# National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-11265 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 18, 2016 - **Citation:** 81 FR 31344 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 122, 123, 124 and 125 [EPA-HQ-OW-2016-0145; FRL 9936-62-OW] RIN 2040-AF25 National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) proposes revisions to the National Pollutant Discharge Elimination System regulations to eliminate regulatory and application form inconsistencies; improve permit documentation, transparency and oversight; clarify existing regulations; and remove outdated provisions. This proposal would make specific targeted changes to the existing regulations and would not reopen the regulations for other specific or comprehensive revision. These proposed regulatory changes cover 15 topics in the following major categories: permit applications; the water quality-based permitting process; permit objection, documentation and process efficiencies; the vessels exclusion; and the Clean Water Act (CWA) section 401 certification process. These revisions would further align NPDES regulations with statutory requirements from the 1987 CWA Amendments and more recent case law requirements. By modernizing the NPDES regulations, the proposed revisions would provide NPDES permit writers with improved tools to write well-documented permits to protect human health and the environment. The revisions would also provide the public with enhanced opportunities for public participation in permitting actions. DATES: Comments must be received on or before July 18, 2016. ADDRESSES: EPA has set up two Dockets for submitting comments. Submit your comments on the NPDES Application and Updates rule to Docket ID No. EPA-HQ-OW-2016-0145 at http://www.regulations.gov. Regarding potential future changes to application forms and information collection requirements, submit your comments to Docket ID No. EPA-HQ-OW-2016-0146 at http://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. FOR FURTHER INFORMATION CONTACT: Erin Flannery-Keith, Water Permits Division, Office of Wastewater Management, Mail Code 4203M, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; (202) 566-0689; flannery-keith.erin@epa.gov. SUPPLEMENTARY INFORMATION: EPA is proposing targeted revisions to the NPDES regulations. These revisions would make the regulations consistent with the 1987 CWA Amendments and with applicable judicial decisions. These revisions would delete certain regulatory provisions that are no longer in effect and clarify the level of documentation that permit writers must provide for permitting decisions. EPA is also asking for public comments on potential ways to enhance public notice and participation in the permitting process. CWA section 402 established the NPDES permitting program and gives EPA authority to write regulations to implement the NPDES program. 33 U.S.C. 1342(a)(1), (2). Table of Contents I. General Information A. Does this action apply to me? B. What action is EPA taking? C. What is EPA's authority for taking this action? D. What are the incremental costs and benefits of this action? II. Background and Executive Summary III. Proposed Revisions A. Proposed Revisions to Part 122 B. Proposed Revisions and Request for Comments to Part 123 C. Proposed Revisions to Part 124 D. Proposed Revision to Part 125 E. Request for Comments IV. Impacts V. Compliance Dates VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. 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 are: EPA; authorized state, territorial, and tribal programs; and the regulated community. This table is not intended to be exhaustive; rather, it provides a guide for readers regarding entities that this action is likely to regulate. Table I-1—Entities Potentially Affected by This Proposed Rule Category Examples of potentially affected entities State, Territorial, and Indian Tribal Governments States, Territories, and Indian Tribes authorized to administer the NPDES permitting program; States, Territories, and Indian Tribes that provide certification under section 401 of the CWA; States, Territories, and Indian Tribes that own or operate treatment works. Municipalities POTWs required to apply for or seek coverage under an NPDES individual or general permit and to perform routine monitoring as a condition of an NPDES permit. Industry Facilities required to apply for or seek coverage under an NPDES individual or general permit and to perform routine monitoring as a condition of an NPDES permit. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What action is EPA taking? EPA is proposing targeted revisions to the NPDES regulations. These revisions would make the regulations consistent with the 1987 CWA Amendments and with requirements established by judicial decisions. These revisions would delete certain regulatory provisions that are no longer in effect, and clarify the level of documentation that permit writers must provide for permitting decisions. These revisions would also allow permit writers to use more consistent data for permitting decisions and would modernize opportunities for public notice and participation in NPDES permitting actions. C. What is EPA's authority for taking this action? CWA section 402 established the NPDES permitting program and gives EPA authority to write regulations to implement the NPDES program. 33 U.S.C. 1342(a)(1), (2). D. What are the incremental costs and benefits of this action? This proposal involves several revisions to the NPDES regulations. It is EPA's view that these revisions would generally not result in new or increased workload or information collection by authorized states or the regulated community. The proposed fact sheet documentation requirements may impose only a minimal burden for the permit writer to document permit development analyses that he or she has already conducted. The assessment of impacts is provided for each topic in section IV of this proposal. II. Background and Executive Summary The Federal Water Pollution Control Act Amendments of 1972, commonly referred to as the Clean Water Act, were enacted to restore and maintain the chemical, physical, and biological integrity of the nation's waters. CWA section 301 prohibits the discharge of any pollutant to waters of the United States except in compliance with certain sections of the Act, including CWA section 402. Section 402 established the NPDES permit program to be administered by EPA or authorized states, territories or eligible tribes. 1 The NPDES permit program provides two types of permits, individual and general, that may be used to authorize point source discharges of pollutants to waters of the United States. Individual permits are issued by the state or EPA to a single facility and require submission of a permit application. General permits are developed by the state or EPA to cover classes or categories of dischargers under a single permit. General permits typically require facilities seeking permit coverage to submit a notice of intent (NOI) to be covered, the contents of which are described in the general permit. Both types of permits are issued for a fixed period of time not to exceed five years. CWA section 402(b)(1)(B) and 40 CFR 122.46. 1 Hereafter, the use of “state” includes states and territories unless otherwise noted. Tribes can apply to administer NPDES programs pursuant to 40 CFR 123.32 and 123.33. Because no tribe has yet applied under these sections, this preamble does not specifically discuss tribes. The proposed rule would apply, however, to any tribal NPDES program authorized by EPA in the future. Under the NPDES regulations, EPA has developed eight individual permit application forms for applicants seeking coverage under individual permits. 40 CFR 122.21. Each individual permit application form corresponds to a different category of dischargers subject to permitting. 2 After receiving an application for an individual permit, the permit writer reviews the application for completeness and accuracy. Once the permit writer determines that the application is complete, the permit writer uses the application data to develop the draft permit and either the fact sheet or statement of basis that explains the rationale behind the draft permit provisions. 40 CFR 122.21. 2 The current suite of NPDES application forms can be found at http://www.epa.gov/npdes/npdes-applications-and-forms. The first major step in the permit development process is deriving technology-based effluent limits (TBELs). 40 CFR 122.44(a). The permit writer then determines whether, after application of the TBELs, the discharge will cause, have the reasonable potential to cause, or contribute to an excursion above a narrative or numeric criterion within a state water quality standard (WQS). If the permit writer determines that, notwithstanding application of technology-based limits, the discharge “will cause, have the reasonable potential to cause, or contribute to an excursion above any [s]tate water quality standard,” the permit writer derives effluent limitations necessary to meet state WQS ( i.e., water quality-based effluent limits (WQBELs)). 40 CFR 122.44(d)(1). The permit writer then includes final effluent limitations (TBELs and WQBELs) that implement all applicable technology and water quality standards in the permit. After developing the effluent limits, the permit writer develops and includes appropriate monitoring and reporting conditions and facility-specific special conditions. 40 CFR 122.43, 122.44(i), 122.44(k) and 122.48. The permit writer also includes the standard conditions that are required for all NPDES permits. 40 CFR 122.41 and 122.42. The permit's fact sheet or statement of basis documents the decision-making process for deriving the permit limits and establishing permit conditions. 40 CFR 124.7, 124.8 and 124.56. After the draft permit is complete, the permitting authority provides an opportunity for public participation in the permitting process. A public notice announces the availability of the draft permit and administrative record and gives interested parties an opportunity to submit comments and request a public hearing. 40 CFR 124.10 and 124.11. After taking into account all significant comments raised during the comment period, the permitting authority develops the final permit with careful attention to documenting the process and decisions for the administrative record. The permitting authority then issues the final permit to the facility. 40 CFR 124.10, 124.15, and CWA section 402(b). Under CWA section 402(b), a state or eligible tribe 3 may obtain authorization to administer the NPDES permit program. In order to obtain authorization, the state or eligible tribe must demonstrate to EPA that it has the authorities and resources necessary to implement the program as outlined in CWA section 402(b) and as specified in an EPA/state memorandum of agreement (MOA). When EPA revises the NPDES regulations, authorized states may need to amend their own regulations and legal authorities to ensure their programs continue to be as stringent as the federal program. To date, 46 states and the Virgin Islands have obtained authorization to administer the NPDES permit program. 4 In general, once a state is authorized to administer the program, EPA no longer conducts these activities. CWA section 402(c) and 402(n). However, in accordance with CWA section 402(d), its implementing regulations at 40 CFR 123.44, and the EPA/state MOA, the state must provide EPA with an opportunity to review certain permits, and EPA may object based on one or more of the causes identified in these regulations. If the state permitting agency does not satisfactorily address the points of objection within the applicable timeframe, exclusive authority to issue the permit passes to EPA. 40 CFR 123.44(h)(3). 3 A tribe found eligible pursuant to § 123.32 to be treated in a manner similar to a state to administer the NPDES program. 4 Authorized states are listed in http://www.epa.gov/npdes/npdes-state-program-information. If a state or tribe does not have an approved NPDES program, EPA administers the NPDES program. Under CWA section 401, a federal agency may not issue a permit or license for an activity that may result in a discharge to waters of the United States until the state or tribe 5 where the discharge would originate has granted or waived section 401 certification. The central feature of section 401 is the state or tribe's ability to either grant, grant with conditions, deny, or waive certification. 5 Some tribes have EPA-approved water quality standards. See 40 CFR 131.8. EPA regulations establish permit application requirements and corresponding forms for use by all applicants for EPA-issued permits. Where a state chooses not to use the EPA forms, the state is responsible for developing and using its own forms; however, the state forms must collect all of the data that the EPA regulations require. EPA has developed several guidance documents to help permitting authorities manage the quality and consistency of NPDES permits. The NPDES Permit Writers' Manual (NPDES PWM) 6 provides a comprehensive overview of the framework of the NPDES program and provides basic training on the requirements for the development and issuance of a legally defensible and enforceable NPDES permit. The NPDES PWM is also a resource for other stakeholders interested in the NPDES permitting process. 6 U.S. EPA NPDES Permit Writers' Manual; U.S. EPA, Office of Water, September 2010; EPA-833-K-10-001. (NPDES PWM) http://www.epa.gov/npdes/pubs/pwm_2010.pdf. The revised Technical Support Document for Water Quality-Based Toxics Control (TSD) 7 provides states and EPA Regional offices with guidance on procedures for use in the water quality-based control of toxic pollutants. The document provides guidance for each step in the water quality-based toxics control process, from the technical and regulatory considerations for the application of WQS to NPDES compliance monitoring and enforcement. 