[Federal Register Volume 59, Number 151 (Monday, August 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19291]


[[Page Unknown]]

[Federal Register: August 8, 1994]


_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 142




National Primary Drinking Water Regulations Implementation Primary 
Enforcement Responsibility; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 142

[FRL-5028-8]
RIN 2040-AC19

 
National Primary Drinking Water Regulations Implementation 
Primary Enforcement Responsibility

AGENCY: Environmental Protection Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: EPA is giving notice that it is considering revisions to the 
regulation that sets forth EPA's process for initiating the withdrawal 
of a State's primary enforcement responsibility (primacy) for the 
Public Water System Supervision (PWSS) program under the Safe Drinking 
Water Act. The Agency proposes to revise the language of this 
regulation to clarify that once the Administrator has ``formally 
determined'' that a State is out of compliance with primacy 
requirements, EPA must initiate the primacy withdrawal process by 
notifying the State of why such determination was made, allowing the 
State 30 days to respond, and proceeding toward a final decision, 
including public notice and opportunity for hearing on final decisions 
to withdraw primacy. The Agency also proposes other minor revisions to 
the withdrawal regulation to simplify some of the rule language and 
clarify the points of EPA's discretion in determining when to initiate 
primacy withdrawal. The intended effect of this revision is to 
eliminate confusion about the Agency's primacy withdrawal policy. The 
Agency solicits public comment on the proposed revised language.

DATES: Written comments should be postmarked or delivered by hand by 
September 22, 1994.

ADDRESSES: Send written comments on the proposed rule to the Primacy 
Rule Comment Clerk; Water Docket MC-4101; Environmental Protection 
Agency; 401 M Street, SW., Washington, DC 20460. Commenters are 
requested to submit any references cited in their comments. Commenters 
also are requested to submit an original and 3 copies of their written 
comments and enclosures. Commenters who want receipt of their comments 
acknowledged should include a self-addressed, stamped envelope. No 
facsimiles (faxes) will be accepted. The Agency would prefer for 
commenters to type or print comments in ink. Commenters should use a 
separate paragraph for each issue discussed. Supporting documents for 
this proposed rulemaking are available for review at EPA's Water 
Docket; 401 M Street, SW. Washington, DC 20460. For access to the 
Docket materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for 
an appointment.

FOR FURTHER INFORMATION CONTACT: The Safe Drinking Water Hotline, toll 
free (800) 426-4791, or Judy Lebowich; Enforcement and Program 
Implementation Division; Office of Ground Water and Drinking Water; EPA 
(4604), 401 M Street, SW., Washington, DC 20460; telephone (202) 260-
7595.

SUPPLEMENTARY INFORMATION:

A. Background

    40 CFR part 142, subpart B, sets out requirements for States to 
obtain primacy for the Public Water System Supervision program, as 
authorized by section 1413 of the Safe Drinking Water Act (SDWA). EPA 
first promulgated these regulations on January 20, 1976. Prompted by 
subsequent changes in the operation and scope of the PWSS program, 
largely due to the 1986 Amendments to the SDWA, on December 20, 1989, 
EPA published amendments to the primacy regulations. These regulatory 
amendments established explicit procedures that States need to follow 
to revise their approved primacy programs to adopt the requirements of 
new or revised EPA drinking water regulations. The rule allowed primacy 
States to request an extension of up to two years after the effective 
date of new EPA drinking water regulations to adopt the regulations as 
State law. The National Wildlife Federation (NWF), in a petition for 
review filed in the U.S. Court of Appeals for the District of Columbia 
Circuit (National Wildlife Federation v. Reilly, No. 90-1072), 
contended that this extension period, during which primacy 
responsibility is split between the federal and State governments, is 
prohibited by the SDWA. NWF argued that a State's primacy for the 
entire drinking water program necessarily ceases whenever a State fails 
to adopt a new EPA regulation by its effective date. On February 15, 
1991, however, the Court upheld the extensions regulation and found 
that EPA's approach of allowing extensions is consistent with 
Congressional intent that the Act primarily be a State and locally run 
program. National Wildlife Federation v. EPA, 925 F.2d 470 (D.C. Cir. 
1991). The 1989 rulemaking also modified the language of the regulation 
that concerns EPA's initiation of procedures that could lead to 
withdrawal of primacy status for States that EPA determines are not 
continuing to meet the requirements for primacy (see 
Sec. 142.17(a)(2)). The language of this provision is the subject of 
today's action.
    As promulgated in December 1989, this provision reads as follows:

    When, on the basis of the Administrator's review or other 
available information, the Administrator determines that a State no 
longer meets the requirements set forth in Sec. 142.10, and the 
State has failed to request or has been denied an extension under 
Sec. 142.12(b)(2) of the deadlines for meeting those requirements, 
or has failed to take corrective actions required by the 
Administrator, the Administrator may initiate proceedings to 
withdraw primacy approval. The Administrator shall notify the State 
in writing of EPA's intention to initiate withdrawal proceedings and 
shall summarize in the notice the information available that 
indicates that the State no longer meets such requirements.

    In the same lawsuit, NWF challenged the primacy withdrawal 
language, both procedurally and substantively. The procedural challenge 
alleged that EPA provided insufficient opportunity for the public to 
comment on the revision to Sec. 142.17(a)(2), in violation of 
requirements of the Administrative Procedure Act (APA). Substantively, 
NWF alleged that EPA was without statutory authority to promulgate a 
revision making explicit that it is within EPA's discretion whether to 
initiate proceedings to withdraw a State's PWSS primacy program.
    In response to NWF's procedural complaint, the Agency issued a 
Notice of Proposed Rulemaking to allow additional public comment and 
reconsideration by EPA of the language of Sec. 142.17(a)(2) (55 FR 
49398, November 28, 1990). On June 3, 1991, the Agency published a 
notice of final rulemaking retaining in Sec. 142.17(a)(2) the language 
on initiating primacy withdrawals that was previously adopted in the 
December 1989 rulemaking (56 FR 25046, June 3, 1991).
    The U.S. Court of Appeals for the D.C. Circuit issued an opinion on 
December 11, 1992, in response to NWF's substantive challenge to 
Sec. 142.17(a)(2). National Wildlife Federation v. EPA, 980 F.2d 765. 
The Court found that EPA has broad discretion under the SDWA on when to 
``determine'' that a State is out of compliance with primacy 
requirements. The Court ruled, however, that once the Administrator has 
made this determination, the SDWA requires EPA to initiate the primacy 
withdrawal process by notifying the State of why such a determination 
was made, allowing the State 30 days to respond, and proceeding toward 
a final decision, including public notice and opportunity for hearing 
on final decisions to withdraw primacy. The Court found EPA's primacy 
withdrawal regulation to be invalid because it does not require the 
Agency to take these steps--instead, the regulation says that after 
``determining'' that the State is out of compliance with primacy, the 
Administrator ``may'' initiate withdrawal proceedings. The Court 
therefore remanded the regulation to EPA for modification.
    The Court emphasized that its review focused only on what EPA ``may 
do following a formal determination of noncompliance and does not 
require delving into the Administrator's complex decision-making 
process regarding whether to make such a determination in the first 
instance.'' Id. at 774. The Court acknowledged that the Agency is 
``free to decide that technical, temporary or otherwise unimportant 
violations of the primacy requirements do not warrant a `determination' 
of noncompliance, or that the better approach for meeting the Act's 
goals is to negotiate with the offending state or to permit more time 
for the state to come back into compliance.'' Thus, EPA may ``negotiate 
with the state as long as necessary before determining that the primacy 
requirements are no longer met.'' Id. at 771.
    The Court also noted that ``even where a `determination' of 
noncompliance is made, the statute does not require the Agency to 
immediately withdraw primacy. Rather, the EPA is directed to provide 
notice and a public hearing before its determination of nonconformity 
with the primacy standards becomes effective. As a consequence of 
evidence adduced at the hearing, the EPA is entitled to conclude that 
its original decision was in error or that the State has remedied any 
deficiency and to decide against withdrawal.'' Id. at 771 (citations 
omitted).

