an additional 60 days, 

through February 12, 2021. 

DATES: The comment period for the 

proposed rule published October 14, 

2020 at 85 FR 65015 is extended. The 

EPA must receive comments on or 

before February 12, 2021. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2020–0107. 

Follow the detailed instructions 

provided under ADDRESSES in the 

Federal Register document of October 

14, 2020 (85 FR 65015). Out of an 

abundance of caution for members of 

the public and our staff, the EPA Docket 

Center and Reading Room are closed to 

the public, with limited exceptions, to 

reduce the risk of transmitting COVID– 

19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 

We encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. Hand deliveries and couriers may 

be received by scheduled appointment 

only. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. If you have 

questions, consult the technical person 

listed under FOR FURTHER INFORMATION

CONTACT. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Long, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, MC: 5304P, Washington, DC 20460; 

telephone number: (703) 347–8953; 

email address: long.michelle@epa.gov. 

For more information on this 

rulemaking please visit https://

www.epa.gov/coalash. 

SUPPLEMENTARY INFORMATION: On April 

17, 2015, EPA promulgated national 

minimum criteria for existing and new 

CCR landfills and existing and new CCR 

surface impoundments at 40 CFR part 

257, subpart D. On August 21, 2018, the 

U.S. Court of Appeals for the District of 

Columbia Circuit issued its opinion in 

the case of Utility Solid Waste Activities 

Group (USWAG), et al. v. EPA, 901 F.3d 

414 (D.C. Cir. 2018), which vacated and 

remanded the provision that exempted 

inactive impoundments at inactive 

facilities from the CCR regulations. As a 

first step to implement this part of the 

court decision, EPA is seeking 

comments in an advance notice of 

proposed rulemaking (ANPRM) and 

data on inactive surface impoundments 

at inactive facilities to assist in the 

development of future regulations for 

these CCR units. 

The original notice for the legacy CCR 

surface impoundment ANPRM was 

published on October 14, 2020, and the 

comment period was scheduled to end 

on December 14, 2020. See 85 FR 65015. 

Since publication of the notice, on 

November 6, 2020, USWAG requested 

an additional 60 days to review the 

ANPRM, develop and submit 

comments. This request is available in 

the docket at EPA–HQ–OLEM–2020– 

0107. USWAG said given the 

complexity of the information being 

requested in the ANPRM, and the fact 

that USWAG members are currently 

focused on the development of 

submissions for the Part A (85 FR 

53516, August 28, 2020) and Part B (85 

FR 72506, October 14, 2020), an 

extension will result in the Agency 

receiving a more comprehensive data 

submission from USWAG. After 

receiving the request from USWAG, 

EPA has decided to extend the comment 

period to address the concerns that were 


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