7 U.S. EPA Technical Support Document for Water Quality-based Toxics Control, Office of Water, March 1991; EPA-505-2-90-001. http://www.epa.gov/npdes/pubs/owm0264.pdf. This proposed rule addresses application, permitting, monitoring, and reporting requirements that have become obsolete or outdated due to programmatic and technical changes that have occurred over the past 35 years. These topics were selected from previous NPDES regulatory streamlining efforts, recommendations from EPA Headquarters and Regional offices, and recommendations from state NPDES permitting agencies. With these proposed revisions and requests for public comment, EPA aims to allow easier determination of who is regulated, clarify applicable compliance requirements, and improve transparency by providing permitting authorities and the public with timely and quality access to information on regulated entities' activities. These revisions would make specific, targeted changes to several sections of the NPDES regulations, and are not intended to reopen the regulations for other revisions. EPA identified this proposal in response to Executive Order 13563 Improving Regulation and Regulatory Review in the document Improving Our Regulations: Final Plan for Periodic Retrospective Reviews of Existing Regulations (section 2.1.8). This effort is a “plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.” 8 The issues being addressed in this rulemaking directly align with the goals established in Executive Order 13563. 8 Improving Our Regulations: Final Plan for Periodic Retrospective Reviews of Existing Regulations, August 2011, available at http://www2.epa.gov/sites/production/files/2015-09/documents/eparetroreviewplan-aug2011_0.pdf. The proposed rule covers 15 topics grouped into major categories of changes: Permit application requirements; the water quality-based permitting process; permit objection, documentation, and process efficiencies; vessels exclusion; and the CWA section 401 certification process. This is a table of the proposed or discussed changes in those categories. Table II-1—Proposed Topics for Revision and Public Comment Category Proposed topic for revision Permit Application Requirements • Purpose and Scope (40 CFR 122.1). • NPDES Program Definition including: Pesticide Applications to Waters of the United States, Proposed Permit, New Discharger and Whole Effluent Toxicity Definition (40 CFR 122.2); • Changes to Existing Application Requirements (40 CFR 122.21). Water Quality-Based Permitting Process • Antidegradation Reference (40 CFR 122.44(d)); • Dilution Allowances (40 CFR 122.44(d)); • Reasonable Potential Determinations for New Discharges (40 CFR 122.44(d)); • Best Management Practices (40 CFR 122.44(k); • Anti-backsliding (40 CFR 122.44(l)); • Design Flow for Publicly Owned Treatment Works (40 CFR 122.45(b)). Permit Objection, Documentation and Process Efficiencies • Objection to Administratively Continued Permits (40 CFR 123.44); • Public Notice Requirements (40 CFR 124.10(c)); • Fact Sheet Requirements (40 CFR 124.56); and • Deletion of 40 CFR 125.3(a)(1)(ii). Vessels Exclusion • Vessels Exclusion (40 CFR 122.3(a)). CWA section 401 Certification Process • CWA section 401 Certification Process (40 CFR 124.55(b). III. Proposed Revisions A. Proposed Revisions to Part 122 1. Purpose and Scope (40 CFR 122.1) (a) NPDES contact information. EPA is correcting contact information included in the Note to § 122.1 by deleting outdated references to program contact information that is no longer available to “Information concerning the NPDES program and its regulations can be obtained by contacting the Water Permits Division (4203), Office of Wastewater Management, U.S.E.P.A., 1200 Pennsylvania Avenue NW., Washington, DC 20460 and by visiting the homepage at http://www.epa.gov/npdes. ” 2. NPDES Program Definitions (40 CFR 122.2) (a) Pesticide Applications to Waters of the United States EPA proposes to add a definition of “pesticide applications to waters of the United States.” In 2009, the decision in National Cotton Council, et al. v. EPA, 553 F.3d 927 (6th Cir. 2009) found that point source discharges of biological pesticides and chemical pesticides that leave a residue to waters of the United States are pollutants under the CWA and therefore require NPDES permits. EPA, and subsequently authorized states, developed a Pesticide General Permit (PGP) 9 to permit discharges for certain use patterns. EPA finalized its PGP in October 2011. 9 U.S. Environmental Protection Agency National Pollutant Discharge Elimination System Pesticide General Permit (PGP) for Discharges from the Application of Pesticides, October 31, 2011. http://www3.epa.gov/npdes/pubs/final_pgp.pdf. This proposal defines the term “pesticide applications to waters of the United States” to mean point source discharges to waters of the United States resulting from the application of biological pesticides or chemical pesticides that leave a residue. This definition would clarify who is already regulated by ensuring that the NPDES regulations are consistent with the 6th Circuit decision. By defining “pesticide applications to waters of the United States” in its comprehensive NPDES definitions at 40 CFR 122.2 in the same way as the PGP defines covered activities, EPA would increase clarity and consistency. This definition would not in any way change which pesticide discharges are subject to NPDES permitting. EPA seeks comments on this proposed definition. (b) Proposed Permit EPA proposes to revise the existing definition of “proposed permit.” The definition would be expanded to include a state-issued NPDES permit designated as a “proposed permit” under a new section of the regulations, § 123.44(k). EPA seeks comments on this proposed definition, described below in the discussion of the proposed new § 123.44(k). See preamble section III.B.1, “Objection to Administratively Continued Permits (40 CFR 123.44).” (c) New Discharger EPA is correcting a typographical error in subsection (d) of this definition by changing “NDPES” to “NPDES.” (d) Whole Effluent Toxicity (WET) EPA proposes to revise the existing definition of WET to refer to both acute (lethal) and chronic (lethal and sublethal) WET test endpoints. The current WET definition in § 122.2 states that WET is “the aggregate toxic effect of an effluent measured directly by a toxicity test.” The proposed clarified definition would specify that toxicity can include both acute and chronic effects. This clarification would be consistent with EPA's interpretation of its existing WET regulations, as reflected in the preamble to the NPDES regulations establishing the existing WET definition, and in EPA's WET test methods. In the preamble to the regulations that established this definition, EPA stated, “effluent limitations may be expressed as chronic toxicity or acute toxicity (or both),” recognizing that toxicity can include both endpoints. 54 FR 23871 (June 2, 1989). Similarly, EPA's 2002 promulgated WET freshwater and saltwater test methods include definitions for both acute and chronic (sublethal) toxicity, and procedures for testing for both acute and chronic (sublethal) toxic effects, also demonstrating that WET encompasses both types of toxicity. 40 CFR 136.3; 67 FR 69952, November 19, 2002. 10 In these test methods, EPA defines “acute toxicity” as a short-term observation (24 to 96 hours) including death (lethality). EPA defines “chronic toxicity” as a longer-term observation (1 hour and up to 9 days) for life-cycle endpoints which includes lethality (death) and other sublethal endpoints such as effects on growth, reproduction, and mobility. 11 EPA's WET test methods, including the procedures for both acute and chronic (including sublethal endpoints) toxicity tests, were challenged and subsequently upheld in Edison Electric Inst. et al. v. EPA. 391 F.3d 1267 (D.C. Cir. 2004). 10 2002 ratified EPA WET Test Methods (Acute and Chronic freshwater and saltwater WET methods such as “Short-term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Marine and Estuarine Organisms [Third Edition/October 2002]”—see introduction sections 2.1.1 and 2.1.2). See http://www.epa.gov/cwa-methods/whole-effluent-toxicity-methods. 11 Id. This proposed clarification would also be consistent with WET program guidance documents 12 and EPA's Great Lakes Initiative. See 40 CFR 132.2; Appendix F to Part 132, Procedure 6. These documents include references to and discussion of both acute and chronic toxicity (including sublethal effects such as propagation) and acute and chronic WET test endpoints. 12 Three examples of longstanding policies include: EPA NPDES guidance documents (including WET documents): 1991 EPA Technical Support Document (TSD) for Water Quality-based Toxics Control (March 1991, EPA/505/2-90-001), EPA's Generalized Methodology for Conducting Industrial Toxicity Reduction Evaluations (TREs) guidance document (April 1989, EPA/600-2-88/070), and EPA's Toxicity Reduction Evaluation Guidance for Municipal Wastewater Treatment Plants (August 1999, EPA/833-B-99-002, revised edition from previous 1989 edition). See additional documents at http://www.epa.gov/npdes/npdes-wet-programmatic-documents. Defining toxicity to include sublethal effects is consistent with the CWA, which establishes a national goal of “water quality which provides for the protection and propagation of fish, shellfish and wildlife.” CWA section 101(a)(2). CWA sections 301 and 302 contain various other references to the “protection and propagation” of aquatic organisms, evidencing an intent to protect against not only lethality but also sublethal effects on fish and wildlife. CWA sections 301(h)(2), 301(g)(2)(C), 302(a), 304(a)(5)(B). EPA notes that this proposed clarification would not change any existing regulatory requirements with respect to inclusion of acute or chronic WET limits in permits. Specifically, it would not change the existing requirement that NPDES permits include WET limits where necessary to meet state numeric and narrative water quality criteria for aquatic life protection. 40 CFR 122.44(d)(1)(iv) and (v). Under this regulation, permit limits must be written to meet states' WET WQS. Thus, if a state's WET WQS require controls for both acute and chronic toxic effects, permit limits must be written to meet both WET test endpoints. If a state's WET WQS require controls only on either acute or chronic toxicity, then the permit WET limits would be written to meet protection of only the applicable WET endpoints. 13 The proposed clarification of the current definition would not change the current regulatory requirements for whether permits must control for acute or chronic toxicity—which is currently, and will continue to be, based on the level of protection against toxicity that the state's WQS provide. The proposed clarification would simply reflect what is already clear under EPA's promulgated WET test methods and other documents referenced above, and in state water quality criteria for WET: That WET can include both acute and chronic (sublethal) effects. Because permit limits would continue to be based on a state's applicable water quality criteria for toxicity, whether acute and/or chronic, the proposed clarification would not change current longstanding practice of implementing WET or increase any burden on permittees. 13 All state water quality standards include criteria for aquatic life protection. In all but one state, the water quality standards contain provisions to protect against both acute and chronic toxicity including sublethal endpoints in their narrative and/or numeric aquatic life protection criteria. One state, Iowa, has been working to revise its standards to include chronic toxicity including chronic sublethal endpoints but to date has acute endpoints (lethality) only. EPA seeks comment on this proposed clarification of its current definition of WET. 3. Vessels Exclusion (40 CFR 122.3(a)) EPA proposes to revise § 122.3(a) to clarify which vessel discharges are excluded from the requirement to obtain NPDES permits. The exclusion for discharges incidental to the normal operation of a vessel at 40 CFR 122.3(a), as it currently appears in EPA's regulations, was challenged in Northwest Environmental Advocates et al. v. United States EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005). On March 30, 2005, the court determined that the exclusion exceeded the EPA's CWA authority. In September 2006, the court issued a final order vacating the exclusion. Northwest Environmental Advocates et al. v. United States EPA, 2006 U.S. Dist. LEXIS 69476 (N.D. Cal. 2006). EPA appealed the District Court's decision to the U.S. Court of Appeals for the Ninth Circuit, and on July 23, 2008, the Ninth Circuit upheld the decision. Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008). Effective December 19, 2008, except for those vessel discharges exempted from NPDES permitting by Congressional legislation, discharges incidental to the normal operation of vessels which had previously been excluded from NPDES permitting by 40 CFR 122.3(a) were subject to CWA section 301's prohibition against discharging, unless authorized by an NPDES permit. In response to the District and Court of Appeals decisions, EPA issued the Vessel General Permit (VGP) on December 19, 2008, which generally authorizes discharges incidental to the normal operation of commercial vessels that were no longer excluded from NPDES permitting as a result of the vacatur. In February 2013, EPA issued a new VGP, which replaced the 2008 VGP upon its expiration in December 2013. The 2013 VGP is currently in effect to authorize these discharges incidental to the normal operation of commercial vessels. In late July 2008, Congress enacted two pieces of legislation to exempt discharges incidental to the normal operation of certain types of vessels from the need to obtain an NPDES permit. The Clean Boating Act of 2008 amended the CWA to provide that discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting, and are instead subject to a new regulatory regime to be implemented by EPA and the U.S. Coast Guard under a new section 312(o) of the CWA. S. 2766, Public Law 110-188 (July 29, 2008). As defined in section 3 of that law, which amends CWA section 502, “recreational vessel” means a vessel manufactured or used primarily for pleasure, or leased, rented or chartered to a person for the pleasure of that person. It does not include a vessel that is subject to Coast Guard inspection and is either engaged in commercial use or carries paying passengers. As a result of this legislation, discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting. EPA proposes adding a new subsection, 40 CFR 122.3(a)(2), to incorporate this statutory exemption. The second piece of legislation provides for a temporary moratorium on NPDES permitting for discharges incidental to the normal operation of a vessel from (1) commercial fishing vessels (as defined in 46 U.S.C. 2101 and regardless of size) and (2) those other non-recreational vessels less than 79 feet in length. S. 3298, Public Law 110-299 (July 31, 2008). The statute's NPDES permitting moratorium ran for a two-year period beginning on its July 31, 2008 enactment date, during which time EPA studied the relevant discharges and prepared a report which was submitted to Congress in August 2010. Congress subsequently extended this moratorium to December 18, 2013 by Public Law 111-215. On December 18, 2014, President Obama signed into law the Howard Coble Coast Guard and Maritime Transportation Act of 2014, S. 2444, which extended the moratorium for an additional three years until December 18, 2017. EPA proposes text in 40 CFR 122.3(a) to reflect this law. The new proposed text also reiterates that the statute's NPDES permitting moratorium does not extend to ballast water discharges, or to other discharges that the permitting authority determines contribute to a water quality standards violation or which pose an unacceptable risk to human health and the environment. EPA is also proposing an update to the existing exclusion to incorporate language regarding discharges incidental to the normal operation of vessels of the Armed Forces that was added to the CWA definition of “pollutant” after the promulgation of the original § 122.3(a) vessel discharge exclusion. Section 301(a) of the CWA provides that “the discharge of any pollutant by any person shall be unlawful” unless the discharge is in compliance with certain other sections of the Act, including the section 402 NPDES program. 