[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Proposed Rules]
[Pages 45379-45385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21945]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131

[FRL-5601-8]


Water Quality Standards for Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comments.

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SUMMARY: EPA is proposing water quality standards that would be 
applicable to waters of the United States in the Commonwealth of 
Pennsylvania. The proposed standards address aspects of Pennsylvania's 
water quality standards that EPA disapproved in 1994. EPA is taking 
this action at this time pursuant to a court order. The proposed 
standards would establish an antidegradation policy, making available 
additional water quality protection than currently provided by 
Pennsylvania's ``Special Protection Waters Program.''

DATES: EPA will hold a public hearing on its proposed actions on 
October 16, 1996 from 1 PM to 4 PM. EPA will consider written comments 
on the proposed actions received by October 16, 1996.

ADDRESSES: Comments should be addressed to Evelyn S. MacKnight,

[[Page 45380]]

Chief, PA/DE Branch, Office of Watersheds, 3WP11, Water Protection 
Division, EPA, Region 3, 841 Chestnut Building, Philadelphia, PA 19107. 
The public hearing will be held at the Hilton Hotel, at One North 
Second Street, Harrisburg, PA 17101. This action's administrative 
record is available for review and copying at Water Protection 
Division, EPA, Region 3, 841 Chestnut Building, Philadelphia, PA 19107. 
For access to the docket materials, call Denise Hakowski at 215-566-
5726 for an appointment. A reasonable fee will be charged for copies.

FOR FURTHER INFORMATION CONTACT: Evelyn S. MacKnight, Chief, PA/DE 
Branch, 3WP11, Office of Watersheds, Water Protection Division, EPA, 
Region 3, 841 Chestnut Building, Philadelphia, PA. telephone: 215-566-
5717.

SUPPLEMENTARY INFORMATION:

A. Potentially Affected Entities

    Today's proposal would establish a Federal antidegradation policy 
applicable to waters of the United States in the Commonwealth of 
Pennsylvania. Entities potentially affected by this action are those 
dischargers (e.g., industries or municipalities) that may request 
authorization for a new or increased discharge of pollutants to waters 
of the United States in Pennsylvania. This list is not intended to be 
exhaustive, but rather a guide for readers regarding entities 
potentially affected by this action. Other types of entities not listed 
could also potentially be affected. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Background

