Water Quality Standards for Pennsylvania

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,

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

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

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

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

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

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]

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