[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