33 U.S.C. 1311(a), 1342. Under CWA section 402(a), EPA may “issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a)” subject to certain conditions required by the Act. The Act's definition of “pollutant” specifically excludes “sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces” (emphasis added) within the meaning of CWA section 312. 33 U.S.C. 1362(6). The proposed change to § 122.3(a) reflects the statutory exclusion for discharges incidental to the operation of a vessels of the Armed Forces. These changes would reduce confusion by accurately reflecting the current scope of the exclusion from NPDES permitting for discharges incidental to the normal operation of a vessel operating in a capacity as a means of transportation, which has narrowed since the exclusion was originally promulgated. These clarifications align with the decision in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), which vacated the § 122.3(a) exclusion from NPDES permitting for discharges incidental to the normal operation of a vessel. In addition, these clarifications incorporate or otherwise address CWA provisions that were enacted by Congress after the current regulations were promulgated. EPA requests comments on whether the proposed changes to 40 CFR 122.3(a) accurately and clearly reflect the current law regarding which vessel discharges are subject to the NPDES permitting requirements. EPA does not seek and will not consider comments on aspects of 40 CFR 122.3(a) text that EPA does not propose to change, such as the discussion in the regulation of the types of vessel discharges that are not (and never have been) excluded from NPDES permitting under this regulation ( e.g., seafood processing vessels). 4. Changes to Existing Application Requirements (40 CFR 122.21) EPA proposes to update and clarify the permit application requirements in 40 CFR 122.21. As the NPDES program has evolved, many existing application requirements and associated forms have become outdated with respect to current program practices. Therefore, revisions to the application requirements at 40 CFR 122.21 and to the accompanying application forms are needed to update and improve their consistency, accuracy, and usability. CWA section 304(i)(1) (previously section 304(h)(1)) required EPA to promulgate guidelines for “establishing uniform application forms and other minimum requirements for the acquisition of information” from point sources within 60 days after its enactment. In 1973, EPA promulgated short forms to meet these deadlines and standard forms to gather additional information from certain dischargers. Amendments to the CWA in 1977 refocused EPA priorities on regulating toxic pollutants. As a result, the NPDES program expanded beyond regulating conventional pollutants to regulating toxic pollutants including certain metals and organic chemicals, and nonconventional pollutants such as ammonia, chlorine, and nitrogen. To simplify permitting across several environmental programs, EPA published regulations on May 19, 1980 (45 FR 33290) to consolidate the requirements and procedures for five of the permit programs that EPA administers: The NPDES program, the Underground Injection Control (UIC) program under the Safe Drinking Water Act (SDWA), state “dredge or fill” programs under section 404 of the CWA, the Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA), and the Prevention of Significant Deterioration (PSD) program under the Clean Air Act (CAA). This effort sought to eliminate gaps and overlaps and ensure consistency among the programs where appropriate. At the same time, EPA consolidated the requirements and procedures for the five permit programs, it revised the permit application regulations. EPA created three new application forms: Form 1, Form 2B, and Form 2C. Form 1 requires general information about permit applicants and is required to be completed by applicants for each of the five types of permits under the consolidated permit rule. Form 2B is specific to NPDES permit applications for CAFOs and aquatic animal production dischargers. Form 2C applies to NPDES permit applications for manufacturing, commercial, mining, and silvicultural operations. All three forms reflected EPA's emphasis on toxic pollutants and other modifications to the CWA and NPDES program regulations. Following promulgation of the consolidated permit regulations, interested parties commented that the consolidated format made the regulations unnecessarily difficult to use. They commented that dividing responsibilities among various entities at the state and federal levels caused additional problems. In practice, consolidated processing of multiple permits was rare because the various permit programs regulated different activities with different standards and thus imposed different types of requirements on permittees. In response to problems permit writers encountered, EPA deconsolidated the five permitting programs on April 1, 1983 (48 FR 14146). The NPDES regulations remain in part 122 (substantive permit requirements) and part 123 (state program requirements). Part 124 (common permitting procedures) remains applicable to all of the programs. On September 1, 1983, EPA promulgated additional revisions covering a number of issues affecting the consolidated permit program. 48 FR 39611. The NPDES program continued to use these application forms 14 (Form 1, Form 2B and Form 2C) after deconsolidation. In 1984, EPA amended Form 2C to include toxic pollutant sampling. In 1986, EPA promulgated two new NPDES forms: Form 2D for use by new manufacturing, commercial, mining, and silvicultural operations; and Form 2E for use by facilities that do not discharge process wastewater. 51 FR 26982. 14 Forms 1, 2A, 2C, 2D, 2E, 2F, 2S (OMB Control No. 2040-0086); Form 2B (OMB Control No. 2040-0250). In 1987, Congress made extensive revisions to the CWA. Water Quality Act (WQA), Public Law 100-4. A new provision, CWA section 402(p), required EPA to establish NPDES requirements for stormwater discharges in two phases. To implement these requirements, EPA published the Stormwater Phase I Rule which established permit application requirements for certain categories of stormwater discharges associated with industrial activity (creating Form 2F) and discharges from large and medium municipal separate storm sewer systems (MS4s). 55 FR 47990. On December 8, 1999, EPA published the Stormwater Phase II Rule regulating stormwater discharges from small construction sites and from certain small MS4s. 64 FR 68722. In 1999, EPA also amended the permit application requirements and application forms for POTWs and treatment works treating domestic sewage (TWTDSs). 64 FR 42434. The new Form 2A for POTWs addressed a number of changes to the NPDES program that had occurred since 1973 ( e.g., toxics control, pretreatment programs, water quality-based permitting), and it streamlined the existing application requirements. The new Form 2S for TWTDSs addressed application requirements associated with new regulatory requirements for the generation, treatment, use and disposal of sewage sludge (biosolids). 58 FR 9248. In 2000, EPA issued amendments to streamline the NPDES program in response to a Presidential Directive to review regulatory programs to eliminate any obsolete, ineffective, or unduly burdensome regulations. 65 FR 30886. As part of this streamlining effort, EPA revised several permit application provisions to reduce duplicative requirements and clarify certain application requirements. On February 12, 2003, EPA issued a final rule revising NPDES requirements for CAFOs. 68 FR 7176. This rule revised the information requirements for entities seeking coverage under an NPDES permit for CAFOs, and revised the NPDES individual permit application for CAFOs (Form 2B for CAFOs and aquatic animal production facilities). Further, in response to an order issued in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005), EPA made several revisions to the CAFO regulations, including changes to the application requirements and Form 2B. 73 FR 70418. On October 22, 2015, EPA's NPDES Electronic Reporting Rule went into effect, amending 40 CFR part 127. 80 FR 64063. This rule requires electronic submittal of NPDES permitting and compliance monitoring reporting information. This rulemaking changed the method by which information is provided by permittees to permitting authorities, expediting the collection and processing of data to create a consistent and transparent NPDES data set. EPA is proposing specific, targeted changes to the current application requirements and is not proposing, or seeking comment on, other changes to the information or pollutant screening data required by the existing regulations and forms. Several revisions included in this proposal are necessary in order to ensure the information required by the application forms across the different categories of facilities submitting applications is consistent with EPA's current data standards 15 and the NPDES Electronic Reporting Rule. EPA data standards promote efficient environmental information sharing among EPA, states, tribes, local governments, the private sector, and other information trading partners. These data standards are developed in collaboration with the Environmental Information Exchange Network (EIEN) and other federal agencies. Many of the application forms have not been updated in recent history to incorporate the data standards developed by this group. 15 For more information about EPA's Data Standards Program see http://www.epa.gov/datastandards . EPA proposes updating the industrial code classification requirement to include the facility's North American Industry Classification System (NAICS) code, which is part of the established data standard. 16 Also, EPA proposes updating the latitude and longitude requirement to include the method of data collection, which is a required element in the current standard 17 and can be used to determine the reference datum that is in turn used in determining the latitude and longitude coordinates. In addition, EPA proposes revising the specificity of the latitude and longitude coordinates to provide consistency among forms in the level of information collected. Currently, some forms ask for latitude and longitude to the nearest second, and other forms ask more generally for just latitude and longitude. To ensure precision and improve consistency, EPA proposes revising the application forms and corresponding regulations in 40 CFR 122.21 to ask for latitude and longitude to the nearest second for every facility and permitted feature, as well as the method of collection for this information. 16 http://www.exchangenetwork.net/standards/Facility_Site_01_06_2006_Final.pdf . 17 http://www.exchangenetwork.net/standards/Lat_Long_Standard_08_11_2006_Final.pdf . EPA proposes the following revisions to 40 CFR 122.21: a. NPDES Contact Information—EPA proposes to update contact information for those interested in obtaining application forms. 