    Under section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA), 
States are required to develop water quality standards for waters of 
the United States within the State. States are required to review their 
water quality standards at least once every three years and, if 
appropriate, revise or adopt new standards. 33 U.S.C. 1313(c). States 
are required to submit the results of their triennial review of their 
water quality standards to EPA. EPA reviews the submittal and makes a 
determination whether to approve or disapprove any new or revised 
standards.
    Minimum elements which must be included in each State's water 
quality standards regulations include: use designations for all 
waterbodies in the State, water quality criteria sufficient to protect 
those designated uses, and an antidegradation policy consistent with 
EPA's water quality standards regulations (40 CFR 131.6). States may 
also include in their standards policies generally affecting the 
standards' application and implementation (40 CFR 131.13). These 
policies are subject to EPA review and approval (40 CFR 131.6(f), 40 
CFR 131.13).
    Today's proposed rule involves antidegradation. 40 CFR 131.12 
requires States to adopt antidegradation policies that provide three 
levels of protection of water quality. Under 40 CFR 131.12(a)(1), 
referred to as Tier 1, existing instream water uses and the level of 
water quality necessary to protect the existing uses are to be 
maintained and protected. Existing uses are those uses that existed on 
or since November 28, 1975. Tier 1 represents the ``floor'' of water 
quality protection afforded to all waters of the United States. Under 
40 CFR 131.12(a)(2), referred to as Tier 2 or High Quality Waters, 
where the quality of the waters exceed levels necessary to support 
propagation of fish, shellfish, and wildlife and recreation in and on 
the water, that quality shall be maintained and protected unless the 
State finds, after public participation and intergovernmental review, 
that allowing lower water quality is necessary to accommodate important 
economic or social development in the area in which the waters are 
located. In allowing such degradation or lower water quality, the State 
shall assure water quality adequate to protect existing uses fully. 
Further, the State shall assure that there shall be achieved the 
highest statutory and regulatory requirements for all new and existing 
point sources and all cost-effective and reasonable best management 
practices for nonpoint source control.
    Finally, under 40 CFR 131.12(a)(3), known as Tier 3 or Outstanding 
National Resource Waters (ONRWs), where a state determines that high 
quality waters constitute an outstanding National resource, such as 
waters of National and State parks and wildlife refuges and waters of 
exceptional recreational or ecological significance, that water quality 
shall be maintained and protected.
    Section 303(c)(4) (33 U.S.C. 1313(c)(4)) of the CWA authorizes EPA 
to promulgate water quality standards for a State when EPA disapproves 
the State's water quality standards, or in any case where the 
Administrator determines that a new or revised water quality standard 
is needed in a State to meet the CWA's requirements.
    In June 1994, EPA Region 3 disapproved portions of Pennsylvania's 
standards pursuant to Section 303(c) of the CWA and 40 CFR 131.21, 
including portions of the antidegradation policy, known in Pennsylvania 
as the Special Protection Waters Program, relating to protection of 
existing uses, criteria used to define High Quality Waters and 
protection afforded to Exceptional Value Waters as equivalent to ONRWs.
    The Pennsylvania Department of Environmental Protection 
(``Pennsylvania'' or ``the Department'') responded to EPA's disapproval 
on September 2, 1994. In that letter, the Department made a commitment 
to consider enhancements to Pennsylvania's High Quality Waters program 
through a public review and discussion process. At that time, the 
Department stated it did not intend to reconsider the protection of 
existing uses or the protection of ONRWs because it felt that existing 
authorities met the intent of EPA's regulation. Since that time, the 
Department has initiated a regulatory negotiation process which is 
considering changes to all three tiers of Pennsylvania's 
antidegradation policy. By letter dated October 5, 1994, EPA determined 
that Pennsylvania had not issued new or revised water quality standards 
that addressed its disapproval of the antidegradation policy elements.
    Following a public meeting on January 11, 1995, and a public 
hearing on April 20, 1995, Pennsylvania offered to EPA a plan to 
reassess its antidegradation policy, or Special Protection Waters 
Program. Pennsylvania initiated a regulatory negotiation, or ``reg-
neg'', to involve stakeholders in the process. The reg-neg group began 
meeting in June 1995 and issued an interim report on April 1, 1996, 
recommending to Pennsylvania officials how some provisions of the 
Commonwealth's regulation should be changed. EPA has participated in 
the reg-neg process in an advisory capacity and informed the reg-neg 
group of this rulemaking action.
    Based on these negotiations, the Department announced in the 
Pennsylvania Bulletin, May 4, 1996, the availability of proposed 
changes to the antidegradation provisions of the Commonwealth's water 
quality standards. The Department also held a public hearing on June 
18, 1996, to seek comment on those regulations. EPA is continuing to 
work with Pennsylvania in reviewing any proposed or final changes to 
Pennsylvania regulations. The reg-neg group met on August 1, 1996 to 
discuss its final recommendations. The group decided that the member 
organizations of the reg-neg group would submit separate reports to the 
Department to offer

[[Page 45381]]

recommendations in the Commonwealth's regulation.
    On April 18, 1996, concerned with the time that had elapsed since 
EPA's disapproval, the United States District Court for the Eastern 
District of Pennsylvania ordered EPA to prepare and publish proposed 
regulations setting forth revised or new water quality standards for 
the Commonwealth's antidegradation provisions disapproved in June 1994. 
Raymond Proffitt Foundation v. Browner, Civil Docket No. 95-0861 (E. D. 
Pa). The court stated that EPA was not to delay its rulemaking anymore 
to accommodate the Commonwealth's schedule. Consistent with the Court's 
order, this Federal Register notice proposes standards related to 
Pennsylvania's antidegradation policy.
    EPA's long-standing practice in the water quality standards program 
has been to suspend adoption of Federal rules if a State adopts 
appropriate rules and EPA approves them during the Federal promulgation 
process. In addition, if a State adopts rules that are approved by EPA 
following a final Federal promulgated rule, EPA's practice is to 
withdraw the Federal rule. Thus, notwithstanding today's proposal, EPA 
strongly encourages the Commonwealth to pursue its on-going effort to 
adopt appropriate standards which will make Federally promulgated 
standards unnecessary.

