Stakeholder Input; Revisions to Water Quality Standards Regulation, 44930-44932 [2010-18557]
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Federal Register / Vol. 75, No. 146 / Friday, July 30, 2010 / Proposed Rules
drugs: Marijuana, cocaine, opiates,
phencyclidine, and amphetamines. This
testing is performed in conformance
with the Department of Health and
Human Services’ Mandatory Guidelines
for Federal Workplace Drug Testing
Programs. Should the Department’s
contractor programs consider expanding
randomized drug testing to include
anabolic steroids, synthetic opiates,
newer amphetamines, and other new
prescription drugs, among others, to this
list of drugs it routinely test for? If so,
please specify what drugs should be
added and why and provide evidence to
support this addition.
2. Are there prescription and/or legal
over-the-counter medications or
supplements that provide false positives
for anabolic steroids? If so, should use
of these medications or supplements by
employees of DOE contractors or
subcontractors performing work at DOE
sites be prohibited and tested for? If so,
please identify these medications or
supplements, explain the reasons for
your answer, and provide evidence to
support them.
3. Are there products available for
sale in the United States or by import to
the United States that mask prohibited
drug use or anabolic steroid use? If so,
what are these products and should
their use by DOE contractor or
subcontractor employees performing
work at DOE sites be prohibited? Are
there reliable and economically feasible
means by which to test for these
products? Please explain each of your
answers and provide evidence to
support your answers.
4. When conducting reasonable
suspicion or occurrence testing, DOE
contractors may test for any drug listed
in Schedules I or II of the Controlled
Substance Act. Should DOE consider
expanding this requirement to include
any drug listed in Schedules I through
V of the Controlled Substance Act? If so,
please explain why these drugs should
be added and provide evidence to
support these additions.
5. Are there reliable (i.e., adequately
sensitive and specific) analytical testing
methods and/or procedures currently
available for anabolic steroids? If so,
please describe those methods, their
reliability, and provide evidence to
support your answer.
6. Compared to the types of drugs and
classes of drugs currently being tested
for, is it economically feasible (i.e., cost
effective) at this time to test for anabolic
steroids? Please provide evidence to
support your answer.
7. What is the cost per test for
anabolic steroids? What other costs are
associated with testing for anabolic
steroids? Please describe the testing
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method(s) for which you provide cost
information and provide evidence to
support your answers.
8. Currently, DOE contractors’
substance abuse programs do not
include policies, procedures, and/or
protocols for controlling the use of
alcohol while performing work at a DOE
site. The use of alcohol, even in small
amounts, can impair judgment and
affect the ability to perform critical
duties. Should the Department consider
adding the use of alcohol to its
contractors’ workplace substance abuse
program for its contractors? If so, why,
what means of measurement of
consumed alcohol should be used, and
what measure of consumed alcohol
should be prohibited at DOE sites?
Please provide evidence to support your
answers.
9. Are there any Federal Agencies
with policies and procedures for
controlling the use of alcohol affecting
the workplace? If so, which Agency, and
should DOE consider adopting its
protocols and procedures for the use of
alcohol in the workplace? Please
provide evidence to support your
answers.
10. The use of alcohol, even in small
amounts, can impair judgment and
affect the ability to perform critical
duties. If an individual in a critical or
sensitive position at a DOE site
consumes alcohol while off duty, how
long should that individual be required
to abstain from alcohol use prior to
reporting for duty? Please explain the
reasons for your answer and provide
evidence to support your answer.
11. Should the Department consider
requiring its medical review officers to
obtain and maintain medical review
officer certification? If so, how often
should certification occur? Please
provide evidence to support your
answers.
Issued in Washington, DC, on July 21,
2010.
Glenn S. Podonsky,
Chief Health, Safety and Security Officer,
Office of Health, Safety and Security.
[FR Doc. 2010–18740 Filed 7–29–10; 8:45 am]
BILLING CODE 6450–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 131
[EPA–HQ–OW–2010–0606; FRL–9182–1]
Stakeholder Input; Revisions to Water
Quality Standards Regulation
AGENCY:
Environmental Protection
Agency.
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ACTION:
Listening sessions.
