[Federal Register Volume 60, Number 124 (Wednesday, June 28, 1995)]
[Rules and Regulations]
[Pages 33658-33661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15872]




[[Page 33657]]

_______________________________________________________________________

Part X





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 142



National Primary Drinking Water Regulations Implementation Primary 
Enforcement Responsibility; Final Rule

  Federal Register / Vol. 60, No. 124 / Wednesday, June 28, 1995 / 
Rules and Regulations   
[[Page 33658]] 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 142

[FRL-5227-5]
RIN-2040-AC19


National Primary Drinking Water Regulations Implementation 
Primary Enforcement Responsibility

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: EPA is promulgating final language revising 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 Program under the Safe Drinking Water Act and 
making technical clarifying amendments to other parts of the primacy 
regulation. The revised language clarifies issues of EPA's timing and 
discretion in initiating the primacy withdrawal process and simplifies 
some of the rule language. The intended effects of these revisions are 
to eliminate confusion about the Agency's primacy withdrawal policy and 
to respond to a court ruling that requires a change to the regulatory 
language on withdrawals. These revisions reflect existing Agency policy 
and therefore should not impose any burden on States or otherwise 
affect EPA-State relations.

EFFECTIVE DATE: The final rule will take effect July 28, 1995. In 
accordance with 40 CFR 23.7, this regulation shall be considered final 
Agency action for purposes of judicial review at 1 p.m. eastern time on 
July 12, 1995.

ADDRESSES: Supporting documents for this 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; Drinking Water 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 (PWSS) program, 
as authorized by section 1413 of the Safe Drinking Water Act (SDWA). In 
1989, EPA promulgated amendments to these regulations establishing 
procedures for States to revise their primacy programs to adopt the 
requirements of new or revised EPA drinking water regulations. (54 FR 
52126, December 20, 1989) The 1989 rulemaking also modified the 
regulatory language pertaining to EPA's initiation of procedures that 
could lead to withdrawal of primacy status. The provision on 
withdrawals is contained in Sec. 142.17(a) and is the subject of 
today's action.
    As promulgated in 1989, Sec. 142.17(a)(2) leaves to the 
Administrator's discretion whether to initiate primacy withdrawal 
proceedings after he or she has determined that a State no longer meets 
federal primacy requirements. 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) challenged several aspects of the 1989 regulatory 
amendments, including the primacy withdrawal language.1 Among 
other challenges, 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.

    \1\ The Notice of Proposed Rulemaking (59 FR 40458, August 8, 
1994), a copy of which is in the Docket, summarizes NWF's challenges 
to the 1989 rulemaking and the disposition of this litigation.
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    The U.S. Court of Appeals for the D.C. Circuit issued an opinion on 
December 11, 1992, in response to this challenge. National Wildlife 
Federation v. EPA, 980 F.2d 765. The Court found that while EPA has 
broad discretion under the SDWA on when to ``determine'' that a State 
is out of compliance with primacy requirements, 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 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).
    In response to the Court's remand, EPA published a Notice of 
Proposed Rulemaking (59 FR 40458, August 8, 1994) seeking public 
comment on the following proposed changes to the language of Section 
142.17(a):
    1. Revise the wording of Sec. 142.17(a)(2) to clarify that the 
Administrator ``shall'' initiate primacy withdrawal proceedings once he 
or she formally ``determines'' that a State is out of compliance with 
primacy requirements;
    2. Revise the wording of Sec. 142.17(a)(2) to clarify that the 
Administrator intends to take at least two relevant factors into 
consideration, if appropriate, in making a formal determination that a 
State no longer meets primacy requirements. These factors are: (1) 
Whether the State has been granted, or is awaiting EPA's decision on, 
an extension of up to two years of the 18-month deadline for having 
submitted a final program revision application to EPA to address a new 
or revised federal drinking water regulation; and (2) whether the State 
is taking corrective actions that the Administrator may have required 
to correct State program deficiencies;
    3. Revise the wording of Sec. 142.17(a)(2) to clarify that the 
Administrator shall [[Page 33659]] notify the State in writing that 
``EPA is initiating'' (rather than ``of EPA's intention to initiate'') 
primacy withdrawal proceedings;
    4. Revise the wording of Sec. 142.17(a)(4) to clarify that EPA will 
make a ``final determination'' regarding primacy withdrawal after the 
State has had the opportunity to respond to the Administrator's written 
notice initiating primacy withdrawal; and
    5. Clarify that States must meet all the primacy requirements 
specified in 40 CFR 142, subpart B, by replacing references to 
``Sec. 142.10'' in Secs. 142.17(a)(1), 142.17(a)(2), and 142.17(a)(4) 
with references to ``40 CFR 142, subpart B.''
    Today's action promulgates all of the revisions to the primacy 
withdrawal provisions that were proposed on August 8, 1994.