C. Proposed Standards

1. Ensuring That Existing Uses Will Be Maintained and Protected as 
Required Under 40 CFR 131.12(a)(1)

    In June 1994, EPA, Region 3, disapproved Pennsylvania's water 
quality standards at 25 PA Code Secs. 93.1, 93.4 and 93.9 because those 
provisions taken together do not ensure full consistency with the broad 
protection required by Tier 1 of the Federal antidegradation 
requirements, which requires that existing uses shall be maintained and 
protected. See 40 CFR 131.12(a)(1).
    Pennsylvania's definition of existing uses in 25 PA Code 93.1 is 
consistent with Federal regulations and was approved by EPA in June 
1994. However, Pennsylvania's regulations in 25 PA Code Sec. 93.4(d)(1) 
make the application of that existing use definition inconsistent with 
Federal requirements. Pennsylvania regulation at 25 PA Code Sec. 93.4 
explicitly protects existing uses only through Pennsylvania's 
designated use process. Specifically, Pennsylvania's regulation at 25 
PA Code Sec. 93.4(d)(1) provides that when an evaluation of technical 
data establishes that a waterbody attains the criteria for an existing 
use that is more protective of the waterbody than the current 
designated use, that waterbody will be protected at its existing use 
until the conclusion of a rulemaking action. After the rulemaking 
action the waterbody will be protected only at its designated use.
    In some cases the designated use will not adequately protect the 
existing use. For instance, Pennsylvania regulation requires that the 
waterbody attain the criteria for the more protective designated use as 
a condition of upgrading to that more protective use. In cases where 
the existing use is not protected by the current (lower) designated 
use, and the waterbody does not attain criteria necessary for the 
higher designated use, the existing uses may not be adequately 
protected. Even where the Department has identified that an existing 
use merits additional protection and where the technical evaluation of 
water quality allows for an upgraded designated use, there is no 
requirement that the Commonwealth permanently protect the existing use. 
The overall effect of Pennsylvania's regulation is that if the 
Commonwealth, in its rulemaking proceeding, does not revise its 
designated use to protect the existing use, that existing use would not 
thereafter be afforded adequate protection.
    Pennsylvania's September 2, 1994 response to EPA's disapproval 
expressed the view that its approach to the protection of existing uses 
is substantially equivalent to the Federal regulation, and is actually 
preferable to the EPA approach because of its technical justification 
requirements and public participation requirements. Although EPA 
believes that Pennsylvania's regulatory procedure to compare use 
designations with existing uses is an appropriate step in updating use 
designations, Federal regulations do not allow existing use protection 
to be removed as could occur through Pennsylvania's use designation 
rulemaking.
    EPA's guidance interprets the Tier 1 antidegradation policy to 
require that ``[n]o activity is allowable under the antidegradation 
policy which would partially or completely eliminate any existing use 
whether or not that use is designated in a State's water quality 
standards.'' See EPA's ``Questions & Answers on: Antidegradation'' 
August 1985, page 3. The purpose of Tier 1 of the antidegradation 
policy is to maintain and protect the existing uses and the water 
quality necessary to sustain the existing uses. Tier 1 protection 
applies to all waters, including those waters that have exceptionally 
good water quality and also to those that presently do not meet water 
quality standards.
    In order to ensure that the standards governing Tier 1 
antidegradation protection in Pennsylvania are consistent with the CWA, 
EPA is proposing to adopt language that ensures existing uses shall be 
maintained and protected in accordance with 40 CFR 131.12(a)(1). This 
regulation, if finalized, will be the applicable antidegradation Tier 1 
policy in Pennsylvania notwithstanding differences with Pennsylvania 
Regulations at 25 PA Code 93.4(d)(1). The practical effect of the 
language will be to protect all existing uses, including providing 
protection for existing uses that may be more specific, or require more 
protection, than Pennsylvania's designated uses.
    Pennsylvania has recently proposed changes to its antidegradation 
policy that would protect existing uses without formal rulemaking 
through Pennsylvania's use designation process. See 25 Pennsylvania 
Bulletin 2131-32 (May 4, 1996). If Pennsylvania promulgates this 
proposal as a final rule, it may make a Federal promulgation 
unnecessary.