The Environmental Protection
Agency (EPA) is announcing its plans to
initiate national rulemaking to make a
limited set of targeted changes to EPA’s
water quality standards regulation. EPA
expects to publish such proposed rule
changes in the Federal Register in
Summer 2011. EPA’s intent is to
improve the regulation’s effectiveness in
helping to restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters. The
purpose of this notice is to announce
EPA’s intent to hold two informal
public ‘‘listening sessions’’ in August
2010. The sessions will allow EPA to
inform the public about the rulemaking,
and will offer an opportunity for the
public to express views on the general
direction of the rulemaking, including
the six specific elements of the
rulemaking.
DATES: The two public listening sessions
will be held as audio teleconferences on
August 24 and 26, 2010, from 1 to 2:30
p.m. EDT.
FOR FURTHER INFORMATION CONTACT:
Thomas J. Gardner, EPA Headquarters,
Office of Water, Office of Science and
Technology, at 202–566–0386 or e-mail:
gardner.thomas@epa.gov.
In order to provide an adequate
number of telephone lines for those
wishing to attend EPA’s sessions,
interested individuals should register in
advance following instructions on the
Internet at https://www.epa.gov/
waterscience/standards/rules/wqs.
Although you may register at any time
prior to the session of your choice, EPA
prefers that you register at least three
days in advance.
The agenda and resource materials
will be identical for the two sessions.
You do not need to attend both sessions.
If you do not have Internet access,
please contact the person named in the
SUMMARY:
FOR FURTHER INFORMATION CONTACT
section above.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Public Listening Sessions
EPA will hold two informal public
listening sessions via audio
teleconference in August 2010 to inform
the public about the rulemaking, and to
hear views from the public regarding
possible changes to EPA’s water quality
standards regulation at 40 CFR part 131
that are under consideration. The
sessions will provide a review of EPA’s
current water quality standards
regulation and a summary of the
clarifications that EPA is considering.
Clarifying questions and brief oral
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303(c) of the CWA) means that water
quality standards should: (1) Include
provisions for restoring and maintaining
B. How can I get copies of this document chemical, physical, and biological
integrity of state and tribal waters; (2)
and other related information?
provide, wherever attainable, water
1. Docket. EPA has established an
quality for the protection and
official public docket for this action
propagation of fish, shellfish, and
under Docket ID No. EPA–HQ–OW–
wildlife and recreation in and on the
2010–0606. The official public docket is
water; and (3) consider the use and
the collection of materials that is
value of state and tribal waters for
available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/ public water supplies, propagation of
fish and wildlife, recreation, agricultural
DC) EPA West, Room 3334, 1301
and industrial purposes, and navigation.
Constitution Ave., NW., Washington,
See 40 CFR 131.2.
DC. Although all documents in the
docket are listed in an index, some
The statutory basis for water quality
information is not publicly available,
standards and EPA’s regulation is
i.e., CBI or other information whose
section 303(c) of the CWA. Section
disclosure is restricted by statute.
303(c)(2) of the CWA directs states to
Publicly available docket materials are
consider the use and value of waters for
available in hard copy at the EPA
specific purposes, including public
Docket Center Public Reading Room,
water supply, propagation of fish and
open from 8:30 a.m. to 4:30 p.m.,
wildlife, recreational purposes,
Monday through Friday, excluding legal agricultural and industrial water
holidays. The telephone number for the supplies and other purposes including
Public Reading Room is (202) 566–1744, navigation. Section 303(c)(2) also
and the telephone number for the Water
requires that standards protect public
Docket is (202) 566–2426. The docket
health or welfare, enhance the quality of
can also accessed electronically at
water and serve the purposes of the Act.
EPA Dockets at https://www.epa.gov/
CWA section 303(c)(1) requires that
edocket/. Once in the system, select
states review their standards at least
‘‘search’’, then key in the appropriate
once every three years. CWA section
docket identification number.
303(c)(3) establishes timelines for EPA
2. Electronic Access. You may access
review and approval or disapproval of
this Federal Register document
new or revised standards, and CWA
electronically through the EPA Internet
section 303(c)(4) specifies requirements
under the ‘‘Federal Register’’ listings at
regarding promulgation of federal water
https://www.epa.gov/fedrgstr/.
quality standards in cases where a new
Electronic versions of this notice and
or revised standard is found by EPA not
other water quality standards
documents are available at EPA’s water
to be consistent with the CWA or in any
quality standards Web site https://
case where the Administrator
www.epa.gov/waterscience/standards.
determines that a new or revised
standard is necessary to meet the
II. Background
requirements of the CWA.