40 CFR 122.21(a)(2) will be updated to: U.S. EPA, Mail Code 4203M, 1200 Pennsylvania Ave. NW., Washington, DC 20460 or by visiting http://www.epa.gov/npdes. b. North American Industry Classification System (NAICS) Codes—For all applicants except publicly owned treatment works (POTWs) and treatment works treating domestic sewage (TWTDSs), EPA proposes to revise the requirements at 40 CFR 122.21(f)(3) to include NAICS codes, in addition to Standard Industrial Classification (SIC) codes, that reflect the products or services provided by the facility. This proposed revision would update the classification code requirement to be consistent with EPA's current data standard (NAICS) until EPA completely phases out the use of SIC codes in other program areas, such as the effluent guidelines program. c. Latitude and Longitude—To improve the consistency and precision of locational information required in permit applications, and to be consistent with EPA data standards, EPA proposes several revisions: i. For existing manufacturing, commercial, mining, and silvicultural dischargers, EPA proposes revising 40 CFR 122.21(g)(1) and 122.21(h)(1) to require outfall latitude and longitude to the nearest second, including the method of data collection ( e.g., global positioning system (GPS) device, topographical map and scale) in accordance with EPA data standards. ii. EPA proposes revising 40 CFR 122.21(j)(1)(i) and 122.21(j)(3)(i) for new and existing POTWs, and 40 CFR 122.21(k)(1) for new sources and new discharges, to require the latitude and longitude of the discharging facility to the nearest second, including the method of data collection. iii. For all applicants except POTWs and TWTDSs, EPA proposes to revise 40 CFR 122.21(f)(2) to require the latitude and longitude of the discharging facility to the nearest second, including the method of data collection. In addition, EPA is proposing to update the corresponding form (Form 1) to include a check box to indicate whether the location represents the primary entry point to the facility or the centroid of the facility site location. iv. For new and existing concentrated animal feeding operations (CAFOs) and concentrated aquatic animal production (CAAP) facilities, EPA proposes revising 40 CFR 122.21(i)(1)(iii) to require latitude and longitude to the nearest second and the method of data collection. v. For certain TWTDSs, EPA proposes revising the following paragraphs to require the site latitude and longitude to the nearest second including the method of data collection: 40 CFR 122.21(q)(1)(i), 122.21(q)(8)(ii)(A), 122.21(q)(9)(iii)(B), 122.21(q)(10)(iii)(B), 122.21(q)(11)(iii)(B) and 122.21(q)(12)(i). vi. For combined sewer systems, EPA proposes revising 40 CFR 122.21(j)(8)(ii)(A)(3) to require the method of collection for the latitude and longitude of the combined sewer overflow (CSO) outfall. vii. For cooling water intake structures, EPA proposes revising 40 CFR 122.21(r)(3)(ii) to require the intake structure latitude and longitude to the nearest second including the method of data collection. EPA seeks comments on the availability of longitude and latitude coordinates for the specific locations identified above as well as whether there are any other considerations it should consider relating to submitting these coordinates as part of the application requirements. EPA proposes revisions to the length of time given to new dischargers to submit effluent information. This revision would ensure that new dischargers submit effluent characterization data in a manner that is timely and consistent for both POTW and non-POTW dischargers. 40 CFR 122.21(k) currently requires new non-POTW sources to submit data within two years of the commencement of discharge, while 40 CFR 122.21(j) does not establish a timeframe for new POTWs to submit information. EPA's proposed revision would establish a new timeframe of 18 months for both POTW and non-POTW dischargers to submit effluent information to the permitting authority. Specifying a time frame for a POTW to submit actual monitoring results and reducing the time frame (from two years to 18 months) required for a new industrial discharger to submit actual monitoring results would ensure that permitting authorities have more timely access to actual effluent data upon which to confirm or rebut the estimates provided by new dischargers on their initial permit applications. While the estimates provided in the initial applications are useful and appropriate for determining the need for effluent limits, the actual effluent data are vital to confirm that permit conditions developed based on the estimated pollutant concentrations in fact protective of water quality. It is EPA's view that 18 months would provide a reasonable time period for a new discharge to collect representative effluent data and submit the data to the permitting authority. This 18 month timeframe would provide a new discharger with up to a three month time period to ensure that the treatment system is operating efficiently, collect data over a full calendar year, and have three months remaining to submit the data to the permitting authority. These revisions would not alter the type or quantity of information required from a new discharger, and impose no new burden. EPA proposes the following revisions to 40 CFR 122.21: d. New Discharger Data Submission—EPA proposes making the time provided for effluent data submission for new POTWs consistent with the requirement for new industrial dischargers. EPA also proposes to reduce the time period that is provided for new non-POTW dischargers to submit effluent data. Specifically, the proposed revisions to application requirements for new sources and new discharges at 40 CFR 122.21(k)(5)(vi) would require applicants to submit items V and VI of Form 2C no later than 18 months after the commencement of discharge. The current requirement for submission is two years. The proposed revisions to application requirements for new POTWs at 40 CFR 122.21(j)(4)(i) and 122.21(j)(5)(i) would require submission of data no later than 18 months after the commencement of discharge. EPA specifically seeks comments on whether 18 months is an adequate period of time for new dischargers to submit effluent data. EPA proposes revisions to the effluent data submission requirements for non-POTWs to be consistent with those for POTWs. The instructions for Form 2C currently direct applicants to provide all representative data where the applicant has multiple results for a particular parameter. The Form 2C instructions also indicate that data from the past three years should be included. These requirements are not specifically identified in the current regulations and the instructions are not consistent with the requirements for POTWs. When applying for an NPDES permit, an existing POTW must provide effluent data from the previous 4.5 years. The 4.5-year requirement for Form 2A was established to ensure the permittee summarizes all the data collected during its existing five-year permit term with consideration that the application would be submitted six months prior to the end of the permit term ( i.e., 4.5 years). It is EPA's view that summarizing the data from the previous permit term is equally as important for non-POTW dischargers. Accordingly, EPA proposes to revise the application Form 2C instructions as well as to include a new paragraph 40 CFR 122.21(g)(7)(ix) in the regulations to require the submission of effluent data representing the previous 4.5 years. These revisions would not alter the type or quantity of information required from a discharger, and impose no new burden. EPA proposes the following revisions to 40 CFR 122.21: e. Data Age for Permit Renewal—EPA proposes adding 40 CFR 122.21(g)(7)(ix) to ensure that the effluent data submission requirements for non-POTWs are consistent with those for POTWs. EPA proposes to revise the application Form 2C instructions and include a new paragraph in the regulations at § 122.21(g)(7)(ix) to require the submission of effluent data representing the previous 4.5 years for non-POTW facilities. f. Reporting Electronic Mail Address—EPA proposes revising the following paragraphs in 40 CFR 122.21 to request the applicant's electronic mailing address (email): § 122.21(c)(2)(ii)(B), § 122.21(f)(4), § 122.21(j)(1)(ii), § 122.21(j)(1)(viii)(2) and (3), § 122.21(j)(9), § 122.21(q)(1)(i), § 122.21(q)(2)(i), § 122.21(q)(8)(vi)(A), § 122.21(q)(9)(iii)(D) and (E), § 122.21(q)(9)(iv)(A), § 122.21(q)(10)(ii)(A), § 122.21(q)(10)(iii)(K)(1), § 122.21(q)(11)(ii)(A), § 122.21(q)(12)(i), and § 122.21(q)(13). EPA proposes specific targeted changes to the NPDES application requirements for POTWs that would bring the NPDES regulations in concert with changes to the general pretreatment regulations at 40 CFR 403.3(v). Application requirements at 40 CFR 122.21(j) ensure that POTWs submit information for both significant industrial users (SIUs) and categorical industrial users (CIUs), including industrial waste trucked or hauled to the POTW, in order to properly identify types of industries and characterize the wastewater discharged to the POTW. This application information is used by the pretreatment control authority to determine whether a pretreatment program must be developed. Control authorities are POTWs with an approved POTW pretreatment program, an authorized state pretreatment program, or EPA where there is no authorized state pretreatment program. Prior to the 2005 national pretreatment program regulations revisions, all CIUs were considered a subset of the broader term “significant industrial users.” In 2005, the general pretreatment regulation at 40 CFR 403.3(v) was revised to allow a control authority to designate certain CIUs, after qualifying and demonstrating continued compliance with categorical standards, as a non-significant CIU (NSCIU). 40 CFR 403.3(v)(ii). Users categorized as NSCIUs must submit an annual certification to maintain their “non-significant” status, but are no longer subject to annual sampling, inspections or permitting requirements such as local limits, which are required for significant users. This resulted in a reporting and permitting burden reduction on these CIUs and the control authorities. However, all CIUs (both those classified as SIUs and NSCIUs) are still subject to industrial sector-specific national categorical standards established in 40 CFR chapter I, subchapter N. The proposed language at 40 CFR 122.21(j)(6) will clarify that POTWs are required to submit, as part of their application, relevant information from all industrial users (SIUs and NSCIUs). The proposed revision would align the NPDES application requirements with the existing pretreatment regulations at 40 CFR 403.3(v), and would impose no new burden. EPA proposes the following revisions to 40 CFR 122.21: g. Reporting Numbers of Significant Industrial Users (SIUs) and Non-Significant Categorical Industrial Users (NSCIUs)—EPA proposes revising 40 CFR 122.21(j)(6)(i) and (ii) to clarify that the reporting requirements under these sections apply to both SIUs and NSCIUs, including trucked or hauled waste, that discharge to a POTW. EPA is also proposing to revise 40 CFR 122.21(f) to require applicants to indicate whether their facility uses cooling water and to identify the source of that cooling water. This would clarify the need for and ensure the permitting authority receives all of the necessary information required under existing 40 CFR 122.21(r) for the facility. This proposal will not alter any of the existing requirements under 40 CFR 122.21(r), and imposes no new burden. EPA proposes the following revisions to 40 CFR 122.21: h. Cooling Water Intake Structure Indication—EPA proposes adding a new paragraph 40 CFR 122.21(f)(9) to require the applicant to indicate whether the facility uses cooling water and to specify the source of the cooling water and to remind applicants they must comply with any applicable requirements at 40 CFR 122.21(r). Finally, EPA proposes to revise §§ 122.21(f) and 122.21(j) to require applicants to indicate whether they are requesting any of the variances permitted under 40 CFR 122.21(m) (for non-POTWs) and (n) (for POTWs). This would ensure the permitting authority is aware of the request at the time of permit application and could better determine whether the facility has submitted all of the required information. This proposal would not alter any of the existing requirements of 40 CFR 122.21(m) and (n), and imposes no new burden. EPA proposes the following revisions to 40 CFR 122.21: i. Request for Variance Indication—EPA proposes adding a new paragraph 40 CFR 122.21(f)(10) to require the applicant to indicate whether he or she is requesting any of the variances under § 122.21(m). EPA also proposes adding 40 CFR 122.21(j)(1)(ix) to require the applicant to indicate whether he or she is operating under the variance for POTWs provided in § 122.21(n). In this rulemaking, EPA is seeking comment only on these specific proposed targeted changes to the current application requirements. EPA is not proposing or seeking comment on other changes to the information or pollutant screening data that the existing regulations and forms require and will not respond to any such comments as part of this rulemaking. However, in the future, EPA may examine all the application forms to determine whether they should be revised further, for example, to address any potentially obsolete elements or information requests inconsistent with regulatory requirements at 40 CFR 122.21. If you would like to address changes to current application requirements other than those raised by this rulemaking, please submit those comments to Docket ID No. EPA-HQ-OW-2016-0146 at http://www.regulations.gov. 5. Antidegradation Reference (40 CFR 122.44(d)) EPA proposes to revise 40 CFR 122.44(d) to include a reference to 40 CFR 131.12 in order to ensure consistency with the state antidegradation requirements established under that section. CWA section 301(b)(1)(C) requires that NPDES permit limits be as stringent as necessary to meet water quality standards. Consistent with this requirement, the NPDES regulations at 40 CFR 122.44(d)(1) provide that NPDES permits shall include “any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards . . . necessary to: (1) Achieve water quality standards established under CWA section 303, including state narrative criteria for water quality.” Water quality standards consist principally of three elements: Designated uses, water quality criteria and antidegradation policies. 40 CFR 131.6, 131.10-12. Pursuant to EPA's regulations at 40 CFR 131.12, states must adopt antidegradation policies. An antidegradation policy “specifies the framework to be used in making decisions about proposed activities that will result in changes in water quality” and “can play a critical role in helping states protect the public resource of water whose quality is better than established criteria levels and ensure that decisions to allow reductions in water quality are made in a public manner and serve the public good.” NPDES PWM, 6.1.1.3. EPA expects permitting authorities to develop NPDES permit terms and conditions consistent with and in consideration of applicable state antidegradation policies and/or requirements. However, this interpretation has not explicitly been included in the NPDES regulations. The federal antidegradation policy has a long legislative history. The Secretary of the Interior established the basic federal antidegradation policy on February 8, 1968. When the CWA was enacted in 1972, the WQS of all 50 states included antidegradation provisions. By providing in 1972 that existing state WQS would remain in force until revised, the CWA ensured that states would continue their antidegradation programs. EPA's first WQS regulation, promulgated on November 28, 1975, included a similar antidegradation policy at 40 CFR 130.17. 