[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Proposed Rules]
[Pages 80713-80718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26777]
[[Page 80713]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 123 and 233
[EPA-HQ-OW-2020-0517; FRL-10017-98-OW]
RIN 2040-AG09
Criminal Negligence Standard for State Clean Water Act 402 and
404 Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is
requesting comment on proposed Clean Water Act (CWA or the Act)
regulations to clarify that state or tribal programs approved pursuant
to CWA Sections 402 and 404 are not required to include the same
criminal intent standard that is applicable to the EPA under Section
309 of the CWA. The proposed regulations will provide clarity to
states, tribes, regulated entities, and the public.
DATES: Comments must be received on or before January 13, 2021.
ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-
OW-2020-0517, through the Federal eRulemaking Portal at: https://www.regulations.gov/. Follow the online instructions for submitting
comments. All submissions received must include the Docket ID No. for
this rulemaking. Comments received may be posted without change to
https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document. Out
of an abundance of caution for members of the public and our staff, the
EPA Docket Center and Reading Room are closed to the public, with
limited exceptions, to reduce the risk of transmitting COVID-19.Our
Docket Center staff will continue to provide remote customer service
via email, phone, and webform. We encourage the public to submit
comments via https://www.regulations.gov/ or email, as there may be a
delay in processing mail. Hand deliveries and couriers may be received
by scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at:
https://www.epa.gov/dockets.
EPA is offering one virtual public hearing so that interested
parties may also provide oral comments on the proposed rulemaking. For
more information on the virtual public hearing and to register to
attend, please visit: https://www.epa.gov/npdes/. Refer to the
SUPPLEMENTARY INFORMATION section below for additional information.
FOR FURTHER INFORMATION CONTACT: Nizanna Bathersfield, Office of
Wastewater Management, Water Permits Division (Mail Code 4203M),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone number: (202) 564-2258; email address:
Bathersfield.Nizanna@epa.gov.
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:
I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What are the incremental costs and benefits of this action?
II. Public Participation
A. Written Comments
B. Virtual Public Hearing
III. Background
IV. Request for Comment
V. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Does this action apply to me?
Entities potentially affected by this action include States, U.S.
territories, and Indian Tribes that are authorized and/or seek
authorization to administer the Clean Water Act (CWA) Section 402
National Pollutant Discharge Elimination System (NPDES) permitting
program or the CWA Section 404 dredged or fill permitting program. This
table is not intended to be exhaustive; rather, it provides a guide for
readers regarding entities that this action is likely to affect. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person identified in the preceding
section.
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\1\ The phrase, ``State(s) and Tribe(s)'' will be used in this
document hereafter.
Table I-1--Entities Potentially Affected by This Action
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Category Examples of potentially affected entities
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Federal Government........... EPA when conducting oversight of programs
authorized under CWA Sections 402 and
404 in states, tribes, and U.S.
territories.
State, Territorial, and States, Tribes, and U.S. Territories \1\
Indian Tribal Governments. that are authorized or that seek
authorization to administer the CWA
Section 402 NPDES permitting program and/
or the CWA Section 404 dredged and fill
permitting program.
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B. What action is the Agency taking?
EPA proposes to amend its requirements in 40 CFR 123.27 and 233.41
for criminal enforcement authorities to clarify that states and tribes
that are authorized to or that seek authorization to administer the CWA
Section 402 NPDES permitting program and/or the CWA Section 404 dredged
and fill permitting program are not required to establish the same
negligence standard that the CWA establishes for Federal criminal
enforcement actions. Rather, EPA may approve state or tribal programs
that allow for prosecution based on any negligence standard, including
gross negligence or recklessness, as opposed to requiring that a state
or tribe be able to establish criminal violations based on
[[Page 80714]]
simple or ordinary negligence. EPA interprets its current regulations
to allow for this approach and proposes to modify its regulations to
make its interpretation of the statute clearer. Because the relevant
CWA Section 402 regulatory provisions are similar \2\ to those in CWA
Section 404 and raise the same issues, EPA proposes to make similar
changes to the CWA Sections 402 and 404 permitting program regulations.
Refer to the BACKGROUND section below for a more detailed description
of the context and purpose for this action.
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\2\ The regulation at 40 CFR 123.27 includes a note that is
absent from 40 CFR 233.41. This note provides: ``[s]tates which
provide the criminal remedies based on ``criminal negligence,''
``gross negligence'' or strict liability satisfy the requirement of
paragraph (a)(3)(ii) of this section.'' See 40 CFR 123.27(a)(ii).
