[Federal Register Volume 75, Number 103 (Friday, May 28, 2010)]
[Rules and Regulations]
[Pages 29899-29901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12933]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2007-93; FRL-9156-5]
RIN NA2040


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

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SUMMARY: EPA is taking final action on a 2008 proposal to withdraw the 
Federal antidegradation policy for all waters of the United States 
within the Commonwealth of Pennsylvania. We are withdrawing the Federal 
antidegradation policy to allow Pennsylvania to implement its own 
antidegradation policy. Pennsylvania has adequately demonstrated that 
its antidegradation policy protects all waters of the United States at 
a level consistent with the Federal requirements under the Clean Water 
Act. Therefore, the Federal antidegradation policy is redundant.

DATES: This final rule is effective on June 28, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2007-93. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at the OW Docket Center. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-2426, and the Docket address is OW Docket, EPA West, Room 3334, 
1301 Constitution Ave., NW., Washington, DC 20004. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744.

FOR FURTHER INFORMATION CONTACT: Janita Aguirre at EPA Headquarters, 
Office of Water (4305T), 1200 Pennsylvania Ave., NW., Washington, DC 
20460 (telephone: 202-566-1149, fax: 202-566-0409 or e-mail: 
[email protected]) or Denise Hakowski at EPA Region 3 (3WP30), 
1650 Arch Street, Philadelphia, Pennsylvania 19103 (telephone: 215-814-
5726, fax: 215-814-2318 or e-mail: [email protected]).

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Entities

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

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

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

II. Background

    Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or Act) 
directs States, with oversight by EPA, to adopt water quality standards 
to protect the public health and welfare, enhance the quality of water 
and serve the purposes of the CWA. Under section 303, States are 
required to develop water quality standards for their navigable waters, 
and Section 303(c) and EPA's implementing regulations at 40 CFR part 
131 require State and Tribal water quality standards to include the 
designated use or uses to be made of the waters, water quality criteria 
sufficient to protect those uses, and an antidegradation policy. Under 
the CWA and EPA's regulations, States are required to review their 
water quality standards at least once every three years and, if 
appropriate, revise or adopt new standards. The results of this 
triennial review must be submitted to EPA, and EPA must approve or 
disapprove any new or revised standards. Section 303(c) of the CWA 
authorizes the EPA Administrator to promulgate water quality standards 
to supersede State standards that EPA has disapproved or in any case 
where the Administrator determines that a new or

[[Page 29900]]

revised standard is needed to meet the CWA's requirements.
    In June 1994, EPA disapproved Pennsylvania's antidegradation 
regulation after determining the regulation was not consistent with the 
Federal antidegradation regulation found at 40 CFR 131.12. When the 
Pennsylvania Department of Environmental Protection (PADEP) did not act 
within the statutory timeframe to address EPA's findings, EPA 
promulgated a Federal antidegradation policy for all waters of the 
United States within the Commonwealth of Pennsylvania at 40 CFR 131.32 
on December 9, 1996 (61 FR 64816). In August 1999, PADEP submitted to 
EPA revisions to its antidegradation policy found in 25 Pa. Code 
Chapter 93. On March 17, 2000, EPA approved most of the revisions to 
Pennsylvania's regulations as meeting the requirements of Federal 
regulations at 40 CFR 131.12(a)(1) and 131.12(a)(2), but withheld 
action on Section 93.4b, PADEP's Exceptional Value (EV) Waters 
designation, or Tier 3, until PADEP ensured that EV designated waters 
would be protected at the level consistent with Federal regulations at 
40 CFR 131.12(a)(3). In 2003, PADEP published ``Water Quality 
Antidegradation Implementation Guidance'' (Document Number 391-0300-
002). In it, PADEP provides guidance to its staff and information to 
help the regulated community and the public understand the 
implementation of the antidegradation policy in Pennsylvania. Based on 
a review of the document in combination with the PADEP's 
antidegradation regulation, EPA approved PADEP's antidegradation policy 
for Tier 3 waters on March 7, 2007. Because Pennsylvania now has an 
EPA-approved antidegradation policy meeting the Federal requirements at 
40 CFR 131.12, the Federal antidegradation regulation promulgated by 
EPA for Pennsylvania is no longer needed and EPA is withdrawing it with 
this action.

III. Statutory and Executive Order Review

A. Executive Order 12866 (Regulatory Planning and Review)

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

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

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

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132 (Federalism)

    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this action.

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

    This rule does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
imposes no regulatory requirements or costs on any Tribal government. 
It does not have substantial direct effects on Tribal governments, on 
the relationship between the Federal government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian Tribes. Thus, Executive Order 13175 does not 
apply to this rule.

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

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

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use

[[Page 29901]]

available and applicable voluntary consensus standards.
    The requirements of section 12(d) of the NTTAA do not apply because 
this rule does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

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

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

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on June 28, 2010.

List of Subjects in 40 CFR Part 131

    Environmental protection, Antidegradation, Water quality standards.

    Dated: May 21, 2010.
Lisa P. Jackson,
Administrator.

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

PART 131--WATER QUALITY STANDARDS

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

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


Sec.  131.32  [Removed and Reserved]


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2. Section 131.32 is removed and reserved.

[FR Doc. 2010-12933 Filed 5-27-10; 8:45 am]
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