B. EPA Response to Court Remand and Other Conforming Changes

    EPA proposes today to modify the language of Sec. 142.17(a)(2) to 
respond to the Court remand by substituting the term ``shall'' for 
``may.'' Specifically, the existing language of Sec. 142.17(a)(2) 
states that the Administrator ``may'' initiate primacy withdrawal 
proceedings once he or she determines that a State's primacy program 
fails to continue to meet federal requirements for primacy. Under the 
proposed change, the Administrator would be required to initiate 
primacy withdrawal proceedings once this formal determination is made. 
Nevertheless, EPA emphasizes that under this proposed revision, the 
Agency still retains full discretion to decide whether and when to 
reach this formal determination. For example, as explained further 
below, there may be no reason to formally determine that a State 
program is out of compliance if the State has missed a deadline for 
adopting new drinking water regulations but has been granted or is 
seeking an extension of that deadline under Sec. 142.12. Similarly, 
there may be no reason to formally determine that a State program is 
out of compliance if the State is otherwise carrying out any corrective 
actions that EPA may have ordered that would eliminate the deficiency 
in the State program.
    With the change to Sec. 142.17(a)(2) proposed above, the primacy 
withdrawal process would consist of the following sequential steps.
    1. EPA's receipt of information, either through its annual review 
of the State program (Sec. 142.17(a)(1)) or otherwise, that the State 
program may no longer be in compliance with the requirements for 
primacy.
    2. EPA's formal determination, made at its discretion, that the 
State no longer complies with primacy requirements and notification to 
the State that primacy withdrawal is being initiated 
(Sec. 142.17(a)(2)).
    3. The State's response to EPA's notice (Sec. 142.17(a)(3)).
    4. Final EPA determination that the State is in or out of 
compliance and notification to the State, including a notice to the 
public and opportunity for a hearing when the EPA's final determination 
is that the States does not meet primacy requirements. 
(Sec. 142.17(a)(4)).
    These provisions provide EPA broad discretion on when to 
``determine'' that a State is out of compliance with primacy 
requirements. This discretion allows EPA to work with a State that is 
acting in good faith to rectify the deficiencies in its program without 
having the Agency spend needless time and resources on withdrawal 
proceedings when it appears that the State will soon resolve the 
problems with its program. The legal basis and policy considerations 
underlying this policy are further explained in the June 1991 
rulemaking.
    For reasons discussed below, EPA also is proposing several minor 
revisions to the language of Secs. 142.17(a)(1), (a)(2), and (a)(4). 
The purpose of these revisions is to clarify the points of EPA's 
discretion in determining when to initiate primacy withdrawal and to 
simplify some of the rule language.
    When 40 CFR part 142, subpart B, was amended in 1989, Sec. 142.10 
set forth the requirements a State must meet to obtain/retain primacy. 
Some National Primary Drinking Water Regulations published since that 
time have added additional primacy requirements in other provisions, 
e.g., the Special Primacy Requirements listed in Sec. 142.16. EPA 
therefore proposes to replace the references to ``Sec. 142.10'' 
contained in Secs. 142.17(a)(1), (a)(2) and (a)(4) with references to 
``40 CFR part 142, subpart B.''
    The language of Sec. 142.17(a)(2) contains the clause, ``* * *, and 
the State has failed to request or has been denied an extension under 
Sec. 142.12(b)(2) of the deadlines for meeting those requirements, or 
has failed to take other corrective actions required by the 
Administrator, * * *.'' The intent of this clause is simply to indicate 
that, even though the State is out of compliance with primacy 
