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Federal Register / Vol. 72, No.

130 / Monday, July 9, 2007 / Rules and Regulations 37107

■ b. In paragraph (a), last sentence, ‘‘Assistant Secretary of the Air Force for ENVIRONMENTAL PROTECTION
revise ‘‘SAF/MIQ’’ to read ‘‘SAF/IEE.’’ Manpower, Reserve Affairs, AGENCY
■ c. In paragraph (b), third sentence, Installations, and Environment’’ to
revise ‘‘HQ USAF/ILEB’’ to read ‘‘HQ ‘‘Assistant Secretary of the Air Force for 40 CFR Parts 122 and 125
USAF/A7CI.’’ Installations, Environment & Logistics’’. [EPA–HQ–OW–2002–0049; FRL–8336–9]
■ d. In paragraph (b), third sentence,
■ i. In Abbreviations and Acronyms, RIN 2040–AD62
revise ‘‘SAF/MIQ’’ to read ‘‘SAF/IEE’’.
revise ‘‘SAF/MIQ’’ to read ‘‘SAF/IEE.’’
§ 989.36 [Amended] Change acronym definition from National Pollutant Discharge
■ 17. In § 989.36, make the following ‘‘Assistant Secretary of the Air Force for Elimination System—Suspension of
technical corrections: Manpower, Reserve Affairs, Regulations Establishing
■ a. In first sentence, revise ‘‘NEPA’’ to Installations, and Environment’’ to Requirements for Cooling Water Intake
read ‘‘EIAP’’ at its first occurrence. ‘‘Deputy Assistant Secretary of the Air Structures at Phase II Existing
■ b. In first sentence, revise ‘‘SAF/MIQ’’ Force for Environment, Safety and Facilities
to read ‘‘SAF/IEE’’. Occupational Health (ESOH)’’. AGENCY: Environmental Protection
§ 989.38 [Amended] ■ j. In Terms, under ‘‘BMPs’’ revise ‘‘40 Agency (EPA).
CFR 1508.22’’ to read ‘‘32 CFR 989.22’’. ACTION: Suspension of final rule.
■ 18. In § 989.38, make the following
technical corrections: Appendix B to Part 989 [Amended] SUMMARY: This action suspends the
■ a. In paragraph (b), revise ‘‘HQ USAF/
requirements for cooling water intake
ILEB’’ to read ‘‘HQ USAF/A7CI’’. ■ 20. In Appendix B, make the structures at Phase II existing facilities,
■ b. In paragraph (c), revise ‘‘HQ USAF/ following technical corrections: pending further rulemaking. The Phase
ILEB’’ to read ‘‘HQ USAF/A7CI’’. ■ a. In paragraph A3.1.1, revise II regulation addressed existing power
■ c. In paragraph (c), revise ‘‘AFCEE/
‘‘AFLSA/JAJT’’ to read ‘‘AFLOA/JAJT’’. utilities that use a cooling water intake
EC’’ to read ‘‘AFCEE/TDB’’.
■ b. In paragraph A3.1.2, revise structure to withdraw cooling water
■ d. In paragraph (d), revise ‘‘HQ USAF/
‘‘AFLSA/JAJT’’ to read ‘‘AFLOA/JAJT’’. from waters of the United States at a rate
ILEB’’ to read ‘‘HQ USAF/A7CI’’ in the
of 50 million gallons per day (MGD) or
four places it appears.
Appendix C to Part 989 [Amended] greater.
Appendix A to Part 989 [Amended] DATES: Effective July 9, 2007, 40 CFR
■ 21. In Appendix C, make the 122.21(r)(1)(ii) and (5), 125.90(a), (c) and
■ 19. In Appendix A, make the following technical corrections:
following technical corrections: (d) and 125.91 through 125.99 in
■ a. In U.S. Government Agency ■ a. In paragraph A3.1.3, last sentence, Subpart J are suspended.