40 FR 55,340-41. Section 101(a) of the CWA emphasizes the prevention of water pollution and expressly includes the objective “to restore and maintain the chemical, physical and biological integrity of the Nation's waters” (33 U.S.C. 1251(a)) (emphasis added). The antidegradation requirements that EPA incorporated by regulation in 1983 into 40 CFR 131.12 implement the maintenance aspect of this CWA section 101(a) goal and are an essential component of the overall WQS program. The CWA section 101(a)(2) goals call for the protection and propagation of fish, shellfish and wildlife, and recreation in and on waters. Although designated uses and criteria are the primary tools states use to achieve this goal, antidegradation complements these by, in part, providing a framework for maintaining and protecting waters that are of higher quality than necessary to support the CWA section 101(a)(2) goals, or are Outstanding National Resource Waters (ONRWs). Antidegradation plays a critical role in allowing states and tribes to maintain and protect the valuable resource of high quality water by ensuring that decisions to allow a lowering of high quality water are made in a transparent and public manner and are based on a sound technical record. In the 1987 WQA, Congress expressly affirmed CWA section 101's antidegradation principle and referenced antidegradation policies in section 303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4)(B)), simultaneously confirming that antidegradation policies are an integral part of the CWA and explaining the relationship of antidegradation policies to other CWA regulatory programs: Standard Attained—For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable WQS, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any WQS established under this section, or any permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section. As the Supreme Court stated in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 705 (1994): A 1987 amendment to the Clean Water Act makes clear that section 303 also contains an `antidegradation policy' . . . Specifically, the Act permits the revision of certain effluent limitations . . . only if such revision is subject to and consistent with the antidegradation policy established under CWA section 303, 33 U.S.C.1313(d)(4)(B)). The court also acknowledged the long-standing federal antidegradation policy and EPA's authority to promulgate antidegradation requirements. Id. 704-05, 718. Based on this authority, EPA promulgated its current antidegradation regulation at 40 CFR 131.12 on August 21, 2015. 80 FR 51020. Section 131.12 requires states to develop and adopt a statewide antidegradation policy and develop methods for implementing that policy. It built upon and refined the pre-existing 1983 regulation which EPA had promulgated at 40 CFR 131.12 on November 8, 1983. 48 FR 51400. Consistent with the Supreme Court decision, PUD No. 1 of Jefferson County v. Washington Department of Ecology, and the requirements of 40 CFR 131.12, WQBELs must be derived consistent with applicable state antidegradation policies. This is EPA's longstanding interpretation of the CWA. NPDES PWM, 6.1.1.3 and 7.2.1.4. This interpretation is not expressly included in the existing regulations at 40 CFR 122.44(d)(1); thus, EPA now proposes to revise 40 CFR 122.44(d)(1) to expressly include a reference to 40 CFR 131.12, in order to ensure consistency with the antidegradation provisions in that section. Similar to the existing provision at 40 CFR 122.44(d)(1) noting that “narrative criteria for water quality” are components of water quality standards, including the reference to 40 CFR 131.12 serves notice that antidegradation policies are also components of state water quality standards and must be considered in in permitting decisions where applicable. EPA proposes revising 40 CFR 122.44(d)(1) to include, explicitly, “the state antidegradation requirement” as one of the elements of state WQS that must be applied when deriving WQBELs. As noted above, because antidegradation is an existing component of all state WQS, the existing regulations at 40 CFR 122.44(d) require state and EPA permitting authorities to ensure that effluent limits derive from and comply with antidegradation requirements. EPA does not propose to change any of its existing interpretations of WQS, antidegradation or any related existing EPA interpretations of state implementation responsibilities. This proposed revision is intended solely as a clarification, and imposes no new burden. The only burden related to this new reference would be where state permitting authorities are not currently implementing elements of their EPA-approved WQS. It is EPA's view that currently, permit writers consider antidegradation, although NPDES permit records might not necessarily currently reflect this analysis. EPA seeks comments on this proposed revision to 40 CFR 122.44(d)(1). 6. Dilution Allowances (40 CFR 122.44(d)) EPA proposes to revise 40 CFR 122.44(d) to specify that any allowance for dilution provided under this paragraph must comply with applicable dilution and mixing zone requirements and low flows established in state WQS 18 and be supported by data or analyses quantifying or accounting for the presence of each assessed pollutant or pollutant parameter in the receiving water. 18 See 40 CFR 131.13 (“States may, at their discretion, include in their State Standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances.”). The CWA and its implementing regulations require that NPDES permits include limitations as stringent as necessary to meet applicable WQS. CWA 301(b)(1)(C); 40 CFR 122.44(d)(1). When determining the need for conditions necessary to meet WQS, 40 CFR 122.44(d)(1)(ii) indicates that the permitting authority shall consider, “where appropriate, the dilution of the effluent in the receiving water.” When developing WQS pursuant to CWA section 303(c), EPA regulations at 40 CFR 131.13 provide that states may include in the state standards “general policies” affecting the application of WQS such as mixing zones, low flows and variances. Alternatively, states may address dilution and mixing considerations through implementation policies and guidance. Consistent with these provisions, many state WQS and implementation procedures allow some consideration of dilution and mixing when determining the need for and calculating WQBELs. The ambient environment mitigates the impact of an effluent discharge on a receiving water in a number of ways, generally related to the nature of the discharged pollutant and the physical, chemical and biological characteristics of the effluent and receiving water. For many toxic pollutants, dilution is the primary mitigation mechanism. For oxygen-demanding pollutants, such as biochemical oxygen demand (BOD), mitigation may be achieved through both dilution and biodegradation. For other pollutants, mitigation may be achieved through multiple processes, including dilution, biodegradation, chemical reactivity and volatilization. The concentration or mass of a pollutant or pollutant parameter that can be safely mitigated by these various processes in the receiving water without exceeding any applicable WQS and without causing adverse effects is commonly referred to as the “assimilative capacity” of the receiving water. For any consideration of the dilution of an effluent in a receiving water, modelers must account for the level of the pollutant already present in the receiving water prior to the introduction of the effluent. This is often referred to as the “background” pollutant concentration. The background pollutant concentration can be based on measurements from the receiving water, or where data are unavailable, can be assumed. Where data are available, modelers assess the data and select a value that is considered representative of the site. The selection of the background value might be based on an average of the data, or on an upper or lower statistical boundary, and is generally a matter of state policy or procedure. In any case, modeling requires that the modeler select some background pollutant value. Where no measured data are available, the modeler could either postpone the analysis to obtain data, or could instead assume a background concentration. For NPDES permitting purposes, the assumed background value could range from zero to a value at or above the applicable water quality criteria. An assumption of zero indicates that the full assimilative capacity of the water is available, while an assumption that the background concentration is at or above the applicable water quality criteria indicates that there is no remaining assimilative capacity. As noted above, the selection of one of the end point values, or some value between these two extremes, is typically a matter of state policy. As discussed above, granting any dilution allowance requires the consideration of the background pollutant concentration. NPDES permit reviews have shown that in many instances permitting authorities grant dilution allowances for pollutants assuming the complete absence of the pollutant in the upstream receiving waters. An assumption of “zero background” levels of a pollutant in an upstream water, in the absence of data or analyses to validate such an assumption, results in permit conditions that use as much as 100 percent of the receiving water's dilution capacity to the discharging facility. Thus, in situations where some of the pollutant is actually present in the upstream waters, an assumption of “zero background” concentration overestimates the available assimilative capacity of the receiving water and could result in limits that are not protective of applicable WQS. EPA has long intended that permit writers should consider information regarding the actual assimilative capacity of the receiving waters and the amount of the pollutant already present in the receiving water when determining dilution allowances and mixing zones. The current regulations allow consideration of dilution “. . . where appropriate.” However, the current provision does not indicate what is meant by “appropriate.” EPA proposes to update its NPDES regulations concerning dilution allowances to clarify that while existing regulations allow consideration of dilution “where appropriate,” any allowance for dilution and mixing must be applied in a manner that will ensure that NPDES permits contain limits necessary to achieve WQS, as required by CWA 301(b)(1)(C) and 40 CFR 122.44(d)(1). This proposal is consistent with EPA's longstanding guidance 19 that assumptions regarding dilution and mixing are appropriate only where relevant data or information are available to substantiate the assumption. 19 TSD Section 4 and Responsiveness Summary. See also EPA NPDES Permit Writers Manual (2010) Section 6.2 and EPA Water Quality Standards Handbook, Chapter 5 (General Policies). EPA proposes clarifying 40 CFR 122.44(d)(1) to specify that the appropriateness of any consideration of dilution or mixing must derive from the applicable state WQS, including any general policies related to dilution and mixing. Further, the proposed revision to 40 CFR 122.44(d)(1) would require that decisions regarding the assimilative capacity of the receiving water, for the purpose of determining a dilution allowance, must be supported by data or analyses quantifying or accounting for the presence or absence of each assessed pollutant or pollutant parameter in the receiving water. Conducting a basic background inquiry into a receiving water's assimilative capacity would be necessary to grant the dilution allowance. Where the actual assimilative capacity of the receiving water cannot be accurately determined or predicted ( e.g., by using data, models, or analyses), the permitting authority would be expected to establish effluent limits based on the application of applicable water quality criteria at the point of discharge (often referred to as “criteria end-of-pipe”) in order to ensure that the limits comply with CWA section 301(b)(1)(C). This revision would ensure that the permitting authority considers data or other available and applicable information before granting a dilution allowance for either rapid and complete or incomplete mixing. Under the proposed revisions, every time a dilution allowance is granted, assuming either rapid and complete or incomplete mixing, the permitting authority would be required to include a basis grounded in analyses of available information. This revision would not require the collection of new data and will not impose a new burden; it is intended to ensure that the permitting authority considers existing valid and representative ambient water quality data and to enhance decision-making transparency when permitting authorities consider a dilution allowance. States also may choose to collect data and information on the receiving water from the applicants, either prior to issuance of the permit or as a condition of the permit. Potential sources of data and information on ambient water quality and flow are maintained by regulatory agencies such as EPA, the United States Geological Survey (USGS) and state-level authorities. Dischargers, monitoring consortia, or non-governmental organizations may also provide ambient monitoring data for these analyses, although permitting authorities should ensure that all data used in any dilution analysis are subject to quality assurance and quality control. In limited circumstances ( e.g., where ambient data are unavailable), permitting authorities may satisfy this requirement by conducting a qualitative analysis of the ambient level of a pollutant of concern; however, the analysis must be pollutant- and site-specific, supported by the available information and documented in the record consistent with the revised provisions at 40 CFR 124.56(a)(1)(iv). EPA seeks comments on this proposed revision to 40 CFR 122.44(d). 7. Reasonable Potential Determinations for New Discharges (40 CFR 122.44(d)) EPA proposes to revise 40 CFR 122.44(d) to specify that a “reasonable potential” determination (explained below) must consider relevant qualitative or quantitative data, analyses, or other valid and representative information for pollutants or pollutant parameters that could support the need for effluent limitations for new discharges. Where TBELs are not sufficient to attain applicable WQS, CWA section 301(b)(1)(C) requires that permits include any more stringent limits necessary to meet such standards. 40 CFR 122.44(d)(1). These limits are known as water quality-based effluent limits, or WQBELs. EPA regulations state that “[l]imitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any [s]tate water quality standard, including [s]tate narrative criteria for water quality.” 