2. Ensuring the Pennsylvania's High Quality Designation Adequately 
Protects All Waters That Qualify for Protection Under the Federal Tier 
2 Set Forth in 40 CFR Sec. 131.12(a)(2)

    In order to afford equivalent protection to that afforded by Tier 2 
of the Federal policy set forth in 40 CFR Sec. 131.12(a)(2), 
Pennsylvania has developed a Special Protection Waters Program which 
utilizes the designational approach, i.e., designates specific waters 
as High Quality. The High Quality Waters Policy is set forth in 25 PA 
Code Secs. 93.3, 93.7, 93.9 & 95.1, and the Department's Special 
Protection Waters Handbook (November 1992). High Quality Waters are 
defined in Pennsylvania's water quality standards as ``[a] stream or 
watershed which has excellent quality waters and environmental or other 
features that require special water quality protection''. 25 Pa Code 
Sec. 93.3. Once designated as High Quality, those waters are afforded a 
level of protection consistent with EPA's Tier 2.
    In June 1994, EPA disapproved a portion of Pennsylvania's High 
Quality Waters Policy because the policy requires that a stream must 
possess ``excellent quality waters and environmental or other features 
* * *'' to receive Special Protection. That definition may exclude 
waters that

[[Page 45382]]

would be protected under the Federal Tier 2 policy. The Federal policy 
provides Tier 2 protections to all waters with water quality exceeding 
levels necessary to support propagation of fish, shellfish, and 
wildlife and recreation in and on the water. In contrast, 
Pennsylvania's High Quality Waters Policy also requires such waters to 
include ``environmental or other features that require special water 
quality protection.''
    Pennsylvania's 1994 305(b) report indicates that Pennsylvania's 
more restrictive policy can be under protective. Of the 24,947 stream 
miles assessed (out of 53,962 total miles), 20,307 fully support 
Pennsylvania's designated stream uses; in contrast, Pennsylvania's 
current program only protects approximately 13,000 stream miles as High 
Quality and 1300 as Exceptional Value. In addition, various Department 
Special Protection water quality reports cite water quality data 
showing that specific waters had excellent water quality but still did 
not receive High Quality protection because of a lack of other 
environmental, recreational or special amenities.
    The proposed Federal rule makes available Federal Tier 2 protection 
for Pennsylvania waters on the basis of water quality alone. EPA is 
proposing to accomplish that by promulgating the language in 40 CFR 
131.12(a)(2). This promulgation would have the effect of making Tier 2 
protection available to all waters whose quality ``exceeds levels 
necessary to support propagation of fish, shellfish, and wildlife and 
recreation in and on the water.''
    Another option for accomplishing this would be simply to promulgate 
the definition of High Quality Water from 25 Pa Code Sec. 93.3 but 
without the phrase ``and environmental or other features which require 
special criteria.'' EPA seeks comments on each of these options.
    Under either option, the current State process for reviewing 
proposals to lower water quality would be unchanged; the only effect of 
the Federal promulgation would be to require that waters whose quality 
exceeds water quality standards not be prevented from being protected 
at the High Quality designation because they lack ``environmental or 
other features''.
    In Pennsylvania's September 2, 1994 response to EPA's disapproval, 
the Department indicated that it would consider enhancements to its 
High Quality Waters program. However, due to the potential effects of 
such a change, Pennsylvania wanted to provide an opportunity for public 
review and discussion of alternatives prior to proposing regulatory 
changes. As discussed above, the Department convened a group of 
interested stakeholders representing conservationists, the regulated 
community and government (including EPA) in a regulatory negotiation 
process. The group discussed a variety of options for drafting a new 
High Quality Waters regulation, including revising the High Quality 
Waters definition to delete the requirements for ``and environmental or 
other features.'' See 25 Pennsylvania Bulletin 2131-32 (May 4, 1996). 
If Pennsylvania were to finalize this proposal prior to the completion 
of the Federal rulemaking, it may make the Federal promulgation 
unnecessary.