Publications, revise ‘‘(DoDD) 4715.1, revise ‘‘HQ USAF/ILEVP’’ to read ‘‘HQ FOR FURTHER INFORMATION CONTACT:
Environmental Security’’ to read ‘‘DoDD USAF/A7CI.’’ Janet Goodwin at (202) 566–1060,
4715.1E, Environment, Safety, and ■ b. In paragraph A3.1.3, last sentence, or Deborah
Occupational Health’’. revise ‘‘SAF/MIQ’’ to read ‘‘SAF/IEE’’. Nagle at (202) 564–1185,
■ b. In U.S. Government Agency
■ c. In paragraph A3.2.2.1, revise ‘‘HQ
Publications, revise ‘‘DoDD 5000.1, SUPPLEMENTARY INFORMATION: This
Defense Acquisition’’ to read USAF/ILEB’’ to read ‘‘HQ USAF/A7CI’’.
action suspends the Phase II regulations
‘‘Department of Defense Directive DoDD ■ d. In paragraph A3.2.3.3. revise ‘‘The
with the exception of 40 CFR 125.90 (b),
5000.1, The Defense Acquisition name and telephone number of a person for cooling water intake structures.
System’’. to contact for more information’’ to read
■ c. In Abbreviations and Acronyms, ‘‘The name, address, and telephone I. General Information
Change acronym definition for number of the Air Force point of A. Does This Action Apply to Me?
‘‘AFCEE’’ from ‘‘Air Force Center for contact’’.
Environmental Excellence’’ to read ‘‘Air Entities potentially affected by this
■ e. In paragraph A3.5.1., revise action are classified under NAIC 22111.
Force Center for Engineering and the
Environment’’. ‘‘AFLSA/JAJT’’ to read ‘‘AFLOA/JAJT’’. Affected categories and entities
■ d. In Abbreviations and Acronyms, ■ f. In paragraph A3.5.1., revise include:
revise ‘‘AFCEE/EC’’ to read ‘‘AFCEE/ ‘‘military trial judge’’ to read ‘‘hearing
TDB’’. Change acronym definition from officer’’. Examples of regulated
Category entities
‘‘AFCEE Environmental Conservation ■ g. In paragraph A3.5.1., revise
and Planning Directorate (AFCEE/EC)’’ ‘‘military trial judge’’ to read ‘‘hearing Electric Utilities ........ Electric Power Gener-
to read ‘‘AFCEE Technical Directorate, officer’’. ating Facilities.
Built Infrastructure Division (AFCEE/ State governments .. Department of Envi-
TDB)’’. ■ h. In paragraph A3.8, third to last ronmental Protec-
■ e. In Abbreviations and Acronyms, sentence, revise ‘‘SAF/MIQ’’ to read tion.
revise ‘‘AFLSA/JACE’’ to read ‘‘AFLOA/ ‘‘SAF/IEE’’.
JACE’’. This table is not intended to be
Bao-Anh Trinh,
■ f. In Abbreviations and Acronyms, exhaustive, but rather provides a guide
revise ‘‘AFLSA/JAJT’’ to read ‘‘AFLOA/ Air Force Federal Register Liaison Officer, for readers regarding entities affected by
Department of the Air Force. this action. Other types of entities not
■ g. In Abbreviations and Acronyms, [FR Doc. E7–13253 Filed 7–6–07; 8:45 am] listed in the table could also be affected.
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revise ‘‘HQ USAF/ILE’’ to read ‘‘HQ BILLING CODE 5001–05–P To determine whether your facility is
USAF/A7C’’. affected by this action, you should
■ h. In Abbreviations and Acronyms, carefully examine the definition in
revise ‘‘SAF/MI’’ to read ‘‘SAF/IE.’’ § 125.91. If you have questions
Change acronym definition from regarding the applicability of this action