requirements, there are two cases when there generally is no reason to 
initiate primacy withdrawal. First, there generally is no reason to 
initiate primacy withdrawal when a State has missed the deadline for 
revising its drinking water regulations to incorporate new EPA 
regulations but has applied for, and has been granted, or is awaiting 
EPA's decision on, an extension of time in accordance with 
Sec. 142.12(b)(2). Second, there generally is no reason to initiate 
primacy withdrawal when the State is out of compliance for any reason 
but is taking any corrective actions that may have been ordered by EPA 
to bring the program back into compliance.
    The existing regulatory language was not addressed by the Court in 
its decisions, however, there could be some confusion over its meaning, 
as evidenced in NWF's briefs to the D.C. Circuit. NWF read this 
language as creating two ``new'' (and improper) conditions that must be 
met before primacy withdrawal may be initiated. For example, NWF 
stated, this language could be read to mean that EPA may not even 
consider sending a letter to the State reflecting a determination that 
the State is not meeting primacy requirements (and thereby initiating 
primacy withdrawal) unless EPA has first required the State to take 
certain corrective actions. NWF's interpretation is not what the 
language is intended to mean. EPA did not intend to create new 
conditions for primacy withdrawal with this language. EPA realizes 
there are cases in which neither extensions of time to adopt new 
regulations nor corrective actions will be relevant, in which case the 
existing regulatory language is not intended to have any effect.
    EPA proposes to clarify its intent by revising the language to read 
as follows: ``When, * * *, the Administrator determines that a State no 
longer meets the requirements set forth in 40 CFR part 142, subpart B, 
the Administrator shall initiate proceedings to withdraw primacy 
approval. Among the factors the Administrator intends to consider as 
relevant to this determination are the following, where appropriate: 
Whether the State has requested and has been granted, or is awaiting 
EPA's decision on, an extension under Sec. 142.12(b)(2) of the 
deadlines for meeting those requirements; and whether the State is 
taking corrective actions that may have been required by the 
Administrator.''
    In developing language to clarify the Administrator's discretion, 
the Agency considered two other alternatives. The Agency considered 
replacing the clause with the more general language: ``* * * and that 
the State is not taking steps acceptable to EPA toward meeting the 
requirements, * * *.'' EPA believes, however, that the language of this 
option is overly vague and unnecessary given EPA's broad discretion to 
determine whether and when a State is out of compliance. The Agency 
also considered just deleting the clause. EPA believes, however, that 
States might inappropriately interpret this approach as a change in 
EPA's policy to attempt to negotiate or order corrective actions before 
it formally determines that a State program is out of compliance and 
initiates primacy withdrawal.
    EPA also proposes to replace in Sec. 142.17(a)(2) the term ``of 
EPA's intention to initiate'' with ``that EPA is initiating'' to be 
more direct about the action being taken. The Agency believes the 
phrase ``intention to initiate'' may be confusing since it does not 
clearly state whether EPA is or is not initiating withdrawal as of that 
date. The proposed revision does not affect the primacy withdrawal 
process itself, which includes an opportunity for the State to respond 
to the initial notification that primacy withdrawal is being initiated 
prior to the Agency making a ``final determination'' on State primacy.
    Finally, EPA proposes to make a minor change to the language of 
Sec. 142.17(a)(4). As promulgated in December 1989, this provision 
reads as follows:

    After reviewing the submission of the State, if any, made 
pursuant to paragraph (a)(3) of this section the Administrator shall 
either determine that the State no longer meets the requirements of 
Sec. 142.10 or that the State continues to meet those requirements, 
and shall notify the State of his or her determination. Any 
determination that the State no longer meets the requirements of 
Sec. 142.10 shall not become effective except as provided in 
Sec. 142.13.

EPA proposes to substitute the phrase ``make a final determination 
either'' for the phrase ``either determine'' and to substitute the 
phrase ``Any final determination'' for the phrase ``Any determination'' 
in Sec. 142.17(a)(4).
    The proposed change clarifies that the Administrator's ``final 
determination'' in Sec. 142.17(a)(4) on whether the State is continuing 
to meet the requirements for primacy is distinct from the initial 
``formal determination'' made under Sec. 142.17(a)(2) and is preceded 
by an opportunity for public comment. Although the term 
``determination'' is used in two sections of the current regulation, 
the different events that they refer to are clear in their respective 
contexts and this issue has not been a point of legal contention. 
Nevertheless, the Agency believes the minor adjustment proposed today 
would prevent misinterpretations in the future.

C. Request for Comments

    The Agency invites all interested persons to submit comments within 
45 days on all aspects of this proposal to revise the language of 
Secs. 142.17(a)(2) and 142.17(a)(4). After carefully considering all 
public comments, EPA will promulgate final language for these 
provisions. If EPA decides to change the language today proposed, the 
Agency may also make minor conforming changes to other parts of Part 
142 at the same time.

D. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (a) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact on entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

E. Regulatory Flexibility Act

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), EPA 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities because it merely revises 
existing procedural requirements for initiating withdrawal of State 
primacy by clarifying the extent of EPA discretion in initiating the 
process; States are not considered small entities under this rulemaking 
for RFA purposes.

F. Paperwork Reduction Act

    The proposed regulations contain no new or additional information 
collection activities and, therefore, no information collection request 
will be submitted to the Office of Management and Budget for review in 
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 142

    Environmental protection, Administrative practices and procedures, 
Indians, Intergovernmental relations, Reporting and recordkeeping 
requirements, Water supply.

    Dated: July 27, 1994.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, part 142, chapter 1, 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 142--NATIONAL PRIMARY DRINKING WATER REGULATIONS 
IMPLEMENTATION

    1. The authority citation for part 142 continues to read as 
follows:

    Authority: 42 U.S.C. 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-
5, 300g-6, 300j-4 and 300j-9.

    2. Section 142.17 is amended by revising paragraphs (a)(1), (a)(2) 
and (a)(4) to read as follows:


Sec. 142.17  Review of State programs and procedures for withdrawal of 
approved primacy programs.

    (a)(1) At least annually, the Administrator shall review, with 
respect to each State determined to have primary enforcement 
responsibility, the compliance of the State with the requirements set 
forth in 40 CFR part 142, subpart B, and the approved State primacy 
program. At the time of this review, the State shall notify the 
Administrator of any State-initiated program changes (i.e., changes 
other than those to adopt new or revised EPA regulations), and of any 
transfer of all or part of its program from the approved State agency 
to any other State agency.
    (2) When, on the basis of the Administrator's review or other 
available information, the Administrator determines that a State no 
longer meets the requirements set forth in 40 CFR part 142, subpart B, 
the Administrator shall initiate proceedings to withdraw primacy 
approval. Among the factors the Administrator intends to consider as 
relevant to this determination are the following, where appropriate: 
whether the State has requested and has been granted, or is awaiting 
EPA's decision on, an extension under Sec. 142.12(b)(2) of the 
deadlines for meeting those requirements; and whether the State is 
taking corrective actions that may have been required by the 
Administrator. The Administrator shall notify the State in writing that 
EPA is initiating primacy withdrawal proceedings and shall summarize in 
the notice the information available that indicates that the State no 
longer meets such requirements.
* * * * *
    (4) After reviewing the submission of the State, if any, made 
pursuant to paragraph (a)(3) of this section, the Administrator shall 
make a final determination either that the State no longer meets the 
requirements of 40 CFR part 142, subpart B, or that the State continues 
to meet those requirements, and shall notify the State of his or her 
determination. Any determination that the State no longer meets the 
requirements of 40 CFR part 142, subpart B, shall not become effective 
except as provided in Sec. 142.13.
* * * * *
[FR Doc. 94-19291 Filed 8-5-94; 8:45 am]
BILLING CODE 6560-50-P