3. Ensuring That Pennsylvania's Highest Quality Waters May Be Provided 
a Level of Protection Fully Equivalent to Tier 3 of the Federal Policy

    Pennsylvania considers its Exceptional Value Waters designation as 
part of the Special Protection Waters Program to be equivalent to Tier 
3. The Exceptional Value Policy is set forth in 25 PA Code Secs. 93.3, 
93.7, 93.9 & 95.1, and the Department's Special Protection Handbook, 
which contains implementation procedures for Exceptional Value 
protection. The Code and the Handbook must be read together to 
understand the effect of the Exceptional Value policy.
    As described in the Handbook, Pennsylvania requires Exceptional 
Value Waters to be protected at their existing quality to the extent 
that no adverse measurable change in existing water quality would occur 
as a result of a point source permit. A change is considered measurable 
``if the long-term average in-stream concentration of the parameter of 
concern can be expected, after complete mix of stream and wastewater, 
to differ from the mean value established from historical data 
describing background conditions in the receiving stream'' or at 
selected Pennsylvania reference sites.
    This level of protection accorded to Exceptional Value Waters is 
not sufficient to assure that water quality shall be maintained and 
protected as required by the Federal Tier 3 requirement at 40 CFR 
131.12(a)(3). For example, it may only protect against lowering of 
water quality when point sources are involved. 40 CFR 131.12 requires 
that water quality be maintained and protected; the pollutant source is 
not a determining factor. In addition, prohibited changes in water 
quality are based on measurable instream concentrations. For many 
pollutants, especially highly bioaccumulative ones, using measurable 
instream concentration to detect change would not be appropriate 
because detection levels can be substantially higher than the instream 
concentrations and, in some cases, the criteria. In such circumstances, 
significant lowering of water quality, including exceedances of 
criteria, could occur without ``measurable'' instream concentrations 
changing as defined by Pennsylvania's rule. In such instances, control 
of discharge concentrations, rather than measurable instream 
concentrations, is appropriate.
    Moreover, Pennsylvania's rule defines measurable change as based on 
a long-term average instream concentrations compared to mean historical 
data. In practice this can lead to significantly increased discharges 
and pollutant loads. Also, the concentration difference is determined 
``after complete mix of stream and wastewater''. Depending on mixing 
characteristics, this ``mixing zone'' can be substantial and could 
constitute a large portion of the designated segment where significant 
lowering of water quality can occur. Any new or increased mixing zone 
will lower water quality in at least a portion of the waterbody. 
Finally, discharge permits for sewage treatment facilities handling 
less than 1000 gallons per day (gpd) and for storm water are exempt 
from the Exceptional Value requirements.
    EPA disapproved the Commonwealth's Exceptional Value designation on 
June 6, 1994 because it does not fully satisfy Federal requirements for 
Tier 3 in 40 CFR 131.12(a)(3). While the Exceptional Value category is 
an excellent vehicle to provide protection to important waters in the 
Commonwealth, for the reasons above Pennsylvania's implementation of it 
is not entirely consistent with the requirements of 40 CFR 
131.12(a)(3). EPA's recommendation that no new or expanded discharges 
should be permitted to Tier 3 waters, except for those discharges 
anticipated to be short-term or temporary in nature, reflects the fact 
that, based on the reasons above, in many circumstances ``no new or 
increased discharge'' is the only method to assure that water quality 
is fully maintained and protected in ONRWs.
    In response to EPA's disapproval, Pennsylvania stated in its 
September 2, 1994 letter that it believed that EPA lacked the legal 
authority to compel the Commonwealth to adopt a ``no discharge'' 
approach. EPA's October 5, 1994, response to Pennsylvania explained 
that the practice of prohibiting discharges to ONRWs, while not 
specified in EPA's regulation, is the