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C. What are the incremental costs and benefits of this action?
The proposed amendment clarifies EPA's interpretation of the CWA
enforcement requirements applicable to authorized state and tribal
programs under CWA Section 402 and CWA Section 404. This action does
not establish new requirements but instead provides clarity for states
and tribes that have been approved to administer or are interested in
obtaining EPA approval to administer their own NPDES or dredged and
fill permitting program under the CWA. Therefore, the proposed
rulemaking would impose no incremental change to current requirements
that EPA measures as compliance costs or monetized benefits.
EPA anticipates that states that already administer these CWA
programs will not need to make any changes to their legal authority to
conform with this regulatory change. Instead, these regulatory
clarifications will provide assurance to approved states that their
current criminal intent standards comport with EPA's interpretation of
the CWA criminal intent standard applicable to authorized state and
tribal CWA Sections 402 and 404 programs. Additionally, this
clarification will provide those states and tribes interested in
seeking approval to administer the CWA Sections 402 and 404 programs,
respectively, with clarity regarding the legal authorities required for
approval by EPA.
II. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0517, at https://www.regulations.gov/. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit: http://www2.epa.gov/dockets/commenting-epa-dockets.
EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that we can respond
rapidly as conditions change regarding COVID-19.
B. Virtual Public Hearing
EPA intends to hold a virtual public hearing on the proposed
rulemaking. EPA is deviating from its typical approach to public
hearings because the President has declared a national emergency.
Because of current CDC recommendations, as well as state and local
orders for social distancing to limit the spread of COVID-19, EPA
cannot hold in-person public meetings at this time.
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at the virtual hearing, please use the online registration form
available at https://www.epa.gov/npdes/ or contact Cortney Itle at
cortney.itle@erg.com. EPA will make every effort to follow the schedule
as closely as possible on the day of the hearing; however, please plan
for the hearings to run either ahead of schedule or behind schedule.
Each commenter will have three minutes to provide oral testimony.
Note that the testimony time may be adjusted depending on the number of
registered speakers. EPA encourages commenters to provide EPA with a
copy of their oral testimony electronically (via email) by emailing it
to Cortney Itle. EPA also recommends submitting the text of your oral
comments as written comments to the rulemaking docket. EPA may ask
clarifying questions during the oral presentations but will not respond
to the presentations at that time. Written statements and supporting
information submitted during the comment period will be considered with
the same weight as oral comments and supporting information presented
at the public hearing.
Please note that any updates made to any aspect of the hearing is
posted online at https://www.epa.gov/npdes/. While EPA expects the
hearing to go forward as set forth above, please monitor our website or
contact Cortney Itle at cortney.itle@erg.com to determine if there are
any updates. EPA does not intend to publish a document in the Federal
Register announcing updates. If you require the services of a
translator or special accommodations such as audio description, please
pre-register for the hearing with Cortney Itle and describe your needs
at least two weeks prior to the announced public hearing date. EPA may
not be able to arrange accommodations without advanced notice.
III. Background
The CWA provides that states and tribes seeking approval for a
permitting program under CWA Section 402 and CWA Section 404 must have
adequate authority ``[t]o abate violations of the permit or the permit
program, including civil and criminal penalties and other ways and
means of enforcement.'' 33 U.S.C. 1342(b)(7) and 1344(h)(1)(G). These
provisions do not establish specific mens rea standards or penalties
for state and tribal programs and thus do not provide specific criteria
on which basis EPA could disapprove a program for lack of authority to
impose criminal sanctions. In contrast, CWA Section 309(c) specifically
provides EPA with enforcement authority to establish misdemeanor
criminal liability in Subsection (c)(1) and a range of penalties for
``[n]egligent violations'' of specified provisions, as well as felony
liability and a higher range of penalties for ``knowing violations'' of
the CWA in Subsection (c)(2). Beginning in 1999, three circuit courts
of appeal determined that criminal negligence under CWA Section
309(c)(1) is ``ordinary negligence'' rather than gross negligence or
any other negligence standard. U.S. v. Hanousek, 176 F.3d 1116, 1121
(9th Cir. 1999); U.S. v. Ortiz, 427 F.3d 1278, 1282 (10th Cir. 2005);
U.S. v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012). Though courts have
interpreted EPA's enforcement authority under CWA 309(c)(1) to
encompass violations committed with ordinary negligence, these courts
did not address
[[Page 80715]]
whether this provision implicates state or tribal programs implementing
CWA Sections 402 or 404.
