[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Rules and Regulations]
[Pages 71941-71944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28123]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2008-0569 FRL-8746-1]
RIN 2050-AG48


Oil Pollution Prevention; Spill Prevention, Control, and 
Countermeasure Rule; Revisions to the Regulatory Definition of 
``Navigable Waters''

AGENCY: Environmental Protection Agency.

ACTION: Final rule; Response to court order vacating regulatory 
definition of navigable waters.

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SUMMARY: The Environmental Protection Agency (EPA) is promulgating a 
final rule to amend a Clean Water Act (CWA) section 311 regulation that 
defines the term ``navigable waters.'' On July 17, 2002, EPA 
promulgated a final rule which included revisions to the definition of 
``navigable waters'' in the Spill Prevention, Countermeasure and 
Control (SPCC) regulation. In this action, EPA is announcing the 
vacatur of the July 17, 2002 revisions to the definition of ``navigable 
waters'' in accordance with an order, issued by the United States 
District Court for the District of Columbia (D.D.C.) in American 
Petroleum Institute v. Johnson, 571 F.Supp.2d 165 (D.D.C. 2008), 
invalidating those revisions. The court decision also restored the 
regulatory definition of ``navigable waters'' promulgated by EPA in 
1973; consequently, we are amending the definition of ``navigable 
waters'' in part 112 to comply with that decision.

DATES: This rule is effective November 26, 2008.

ADDRESSES: The public docket for this final rule, Docket ID No. EPA-HQ-
OPA-2008-0569, contains the information related to this rulemaking. All 
documents in the docket are listed in an index at http://www.regulations.gov. Although listed in the index, some information may 
not be publicly available, such as Confidential Business Information 
(CBI) or other information the disclosure of which is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly available only in hard copy. Publicly available docket 
materials are available either electronically at http://www.regulations.gov or in hard copy at the EPA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number of the Public 
Reading Room is 202-566-1744, and the telephone number to make an 
appointment to view the docket is 202-566-0276.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800-424-9346 
or TDD at 800-553-7672 (hearing impaired). In the Washington, DC 
metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil 
Information Center at 703-412-9810 or TDD 703-412-3323. For more 
detailed information on specific aspects of this final rule, contact 
Hugo Fleischman of EPA at 202-564-1968 ([email protected]), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460-0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION:

I. Background

A. Potentially Affected Entities

    Persons or entities who own or operate facilities engaged in 
drilling, producing, gathering, storing, processing, refining, 
transferring, distributing, using or consuming oil or oil products, 
which due to their location, could reasonably be expected to discharge 
oil in quantities that may be harmful, as described in 40 CFR part 110 
of this chapter, into or upon the navigable waters of the United States 
or adjoining shorelines, could be affected by this rule. The rule 
addresses the regulatory definition of ``navigable waters'' under the 
Clean Water Act (CWA) section 311, a term that is important in 
determining which owners or operators are required to prepare Spill 
Prevention, Control and Countermeasure (SPCC) Plans and/or Facility 
Response Plans (FRP) under 40 CFR part 112 for their facilities. As 
described further below, this action does not increase regulatory 
burdens, but rather conforms the language in EPA's CWA section 311 
regulations to the outcome of a lawsuit challenging the regulatory 
definition. Examples of entities that might potentially be affected 
include:

[[Page 71942]]



------------------------------------------------------------------------
         Industry sector                         NAICS code
------------------------------------------------------------------------
Oil Production...................  211111
Farms............................  111, 112
Electric Utility Plants..........  2211
Petroleum Refining and Related     324
 Industries.
Chemical Manufacturing...........  325
Food Manufacturing...............  311, 312
Manufacturing Facilities Using     311, 325
 and Storing Animal Fats and
 Vegetable Oils.
Metal Manufacturing..............  331, 332
Other Manufacturing..............  31-33
Real Estate Rental and Leasing...  531-533
Retail Trade.....................  441-446, 448, 451-454
Contract Construction............  23
Wholesale Trade..................  42
Other Commercial.................  492, 541, 551, 561-562
Transportation...................  481-488
Arts Entertainment & Recreation..  711-713
Other Services (Except Public      811-813
 Administration).
Petroleum Bulk Stations and        4247
 Terminals.
Education........................  61
Hospitals & Other Health Care....  621, 622
Accommodation and Food Services..  721, 722
Fuel Oil Dealers.................  45431
Gasoline stations................  4471
Information Finance and Insurance  51, 52
Mining...........................  212
Warehousing and Storage..........  493
Religious Organizations..........  813110
Military Installations...........  928110
Pipelines........................  4861, 48691
Government.......................  92
------------------------------------------------------------------------

    The list of potentially affected entities in the above table may 
not be exhaustive. The Agency's goal is to provide a guide for readers 
to consider regarding entities that potentially could be affected by 
this action. However, this action may affect other entities not listed 
in this table. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
preceding section titled FOR FURTHER INFORMATION CONTACT.