40 CFR 122.44(d)(1)(i). Based on this language, EPA refers to the process that a permit writer uses to determine whether a WQBEL is required in an NPDES permit as a reasonable potential analysis. NPDES PWM, 6.3.1. However, the current regulatory language is unclear regarding the types and quantities of data and information (including qualitative information) permitting authorities must consider when conducting a reasonable potential analysis. Because of this lack of clarity in the regulations, EPA has found that permitting authorities often defer the reasonable potential determination and development of WQBELs until a minimum data set has been collected. Permit reviews have also revealed a lack of reasonable potential determinations where quantitative data was not yet available, despite the availability of studies and effluent analyses for facilities with similar operations and effluent characteristics. Permit writers must determine whether the limits and conditions of an NPDES permit are as stringent as necessary to attain any applicable WQS. CWA section 301(b)(1)(C). Once the permitting authority determines that a discharge causes, has the reasonable potential to cause, or contributes to an excursion above water quality criteria, 40 CFR 122.44(d)(1) requires the permitting authority to develop effluent limits to control the discharge of such pollutant(s). The cumulative impact of point and nonpoint sources on a water body may cause an excursion. In determining the need for a permit limit, the permitting authority must, at a minimum, consider existing controls on both point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the involved species to toxicity testing (when evaluating WET), and where appropriate, the effluent dilution in the receiving water. 40 CFR 122.44(d)(1)(ii). EPA's TSD specifically discusses conducting a reasonable potential evaluation in the “absence of effluent data.” These factors include the type of discharge, the available dilution, the type of receiving water and designated use, existing data on toxic pollutants and the history of compliance problems and toxic impact. TSD 3.2. The NPDES PWM similarly suggests that permit writers use “any available effluent and receiving water data as well as other information pertaining to the discharge and receiving water,” including type of industry, existing TBELs, compliance history and stream surveys. NPDES PWM, 6.3.2. Consistent with this existing guidance and policy, this proposal would require the Director to make a reasonable potential determination based on relevant qualitative or quantitative data, analyses or other valid and representative information for pollutants or pollutant parameters that could support the need for effluent limitations. When determining effluent limitations for new dischargers where effluent data is not yet available, permitting authorities can use existing monitoring data and other studies that have been conducted at similar facilities. The existing application form(s) for new dischargers specifically require applicants to describe their planned flows, sources of pollution, and treatment technologies for each proposed outfall and to provide estimates of the concentrations of pollutants expected to be present in the effluent upon commencement of discharge. Applicants must also provide the name and location of any existing plant(s) which resemble the proposed facility with respect to production processes, wastewater constituents, or wastewater treatments. In addition, if an applicant is in an industrial category for which EPA has developed effluent limitations guidelines (ELGs), EPA has published development documents for every approved guideline 20 that provides detailed effluent characterization data that can be used to estimate the types and quantities of pollutants that might be discharged. 20 http://www.epa.gov/eg/industrial-effluent-guidelines . This proposed revision would codify EPA's long-standing policy that the permitting authority should consider available and relevant data and information (as described above) pertaining to the discharge in order to make an informed judgment. 21 This proposed change would ensure that permitting authorities consider a wide range of available information to characterize new and existing discharges to determine the need for permit limits that adequately protect WQS. This revision would not require collecting new data beyond that already required through permit applications and would ensure that the permitting authority is transparent in its decision-making process when determining the need for an effluent limit, even for applicants that have yet to commence discharge. This proposal would not require collecting new data. However, this proposed revision would codify EPA's long-standing policy and guidance that, while the permitting authority has the discretion to prioritize the importance of available and relevant data and information used in making a determination on a case-by-case basis, it may not disregard valid information that is useful in conducting a reasonable potential analysis. 21 TSD section 3.2. See also Final Guidance on Appalachian Surface Coal Mining, 2011: “[i]n conducting a reasonable potential analysis, all valid representative qualitative and quantitative information regarding the effluent and receiving water should be used.”. EPA seeks comments on this proposed revision to 40 CFR 122.44(d). 8. Best Management Practices (BMPs) (40 CFR 122.44(k)(4) (a) Contact Information EPA is correcting publication contact information included in the Note to § 122.44(k)(4) by deleting outdated references to information sources that are no longer available to read: “Additional technical information on BMPs and the elements of BMPs is contained in the following documents: Guidance Manual for Developing Best Management Practices (BMPs), October 1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices, September 1992, EPA No. 832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); Storm Water Management for Construction Activities, Developing Pollution Prevention Plans and Best Management Practices: Summary Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC No. W139; Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices, September 1992; EPA 832/R-92-006, NTIS No. PB 92-235969, ERIC No. N477; Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices: Summary Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492. EPA guidance documents can be obtained through the National Service Center for Environmental Publications (NSCEP) at http://www.epa.gov/nscep . In addition, States may have BMP guidance documents.” 9. Anti-Backsliding (40 CFR 122.44(l)) EPA proposes to revise 40 CFR 122.44(l) to incorporate the anti-backsliding provisions that are currently in the CWA and have not yet been incorporated into the NPDES regulations. As a general matter, the anti-backsliding provisions prohibit the renewal, modification or reissuance of an NPDES permit with effluent limitations that are less stringent than the effluent limitations that existed in the prior permit. Anti-backsliding requirements are found in the CWA in sections 402(o) and 303(d)(4) and in the NPDES regulations at 40 CFR 122.44(l). EPA revised the existing regulatory language at 40 CFR 122.44(l) in January 1989 under the 1987 WQA. 54 FR 245. The WQA amended the CWA to include sections 402(o) and 303(d)(4). EPA's 1989 regulatory revision did not, however, incorporate the entirety of the WQA's provisions on anti-backsliding. The proposed revision would incorporate into the NPDES regulations the omitted WQA anti-backsliding provisions applicable to effluent limitation. The following is a list of the anti-backsliding sections and where EPA proposes to incorporate them into the regulation: The second sentence of CWA section 402(o)(1) would be incorporated into 40 CFR 122.44(l) as a new section 122.44(l)(2); the second sentence of CWA section 402(o)(2)(E) would be incorporated into 40 CFR 122.44(l) as a note at the end of § 122.44(l)(2); and CWA sections 303(d)(4)(A) and 303(d)(4)(B) would be incorporated into 40 CFR 122.44(l) as new §§ 122.44(l)(3)(i) and 122.44(l)(3)(ii), respectively. In each case, EPA is incorporating statutory language verbatim. Since EPA is including anti-backsliding statutory language verbatim, EPA is not seeking comments on the added language or on the existing regulation. 10. Design Flow for POTWs (40 CFR 122.45(b)) EPA proposes revisions to 40 CFR 122.45(b) to clarify that permit writers would be required to calculate permit effluent limits for POTWs using design flow only where the limits are based on technology standards. The revisions would provide permit writers with additional flow options for calculating WQBELs. The existing regulation applies to production-based limits and currently states that POTW permit effluent limitations, standards or prohibitions shall be calculated based on design flow. The current regulation at 40 CFR 122.45(b)(2)(i) provides that for dischargers other than POTWs, permit effluent limitations, standards or prohibitions shall be based upon “a reasonable measure of actual production of the facility.” This has led to some confusion as to whether the requirement for POTW “production-based” limits should be applied to the calculation of WQBELs. This requirement pre-dates EPA's current WQBEL regulations developed to address the 1987 WQA. The administrative record for the existing regulations provides no indication that the production-based requirement was intended to apply to the calculation of WQBELs. The CWA does not provide any indication that WQBELs for POTWs should be derived in a manner that is distinct from other categories of dischargers. When determining the need for WQBELs or calculating WQBELs for any type of discharger, permitting authorities generally use data and analyses to predict the impact of a discharge on a receiving water. In conducting these analyses, permitting authorities use data (including effluent flow values) that most accurately reflect the conditions in the discharge and the receiving water. Because there is no inherent difference in the validity and process for modeling POTW versus non-POTW discharges, EPA has concluded that the option to use effluent flows other than design flow should be made available to permit writers when calculating WQBELs for POTWs. Where the POTW limits are water quality-based, such limits could be based on effluent flows other than design flow ( e.g., actual flow, estimated flow). Therefore, EPA proposes to clarify that permitting authorities developing WQBELs for POTWs have the same flexibility to base calculations on effluent flows as they do for the development of WQBELs for all other dischargers. This option would be appropriate when modeling the impact of any type of pollutant, including when BOD and suspended solids are used as surrogate parameters for applicable WQS. Although this proposal would clarify this flexibility for POTWs, it is not intended to preclude or restrict a permitting authority from using the POTW design flow for the purpose of developing WQBELs. In many cases, the POTW design flow is a reasonable and appropriate value for use in water quality modeling, and this proposed clarification is not intended to discourage permitting authorities from current practices under which design flow is used for WQBEL development. This proposed revision provides additional flexibility for permit writers in calculating effluent limitations and will not impose new burden. EPA seeks comments on this proposed revision. B. Proposed Revisions to Part 123 1. Objection to Administratively Continued Permits (40 CFR 123.44) EPA proposes revising 40 CFR 123.44 to allow EPA to designate certain administratively continued permits as “proposed permits.” Section 402(d) of the CWA generally provides that authorized state NPDES permitting authorities should submit proposed state permits to the EPA Administrator for review and objection, where deemed appropriate. 40 CFR 123.44. MOAs between EPA and the authorized state provide the timeframe within which each EPA Regional Administrator (RA), to whom the review and objection duties have been delegated, may comment on or object to a proposed permit, up to 90 days from receipt of the proposed permit. Within this time period, the RA must submit to the State Director a statement of the reasons for any objection, and the effluent limitations and conditions that such permit would include if it were issued by the RA. When a permittee has submitted a timely and complete renewal application but the State Director has not acted on the permittee's application before the existing permit expires, state laws often provide that the existing permit continues in effect by operation of law until the state takes final action on the permittee's application (that is, until the state makes a final decision to issue or not issue the new permit). This is often referred to as “administrative continuance.” These state laws, like the corresponding federal provisions in 40 CFR 122.6 and the federal Administrative Procedure Act (APA) at 5 U.S.C. 558(c), aim to protect a permittee that has submitted a timely and complete application for renewal from losing its authorization to discharge simply because the permitting authority did not issue a new permit before the existing permit expired. 22 22 40 CFR 122.21(d)(2) requires that an existing permittee submit a new permit application 180 days before an existing permit expires. In some cases, administratively continuing expired permits provides states with flexibility to prioritize their action without significant adverse impacts on receiving waters. However, administrative continuance also can lead to inappropriate delays in reissuing permits that need revision to comply with current regulatory and statutory requirements and policy practices. State administrative continuance laws typically allow an expired permit to remain administratively continued indefinitely, which can significantly delay the implementation of revised or new effluent limitations (both technology-based and water-quality based). Under EPA's existing regulations, there is no mechanism by which to invoke EPA's permit review and objection authority to avoid indefinite delays in permit reissuance. A lengthy administrative continuance of a permit can significantly delay implementation of new effluent guidelines, WQS or TMDLs, and such a delay can affect a permitting authority's ability to protect water quality. As of September 2015, there were approximately 17,000 facilities covered by expired non-tribal and tribal permits (both state and EPA-issued, not including facilities covered by non-major stormwater permits). Under this proposed revision, expired permits that have been administratively continued and are considered environmentally significant may be subject to objections by EPA regional offices. EPA would expect to exercise this authority only in very limited circumstances, such as for permits involving environmental and public health issues, where other means of working with the state to reissue an updated permit have failed. Under the current regulations, the RA may review and object to an NPDES permit that an authorized state proposes to issue. 