00-28418. Public Water System Supervision Program; Primary Enforcement Responsibility Approval for the Navajo Nation

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of decision and opportunity for hearing.

This public notice is issued pursuant to section 1413 of the Safe Drinking Water Act (“Act”) and section 142.10 of the National Primary Drinking Water Regulation (40 CFR part 142).

An application has been received from the Navajo Nation, through the Director, Navajo Nation Environmental Protection Agency, requesting that the Navajo Nation Environmental Protection Agency be granted primary enforcement responsibility for the public water systems within the Navajo Nation pursuant to section 1413 of the Act.

Section 1451 of the Act and 40 CFR 142.72 authorize EPA to delegate to Indian tribes primary enforcement responsibility for public water systems, pursuant to section 1413 of the Act, if the Indian tribe meets the following criteria:

(A) The Indian Tribe is recognized by the Secretary of the Interior and has a governing body carrying out substantial governmental duties and powers;

(B) The functions to be exercised by the Indian Tribe are within the area of the Tribal Government's jurisdiction; and

(C) The Indian Tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of (the Act) and of all applicable regulations.

Section 1451(b)(1) of the Act, 42 U.S.C. 300j-11(b)(1), see also 40 CFR 142.72.

Pursuant to section 1451 of the Act and 40 CFR 142.72, EPA has determined that the Navajo Nation, through the Navajo Nation Environmental Protection Agency, is eligible to apply for primary enforcement responsibility for public water systems within the Navajo Nation. EPA has also determined that the Navajo Nation, through the Navajo Nation Environmental Protection Agency has met all conditions of the Act and regulations promulgated pursuant to the Act for the assumption of primary enforcement responsibility for public water systems within the Navajo Nation. Specifically the Navajo Nation:

(1) Has adopted drinking water regulations which are no less stringent than the National Primary Drinking Water Regulations;

(2) Has adopted and will implement adequate procedures for the enforcement of such regulations, including adequate monitoring, sanitary surveys, inspections, plan review, inventory of water systems, and adequate certified laboratory availability;

(3) Will keep such records and make such reports as required;

(4) If it permits variances or exemptions from the requirements of its regulations, will issue such variances and exemptions in accordance with the provisions of the National Primary Drinking Water Regulations; and

(5) Has adopted and can implement an adequate plan for the provision of safe drinking water under emergency conditions.

All interested parties are invited to submit written comments or to request a public hearing on EPA's determination. Written comments and/or requests for a public hearing must be submitted by December 6, 2000 to the Regional Administrator at the address shown below.

Any request for a public hearing shall include the following information: (1) The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Regional Administrator's determination and of information that the requesting person intends to submit at such hearing; and (3) the signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of the responsible official of the organization or other entity.

Frivolous or insubstantial requests for a hearing may be denied by the Regional Administrator. If a substantial request for public hearing is made by December 6, 2000, a public hearing will be held. The Regional Administrator will give further notice in the Federal Register and a newspaper or newspapers of general circulation within the Navajo Nation of any hearing to be held pursuant to a request submitted by an interested party, or on her own motion. Notice of the hearing shall be given not less than fifteen (15) days prior to the time scheduled for the hearing. Notice will be sent to the person requesting the hearing and to the Navajo Nation. Notice of the hearing will include a statement of the purpose of the hearing, information regarding the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing.

After receiving the record of the hearing, the Regional Administrator will issue an order affirming or rescinding the determination. If the determination is affirmed, it shall become effective as of the date of the order.

If no timely and appropriate request for a hearing is received and the Regional Administrator does not elect to hold a hearing on her own motion, this determination shall become effective on December 6, 2000.

Based on the language of section 1413 of the Act, EPA has long implemented the determination to approve a state, and now a tribal, application for primary enforcement responsibility for public water systems as an “adjudication” rather than a “rulemaking” under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. The same is true of applications for state and tribal program revisions. For this reason, the statutes and Executive Orders that apply to rulemaking action are not applicable here. Among these are provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a federal agency proposes or promulgates a rule under section 553 of the APA, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency must prepare a regulatory flexibility analysis for the rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. If the agency does not certify the rule, the regulatory flexibility analysis must describe and assess the impact of a rule on small entities affected by the rule.

Even if a state or tribal primary enforcement responsibility application or revision were a “rule” subject to the RFA, EPA would certify that the approval or revision of the state's or the tribe's program would not have a significant economic impact on a substantial number of small entities. EPA's action to approve a primary enforcement responsibility application or revision merely recognizes a program that has already been enacted as a matter of state or tribal law. It would, therefore, impose no additional obligations upon those subject to the state's or tribe's program. Accordingly, the Regional Administrator would certify that the approval of primary enforcement responsibility of the Navajo Nation, if a “rule,” would not have a significant economic impact on a substantial number of small entities.

ADDRESSES:

All documents relating to this determination are available for inspection between the hours of 8:30 a.m. and 4 p.m., Monday through Friday, at the following offices: Navajo Nation Environmental Protection Agency, Fairground Building No. W-008-042, Window Rock, Arizona 86515; and EPA, Region IX, Water Division, Drinking Water Office (WTR-6), 75 Hawthorne Street, San Francisco, California 94105.

FOR FURTHER INFORMATION CONTACT:

To submit comments or request further information, contact Danny Collier, Region IX, at the San Francisco address given above; telephone [phone].

(Sections 1413 and 1451 of the Safe Drinking Water Act, as amended, 42 U.S.C. 300g-2 and 311j-11; and 40 CFR 142.10 and 142.72)

Dated: October 23, 2000.

Felicia Marcus,

Regional Administrator, Region 9.