Statutory and Regulatory Overview
EPA’s Water Quality Standards
Water quality standards serve as the
regulation is at 40 CFR part 131. The
foundation for the water quality-based
regulation implements the requirements
approach to pollution control and are a
of section 303(c) of the CWA.
fundamental component of watershed
Fundamentally, the regulation: (1)
management. Water quality standards
Defines when and how designated uses
are provisions of state, tribal, or federal
may be revised; (2) requires criteria to
law that define the water quality goals
protect those uses and be based on
of a water body, or segment thereof, by
sound science; (3) requires EPA and
designating the use or uses to be made
states to prevent the degradation of
of the water body; establishing criteria
water quality, except under certain
based on sound science that are
circumstances; (4) requires states/tribes
protective of applicable uses; and
to review their water quality standards
protecting water quality through
at least every three years and engage the
antidegradation requirements. See 40
public in any revisions to water quality
CFR part 131. States and tribes adopt
water quality standards to protect public standards; and (5) specifies roles of
health or welfare, enhance the quality of states and EPA and provides
administrative procedures for EPA’s
water, and serve the purposes of the
review and approval or disapproval of
Act. See Clean Water Act (CWA or Act)
any new or revised state water quality
303(c). ‘‘Serve the purposes of the Act’’
standards.
(as defined in sections 101(a)(2), and
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comments (three minutes or less) will be
accepted at the sessions, as time
permits.
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III. Changes to EPA’s Water Quality
Standards Regulation Under
Consideration
EPA is planning to propose a limited
set of targeted changes to its water
quality standards regulation to improve
its effectiveness in helping restore and
maintain the chemical, physical, and
biological integrity of the Nation’s
waters. EPA expects to publish a
proposed rule in the Federal Register in
Summer 2011.
The core requirements of the current
regulation have been in place since
1983. These requirements have
provided a solid foundation for water
quality-based controls, including CWA
section 303(d) assessments, listings, and
Total Maximum Daily Loads (TMDLs),
as well as discharge permits issued
under the National Pollutant Discharge
Elimination System (NPDES). The intent
of the changes EPA is considering is to
add or modify a limited number of
provisions to address the specific areas
described below.
The following is a brief summary of
the clarifications to the water quality
standards regulation that EPA is
considering.
A. Antidegradation Implementation
Methods
The current regulation specifies that
states and authorized tribes must
identify the methods to implement the
antidegradation policies that they are
required to adopt in their water quality
standards. 40 CFR 131.12(a). The
regulation does not specify what the
implementation methods must include,
but only states that such methods must
be, as the policies must be, ‘‘consistent
with’’ 40 CFR 131.12(a). EPA is
considering modifying the regulation to
specify that antidegradation
implementation methods must meet
specific minimum requirements.
Specifically, EPA is considering adding
a subparagraph (b) to 40 CFR 131.12
(which currently has a subparagraph (a)
but not (b)) that would specify
minimum elements to be included in
state or authorized tribe antidegradation
implementation methods. EPA is also
considering requiring that
antidegradation implementation
methods be adopted into state and tribal
water quality standards, and thus be
subject to EPA review and approval
under CWA section 303(c), rather than
having them simply be identified. In the
listening sessions, EPA will invite views
from the public on these potential
changes, including what the minimum
requirements should include.
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B. Administrator’s ‘‘Determination’’
The CWA provides that the
Administrator may determine that a
revised or new standard is necessary to
meet the requirements of the CWA.
Section 303(c)(4)(B). If such a
determination is made, EPA must
promptly propose a revised or new
federal standard to augment or replace
the state’s or authorized tribe’s water
quality standards, and promulgate the
proposed standard within 90 days of
proposal. See CWA 303(c)(4). Since this
provision was enacted by Congress in
1972, there have been recurring
instances of confusion or
misunderstanding about what
constitutes such a determination. EPA is
considering clarifying in the water
quality standards regulation that an
Administrator’s determination must be
signed by the Administrator or his/her
duly authorized designee, and must
include a statement that the document
constitutes a determination under
section 303(c)(4)(B) of the CWA. In the
listening sessions, EPA will invite views
from the public on these changes.
srobinson on DSKHWCL6B1PROD with PROPOSALS
C. Designated Uses
Section 101(a)(2) of the Act
establishes a goal, wherever attainable,
of water quality that provides for the
protection and propagation of fish,
shellfish, and wildlife and recreation in
and on the water. The water quality
standards regulation requires that the
state or authorized tribe perform a use
attainability analysis (that is, a
structured scientific assessment of
factors affecting attainment of
designated uses) and submit this
assessment to EPA in order to remove
certain designated uses, including any
designated use that is specified as a
national goal in section 101(a)(2) of the
CWA. See 40 CFR 131.10. The
regulation does not, however, specify
which uses, if any, must be adopted to
replace the use that is being removed.
