[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Rules and Regulations]
[Pages 53140-53143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21464]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2007-93; FRL-8716-2]


Withdrawal of Federal Antidegradation Policy for All Waters of 
the United States Within the Commonwealth of Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to withdraw the federal 
antidegradation policy for all waters of the United States within the 
Commonwealth of Pennsylvania. We are withdrawing the federal 
antidegradation policy to allow Pennsylvania to implement its own 
antidegradation policy. Pennsylvania has adequately demonstrated that 
its antidegradation policy protects all waters of the United States at 
a level consistent with the federal requirements under the Clean Water 
Act. Therefore, the federal antidegradation policy is redundant.

DATES: This rule is effective December 15, 2008 without further notice 
unless EPA receives adverse comment by October 15, 2008. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket Id. No. EPA-HQ-
OW-2007-0093, by one of the following methods:
    <bullet> www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#e08f97cd848f838b8594a0859081ce878f96"><span class="__cf_email__" data-cfemail="29465e044d464a424c5d694c5948074e465f">[email protected]</span></a>.
    <bullet> Mail: Water Docket, USEPA, Mailcode: 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20004. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
93. EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web

[[Page 53141]]

site is an ``anonymous access'' system, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the OW Docket Center. This 
Docket Facility is open from 8:30 a.m. until 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-2426 and the Docket address is OW Docket, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC 20004. The Public Reading Room 
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Caroline Whitehead at EPA 
Headquarters, Office of Water (4305T), 1200 Pennsylvania Ave, NW., 
Washington, DC 20460 (telephone: 202-566-2907, fax: 202-566-0409 or e-
mail: <a href="/cdn-cgi/l/email-protection#3c4b5455485954595d58125f5d4e53505552597c594c5d125b534a"><span class="__cf_email__" data-cfemail="cabda2a3beafa2afabaee4a9abb8a5a6a3a4af8aafbaabe4ada5bc">[email protected]</span></a>) or Denise Hakowski at EPA Region 3 
(3WP30), 1650 Arch Street, Philadelphia, Pennsylvania 19103 (telephone: 
215-814-5726, fax: 215-814-2318 or e-mail: <a href="/cdn-cgi/l/email-protection#adc5ccc6c2dadec6c483c9c8c3c4dec8edc8ddcc83cac2db"><span class="__cf_email__" data-cfemail="b2dad3d9ddc5c1d9db9cd6d7dcdbc1d7f2d7c2d39cd5ddc4">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. Potentially Affected Entities
II. Background
III. Why Is EPA Using a Direct Final Rule?
IV. Statutory and Executive Order Review
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health Risks and Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect 
Energy Supply, Distribution or Use)
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
    K. Congressional Review Act

I. Potentially Affected Entities

    Citizens concerned with water quality in Pennsylvania may be 
interested in this rulemaking. Entities discharging pollutants to the 
surface waters of Pennsylvania could be indirectly affected by this 
rulemaking since water quality standards are used in determining 
National Pollutant Discharge Elimination System (NPDES) permit limits. 
Because this action withdraws a redundant federal antidegradation 
policy, the effect of this rulemaking should be insignificant. 
Categories and entities which may ultimately be affected include:

------------------------------------------------------------------------
                                               Examples of potentially
                 Category                         affected entities
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Industry..................................  Industries discharging
                                             pollutants to surface
                                             waters in Pennsylvania.
Municipalities............................  Publicly-owned treatment
                                             works discharging
                                             pollutants to surface
                                             waters in Pennsylvania.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding NPDES-regulated entities likely to be 
affected by this action. This table lists the types of entities that 
EPA is now aware could potentially be affected by this action.

II. Background

    Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or Act) 
directs States, with oversight by EPA, to adopt water quality standards 
to protect the public health and welfare, enhance the quality of water 
and serve the purposes of the CWA. Under section 303, States are 
required to develop water quality standards for navigable waters of the 
United States within the State. Section 303(c) and EPA's implementing 
regulations at 40 CFR part 131 require State and Tribal water quality 
standards to include the designated use or uses to be made of the 
water, the water quality criteria necessary to protect those uses, and 
an antidegradation policy. States are required to review their water 
quality standards at least once every three years and, if appropriate, 
revise or adopt new standards. The results of this triennial review 
must be submitted to EPA, and EPA must approve or disapprove any new or 
revised standards. Section 303(c) of the CWA authorizes the EPA 
Administrator to promulgate water quality standards to supersede State 
standards that EPA has disapproved or in any case where the 
Administrator determines that a new or revised standard is needed to 
meet the CWA's requirements.
    In June 1994, EPA disapproved Pennsylvania's antidegradation 
regulation after determining the regulation was not consistent with the 
federal antidegradation regulation found at 40 CFR 131.12. When the 
Pennsylvania Department of Environmental Protection (PADEP) did not act 
within the statutory timeframe to address EPA's findings, EPA 
promulgated a federal antidegradation policy for all waters of the 
United States within the Commonwealth of Pennsylvania at 40 CFR 131.32 
on December 9, 1996. In August 1999, PADEP submitted revisions to its 
antidegradation policy found in 25 Pa. Code Chapter 93 to EPA. On March 
17, 2000, EPA approved most of the revisions to Pennsylvania's 
regulations as meeting the requirements of federal regulations at 40 
CFR 131.12(a)(1) and 131.12(a)(2), but withheld action on Section 
93.4b, PADEP's Exceptional Value (EV) Waters designation, or Tier 3, 
until PADEP ensured that EV designated waters would be protected at the 
level consistent with federal regulations at 40 CFR 131.12(a)(3). In 
2003, PADEP published ``Water Quality Antidegradation Implementation 
Guidance'' (Document Number 391-0300-002). In it, PADEP provides