B. Summary of Comments and EPA Responses

    Four groups (consisting of a State, an association of State 
drinking water programs, and two drinking water trade associations) 
submitted comments on the proposed regulations. These comments and 
EPA's response are part of the public Docket. Three of the commenters 
fully support the proposed rule because they believe it continues to 
provide EPA broad discretion in considering whether to initiate 
withdrawal. They stress the need for this discretion and note the 
importance of the Agency considering whether the conditions for not 
meeting the requirements for continued primacy are temporary and likely 
to be corrected or are of an on-going long-term nature. One of these 
commenters also notes that public health protection should be the key 
factor in any primacy withdrawal decision.
    The fourth commenter agrees that EPA should have broad flexibility 
in making primacy withdrawal determinations. This commenter expressed 
concerns, however, that the proposed regulatory changes would severely 
restrict this flexibility, and this commenter opposes any such change 
in flexibility. This commenter reads the proposal to say, for example, 
that EPA must initiate primacy withdrawal if the State exceeds the two-
year extension period, even if the State is making a good faith effort 
towards compliance. The commenter could support changes to the primacy 
regulations if more weight were given to the two listed factors that 
the Administrator considers in making the determination that a State is 
out of compliance with primacy requirements. Specifically, according to 
the commenter, the regulations should say that EPA ``must'' or 
``shall'' consider the two listed factors (which are relevant to a 
State's good faith efforts toward compliance) rather than that EPA 
``intends'' to consider these factors.
    The commenter has misinterpreted the meaning and effect of the 
regulatory changes that were proposed and are now promulgated. To 
reiterate, even after today's revisions, the primacy regulations afford 
broad discretion to EPA. They do not set forth any specific factual 
situation in which the Administrator is required to determine that the 
State no longer meets primacy requirements and to initiate primacy 
withdrawal. For example, even where a State fails to have an approved 
program revision in place within the two-year extension period, the 
regulations do not require the Administrator to determine that the 
State no longer meets primacy requirements. It is still within the 
Administrator's discretion to make this determination, in light of 
factors that include the extent and timeliness of the State's 
continuing good faith efforts to adopt the revisions. EPA will judge 
each case on its own merits. EPA emphasizes, however, that it 
ordinarily intends to consider this particular example--i.e., where the 
State misses the two-year extension deadline--to be a strong candidate 
for initiating primacy withdrawal. Indeed, although the commenter cites 
specific problems that may prevent a State from meeting this deadline, 
there have been past instances in which States have resolved such 
problems only after receiving notice of EPA's intent to initiate 
primacy withdrawal. When the State provides a reasonable schedule for 
adopting the regulations and submitting a final primacy revision 
package to the Agency, the Agency's policy is to cancel the primacy 
withdrawal proceedings. The revised regulations will not alter this 
policy.
C. Summary and Explanation of Today's Action

    After carefully considering all of the public comments, EPA is 
retaining the changes to Secs. 142.17(a)(1), 142.17(a)(2), and 
142.17(a)(4) that were proposed on August 8, 1994. In addition, the 
Agency is making technical amendments to the language of Secs. 142.11 
and 142.13 to clarify the timing of the process for public notice and 
opportunity for comment.