EPA is considering clarifying that
designated uses reflecting the CWA
101(a)(2) goals of the CWA are
presumed attainable unless otherwise
demonstrated and that states and
authorized tribes must designate such
uses unless they have conducted a use
attainability analysis to support a lesser
designated use and EPA has approved
that action. EPA is also considering
clarifying that the highest attainable
use(s) closest to the section 101(a)(2)
goal must be adopted if a CWA 101(a)(2)
goal use is unattainable. In the listening
sessions, EPA will invite views from the
public on these changes.
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D. Variances
The current regulation allows states
and authorized tribes to adopt variances
as general policies for applying and
implementing their water quality
standards. See 40 CFR 131.13. The
regulation does not provide a definition
of, a description of, or any requirements
for the use of variances. EPA is
considering establishing regulatory
requirements for variances to ensure
proper use of variances and reduce the
possibility of inappropriate use. In the
listening sessions, EPA will invite views
from the public on these clarifications,
and what the regulatory requirements
should include.
E. Triennial Reviews
The CWA and the current water
quality standards regulation require
states and authorized tribes to review
their water quality standards at least
once every three years, and modify
standards or adopt new standards as
appropriate. CWA 303(c); 40 CFR
131.20. EPA is considering revising the
regulatory requirements to clarify that
states and authorized tribes must solicit
and consider public comments in
determining the scope of each such
triennial review. EPA is also
considering establishing a new triennial
review requirement that states and
authorized tribes must evaluate whether
their existing water quality criteria
continue to be protective of designated
uses, taking into consideration any new
information, including EPA’s most
recent national recommended CWA
304(a) water quality criteria, that has
become available since the state or tribal
criteria were adopted or last revised. In
the listening sessions, EPA will invite
views from the public on these changes.
F. Updates To Reflect Court Decisions
EPA is considering making three
clarifications to the water quality
standards regulation to codify the
results of court decisions over the years.
First, EPA is considering revising the
definition of ‘‘water quality standards’’
in 40 CFR 131.3 to reflect the results of
and EPA’s actions on remand from
Florida Public Interest Research Group
Citizen Lobby, Inc., Save our Suwannee,
Inc., et al. v. EPA, et al., 386 F.3d 1070
(11th Cir. 2004) concerning Florida’s
Impaired Water Rule (IWR). That court
decision and EPA’s response to it more
clearly define which of state or tribal
provisions constitute water quality
standards that need to be submitted to
EPA for review and approval. EPA is
considering revising 40 CFR part 131 to
reflect these developments.
Second, EPA is considering specifying
that authorizing provisions for
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compliance schedules for implementing
water quality-based effluent limits in
NPDES permits must be adopted as part
of a state’s or tribe’s water quality
standards, and therefore be submitted to
EPA for review and approval. See In the
Matter of Star-Kist Caribe, Inc., 1990 WL
324290 (EPA), 3 EAD 172 (April 16,
1990).
Third, EPA is considering clarifying
that states and authorized tribes must
submit to EPA records of public
participation that has occurred in
reviewing and revising state or tribal
water quality standards. These records
would include public comments, and
the state’s or tribe’s responses to the
comments. This change would reflect
the results of City of Albuquerque v.
Browner, 97 F.3d 415 (10th Cir. 1996).
In the listening sessions, EPA will
invite views from the public on these
changes.
IV. Other EPA Outreach
EPA expects to conduct outreach with
additional stakeholders as well as local,
state, and tribal governments before
proposing any revisions to the water
quality standards regulation. This
outreach includes discussions and
consultation with federally-recognized
Indian tribes, consistent with Executive
Order 13175 (Tribal Consultation);
consultation with representatives of
elected officials of state and local
government, consistent with Executive
Order 13132 (Federalism); and
consultation with state water quality
program officials as co-regulators. EPA
will continue outreach efforts prior to
finalizing any revisions.