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37108 Federal Register / Vol. 72, No. 130 / Monday, July 9, 2007 / Rules and Regulations

to a particular entity, consult one of the performance standards were determined water intake structures at Phase II
persons listed in the preceding FOR to reflect the Best Technology Available facilities should be established on a
FURTHER INFORMATION CONTACT section. (BTA) for minimizing adverse case-by-case best professional judgment
environmental impacts at facilities (BPJ) basis.
B. Table of Contents Pursuant to 5 U.S.C. 553(b) and (d),
covered by the Phase II rule.
I. Legal Authority These regulations were challenged by EPA has determined for good cause that
II. Background industry and environmental notice and public comment procedures
III. This Action stakeholders. On judicial review, the are unnecessary. As noted, the Second
IV. Statutory and Executive Order Reviews Second Circuit decision (Riverkeeper, Circuit’s decision found key provisions
I. Legal Authority Inc. v. EPA, 475 F.3d 83, (2d Cir., 2007)) of the Phase II rule to be inconsistent
remanded several provisions of the with the Clean Water Act and remanded
EPA is issuing this suspension of the most of the rule to the Agency. As a
Phase II rule on various grounds. The
Phase II rule pursuant to 5 U.S.C. 553(b) result, under the decision, EPA is
provisions remanded to EPA include:
and (d), which authorizes
• EPA’s determination of the BTA precluded from applying the rule unless
administrative agencies to issue and until it takes further action to
under section 316(b);
administrative suspensions
• The rule’s performance standard address the decision. Thus, today’s
immediately, where good cause justifies action simply effectuates the legal status
the action. Public comment on this
• The cost-cost and cost-benefit quo and public comment is therefore
suspension is unnecessary, as a decision unnecessary.
compliance alternatives;
issued by the U.S. Court of Appeals for • The Technology Installation and Notably, EPA by this action is not
the Second Circuit (Second Circuit), Operation Plan provision; suspending 40 CFR 125.90(b). This
Riverkeeper, Inc. v. EPA, 475 F.3d 83 • The restoration provision; and retains the requirement that permitting
(2d Cir. 2007), precludes EPA from • The ‘‘independent supplier’’ authorities develop BPJ controls for
applying the Phase II rule unless and provision. existing facility cooling water intake
until EPA takes further action and With several significant provisions of structures that reflect the best
today’s suspension action merely carries the Phase II rule affected by the technology available for minimizing
out the effect of that decision on the decision, and with the need to provide adverse environmental impact. This
Phase II rule. Additionally, the decision timely direction to stakeholders about provision directs permitting authorities
has resulted in uncertainty among the the continuing application of the Phase to establish section 316(b) requirements
regulated community and permitting II rule, EPA’s Assistant Administrator on a BPJ basis for existing facilities not
agencies about how to proceed with for Water issued a memorandum on subject to categorical section 316(b)
ongoing permitting proceedings given March 20, 2007, which announced regulations. Establishing requirements
the uncertainty as to the status of the EPA’s intention to suspend the Phase II in this manner is consistent with the
Phase II rule. This suspension provides rule. This memorandum also discussed CWA, case law, and the March 20, 2007
a clear statement by the Agency that the the anticipated issuance of this Federal memorandum’s direction to do so.
existing Phase II requirements (with the Register suspension document. Phase II facilities are not subject to
exception of one provision unaffected categorical requirements under Subpart
by the Riverkeeper decision that reaches III. This Action J while this suspension is in effect, and
beyond the Phase II rule, addressed EPA is suspending § 122.21(r)(1)(ii) therefore this provision applies in lieu
below) are suspended and are not and (5), and Part 125 Subpart J with the of those requirements. In addition, this
legally applicable. exception of § 125.90(b). This provision applies to other types of
suspension is appropriate for several existing facilities subject to section
II. Background
reasons. 316(b) requirements (e.g., existing
On February 16, 2004, EPA took final First, the Second Circuit’s decision facilities addressed in EPA’s section
action on regulations governing cooling remanded key provisions of the Phase II 316(b) Phase III rule). Moreover, this
water intake structures at certain requirements, including the provision is an analogue to the
existing power producing facilities determination of BTA and the provision in the 316(b) Phase I new
under section 316(b) of the Clean Water performance standard ranges. This facility rule providing for BPJ permitting
Act (Phase II rule). 69 FR 41576 (July 9, suspension responds to the Second where a facility is not subject to
2004). The final Phase II rule applies to Circuit’s decision, while the Agency categorical requirements under Subpart
existing facilities that are point sources considers how to address the remanded I. See 40 CFR 125.80(c). Finally, this
that, as their primary activity, both issues.1 provision was not addressed, and is
generate and transmit electric power or In addition, the decision has a therefore not affected, by the Second
generate electric power for sale to significant impact on the regulated Circuit’s decision in Riverkeeper.
another entity for transmission; use or community and permitting agencies. Retaining it is therefore consistent with
propose to use cooling water intake Both groups have sought Agency the approach EPA took in response to a
structures with a total design intake guidance on how to proceed to establish judicial remand of its original section
flow of 50 MGD or more to withdraw cooling water intake structure permit 316(b) regulations. See 44 FR 32854,
cooling water from waters of the United requirements for facilities subject to the 32956/1 (June 7, 1979) (withdrawing
States; and use at least 25 percent of the Phase II rule in light of this decision. remanded regulations, but leaving intact
water withdrawn exclusively for cooling These stakeholders support suspending a provision that had not been
purposes (see 40 CFR 125.91). the Phase II requirements until the remanded).
Under the Phase II rule, EPA
Agency has considered and resolved the IV. Statutory and Executive Order
established performance standards for
issues raised by the Second Circuit’s Reviews
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the reduction of impingement mortality