B. The SPCC Rule and Litigation

    Section 311 of the CWA prohibits the discharge of oil in quantities 
that may be harmful, as described in 40 CFR part 110, into or upon the 
navigable waters of the United States or adjoining shorelines (33 
U.S.C. 1321(b)(3)). Section 311(j)(1)(C) requires the President of the 
United States (the President) to issue regulations establishing 
procedures, methods, equipment, and other requirements to prevent 
discharges of oil to navigable waters or adjoining shorelines from 
vessels and facilities and to contain such discharges. 33 U.S.C. 
1321(j)(1)(C). The President delegated the authority to regulate non-
transportation-related onshore facilities to EPA in Executive Order 
11548 (35 FR 11677, July 22, 1970), which was superseded by Executive 
Order 12777 (56 FR 54757, October 22, 1991).
    The SPCC rule was originally promulgated on December 11, 1973 (38 
FR 34164). The 1973 SPCC rule defined ``navigable waters'' in 40 CFR 
112.2(k) as follows:
    The term ``navigable waters'' of the United States means 
``navigable waters'' as defined in section 502(7) of the FWPCA, and 
includes:
    (1) All navigable waters of the United States, as defined in 
judicial decisions prior to passage of the 1972 Amendments to the FWPCA 
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by 
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce.
    On July 17, 2002, EPA published a final rule amending the SPCC rule 
at 40 CFR part 112, formally known as the Oil Pollution Prevention 
regulation (67 FR 47042). The July 2002 rule became effective on August 
16, 2002, and included revised requirements for SPCC and Facility 
Response Plans (FRPs), including a revision to the regulatory 
definition of ``navigable waters'' (Sec.  112.2).
    The American Petroleum Institute, the Petroleum Marketers 
Association of America and Marathon Oil Company challenged certain 
aspects of this regulation. On March 31, 2008, the U.S. District Court 
for the District of Columbia ruled that the Agency's promulgation of 
the revised definition of ``navigable waters'' in the July 2002 SPCC 
rule violated the Administrative Procedure Act. (American Petroleum 
Institute v. Johnson, 571 F.Supp. 2d 165, 173 (D.D.C. 2008)). The court 
concluded that the Agency failed to provide a reasoned explanation for 
its decision to promulgate the broader definition of ``navigable 
waters.'' (Id. at 173, 182-185.) The court vacated the July 2002 SPCC 
regulatory definition of ``navigable waters'' and specifically restored 
the 1973 SPCC regulatory definition pending further rulemaking or other 
appropriate Agency action. (Id. at 186-87.) None of the parties 
appealed the court's decision.

II. This Final Rule

    This final rule conforms the language in the Code of Federal 
Regulations with the legal state of the regulation defining ``navigable 
waters'' in the SPCC rule following the District Court's decision 
invalidating the July 2002 SPCC rule revisions to the definition of 
``navigable waters.'' This rule restores the 1973 SPCC rule definition 
of ``navigable waters'' in conformance with the District Court's 
decision.

[[Page 71943]]

III. Why Do We Have Good Cause for Promulgating an Immediately 
Effective Final Rule Without Prior Notice and Opportunity for Public 
Comment?