Dated: July 22, 2010.
Ephraim S. King,
Director, Office of Science and Technology.
[FR Doc. 2010–18557 Filed 7–29–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–1986–0005; FRL–9183–1]
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List: Intent To
Delete the SMS Instruments, Inc.
Superfund Site
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA), Region 2, is issuing a
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Instruments, Inc. Superfund Site (Site),
SUMMARY:
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]]>Agencies
[Federal Register Volume 75, Number 146 (Friday, July 30, 2010)]
[Proposed Rules]
[Pages 44930-44932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18557]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2010-0606; FRL-9182-1]
Stakeholder Input; Revisions to Water Quality Standards
Regulation
AGENCY: Environmental Protection Agency.
ACTION: Listening sessions.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is announcing its
plans to initiate national rulemaking to make a limited set of targeted
changes to EPA's water quality standards regulation. EPA expects to
publish such proposed rule changes in the Federal Register in Summer
2011. EPA's intent is to improve the regulation's effectiveness in
helping to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. The purpose of this notice is to
announce EPA's intent to hold two informal public ``listening
sessions'' in August 2010. The sessions will allow EPA to inform the
public about the rulemaking, and will offer an opportunity for the
public to express views on the general direction of the rulemaking,
including the six specific elements of the rulemaking.
DATES: The two public listening sessions will be held as audio
teleconferences on August 24 and 26, 2010, from 1 to 2:30 p.m. EDT.
FOR FURTHER INFORMATION CONTACT: Thomas J. Gardner, EPA Headquarters,
Office of Water, Office of Science and Technology, at 202-566-0386 or
e-mail: gardner.thomas@epa.gov.
In order to provide an adequate number of telephone lines for those
wishing to attend EPA's sessions, interested individuals should
register in advance following instructions on the Internet at https://www.epa.gov/waterscience/standards/rules/wqs. Although you may register
at any time prior to the session of your choice, EPA prefers that you
register at least three days in advance.
The agenda and resource materials will be identical for the two
sessions. You do not need to attend both sessions.
If you do not have Internet access, please contact the person named
in the FOR FURTHER INFORMATION CONTACT section above.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Public Listening Sessions
EPA will hold two informal public listening sessions via audio
teleconference in August 2010 to inform the public about the
rulemaking, and to hear views from the public regarding possible
changes to EPA's water quality standards regulation at 40 CFR part 131
that are under consideration. The sessions will provide a review of
EPA's current water quality standards regulation and a summary of the
clarifications that EPA is considering. Clarifying questions and brief
oral
[[Page 44931]]
comments (three minutes or less) will be accepted at the sessions, as
time permits.
B. How can I get copies of this document and other related information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2010-0606. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although
all documents in the docket are listed in an index, some information is
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. Publicly available docket materials are
available in hard copy at the EPA Docket Center Public Reading Room,
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, and the telephone number for the Water Docket is (202)
566-2426. The docket can also accessed electronically at EPA Dockets at
https://www.epa.gov/edocket/. Once in the system, select ``search'',
then key in the appropriate docket identification number.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at https://www.epa.gov/fedrgstr/.
Electronic versions of this notice and other water quality
standards documents are available at EPA's water quality standards Web
site https://www.epa.gov/waterscience/standards.
II. Background
Statutory and Regulatory Overview
Water quality standards serve as the foundation for the water
quality-based approach to pollution control and are a fundamental
component of watershed management. Water quality standards are
provisions of state, tribal, or federal law that define the water
quality goals of a water body, or segment thereof, by designating the
use or uses to be made of the water body; establishing criteria based
on sound science that are protective of applicable uses; and protecting
water quality through antidegradation requirements. See 40 CFR part
131. States and tribes adopt water quality standards to protect public
health or welfare, enhance the quality of water, and serve the purposes
of the Act. See Clean Water Act (CWA or Act) 303(c). ``Serve the
purposes of the Act'' (as defined in sections 101(a)(2), and 303(c) of
the CWA) means that water quality standards should: (1) Include
provisions for restoring and maintaining chemical, physical, and
biological integrity of state and tribal waters; (2) provide, wherever
attainable, water quality for the protection and propagation of fish,
shellfish, and wildlife and recreation in and on the water; and (3)
consider the use and value of state and tribal waters for public water
supplies, propagation of fish and wildlife, recreation, agricultural
and industrial purposes, and navigation. See 40 CFR 131.2.