EPA's regulations currently provide that a state or tribal agency
administering a program under CWA Section 402 must provide for criminal
fines to be levied ``against any person who willfully or negligently
violates any applicable standards or limitations; any NPDES permit
condition; or any NPDES filing requirement.'' 40 CFR 123.27(a)(3)(ii).
Similarly, EPA's regulations currently provide that any state or tribal
agency administering a program under Section 404 of the CWA shall have
authority to seek criminal fines against any person who ``willfully or
with criminal negligence discharges dredged or fill material without a
required permit or violates any permit condition issued under section
404 . . .'' 40 CFR 233.41(a)(3)(ii). The regulations implementing both
statutory programs also provide that the ``burden of proof and degree
of knowledge or intent required under State law for establishing
violations under paragraph (a)(3) of this section, shall be no greater
than the burden of proof or degree of knowledge or intent EPA must bear
when it brings an action under the Act.'' 40 CFR 123.27(b)(2); 40 CFR
233.41(b)(2). Additionally, the implementing regulations for CWA
Section 402 include a note, not present in the CWA Section 404
implementing regulations, that states, ``[f]or example, this
requirement is not met if State law includes mental state as an element
of proof for civil violations'' 40 CFR 123.27(b)(2).
On September 10, 2020, the Ninth Circuit Court of Appeals issued an
unpublished decision that granted in part and denied in part the Idaho
Conservation League's petition for review of EPA's approval of Idaho's
NPDES permitting program. Idaho Conservation League v. US EPA, no. 18-
72684 (September 10, 2020). Relying on the Ninth Circuit case law cited
above, which holds that EPA enforcement actions are subject to a simple
negligence standard, the court determined that EPA abused its
discretion in approving a mens rea standard of gross negligence because
it is ` ``greater than the burden of proof or degree of knowledge or
intent EPA must provide when it brings an action . . .' 40 CFR
123.27(b)(2).'' The court recognized that ``a state program need not
mirror the burden of proof and degree of knowledge or intent EPA must
meet to bring an enforcement action,'' citing EPA's Consolidated Permit
Regulations, 45 FR. 33290, 33382 (May 19, 1980), but held that EPA's
current regulations at 40 CFR 123.27(b)(2) require a state plan to
employ a standard ``no greater than'' simple negligence, such as strict
liability or simple negligence. Slip op. at 3. Because the decision is
unpublished, it is not precedential except for as the law of the case.
See Ninth Cir. Rule 36-4.
Overview of This Proposal
The CWA and its implementing regulations require that in order to
avoid EPA disapproval, States and tribes must have certain legal
authorities in place pertaining to permit issuance, and compliance and
enforcement, including criminal enforcement. EPA does not interpret the
CWA to require that states and tribes establish the same negligence
standard that the CWA establishes for Federal enforcement actions. The
current regulations describing the criminal intent standard applicable
to state and tribal programs at 40 CFR 233.41(a)(3)(ii) and 40 CFR
123.27(a)(3)(ii) do not clearly articulate EPA's interpretation of the
statute that it may approve state or tribal programs that allow for
prosecution based on any negligence standard, including those
negligence standards with a gross negligence mens rea requirement. This
proposal sets forth regulatory revisions that are consistent with this
interpretation.
Statutory and Regulatory Framework for EPA's Interpretation
While EPA's own enforcement authority under CWA Section 309(c)(1),
33 U.S.C. 1319(c)(1), as interpreted by the courts, requires only proof
of ordinary negligence, that provision does not apply to state or
tribal programs. As noted above, the CWA requires that EPA ``shall
approve'' a state's application if it determines that the state has the
authority to ``abate violations of the permit or the permit program,
including civil and criminal penalties and other ways and means of
enforcement.'' 33 U.S.C. 1342(b)(7); 1344(h)(1)(G). EPA has
consistently maintained that nothing in the text of CWA Sections 402 or
404 requires identical enforcement authority between states or tribes
and EPA. See NRDC v. U.S. EPA, 859 F.2d 156, 175, 181 (D.C. Cir. 1988)
(upholding EPA's decision not to require state or tribal programs to
incorporate the maximum penalty amounts in CWA Section 309 as a
``reasonable accommodation'' of ``the competing objectives of
regulatory uniformity and state autonomy'') (citing Chevron U.S.A. v.
NRDC, 467 U.S. 837, 865 (1984).