40 CFR 123.44. EPA proposes adding a new mechanism that grants the RA discretion to initiate these procedures where the state has not reissued an expired, administratively continued permit. The RA would have discretion to exercise this authority if a state does not produce a draft permit within a certain period of time, as described below. If a state has not reissued an expired, administratively continued permit, the state would be encouraged to explain to EPA the reasons for not reissuing the expired permit and EPA would carefully consider any such explanation before proceeding with an objection, as further described below. Consistent with 40 CFR 122.6(d), which currently addresses administratively continued permits, the proposed regulation would apply to only those expired state-issued permits for which state law has provided for continuation of the expired permit. The new provision would not apply to expired permits that have not been administratively continued, nor would it apply to other unpermitted discharges. A similar regulatory change allowing for EPA objection to administratively continued permits, under certain conditions, was previously proposed, commented on and finalized as a part of EPA's July 2000 Total Maximum Daily Load (TMDL) Rule. 68 FR 13608. However, the final rule was withdrawn in March 2003 as a result of widespread controversy and disagreement over the rule and its legal authority, including a case filed in the D.C. Circuit Court. 23 It is important to note, however, that the TMDL rule and disagreement over its legal authority were not based on concerns regarding the proposed section on administratively continued permits. In fact, many of the comments received by EPA expressed support for this proposed revision. EPA received a number of comments stating that EPA has an obligation under the CWA to ensure that all state programs and state-issued permits comply with the requirements of the Act. Some expressed the view that the language proposed in the 2000 rule was unduly limited, because it would have limited EPA's review of expired permits to only those expired permits authorizing discharges to waters that do not attain and maintain WQS, and that EPA should be allowed instead to review and potentially object to, if necessary, all administratively continued permits, not just those permits for which WQS and TMDLs are of concern. 23 See, American Farm Bureau Federation v. Whitman (D.C. Cir. No. 00-1320 and consolidated cases). Given the current backlog of administratively continued state permits, EPA views this proposed revision as providing an important potential mechanism through which to carry out its authorities under the CWA. 33 U.S.C. 1361(a). Under CWA section 402(c)(2), authorized state programs must comply with the requirements of the Act including CWA section 402(b)(1)(B), which provides that NPDES permits may not be issued for periods exceeding five years. The purpose of this statutory limitation is to ensure that permits be reviewed and revised regularly by the state, and by EPA in its CWA 402(d) oversight role, to ensure compliance with the Act and its implementing regulations, including those pertaining to both TBELs and WQBELs. 24 The proposed revision would provide EPA with the ability to further this Congressional intent to protect water quality by ensuring that permitting authorities consider effluent guidelines, WQS, and TMDLs that have been promulgated since the existing administratively continued permit was issued. 24 See 33 U.S.C. 1311(b)(1)(C) (requiring that “there shall be achieved . . . any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedule of compliance, established pursuant to any State law or regulations . . . or any other federal law or regulation, or required to implement any applicable water quality standard established pursuant to this Act”). EPA currently addresses expired, administratively continued permits through its “priority permits” measure. Priority permits are those permits that have been expired longer than two years, and which EPA has asked the permitting authority to target for reissuance. EPA's general trigger for identifying priority permits is when a permit is expired two years (outlined in a 2004 memorandum from the Director of EPA's Office of Wastewater Management to EPA's Regional Water Division Directors on the topic of permit issuance, priority permits and permitting backlog). 25 25 Jim Hanlon, “Permitting for Environmental Results: Permit Issuance and Priority Permits,” March 5, 2004, available at http://www3.epa.gov/npdes/pubs/prioritization_memo3-5-04.pdf . EPA proposes that an administratively continued permit could be designated as “proposed” after either a two-year or five-year period following the initial five-year permit term, and is seeking comment on which time frame is appropriate. A two-year period after which an administratively continued permit could be designated by EPA as “proposed” would be consistent with EPA's general trigger for identifying priority permits. EPA's view is that it is reasonable to consider a two-year delay as an indication that the state is unable to take action on the permit. A five-year period after which an administratively continued permit could be designated as “proposed” would allow for EPA to first address the administratively continued permit through the priority permits measure. A five-year expired permit would be designated as a priority permit after being expired for two years, and the state would have had at least three additional years to work on and reissue the permit. Additionally, a five-year expired permit would have been expired for an entire permit cycle. EPA's view is that it is reasonable for a state to take action to reissue a permit that has been expired and administratively continued for five years. EPA expects to exercise its discretion to use this authority only in very limited circumstances, such as for particularly environmentally significant permits, to ensure that these expired permits may be reissued in a timelier manner and, when reissued, reflect the most current statutory and regulatory requirements. EPA has used the priority permits measure since 2004 to target administratively continued permits which should be a priority for reissuance. The parameters by which permits generally may be designated as priority permits were identified in the above referenced 2004 memorandum, which is included in this rule's docket. EPA is considering using similar parameters to identify permits for candidates for administratively continued permit objections. Under this approach, permits with the following significant adverse impacts, changes or issues could be potential candidates for the new objection process: • New or revised water quality standards; • New or revised effluent limitations guidelines; • Potentially significant impacts to an impaired or threatened waterbody; • Potentially significant impacts to a drinking water resource; • National program priorities ( e.g., Combined Sewer Overflow, Concentrated Animal Feeding Operations); • Protection of threatened or endangered species; • Significant changes to a facility's operations, treatment, or effluent characteristics; or • Public concerns or environmental justice issues. 26 26 Id. Under the proposed provision, EPA would be required to give the state and the permittee notice of its intent to designate the administratively continued permit as a proposed permit submitted to EPA for review under 40 CFR 123.44. EPA proposes to give the state and the permittee 180 days' notice of its intent to designate an administratively continued permit as a proposed permit, and is requesting comment on whether this time frame is appropriate. This proposed provision would not create a new mechanism for EPA to take over a state's NPDES permit. During EPA's review of the “designated” proposed permit, the state permitting authority may decide to proceed with the development of its own draft or proposed permit. EPA would encourage this effort, as the intent is always to have a state permitting authority reissue an administratively continued permit incorporating all of the appropriate terms and conditions. For this reason, the proposed amendment provides that if the state, under 40 CFR 123.43(a), submits a draft or proposed permit for EPA review at any time before authority to issue the permit would pass to EPA under 40 CFR 123.44(h), EPA would withdraw its designation of the administratively continued permit as a proposed permit. EPA would then review the state's draft or proposed permit in accordance with the 40 CFR 123.44 procedures. If, after EPA reviews the permit under 40 CFR 123.44, the state does not proceed with the timely issuance of the final permit (within 180 days of the completion of EPA's review), EPA may again determine that the state does not intend to reissue the permit and may reassert its previous determination that the administratively continued permit is to be designated as a proposed permit. EPA would then proceed with the review of the designated “proposed” permit at the point in the process where the state submitted its draft or proposed permit. EPA is seeking comments on whether to make this proposed regulatory change. Specifically, EPA seeks comments on whether considering administratively continued permits as “proposed permits” under CWA section 402(d) would effectively achieve EPA's goal of more timely reissuance of state NPDES permits, or whether EPA should consider other regulatory mechanisms to achieve this goal. EPA is also seeking comment on the potential parameters or criteria that EPA could use to more clearly define or limit the scope of this administratively continued permit objection process, including but not limited to those described in the memorandum referenced above, and whether any such parameters or criteria should be included in regulatory language. Additionally, EPA seeks comments on whether two years, or five years, or some other time period is the appropriate threshold at which EPA may designate an administratively continued permit as a proposed permit for the purposes of exercising its objection authority, and whether the proposed 180 days or some other period of time is an appropriate notice period for EPA to notify the state and permittee of its intent to designate the administratively continued permit as a proposed permit. Specifically, if commenters believe other time periods for designating proposed permits and providing notice would be appropriate, EPA requests comments describing the reasoning for such time frames. C. Proposed Revisions to Part 124 1. Public Notice Requirements (40 CFR 124.10(c)) EPA proposes revising 40 CFR 124.10(c) to allow permitting authorities to provide public notice of permitting actions for NPDES major individual and general permits on the permitting authority's publicly available Web site in lieu of the newspaper publication requirement. CWA section 402(b)(3) requires that notice be provided to the public, as well as any other state whose waters may be affected, of each NPDES permit application and that an opportunity be provided for a public hearing before ruling on each permit application. 33 U.S.C. 1342(a)(1). In addition, the statute provides that “public participation in the development, revision and enforcement of standard, effluent limitation, plan, or program established by the Administrator or any State under [the CWA] shall be provided for, encouraged, and assisted by the Administrator and the States.” 33 U.S.C. 1251(e). EPA's regulations also address the issue of public participation in its programs. 40 CFR 124.10. 40 CFR part 25 sets forth minimum requirements for public participation under the CWA, RCRA and SDWA. 40 CFR 25.4(b) explains that “providing information to the public is a necessary prerequisite to meaningful, active public involvement. Agencies shall design informational activities to encourage and facilitate the public's participation in all significant decisions . . . particularly where alternative courses of action are proposed.” These minimum requirements are intended to be met not only by EPA but also by authorized states and state agencies. In clarifying the minimum requirements for public participation, 40 CFR part 25 highlights that the requirements for public information, public notification and public consultation are “intended to foster public awareness and open processes of government decision making and are applicable to all covered activities and programs.” 