[[Page 53142]]

guidance to its staff and information to help the regulated community 
and the public understand the implementation of the antidegradation 
policy in Pennsylvania. Based on a review of the document in 
combination with the PADEP's antidegradation regulation, EPA approved 
PADEP's antidegradation policy for Tier 3 waters on March 7, 2007. 
Because Pennsylvania now has an EPA-approved antidegradation policy 
meeting the federal requirements at 40 CFR 131.12, the federal 
antidegradation regulation promulgated by EPA for Pennsylvania is no 
longer needed and EPA is withdrawing it with this action.

III. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this final rule without a prior proposed rule 
because we view this rulemaking as a noncontroversial action and 
anticipate no adverse comment. This action withdraws the federally 
promulgated antidegradation rule because Pennsylvania has developed 
regulations that protect the waters of the United States within the 
Commonwealth at a level consistent with the federal requirements. 
However, in the ``Proposed Rules'' section of today's Federal Register, 
we are publishing a separate document that will serve as a proposed 
rule to withdraw the federal antidegradation regulation for 
Pennsylvania if any adverse comment is received regarding this direct 
final rule. We will not institute a second comment period on this 
action. Any parties interested in commenting must do so at this time. 
For further information about commenting on this rule, see the 
ADDRESSES section of this document.
    If EPA receives adverse comment on this direct final rule, we will 
publish a timely withdrawal in the Federal Register informing the 
public that this direct final rule will not take effect. We would 
address all public comments in any subsequent final rule based on the 
proposed rule.

IV. Statutory and Executive Order Review

A. Executive Order 12866 (Regulatory Planning and Review)

    This action withdraws federal requirements applicable to 
Pennsylvania and imposes no regulatory requirements or costs on any 
person or entity. It does not interfere with the action or planned 
action of another agency, and does not have any budgetary impacts or 
raise novel legal or policy issues. Thus, it has been determined that 
this rule is not a ``significant regulatory action'' under the terms of 
Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore 
not subject to Office of Management and Budget (OMB) review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because it is administratively withdrawing federal requirements that no 
longer need to apply to Pennsylvania. However, the Office of Management 
and Budget (OMB) has previously approved the information collection 
requirements contained in the existing regulations 40 CFR part 131 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2040-0049. The OMB control 
numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally requires an agency to prepare a regulatory flexibility 
analysis of a rule that is 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 
significant economic impact on a substantial number of small entities. 
This action imposes no regulatory requirements or costs on any small 
entity. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 104-
4) establishes requirements for federal agencies to assess the effects 
of their regulatory actions on State, Tribal, and local governments and 
the private sector. Today's rule contains no federal mandates (under 
the regulatory provisions of Title II of the UMRA) for State, Tribal, 
or local governments or the private sector because it imposes no 
enforceable duty on any of these entities. Thus, today's rule is not 
subject to the requirements of UMRA sections 202 and 205 for a written 
statement and small government agency plan. Similarly, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and is 
therefore not subject to UMRA section 203.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure State 
and local government officials have an opportunity to provide input in 
the development of regulatory policies 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 governments. This rule 
imposes no regulatory requirements or costs on any State or local 
governments; therefore, it does not have federalism implications under 
Executive Order 13132.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This rule imposes no regulatory requirements or costs on any Tribal 
government. It does not have substantial direct effects on Tribal 
governments, on the relationship between the federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes, as specified in 
Executive Order 13175, entitled ``Consultation and Coordination with 
Indian Tribal Governments'' (65 FR 67249, November 6, 2000).

G. Executive Order 13045 (Protection of Children From Environmental 
Health and Safety Risks)

    This rule is not subject to E.O. 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997) because it is not economically significant and 
EPA has no reason to believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children.

H. Executive Order 13211 (Actions That Significantly Affect Energy 
Supply, Distribution, or Use)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act of 1995

    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply 
because this rule does not involve technical standards.

[[Page 53143]]

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule does not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. EPA approved Pennsylvania's antidegradation policy, which 
is consistent with 40 CFR 131.12(a) and provides the same level of 
protection as the federally promulgated antidegradation policy. This 
rule withdraws a redundant antidegradation policy.

K. 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, 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) and will be effective on December 15, 2008.

List of Subjects in 40 CFR Part 131

    Environmental protection, Antidegradation, Water quality standards.

    Dated: September 9, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

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


Sec.  131.32  [Removed and Reserved]

0
2. Section 131.32 is removed and reserved.

[FR Doc. E8-21464 Filed 9-12-08; 8:45 am]
BILLING CODE 6560-50-P


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