remand. Permit requirements for cooling
and entrainment (see 40 CFR 125.94). Under Executive Order 12866 (58 FR
The performance standards consist of 1 In the event that the court’s decision is 51735, October 4, 1993), this action is
ranges of reductions in impingement overturned after today’s action, the Agency will not a ‘‘significant regulatory action’’ and
mortality and/or entrainment. These take appropriate action in response. is therefore not subject to review under

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Federal Register / Vol. 72, No. 130 / Monday, July 9, 2007 / Rules and Regulations 37109

the Executive Order. This action does Reporting and recordkeeping 1992 federally promulgated marine
not impose any new requirements and requirements, Water pollution control. copper and cyanide chronic aquatic life
does not impose costs or impacts on the water quality criteria for Washington
40 CFR Part 125
regulated industry and thus does not State, thereby enabling Washington to
meet the requirements for Executive Environmental protection, Cooling implement its current EPA-approved
Order 12866 review. This action is not water intake structure, Reporting and chronic numeric criteria for copper and
subject to the Regulatory Flexibility Act recordkeeping requirements, Waste cyanide that cover all marine waters of
(RFA) since this rule is exempt from treatment and disposal, Water pollution the State.
notice and comment rulemaking control. In 1992, EPA promulgated Federal
requirements for good cause which is Dated: July 2, 2007. regulations establishing water quality
explained in section I. Additionally, this Stephen L. Johnson, criteria for priority toxic pollutants for
rule will not significantly or uniquely Administrator. 12 States, including Washington, and
affect small governments. EPA has two Territories that had not fully
determined that this rule would not ■ For the reasons set forth in the
preamble, EPA is amending 40 CFR complied with the Clean Water Act
contain a Federal mandate that may (CWA). These regulations are known as
result in expenditures of $100 million or parts 122 and 125 as follows:
the ‘‘National Toxics Rule’’ or ‘‘NTR.’’
more for State, local, and tribal On November 18, 1997, Washington
governments, in the aggregate, or the adopted revised chronic marine aquatic
private sector in any one year. Thus, life criteria for copper and cyanide, the
this rule is not subject to sections 202, only two marine aquatic life priority
203, or 205 of the Unfunded Mandates toxic pollutants in the NTR applicable
Reform Act of 1999 (Pub. L. 104–4). In ■ 1. The authority citation for part 122 to Washington. These revisions
addition, the EPA has determined that continues to read as follows: included a chronic marine aquatic life
this action does not have Tribal Authority: The Clean Water Act, 33 U.S.C. water quality criterion for copper for all
implications, as specified in Executive 1251 et seq. marine waters and a chronic site-
Order 13175 (63 FR 67249, November 9, specific cyanide criterion for the Puget
2000). This action will not have § 122.21 [Amended]
Sound. EPA approved these criteria on
federalism implications, as specified in ■ 2. Section 122.21 (r)(1)(ii) is February 6, 1998. On August 1, 2003,
Executive Order 13132 (64 FR 43255, suspended. Washington adopted revisions to its