1. Changes to Primacy Withdrawal Provisions

    Today's action results in the following changes to the primacy 
withdrawal provisions.
    First, EPA is modifying the language of Sec. 142.17(a)(2) by 
substituting the term ``shall'' for ``may''. Specifically, the language 
of Sec. 142.17(a)(2), as promulgated in December 1989, 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. Today's action requires the 
Administrator to initiate primacy withdrawal proceedings once the 
Administrator makes this formal determination.
    The language of Sec. 142.17(a)(2), as promulgated in December 1989, 
contains the clause, ``When, * * *, the Administrator determines * * *, 
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 action required by 
the Administrator, * * *.'' EPA is modifying Sec. 142.17(a)(2) to 
delete this clause. In its place, EPA is revising the paragraph to read 
as follows: ``When, * * *, the Administrator determines * * *, 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.'' EPA explained its 
rationale for making this change in the August 8, 1994 proposal. EPA's 
intent in making this change is to clarify the Administrator's 
discretion and to note two cases where the Agency generally expects to 
find no reason to initiate primacy withdrawal since the State is taking 
timely and appropriate action to remedy program deficiencies. As 
discussed above, EPA does not believe that this language limits the 
Administrator's discretion to determine whether or when a State no 
longer meets the requirements for retaining primacy.
    Section 142.17(a)(2) also requires the Administrator to provide the 
State written notification that the Agency is initiating primacy 
withdrawal proceedings. EPA is modifying the language of 
Sec. 142.17(a)(2) to replace 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 [[Page 33660]] does not clearly 
state whether EPA is or is not initiating withdrawal as of that date.
    These changes to the language of Sec. 142.17(a)(2) require the 
Administrator to initiate primacy withdrawal proceedings once the 
Administrator makes a formal determination that the State no longer 
meets the requirements for primacy. EPA emphasizes that the Agency 
still retains full discretion to decide whether and when to reach this 
formal determination. For example, as explained in the August 8, 1994, 
proposal there may be no reason to formally determine that a State 
program no longer meets the requirements for primacy 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 makes this formal 
determination if the State is otherwise carrying out any corrective 
actions that EPA may have ordered that would eliminate the deficiencies 
in the State program. Nevertheless, EPA wishes to make clear its 
general policy and intention to continue to vigorously pursue the need 
for: corrections to State programs; and initiating primacy withdrawal 
whenever a State is not acting in good faith to maintain the 
requirements for primacy.
    EPA also is making a minor change to the language of 
Sec. 142.17(a)(4). As promulgated in December 1989, this provision 
states that after reviewing a State's submission made in response to 
the notice that EPA is initiating primacy withdrawal proceedings, `` * 
* * the Administrator shall either determine that the State no longer 
meets [primacy] requirements * * * or that the State continues to meet 
those requirements * * *. Any determination that the State no longer 
meets the requirements * * * shall not become effective except as 
provided in Sec. 142.13.'' EPA is modifying the language of 
Sec. 142.17(a)(4) by substituting the phrase ``make a final 
determination either'' for the phrase ``either determine.'' EPA also is 
substituting the phrase ``Any final determination'' for the phrase 
``Any determination.'' This change, which was discussed in the August 
8, 1994 proposal, clarifies that the Administrator's ``final 
determination'' under Sec. 142.17(a)(4) is distinct from the initial 
determination made under Sec. 142.17(a)(2) and is preceded by an 
opportunity for public comment.
    EPA emphasizes that these changes do not alter the primacy 
withdrawal process. That process consists 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 meets the 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 meets or does not meet 
the primacy requirements 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 State does not meet primacy requirements. 
(Sec. 142.17(a)(4)).
    Finally, EPA is replacing the references to ``Sec. 142.10'' 
contained in Secs. 142.17(a)(1), 142.17(a)(2), and 142.17(a)(4) with 
references to ``40 CFR part 142, subpart B.'' Section 142.10 no longer 
contains all of the requirements a State must meet to obtain/retain 
primacy. Section 142.10 contains the basic requirements, however, other 
portions of 40 CFR part 142, subpart B, contain additional primacy 
requirements associated with individual drinking water regulations. EPA 
is therefore revising the language of Sec. 142.17(a) to clarify that 
States are expected to meet all primacy requirements contained in 40 
CFR part 142, subpart B.
2. Other Technical Amendments