[[Page 45383]]

recommended and most effective approach for ensuring that existing 
water quality is maintained.
    EPA believes that, in practice, Pennsylvania's policy of ``no 
adverse measurable change'' could allow potentially significant 
discharges and loading increases from point and nonpoint sources. At 
the same time, Pennsylvania has been successful in designating 
approximately 1300 stream miles in the Commonwealth as Exceptional 
Value, often with significant controversy. EPA recognizes that this 
success might not have occurred if new discharges were strictly 
prohibited.
    In light of this situation, EPA is proposing language that will 
create a new level of antidegradation protection in Pennsylvania, a 
level of protection above that afforded by the Exceptional Value 
designation. This proposal will provide Pennsylvania the opportunity to 
designate appropriate Pennsylvania waters as ONRWs, to which no new or 
expanded discharges would be allowed. This ONRW provision is not 
intended to replace or supplant the Exceptional Value category and 
designations already in place in Pennsylvania, but rather to supplement 
them. It would give the citizens of the Commonwealth the opportunity to 
request the highest level of protection be afforded to particular 
waters where appropriate. EPA would not designate waters as ONRWs; that 
would be the Commonwealth's prerogative.
    EPA is proposing to accomplish this by promulgating language 
derived from 40 CFR 131.12(a)(3). The proposed language would state 
that where waters are identified by the Commonwealth as ONRWs, their 
water quality shall be maintained and protected. Consistent with the 
recommended interpretation in its National guidance, EPA Water Quality 
Standards Handbook at 4-8 (2nd ed. 1994), EPA would interpret that 
provision to prohibit, in waters identified by the Commonwealth as 
ONRWs, new or increased dischargers, aside from limited activities 
which have only temporary or short-term effects on water quality.
    EPA notes that there may be other formulations that meet the 
requirements of 40 CFR 131.12(a)(3) and which provide a level of 
protection substantially equivalent to today's proposed rule. 
Pennsylvania's reg-neg group discussed this issue but did not reach an 
agreement to recommend that Pennsylvania create a new Tier 3 ONRW 
category of protection. If Pennsylvania adopts either EPA's recommended 
interpretation or such an alternative formulation, and it is approved 
by EPA as meeting the requirements of 40 CFR 131.12(a)(3), EPA would 
expect to propose to withdraw this portion of its rule.
    EPA is seeking comment on its proposal to create a new category of 
protection for Pennsylvania waters, which would give the Commonwealth a 
mechanism to provide protection from new or increased discharges.

D. Relationship of This Rulemaking to the Great Lakes Water Quality 
Guidance

    On March 23, 1995, pursuant to section 118(c)(2) of the CWA, EPA 
published Final Water Quality Guidance for the Great Lakes System (60 
FR 15366), which applies to the Great Lakes System, including a small 
portion of Pennsylvania waters. The Guidance includes water quality 
criteria, implementation procedures and antidegradation policies, which 
are intended to provide the basis for consistent, enforceable 
protection for the Great Lakes System. In particular, the 
antidegradation requirements are more specific than those set out in 40 
CFR 131.12. Pennsylvania and the other Great Lakes States and Tribes 
must adopt provisions into their water quality programs which are 
consistent with the Guidance, or EPA will promulgate the provisions for 
them.
    Today's rulemaking, which is being undertaken pursuant to section 
303 of the Act, is independent of, and does not supersede, the 
Guidance. Regardless of the outcome of today's rulemaking, Pennsylvania 
must still adopt an antidegradation policy for its waters in the Great 
Lakes Basin consistent with the Guidance, or EPA will promulgate such 
provisions for them. At that time, EPA will withdraw any portion of 
today's rule which is inconsistent with such Great Lakes provisions and 
which applies to Pennsylvania waters within the Great Lakes basin.

E. Endangered Species Act

    Pursuant to section 7 of the Endangered Species Act (16 U.S.C. 1656 
et seq.), Federal agencies must assure that their actions are unlikely 
to jeopardize the continued existence of listed threatened or 
endangered species or adversely affect designated critical habitat of 
such species. Today's proposal would extend antidegradation protection 
for waters that presently may be unprotected or under-protected by 
Commonwealth-adopted standards potentially improving the protection 
afforded to threatened and endangered species. This action is 
consistent with comments made by the U.S. Fish and Wildlife Service 
(FWS) regarding EPA's disapproval in June 1994.
    EPA initiated section 7 informal consultation under the Endangered 
Species Act with the FWS regarding this rulemaking, and requested 
concurrence from the FWS that this action is unlikely to adversely 
affect threatened or endangered species. On July 31, 1996, the FWS sent 
a letter to EPA indicating that they could not concur with a finding of 
no adverse affect to threatened or endangered species. EPA may need to 
initiate formal consultation with the FWS if further discussions do not 
result in concurrence. The FWS has proposed five options that would 
allow it to make a ``not likely to adversely affect'' determination. 
Those options can be found in the FWS July 31, 1996 letter, and are 
included as part of the administrative record available at ADDRESSES 
above. EPA is also seeking comments on the five options that the FWS 
has proposed.

F. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether today's proposed regulatory action is 
``significant'' and therefore subject to Office of Management and 
Budget (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:
    (1) 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, of State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs of the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Because the annualized cost of this proposed rule would be 
significantly less than $100 million and would meet none of the other 
criteria specified in the Executive Order, it has been determined that 
this rule is not a ``significant regulatory action'' under the terms of 
Executive Order 12866.

G. Executive Order 12875, Enhancing the Intergovernmental 
Partnership

    In compliance with Executive Order 12875 EPA has involved State and 
local

[[Page 45384]]

governments in the development of this rule. Prior to this rulemaking 
action, EPA participated with the Pennsylvania Department of 
Environmental Protection and a group of stakeholders, which included 
governmental agencies, conservation groups, public interest groups and 
the regulated community, in a fourteen month regulatory negotiation 
(reg-neg) process. The reg-neg group was charged to recommend program 
modifications to Pennsylvania's regulations on antidegradation. The 
reg-neg process touched on many issues relevant to today's proposal, 
including a comprehensive discussion on the nature and intent of the 
Federal regulation. In preparing for today's proposal, EPA has also 
consulted with the Department extensively and informed them and the 
reg-neg group of our rulemaking process. EPA has scheduled a public 
hearing on the proposed action for October 16, 1996.

H. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) provides that, whenever an 
agency is required under 5 U.S.C. 553 to publish a general notice of 
rulemaking for any proposed rule, an agency must prepare an initial 
regulatory flexibility analysis unless the head of the agency certifies 
that the proposed rule will not have a significant economic impact on a 
substantial number of small entities. 5 U.S.C. 603 & 605. The purpose 
of the RFA is to establish procedures that ensure that Federal agencies 
solicit and consider alternatives to rules that would minimize their 
potential impact on small entities.
    EPA has determined that any costs imposed by this rule would not 
impose a significant impact on a substantial number of small entities. 
Therefore, for the reasons discussed in more detail below, no 
regulatory flexibility analysis has been prepared. Despite these 
conclusions, however, EPA has considered the potential effects of this 
rule on small entities to the extent that it can, and has included that 
analysis in the administrative record of this rulemaking. EPA 
specifically invites public comment on its determination.
    First, the proposed changes with respect to Tier 3, ONRWs, in 
Pennsylvania will have no predictable economic impact on current 
dischargers who may be small entities. Promulgation of the proposed 
provision will merely result in an opportunity for the Commonwealth to 
provide a higher level of protection than presently available under the 
State regulation. By itself, this rule does not impose any burdens on 
dischargers. Any economic impact on small entities in Pennsylvania 
would arise only as the result of future decisions by the Commonwealth 
which are not attributable to EPA's rulemaking action here. 
Furthermore, any economic impact is dependent on two unknown variables. 
The first is whether the Commonwealth, in fact, will choose to 
reclassify any Commonwealth waters as ONRWs. The second is whether, in 
the event of reclassification, any current, small entity discharger 
that wished to increase its discharges would need to install additional 
wastewater treatment in order to comply with ONRW limits. Because this 
rule does not impose any predictable impacts, EPA believes that no RFA 
analysis is required.
    Second, with respect to Tier 2, High Quality Waters, this rule 
similarly does not impose any predictable impacts with the one 
exception described below. It is true that EPA's proposal would likely 
require the Commonwealth of Pennsylvania to increase the number of 
waters that are classified as High Quality Waters. However, any 
economic consequences that would flow from this are largely uncertain 
because they are wholly dependent on discretionary State decisions and 
the activities of individual dischargers.
    Thus, in the event that some waters received Tier 2 protections as 
a result of today's rule, a discharger wishing to increase its 
discharge with a resulting degradation of a High Quality Water, could 
request Pennsylvania to authorize the discharge (and a resulting 
lowering of the water quality for the affected waters). If Pennsylvania 
granted the request, there would be no economic cost to the discharger 
other than the cost of its request to Pennsylvania. In the event 
Pennsylvania denied the request, the discharger would bear the cost of 
whatever additional controls are required to meet the standards for 
High Quality Water. Thus, depending on further action by the 
Commonwealth of Pennsylvania, there could be some or no economic 
consequences flowing from adoption of EPA's proposal. Given these 
facts, EPA cannot predict with any certainty the economic consequences 
of EPA's action, and consequently, concludes for purposes of this 
rulemaking, that no RFA analysis is required.
    As noted, this proposal could increase the number of dischargers 
(and presumably small entity dischargers) having to supply the 
necessary documentation to support a request for a discharge that would 
lower water quality for new Tier 2 High Quality Waters in Pennsylvania. 
EPA did examine the costs of making such submittals and concluded that, 
relying on conservative assumptions, this cost would not impose a 
significant economic impact on a substantial number of small entities.
    Third, with respect to Tier 1, the proposal will not have a 
significant impact on a substantial number of small entities. Because 
of a number of factors, it is difficult to predict what, if any, effect 
the Tier 1 proposal would have on small entities. There is uncertainty 
whether any waterbodies will have existing uses not protected by 
current use designation. EPA expects this to be a rare occurrence. 
Since 1993, EPA has reviewed dozens of Pennsylvania stream use 
redesignations and has identified only three streams where the fishery 
designation would not fully protect the existing use; even in those 
cases, Pennsylvania adequately protected those fisheries as existing 
uses by changing the designation. Based on this information, EPA 
concludes that the Tier 1 proposal would not have a significant impact 
on a substantial number of small entities.
    Accordingly, pursuant to section 605(b) of the RFA, the 
Administrator is certifying that today's proposal, if promulgated, will 
not have a significant economic impact on a substantial number of small 
entities. EPA solicits public comment on EPA's analysis and conclusions 
conducted pursuant to the Regulatory Flexibility Act.

I. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective

[[Page 45385]]

or least burdensome alternative if the Administrator publishes with the 
final rule an explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    As noted above, this rule is limited to antidegradation 
designations within the Commonwealth of Pennsylvania. EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. EPA has also 
determined that this rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. Thus, today's rule is not subject to the requirements of sections 
202 and 205 of the UMRA.

J. Paperwork Reduction Act

    This proposed action requires no information collection activities 
subject to the Paperwork Reduction Act, and therefore no Information 
Collection Request (ICR) will be submitted to the Office of Management 
and Budget (OMB) for review in compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 131

    Environmental protection, Water pollution control, Water quality 
standards.

    Dated: August 22, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, part 131 of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 131--WATER QUALITY STANDARDS

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

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

Subpart D--[Amended]

    2. Section 131.32 is added to read as follows:


Sec. 131.32  Pennsylvania.

    (a) Antidegradation policy. This antidegradation policy shall be 
applicable to all waters of the United States within the Commonwealth 
of Pennsylvania, including wetlands.
    (1) Existing in-stream uses and the level of water quality 
necessary to protect the existing uses shall be maintained and 
protected.
    (2) Where the quality of the waters exceeds levels necessary to 
support propagation of fish, shellfish, and wildlife and recreation in 
and on the water, that quality shall be maintained and protected unless 
the Commonwealth finds, after full satisfaction of the inter-
governmental coordination and public participation provisions of the 
Commonwealth's continuing planning process, that allowing lower water 
quality is necessary to accommodate important economic or social 
development in the area in which the waters are located. In allowing 
such degradation or lower water quality, the Commonwealth shall assure 
water quality adequate to protect existing uses fully. Further, the 
Commonwealth shall assure that there shall be achieved the highest 
statutory and regulatory requirements for all new and existing point 
sources and all cost-effective and reasonable best management practices 
for nonpoint sources.
    (3) Where high quality waters are identified as constituting an 
outstanding National resource, such as waters of National and State 
parks and wildlife refuges and water of exceptional recreational and 
ecological significance, that water quality shall be maintained and 
protected.
    (b) (Reserved)

[FR Doc. 96-21945 Filed 8-28-96; 8:45 am]
BILLING CODE 6560-50-P