August 10, 1999) because it does not ■ 3. Section 122.21(r)(5) is suspended. water quality standards, including a
establish any requirements on State or chronic marine criterion for cyanide for
local governments. This regulation is PART 125—CRITERIA AND all marine waters except the Puget
not subject to Executive Order 13045 STANDARDS FOR THE NATIONAL Sound. EPA approved this criterion on
because it is not economically POLLUTANT DISCHARGE May 23, 2007. Since Washington now
significant as defined under Executive ELIMINATION SYSTEM has marine copper and cyanide chronic
Order 12866, and because the Agency aquatic life criteria effective under the
does not have reason to believe the ■ 4. The authority citation for part 125 CWA that EPA has approved as
environmental health and safety risks continues to read as follows: protective of Washington’s designated
addressed by this action present a Authority: Clean Water Act, 33 U.S.C. 1251 uses, EPA is proposing to amend the
disproportionate risk to children. This et seq. unless otherwise noted. NTR to withdraw the federally
action is not subject to Executive Order promulgated criteria.
13211, ‘‘Actions Concerning Regulations § 125.90 [Amended]
DATES: This rule is effective on
that Significantly Affect Energy Supply, ■ 5. Section 125.90(a), (c) and (d) are
Distribution, or Use’’ (66 FR 28355, May suspended. September 7, 2007 without further
22, 2001), because it is not a significant notice, unless EPA receives adverse
■ 6. Sections 125.91 through 125.99 are
regulatory action under Executive Order comment by August 8, 2007. If EPA
12866. This action does not involve receives such comment, EPA will
technical standards; thus, the
[FR Doc. E7–13202 Filed 7–6–07; 8:45 am] publish a timely withdrawal in the
requirements of section 12(d) of the BILLING CODE 6560–50–P Federal Register informing the public
National Technology Transfer and that this rule, or the relevant provisions
Advancement Act of 1995 (15 U.S.C. of this rule, will not take effect.
272 note) do not apply. This action does ADDRESSES: Submit your comments,
not impose any new information identified by Docket ID No. EPA–HQ–
collection burden under the provisions 40 CFR Part 131 OW–2007–0467, by one of the following
of the Paperwork Reduction Act of 1995 methods:
(44 U.S.C. 3501 et seq.). The existing [EPA–HQ–OW–2007–0467; FRL–8337–2] • Follow the
Information Collection requirements in RIN NA2040 on-line instructions for submitting
this regulation were approved by the comments.
Office of Management and Budget under Withdrawal of Federal Marine Aquatic • E-mail:
OMB control number 2040–0257. Life Water Quality Criteria for Toxic • Mail to either: Water Docket,
Pollutants Applicable to Washington USEPA, Mailcode: 2822T, 1200
List of Subjects State Pennsylvania Ave., NW., Washington,
40 CFR Part 122 DC 20460 or Becky Lindgren,
AGENCY: Environmental Protection
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Environmental protection, Agency (EPA). Washington Marine Aquatic Life NTR

Administrative practice and procedure, ACTION: Direct final rule. Removal, U.S. EPA, Region 10, OWW–
Confidential business information, 131, 1200 Sixth Avenue, Seattle, WA
Hazardous substances, Indians-lands, SUMMARY: EPA is proposing to amend 98101, Attention Docket ID No. EPA–
Intergovernmental relations, Penalties, the Federal regulations to withdraw its HQ–OW–2007–0467.

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