    Under the Administrative Procedure Act (APA), 5 U.S.C. 553, 
agencies generally are required to publish a notice of proposed 
rulemaking and provide an opportunity for the public to comment on any 
substantive rulemaking action. However, the Agency may issue a rule 
without providing notice and an opportunity for public comment, when 
the Agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefore in the rules issued) that notice 
and public comment procedures thereon are impracticable, unnecessary, 
or contrary to the public interest. 5 U.S.C. 553(b)(3)(B). EPA has 
determined that there is good cause for making this rule final without 
prior proposal and opportunity for comment because of the court-ordered 
decision from the 2002 SPCC rule litigation. EPA finds that this 
constitutes good cause under 5 U.S.C. 553(b)(B).
    This rule merely conforms the language in Clean Water Act section 
311 regulations to the District Court's decision invalidating the 
revisions to the regulatory definition of ``navigable waters'' 
promulgated on July 17, 2002. By restoring the 1973 SPCC rule 
definition of ``navigable waters,'' the revision in this final rule 
conforms the regulations to reflect the legal status quo in light of 
the District Court's March 31, 2008 order, invalidating the July 2002 
SPCC rule definition of ``navigable waters.'' Therefore, pursuant to 5 
U.S.C. 553(b)(3)(B), the Agency finds that solicitation of public 
comment is unnecessary because the court vacated the July 2002 SPCC 
regulatory definition of ``navigable waters'' and specifically restored 
the 1973 SPCC regulatory definition pending further rulemaking or other 
appropriate Agency action.
    Under 5 U.S.C. 553(d)(1) and (3), rules must be published at least 
30 days prior to their effective date, except where the rule ``grants 
or recognizes an exemption or relieves a restriction,'' or where 
justified by the Agency for ``good cause.'' The good cause rationale 
presented in the preceding paragraph also applies herein. Because this 
rule conforms to the published regulatory text with the applicable 
regulations following the District Court's March 31, 2008 order, the 
Agency has good cause to make this rule effective immediately.

IV. Statutory and Executive Order Reviews

A. General Requirements

    This rule does not establish any new requirements, mandates or 
procedures. As explained above, this rule merely conforms the SPCC 
regulatory definition of ``navigable waters'' to reflect the District 
Court's March 31, 2008, decision. This rule does not result in any 
additional or new regulatory requirements because it is merely 
undertaken to conform the regulatory language to that judicial 
determination. Accordingly, EPA has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, and thus 
is subject to review by the Office of Management and Budget (OMB).
    This final rule does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. Burden is defined at 5 CFR 1320.3(b). The rule conforms the 
definition of ``navigable waters'' to reflect the ruling in the July 
2002 SPCC rule litigation and does not establish or modify any 
information reporting or recordkeeping requirements. Therefore, this 
rule is not subject to the requirements of the Paperwork Reduction Act. 
Because this rule is not subject to notice-and-comment requirements 
under the Administrative Procedure Act or any other statute, it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). In addition, this rule does not 
contain any unfunded mandate or impose any enforceable duty or any 
significant or unique impact on small governments as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also 
does not impose any federalism requirements or require prior 
consultation with tribal government officials as specified by Executive 
Order 13132 (64 FR 43255, August 10, 1999) or Executive Order 13175 (65 
FR 67249, November 9, 2000), or involve special consideration of 
environmental justice-related issues as required by Executive Order 
12898 (59 FR 7629, February 16, 1994).
    This rule is not subject to Executive Order 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined under Executive Order 12866 and is not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866. The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq, as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public comment 
procedure is impracticable, unnecessary or contrary to the public 
interest. This determination must be supported by a brief statement. 5 
U.S.C. 808(2). As stated above, the Agency has made such a good cause 
finding, including the reasons stated, and established an effective 
date of November 26, 2008. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of this rule in the Federal Register. This action 
is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 112

    Environmental protection, Navigable waters, Oil pollution, 
Reporting and recordkeeping requirements, Water pollution control, 
Water resources.

    Dated: November 20, 2008
Stephen L. Johnson,
Administrator.

0
In consideration of the foregoing, 40 CFR part 112 is amended as 
follows:

PART 112--OIL POLLUTION PREVENTION

0
1. The authority citation for part 112 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

Subpart A--[Amended]

0
2. Amend Sec.  112.2 by revising the definition of ``navigable waters'' 
to read as follows:


Sec.  112.2  Definitions.

* * * * *

[[Page 71944]]

    Navigable waters of the United States means ``navigable waters'' as 
defined in section 502(7) of the FWPCA, and includes:
    (1) All navigable waters of the United States, as defined in 
judicial decisions prior to passage of the 1972 Amendments to the FWPCA 
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by 
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce.
* * * * *
[FR Doc. E8-28123 Filed 11-25-08; 8:45 am]
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