    EPA is today also making two technical clarifying amendments to the 
language of Secs. 142.11(b)(1) and 142.13(a). First, EPA is replacing 
the word ``determination'' whenever it occurs in Sec. 142.13(a) with 
the words ``final determination'' to clarify that the public notice and 
opportunity for public hearing requirements specified in Sec. 142.13 
occur after the Administrator has made a final determination on a 
State's or Tribe's primacy application under Sec. 142.11, program 
revision application under Sec. 142.12, or to withdraw primacy under 
Sec. 142.17. Second, in order to clarify the Agency's intent that there 
be an opportunity for public notice and comment on a State's or Tribe's 
initial primacy application, regardless of whether the Administrator's 
final determination is to approve or disapprove that application, EPA 
is revising Sec. 142.11(b)(2)as follows: (1) insert the word ``final'' 
before the word ``determination''; replace the words ``has met the 
requirements'' with the words ``has met or has not met the 
requirements''; and insert the words ``the public notice requirements 
and related procedures under'' before the word ``Sec. 142.13.'' This 
change is simply a clarification since Sec. 142.13(a) already requires 
an opportunity for a public hearing in either case.
    Because these changes to section Sec. 142.11(b)(2) and 
Sec. 142.13(a) are simply minor clarifications and are non-substantive, 
good cause exists for finding that an additional notice and comment 
period is unnecessary (see Sec. 553 of the Administrative Procedures 
Act). Moreover, these changes are logical outgrowths of the proposal, 
which made it clear that through this rulemaking, EPA is distinguishing 
between its final determinations and the earlier formal determinations 
that require initiation of primacy withdrawal. Therefore, an additional 
comment period is unnecessary in any event.

D. Impact of These Revisions

1. 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.

2. 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 [[Page 33661]] 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.
3. Paperwork Reduction Act

    This rulemaking contains 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 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

4. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 
Public Law 104-4, which was signed into law on March 22, 1995, sets 
requirements for EPA with respect to rules that contain federal 
mandates that may result in certain specified costs to State, local, or 
tribal governments. Also, before EPA establishes regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must develop under 
section 203 of the UMRA a small government agency plan.
    The UMRA generally defines a federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector. Today's rule simply addresses 
the subject of EPA's discretion to initiate primacy withdrawal when a 
State is not maintaining the requirements for primacy and sets forth 
the circumstances in which EPA must begin the withdrawal process. This 
rule does not change the actual requirements that States must meet to 
maintain primacy or otherwise impose an enforceable duty on States. 
Similarly, this rule does not impose an enforceable duty on any other 
entities. Thus, there are no federal mandates in this rule for purposes 
of the UMRA. In addition, today's action does not establish any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments, and so does not require a 
small government agency plan under UMRA section 203.

List of Subjects in 40 CFR Part 142

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

    Dated: June 21, 1995.
Fred Hansen,
Acting Administrator.

    For the reasons set forth in the preamble, part 142, chapter 1, 
title 40 of the Code of Federal Regulations is 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.


Sec. 142.11  [Amended]

    2. Section 142.11 is amended by revising paragraph (b)(2) to read 
as follows:


Sec. 142.11  Initial determination of primary enforcement 
responsibility.

* * * * *
    (b) * * *
    (2) A final determination by the Administrator that a State has met 
or has not met the requirements for primary enforcement responsibility 
shall take effect in accordance with the public notice requirements and 
related procedures under Sec. 142.13.
* * * * *


Sec. 142.13  [Amended]

    3. Section 142.13 is amended by inserting the word ``final'' before 
the word ``determination'' in each of the three places where the word 
``determination'' occurs in paragraph (a).


Sec. 142.17  [Amended]

    4. Section 142.17 is amended by revising the word ``Sec. 142.10'' 
in paragraph (a)(1) to read ``40 CFR part 142, subpart B,'' and by 
revising paragraphs (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) * * *
    (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 final 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. 95-15872 Filed 6-27-95; 8:45 am]
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