The statutory basis for water quality standards and EPA's
regulation is section 303(c) of the CWA. Section 303(c)(2) of the CWA
directs states to consider the use and value of waters for specific
purposes, including public water supply, propagation of fish and
wildlife, recreational purposes, agricultural and industrial water
supplies and other purposes including navigation. Section 303(c)(2)
also requires that standards protect public health or welfare, enhance
the quality of water and serve the purposes of the Act. CWA section
303(c)(1) requires that states review their standards at least once
every three years. CWA section 303(c)(3) establishes timelines for EPA
review and approval or disapproval of new or revised standards, and CWA
section 303(c)(4) specifies requirements regarding promulgation of
federal water quality standards in cases where a new or revised
standard is found by EPA not to be consistent with the CWA or in any
case where the Administrator determines that a new or revised standard
is necessary to meet the requirements of the CWA.
EPA's Water Quality Standards regulation is at 40 CFR part 131. The
regulation implements the requirements of section 303(c) of the CWA.
Fundamentally, the regulation: (1) Defines when and how designated uses
may be revised; (2) requires criteria to protect those uses and be
based on sound science; (3) requires EPA and states to prevent the
degradation of water quality, except under certain circumstances; (4)
requires states/tribes to review their water quality standards at least
every three years and engage the public in any revisions to water
quality standards; and (5) specifies roles of states and EPA and
provides administrative procedures for EPA's review and approval or
disapproval of any new or revised state water quality standards.
III. Changes to EPA's Water Quality Standards Regulation Under
Consideration
EPA is planning to propose a limited set of targeted changes to its
water quality standards regulation to improve its effectiveness in
helping restore and maintain the chemical, physical, and biological
integrity of the Nation's waters. EPA expects to publish a proposed
rule in the Federal Register in Summer 2011.
The core requirements of the current regulation have been in place
since 1983. These requirements have provided a solid foundation for
water quality-based controls, including CWA section 303(d) assessments,
listings, and Total Maximum Daily Loads (TMDLs), as well as discharge
permits issued under the National Pollutant Discharge Elimination
System (NPDES). The intent of the changes EPA is considering is to add
or modify a limited number of provisions to address the specific areas
described below.
The following is a brief summary of the clarifications to the water
quality standards regulation that EPA is considering.
A. Antidegradation Implementation Methods
The current regulation specifies that states and authorized tribes
must identify the methods to implement the antidegradation policies
that they are required to adopt in their water quality standards. 40
CFR 131.12(a). The regulation does not specify what the implementation
methods must include, but only states that such methods must be, as the
policies must be, ``consistent with'' 40 CFR 131.12(a). EPA is
considering modifying the regulation to specify that antidegradation
implementation methods must meet specific minimum requirements.
Specifically, EPA is considering adding a subparagraph (b) to 40 CFR
131.12 (which currently has a subparagraph (a) but not (b)) that would
specify minimum elements to be included in state or authorized tribe
antidegradation implementation methods. EPA is also considering
requiring that antidegradation implementation methods be adopted into
state and tribal water quality standards, and thus be subject to EPA
review and approval under CWA section 303(c), rather than having them
simply be identified. In the listening sessions, EPA will invite views
from the public on these potential changes, including what the minimum
requirements should include.
[[Page 44932]]
B. Administrator's ``Determination''
The CWA provides that the Administrator may determine that a
revised or new standard is necessary to meet the requirements of the
CWA. Section 303(c)(4)(B). If such a determination is made, EPA must
promptly propose a revised or new federal standard to augment or
replace the state's or authorized tribe's water quality standards, and
promulgate the proposed standard within 90 days of proposal. See CWA
303(c)(4). Since this provision was enacted by Congress in 1972, there
have been recurring instances of confusion or misunderstanding about
what constitutes such a determination. EPA is considering clarifying in
the water quality standards regulation that an Administrator's
determination must be signed by the Administrator or his/her duly
authorized designee, and must include a statement that the document
constitutes a determination under section 303(c)(4)(B) of the CWA. In
the listening sessions, EPA will invite views from the public on these
changes.