In addressing the enforcement requirements for state programs,
Congress did not use the words ``all applicable,'' ``same,'' or any
phrase specific to any mens rea standard, let alone the Federal
standard, as it did in other parts of CWA Sections 404(h) or 402(b).
See 33 U.S.C. 1344(h), 1342(b). Indeed, when ``Congress includes
particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.''
Sebelius v. Cloer, 569 U.S. 369, 378 (2013) (internal quotations
omitted). In contrast to the broad authority that CWA Sections
404(h)(1)(G) and 402(b)(7) provide to determine whether states and
tribes have demonstrated adequate authority to abate violations, other
aspects of state and tribal programs are explicitly required to have
authority that is equivalent to or more stringent than EPA's authority.
For example, states must have the authority ``[t]o inspect, monitor,
enter, and require reports to at least the same extent as required in
section 1318 of this chapter,'' 33 U.S.C. 1344(h)(1)(B); 1342(b)(2)(B)
(emphasis added). Similarly, CWA Section 404(h)(1)(B) requires state-
issued permits to ``apply, and assure compliance with, any applicable
requirements of this section, including, but not limited to, the
guidelines established under subsection (b)(1) of this section, and
sections 1317 and 1343 of this title . . .'' 33 U.S.C. 1344(h)(1)(A)(i)
(emphasis added); and CWA Section 402(b)(1)(A) requires states to issue
permits in compliance with ``sections 1311, 1312, 1316, 1317, and 1343
of this title.'' 33 U.S.C. 1342(b)(1)(A). The more general language
used to address required state and tribe authorities to abate
violations, and the absence of any citation to CWA Section 309,
indicates that Congress allowed for variability between state or tribal
approaches to certain aspects of enforcement. See 33 U.S.C. 1342
(b)(7).
EPA interprets the Agency's implementing regulations for CWA
Sections 402 and 404 to allow for approved state and tribal programs to
have different approaches to criminal enforcement than the Federal
government's approach. As noted above, EPA's interpretation is
consistent with the D.C. Circuit's decision in NRDC, 859 F.2d at 180-
81. There, the petitioner challenged the validity of 40 CFR
123.27(a)(3) on the theory that it did not require states to have the
same maximum criminal penalties as the federal program. NRDC, 859 F.2d
at 180. The court reasoned that the petitioner's argument involved a
``logical infirmity''
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because it ``presume[d] an unexpressed congressional intent that state
requirements must mirror the federal ones,'' which is ``inconsistent
with the elements of the statutory scheme limiting operation of the
provisions to enforcement efforts at the national level and explicitly
empowering the Administrator to set the prerequisites for state
plans.'' Id. at 180 (discussing 33 U.S.C. 1314(i)(2)(C)). The D.C.
Circuit recognized EPA's ``broad[ ] discretion to respect state
autonomy in the criminal sector'' and that the regulations ``reflect
the balancing of uniformity and state autonomy contemplated by the
Act.'' Id. at 180-81. The court therefore declined ``to divest the
Administrator of this authority'' in the face of congressional silence.
Id.
EPA's interpretation is also consistent with the Ninth Circuit's
decision in Akiak Native Community v. EPA, in which the Ninth Circuit
declined to require that states have authority to impose administrative
penalties identical to federal authority. See Akiak Native Community,
625 F.3d 1162, 1171-72 (9th Cir. 2010). In that case, the petitioner
argued that the State of Alaska did not have adequate authority to
abate violations because Alaska had to initiate a legal proceeding to
assess civil penalties, whereas EPA could do so administratively. Id.
at 1171. The Court held that because ``[t]here is no requirement in the
CWA . . . that state officials have the authority to impose an
administrative penalty'' and ``[t]he language of the statute says
nothing about administrative penalties,'' ``there is no reason to
conclude that Alaska lacks adequate enforcement authorities.'' Id.
1171-72.
Finally, EPA's longstanding interpretation that CWA Sections 402
and 404 do not require states and tribes to have identical authorities
to EPA's under CWA Section 309 is consistent with the Ninth Circuit's
acknowledgement in Idaho Conservation League v. EPA that ``a state
program need not mirror the burden of proof and degree of knowledge or
intent EPA must meet to bring an enforcement action.'' Slip op. at 3,
citing Consolidated Permit Regulations, 45 FR at 33382 (May 19, 1980).