40 CFR 25.3(c)(7) specifically emphasizes that agencies should “use all feasible means to create opportunities for public participation, and to stimulate and support participation.” Neither the CWA nor its implementing regulations specify the best or preferred method for providing notice to the public. Currently, 40 CFR 124.10(c)(2)(i) requires notice of specified NPDES permitting activities, such as preparation of a draft permit, through publication “in a daily or weekly newspaper within the area affected by the facility or activity.” Indeed, publication of public notice in newspapers was appropriate when 40 CFR 124.10(c)(2)(i) was promulgated in 1982, 12 years before the internet became widely available for public and commercial use. Web sites are often more appropriate avenues for widely disseminating information to the public and many states currently supplement the required newspaper publication by posting draft and final permits on their state Web sites. EPA proposes revising 40 CFR 124.10(c) to allow permitting authorities (EPA, state, tribe and territories) to provide public notice for activities listed under 124.10(a) on the permitting authority's publicly available Web site in lieu of the newspaper publication requirement. If a permitting authority exercises this option, the permitting authority would be required to meet all of the required elements of § 124.10(c) and also post all draft permits and fact sheets on the Web site during the public comment period and post all final permits, fact sheets and response to comments on the Web site for the entire term of the permit. The purpose of this revision would be to provide states and EPA with an alternative method of providing notice of permit applications and hearings, and affirm flexibility in reaching the public through a variety of methods that would greatly expand public access to the draft and final permits and fact sheets. This option would not in any way affect the requirements of 40 CFR 124.10(c)(1)(ix) which state that a copy of the notice must be mailed directly to persons who have joined the appropriate mailing list. This option also would not alter the original requirements of 40 CFR 124.10(c)(2)(i) if a permitting authority chooses to continue the traditional method of providing notice of an NPDES permit action in a newspaper publication. Also, this option would not alter the existing requirements for other types of permits covered in this section ( i.e. RCRA, UIC, section 404). In addition, none of the other existing public notice regulatory requirements would be affected by this proposed revision to 40 CFR 124.10(c). The proposed revision is intended to supplement and expand EPA's efforts to reach communities through a variety of methods. By allowing each permitting authority to determine whether newspaper publication, internet notice, or a combination of these methods is the most effective method for its communities, EPA expects an increase in effective dissemination of information to communities and transparency. Finally, nothing in the proposed revisions to 40 CFR 124.10(c) is intended to alter or affect the notice requirements for issuance of a final permit decision in 40 CFR 124.15. Section 124.10(a) establishes notice requirements as to certain enumerated actions, but those actions do not include “issuance” of a final permit decision, the requirements for which are established in 40 CFR 124.15. The inclusion in the proposed revision to 40 CFR 124.10(c) of an internet posting requirement in certain circumstances for final permits is not intended to imply that internet posting fulfills the final permit decision notice requirements of 40 CFR 124.15. EPA is seeking comment on an alternative option for revising 40 CFR 124.10(c) that would require NPDES permitting authorities to public notice all NPDES permits and hearings on the permitting authority's publicly available Web site. This option could be implemented over a period of time ( e.g., within five years), and states would continue to have the flexibility to use print media and other methods in addition to the publicly available Web site. It could include a provision allowing NPDES permitting authorities the flexibility to solely use newspapers and other print media under certain circumstances such as in areas with limited broadband internet access, in areas with NPDES-regulated entities owned or operated by identifiable populations ( e.g., Amish, Mennonite, and Hutterite) who do not use certain technologies ( e.g., computers or electricity), and during large-scale disasters ( e.g., hurricanes) or prolonged electrical system outrages. Providing the permitting authority with the flexibility to phase in use of their public Web sites, as well as the ability to opt out of its use under certain circumstances, would be consistent with EPA's approach to required electronic reporting of NPDES information in its NPDES Electronic Reporting Rule in Part 127. Requiring permitting authorities to use their publicly available Web site to post all NPDES permit and hearing information could help advance EPA's commitment in its 2009 Clean Water Act Enforcement Action Plan and in its NPDES Electronic Reporting Rule to improve and enhance public access to information. EPA is also seeking comment on whether proposed revisions to public notice requirements in 40 CFR 124.10(c) should be expanded to include NPDES non-major individual and general permits. This would increase public access to permit and hearing information on the entire NPDES-permitted universe. In addition, EPA is seeking comments on ways in which NPDES permits and fact sheets could be posted electronically to make it easier for EPA's Enforcement and Compliance History Online (ECHO) information system to link to the permit fact sheets ( e.g., one state posts NPDES permits on its Web site by embedding the NPDES identification number into the URL). Given the wide availability of the internet, it is EPA's view that publication through such means would be effective in informing the public of all such permit applications and hearings. 27 EPA is proposing that where the permitting authority opts to post this information on the Web site in lieu of newspaper publication, it must post all notices to its Web site to maintain one repository of public notice documents. EPA seeks comment on its proposal to require a permitting authority to post all notices on its Web site if it seeks to use its Web site in lieu of a newspaper notice for permit-related information. 27 Courts have consistently recognized that the critical aspect of public notice is not the particular means of giving notice, but rather that the selected method is reasonably calculated to provide that notice. In discussing service of process by email, the 9th Circuit Court has described in broad language a court's authority to adapt its procedures to meet technological advances as follows: “In proper circumstances, this broad constitutional principle [ i.e., that the selected method of service must be reasonably calculated to provide notice and an opportunity to respond] unshackles the Federal courts from anachronistic methods of service and permits them entry into the technological renaissance.” Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 1017 (9th Cir. 2002). A permitting authority that uses the web in lieu of a newspaper to post notices could realize significant financial savings and post more information over a longer period of time, fostering greater public access to information and greatly reducing state burden with regard to public notice. Providing the draft permit and fact sheet during the full public comment period and making the final permit electronically available over the lifetime of the permit can significantly increase the public's access to permitting information compared to the single-day newspaper notice and access to paper copies of the permit at the agency's office. EPA has carefully evaluated the potential effect of this proposed revision on underserved communities with environmental justice (EJ) concerns. EPA consulted a recent study conducted by Native Public Media that found that the primary source for national and international news among Native American tribes is the internet. 28 Newspapers were listed as only the third most commonly used source for news. EPA also consulted the recently finalized National Environmental Justice Advisory Council (NEJAC), EJ in Permitting Subgroup Report. 29 The report states that “[n]otification of the public by publishing in the legal section of regional newspapers is antiquated and ineffective. This method should not be counted on to communicate, even if legally required.” 30 The NEJAC specifically listed Web site postings as a method to ensure meaningful public participation. Thus, based on the EJ in Permitting Subgroup Report's results, EPA concludes that notice via the internet would be a viable and effective means of making information widely available to the public. Permitting authorities are encouraged to provide additional notice where the Director determines that a specific jurisdiction or population would be better served with notice by means of the internet or a newspaper. 28 Morris, Traci L, and Sascha D. Meinrath. “New Media, Technology and Internet Use in Indian Country” Native Public Media, available at http://www.atalm.org/sites/default/files/NPM-NAF_New_Media_Study_2009_small.pdf . 29 See, “Enhancing Environmental Justice in EPA Permitting Program.” National Environmental Justice Advisory Council. April, 2011, available at http://www3.epa.gov/environmentaljustice/resources/publications/nejac/ej-in-permitting-report-2011.pdf 30 Id., p.20. EPA seeks comments on both the proposed revision and on the possible alternative option described. 2. CWA Section 401 Certification Process (40 CFR 124.55(b)) 40 CFR 124.55(b) addresses the circumstances under which a state may issue a modified CWA section 401 certification in connection with an EPA-issued NPDES permit and the effect of a modified section 401 certification on such a permit. Pursuant to this regulation, if a court of competent jurisdiction or an appropriate state board or agency invalidates a certification condition after final agency action on the permit, EPA can modify such permits only to delete state certification conditions upon request of the permittee. Under the current rule, EPA cannot modify already-issued permits to reflect state court, board or agency decisions that would require the state certifications (and arguably the federal permits subject to that certification) to include more stringent provisions. The proposed revisions to 40 CFR 124.55(b) would broaden the circumstances under which federal NPDES permits can be modified after issuance to include the addition of permit conditions based on more stringent section 401 certification provisions that result from state administrative or judicial decisions. Such permit modifications may be requested by anyone and not just the permittee. This change would recognize the importance of state administrative and judicial review process for CWA section 401 certifications by allowing decisions made by state administrative bodies and courts regarding challenges to state certification conditions to be fully reflected in the federal permit, even after the permit is issued. If, upon review, a state administrative body or court determines that more stringent section 401 certification conditions are necessary to adequately protect water quality or to be consistent with state laws, EPA would have the discretion to modify already-issued federal permits to include those more stringent conditions. It is EPA's view that its current ability to only delete section 401 certification-based permit conditions hinders its ability to ensure that permits are environmentally protective and that they reflect the most up-to-date state administrative and judicial determinations. EPA is not able to estimate the number of state administrative or judicial determinations there may be that determine that more stringent conditions are necessary. EPA therefore cannot predict how often this proposed provision may be used. However, it is EPA's view that even if used rarely, this provision would be an important tool for EPA to be able to modify its permits in order to implement limits that better protect water quality. EPA seeks comments on this proposed revision, including comments that estimate how often this provision may be used and on any anticipated impacts. 3. Fact Sheet Requirements (40 CFR 124.56) EPA proposes to revise 40 CFR 124.56 to require specific documentation in the fact sheet developed to support an individual or general permit. Fact sheets, required for major NPDES permits and general permits per 40 CFR 124.8, “sets forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit.” NPDES PWM, 11.2.2. The existing regulations at 40 CFR 124.56 contain basic requirements for information that must be presented in a fact sheet. It is EPA's view that more precisely outlining the required fact sheet information would result in more comprehensive and focused fact sheets, and correspondingly, would facilitate more efficient, transparent and effective documentation of permitting decisions. The proposed revisions to 40 CFR 124.56(a) are in two parts—one part for individual permits and one part for general permits. This accommodates differences in the information that permit writers use to develop effluent limits and conditions for individual facilities versus the information used to develop effluent limits and conditions for multiple facilities covered under one general permit. EPA specifically seeks comments on proposed revisions to fact sheet requirements, as described below. (a) 40 CFR 124.56 Revisions to Fact Sheet Contents 40 CFR 124.56(a) An NPDES permit is developed based on careful consideration of existing data and available information relevant to the potential discharge. While the permit itself contains the terms and conditions required of the permittee, the rationale and basis for the decisions made in developing those terms and conditions are contained within the fact sheet and administrative record for that permit. The existing regulations at 40 CFR 124.56 contain basic requirements for information that must be presented in a fact sheet. However, EPA reviews of state-issued NPDES permits within the past ten years have identified widespread deficiencies in state fact sheet quality. Many fact sheets do not meet the requirements of the existing regulations. Currently, many fact sheets omit critical information regarding limitation development, such as available water quality data, impairment status, existence and implementation of TMDLs and implementation of antidegradation policies. Furthermore, while the existing regulation at 40 CFR 124.56(a) requires fact sheets to generally include “calculations and other necessary explanation,” it does not explicitly identify what is required in terms of “calculations” or “other necessary explanation.” Fact sheet quality and clarity affects permittees' and the public's ability to meaningfully participate in the permitting process. It is EPA's view that the public and permit applicants should have access to a clear and transparent record of the permit decision making process. By clearly explaining what the 40 CFR 124.56(a) “calculations and other necessary explanations” requirement means, this propose [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-11265. Public record. Not legal advice.