C. Designated Uses
Section 101(a)(2) of the Act establishes a goal, wherever
attainable, of water quality that provides for the protection and
propagation of fish, shellfish, and wildlife and recreation in and on
the water. The water quality standards regulation requires that the
state or authorized tribe perform a use attainability analysis (that
is, a structured scientific assessment of factors affecting attainment
of designated uses) and submit this assessment to EPA in order to
remove certain designated uses, including any designated use that is
specified as a national goal in section 101(a)(2) of the CWA. See 40
CFR 131.10. The regulation does not, however, specify which uses, if
any, must be adopted to replace the use that is being removed. EPA is
considering clarifying that designated uses reflecting the CWA
101(a)(2) goals of the CWA are presumed attainable unless otherwise
demonstrated and that states and authorized tribes must designate such
uses unless they have conducted a use attainability analysis to support
a lesser designated use and EPA has approved that action. EPA is also
considering clarifying that the highest attainable use(s) closest to
the section 101(a)(2) goal must be adopted if a CWA 101(a)(2) goal use
is unattainable. In the listening sessions, EPA will invite views from
the public on these changes.
D. Variances
The current regulation allows states and authorized tribes to adopt
variances as general policies for applying and implementing their water
quality standards. See 40 CFR 131.13. The regulation does not provide a
definition of, a description of, or any requirements for the use of
variances. EPA is considering establishing regulatory requirements for
variances to ensure proper use of variances and reduce the possibility
of inappropriate use. In the listening sessions, EPA will invite views
from the public on these clarifications, and what the regulatory
requirements should include.
E. Triennial Reviews
The CWA and the current water quality standards regulation require
states and authorized tribes to review their water quality standards at
least once every three years, and modify standards or adopt new
standards as appropriate. CWA 303(c); 40 CFR 131.20. EPA is considering
revising the regulatory requirements to clarify that states and
authorized tribes must solicit and consider public comments in
determining the scope of each such triennial review. EPA is also
considering establishing a new triennial review requirement that states
and authorized tribes must evaluate whether their existing water
quality criteria continue to be protective of designated uses, taking
into consideration any new information, including EPA's most recent
national recommended CWA 304(a) water quality criteria, that has become
available since the state or tribal criteria were adopted or last
revised. In the listening sessions, EPA will invite views from the
public on these changes.
F. Updates To Reflect Court Decisions
EPA is considering making three clarifications to the water quality
standards regulation to codify the results of court decisions over the
years.
First, EPA is considering revising the definition of ``water
quality standards'' in 40 CFR 131.3 to reflect the results of and EPA's
actions on remand from Florida Public Interest Research Group Citizen
Lobby, Inc., Save our Suwannee, Inc., et al. v. EPA, et al., 386 F.3d
1070 (11th Cir. 2004) concerning Florida's Impaired Water Rule (IWR).
That court decision and EPA's response to it more clearly define which
of state or tribal provisions constitute water quality standards that
need to be submitted to EPA for review and approval. EPA is considering
revising 40 CFR part 131 to reflect these developments.
Second, EPA is considering specifying that authorizing provisions
for compliance schedules for implementing water quality-based effluent
limits in NPDES permits must be adopted as part of a state's or tribe's
water quality standards, and therefore be submitted to EPA for review
and approval. See In the Matter of Star-Kist Caribe, Inc., 1990 WL
324290 (EPA), 3 EAD 172 (April 16, 1990).
Third, EPA is considering clarifying that states and authorized
tribes must submit to EPA records of public participation that has
occurred in reviewing and revising state or tribal water quality
standards. These records would include public comments, and the state's
or tribe's responses to the comments. This change would reflect the
results of City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir.
1996).
In the listening sessions, EPA will invite views from the public on
these changes.
IV. Other EPA Outreach
EPA expects to conduct outreach with additional stakeholders as
well as local, state, and tribal governments before proposing any
revisions to the water quality standards regulation. This outreach
includes discussions and consultation with federally-recognized Indian
tribes, consistent with Executive Order 13175 (Tribal Consultation);
consultation with representatives of elected officials of state and
local government, consistent with Executive Order 13132 (Federalism);
and consultation with state water quality program officials as co-
regulators. EPA will continue outreach efforts prior to finalizing any
revisions.
Dated: July 22, 2010.
Ephraim S. King,
Director, Office of Science and Technology.
[FR Doc. 2010-18557 Filed 7-29-10; 8:45 am]
BILLING CODE 6560-50-P