While EPA does not agree with the Ninth Circuit's unpublished
interpretation of the Agency's regulations, this proposed rulemaking
would clarify the criminal intent standards for existing and
prospective state and tribal enforcement programs under CWA Sections
402 and 404.
As discussed above, this proposed rulemaking would codify the
interpretation of state and tribal criminal intent requirements that
EPA presented to the Ninth Circuit in the Idaho Conservation League v.
EPA, which is itself consistent with EPA's longstanding interpretation
that state and tribal programs are not required to have the identical
enforcement authority to EPA's under CWA Section 309. To the extent
this interpretation is viewed as different from any earlier
interpretations of CWA Sections 402 and 404 and implementing
regulations, EPA has ample authority to change its interpretation of
ambiguous statutory language. An ``initial agency interpretation is not
instantly carved in stone.'' Chevron, 467 U.S. at 863; see also Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (``[A]gencies
are free to change their existing policies as long as they provide a
reasoned explanation for the change.'') (citations omitted). Rather, a
revised rulemaking based on a change in interpretation of statutory
authorities is well within federal agencies' discretion. Nat'l Ass'n of
Home Builders v. EPA, 682 F.3d 1032, 1038 (D.C. Cir. 2012) (citing FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). The agency
must simply explain why ``the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better,'' Fox Television Stations, 566 U.S. at 515.
This preamble meets this standard, providing a reasoned explanation for
EPA's proposal and its consistency with the CWA.
Though under this proposal EPA is not requiring states or tribes to
have the same criminal enforcement authority that courts have
interpreted EPA to have, the state or tribal standard would still be
based on the term ``negligence'' in the text of CWA Section 309.
Allowing states or tribes flexibility in the degree of negligence for
which they are authorized to bring criminal cases balances the CWA's
priorities of allowing for state and tribal autonomy with adherence to
the purposes of the Act. As noted above, neither CWA Section 402(b)(7)
nor CWA Section 404(h)(1)(G) requires states to abate violations in the
same manner as required under CWA Section 309. The absence of any
citation to CWA Section 309 in CWA Sections 402(b) and 404(h) indicates
that variability may be permitted between Federal and state or tribal
approaches to enforcement.
The proposed regulatory clarification reflects EPA's experience in
approving and overseeing CWA state programs for over thirty years. Many
states administering or seeking to administer the programs do not
currently have a simple negligence standard, and indeed, may have
statutory or constitutional barriers to such standards. The absence of
simple negligence standards has not served as a bar to effective state
enforcement programs, but the requirement to have such a standard could
dissuade states and tribes from seeking to administer these programs in
the future. Clarifying that states and tribes do not need a simple
negligence standard in their criminal enforcement programs therefore
advances the purposes of CWA Sections 402(b) and 404(g) to balance the
need for uniformity with state autonomy. See NRDC, 859 F.2d at 181
(D.C. Cir. 1988).
This proposal does not change the standard applicable to EPA's
criminal enforcement of the CWA. Under CWA Section 309, EPA retains its
civil and criminal enforcement authority notwithstanding the
authorization status of a state or tribal permit program.
Consistent with the CWA's requirement that states and tribes
administering CWA Sections 402 or 404 permitting programs have the
authority to abate civil and criminal violations, EPA is proposing to
include language to clarify in 40 CFR 123.27(a) and 233.41(a)(3) that
states and tribes must have the authority to ``establish violations.''
This new language simply confirms EPA's longstanding interpretation of
the effect of its regulations. EPA also proposes to remove the term
``appropriate'' from the current references to the degree of knowledge
or intent necessary to provide when bringing an action under the
``appropriate Act'' from the CWA Sections 402 and 404 implementing
regulations, as these regulations only refer to actions under the CWA
and no other statute. Therefore, the term ``appropriate'' is
unnecessary. Finally, in 40 CFR 233.41(a)(3), which currently requires
states and tribes to have the authority ``[t]o establish the following
violations and to assess or sue to recover civil penalties and to seek
criminal remedies,'' EPA proposes to replace the word ``remedies'' with
``penalties,'' as ``penalties'' is a more precise description of the
type of relief sought in criminal enforcement actions. None of the
proposed changes listed in this paragraph are intended to change the
substantive effect of the regulations, but simply to clarify existing
requirements.
IV. Request for Comment
EPA is proposing regulations at 40 CFR 123.27 and 233.41 to clarify
that authorized state and tribal programs under CWA Sections 402(b) and
404(g) are not required to establish the same negligence standard for
criminal enforcement actions that the CWA
[[Page 80717]]
establishes for Federal enforcement actions. The Agency solicits
comments on the proposed rulemaking. Refer to Section II.A of this
preamble for instructions on submitting written comments. Comments are
most helpful when accompanied by specific examples and supporting data.
V. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and therefore
was not submitted to the Office of Management and Budget (OMB) for
review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
C. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA. This proposal would provide regulatory clarity for approved
state and tribal CWA Sections 402 and 404 programs as well as for
states and tribes that seek approval for their own CWA Sections 402 or
404 programs. This proposal does not create new information collection
activities.
D. Regulatory Flexibility Act (RFA)
The Agency certifies that this action will not have a significant
economic impact on a substantial number of small entities under the
RFA. This action will not impose any requirements on small entities.
This action does not impose new requirements on any entities but
instead provides clarity for states and tribes that have been approved
to administer or seek approval for their own CWA Sections 402 or 404
programs.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This
action may be of significant interest to states that administer CWA
Sections 402 and 404 programs as well as for states seeking approval to
administer CWA Sections 402 or 404 programs because it clarifies the
appropriate criminal intent standard states must have to enforce these
programs.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does have tribal implications as specified in Executive
Order 13175. Although there are no federally recognized tribes that, at
this time, have been approved to administer the CWA programs under
either section 402 or section 404, this rulemaking will assist tribes
in better understanding the applicable criminal intent standard for
nearby approved state programs. This could assist tribes as they
participate in state permitting processes. Additionally, this
rulemaking will also inform tribes about the applicable criminal
negligence intent standard as they consider whether to pursue approval
for the NPDES permitting program and/or assumption of the dredged and
fill permitting program.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not believe that there are environmental health or
safety risks addressed by this action that present a disproportionate
risk to children. This proposal does not change the programmatic
requirements of the CWA Sections 402 and 404 programs and has no direct
impacts on the environment.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
proposed action does not change existing programmatic CWA Sections 402
and 404 requirements. Instead this proposed rulemaking clarifies the
current requirements for the criminal intent standard that is
applicable to state and tribal programs.
List of Subjects
40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indians--
lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 233
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indian--lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements, Water pollution control, Endangered and threatened
species.
Andrew Wheeler,
Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR parts 123 and 233 as follows:
PART 123--STATE PROGRAM REQUIREMENTS
0
1. The authority citation for part 123 continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Subpart B--State Program Submissions
0
2. Section 123.27 is amended by:
0
a. Revising paragraphs (a) introductory text, (a)(3) introductory text,
and (a)(3)(ii);
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b. Removing the note that appears after paragraph (a)(3)(ii); and
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c. Revising paragraph (b)(2).
The revisions read as follows:
[[Page 80718]]
Sec. 123.27 Requirements for enforcement authority.
(a) Any State agency administering a program shall have the
authority to establish the following violations and have available the
following remedies and penalties for such violations of State program
requirements:
* * * * *
(3) To assess or sue to recover in court civil penalties and to
seek criminal penalties as follows:
* * * * *
(ii) Criminal fines shall be recoverable against any person who
willfully or negligently violates any applicable standards or
limitations; any NPDES permit condition; or any NPDES filing
requirement. These fines shall be assessable in at least the amount of
$10,000 a day for each violation.
* * * * *
(b) * * *
(2) The burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must provide when it brings an action under the
Act, except that a State may establish criminal violations based on any
form or type of negligence.
* * * * *
PART 233--404 STATE PROGRAM REGULATIONS
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3. The authority citation for part 233 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
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4. Section 233.41 is amended by revising paragraphs (a)(3) introductory
text, (a)(3)(ii), and (b)(2) to read as follows:
Sec. 233.41 Requirements for enforcement authority.
(a) * * *
(3) To establish the following violations and to assess or sue to
recover civil penalties and to seek criminal penalties, as follows:
* * * * *
(ii) To seek criminal fines against any person who willfully or
with criminal negligence discharges dredged or fill material without
required permits or violates any permit condition issued under section
404 in the amount of at least $10,000 per day of such violation.
* * * * *
(b) * * *
(2) The burden of proof and degree of knowledge or intent required
under State law for establishing violations under paragraph (a)(3) of
this section, shall be no greater than the burden of proof or degree of
knowledge or intent EPA must provide when it brings an action under the
Act, except that a State may establish criminal violations based on any
form or type of negligence.
* * * * *
[FR Doc. 2020-26777 Filed 12-11-20; 8:45 am]
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