State Program Requirements; Approval of Application by Louisiana To Administer the National Pollutant Discharge Elimination System (NPDES) Program; Louisiana

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5604-7]

State Program Requirements; Approval of Application by Louisiana

To Administer the National Pollutant Discharge Elimination System

(NPDES) Program; Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Approval of the Louisiana Pollutant Discharge Elimination

System Under CWA.

-----------------------------------------------------------------------

SUMMARY: On August 27, 1996, the Regional Administrator for the

Environmental Protection Agency, Region 6, approved the application by

the State of Louisiana to administer and enforce the National Pollutant

Discharge Elimination System (NPDES) for regulating discharges of

pollutants into waters within the state. The authority to approve state

programs is provided to EPA in Section 402(b) of the Clean Water Act

(CWA). The Louisiana Pollutant Discharge Elimination System (LPDES)

program will operate in lieu of the EPA administered NPDES program

pursuant to Section 402 of the CWA. In making its decision, EPA has

considered all comments and issues raised during the publicly noticed

comment period.

EFFECTIVE DATE: Because CWA Sec. 301(a) prohibits new discharges until

they are authorized by an NPDES permit, this action is effective August

27, 1996 to avoid futher suspension of permitting actions in Louisiana

and the unnecessary burden such a suspension would impose on new

dischargers.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at U.S. EPA, Region

6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas

75202, or by calling (214) 665-7513, or electronically at

[email protected];

or Ms. Barbara Bevis at the Office of Water Resources, LDEQ, P.O. Box

82215, Baton Rouge, Louisiana, 70884-2215, or by calling (504) 765-

2740, or electronically at [email protected]

SUPPLEMENTARY INFORMATION: Louisiana's application was described in the

Federal Register (61 FR 15258) on April 5, 1996, in which EPA requested

comments. Notices of EPA's proposal to approve the LPDES program were

also published on April 8, 1996, in The Advertiser (Layfayette, La.);

The Alexandria Daily Town Talk (Alexandria, La.); The Shreveport Times

(Shreveport, La.); The Times-Picayune (New Orleans, La.); The Lake

Charles American Press (Lake Charles, La.); The Courier (Houma, La.);

The News Star (Monroe, La.); and The Baton Rouge Advocate (Baton Rouge,

La.). Copies of the application were made available at the addresses

below and could also be purchased from the state for the cost of

$108.00. EPA provided copies of the public notice to permitted

facilities, Indian tribes, and other federal and state agencies. `

Both a public meeting and hearing were held in Baton Rouge,

Louisiana, on May 9, 1996. The meeting (provided as an informal

question and answer session), began at 3:00 pm and ended at 4:30 pm.

The hearing started at 7:00 pm and lasted until 8:17 pm. Oral comments

were recorded during the hearing and entered into EPA's official

record. Written comments were accepted by EPA through May 27, 1996 (the

original comment period, which was to end May 20, 1996, was extended to

May 27, 1996, at the request of commenters). EPA's response to the

issues raised during the comment period are contained in the

Responsiveness Summary contained in this notice. A copy of EPA's

decision and its Responsiveness Summary has been sent to all commenters

and interested parties.

The LPDES program description and agency agreements continue to be

available to the public at the following internet address: http://

WWW.DEQ.STATE.LA.US--select Office of Water Resources.

Copies of the final program documents for the LPDES program are

also available to the public during normal business hours, Monday

through Friday, excluding holidays, at:

EPA Region 6, 12th Floor Library, 1446 Ross Avenue Dallas, Texas 75202,

(214) 665-7513

LDEQ Headquarters, 7290 Bluebonnet, Baton Rouge, LA 70884-2215, (504)

765-2740

LDEQ Acadiana Regional Office, 100 Asma Blvd., Suite 151, Lafayette, LA

70508, (318) 262-5584

LDEQ Bayou Lafourche Regional Office, 104 Lococo Drive, Raceland, LA

70394, (504) 532-6206

LDEQ Capitol Regional Office, 11720 Airline Highway, Baton Rouge, LA

70817-1720, (504) 295-8583

LDEQ Kisatchie Central Regional Office, 402 Rainbow Drive, Bldg. 402,

Pineville, LA 71360, (318) 487-5656

[[Page 47933]]

LDEQ Northeast Regional Office, 804 31st Street, Suite D, Monroe, LA

71211-4967, (318) 362-5439

LDEQ Northwest Regional Office, 1525 Fairfield, Room 11, Shreveport, LA

71101-4388, (318) 867-7476

LDEQ Southeast Regional Office, 3501 Chateau Boulevard-West Wing,

Kenner, LA 70065, (504) 471-2800

LDEQ Southwest Regional Office, 3519 Patrick Street, Room 265A, Lake

Charles, LA 70605, (318) 475-8644

The Regional Administrator has notified the State and notice of

EPA's final decision has been published in the same newspapers in which

the public notice of the proposed program appeared (listed above). As

of August 27, 1996, EPA suspended issuance of NPDES permits in

Louisiana (except for those permits which EPA retained jurisdiction as

specified below). The State's LPDES program will implement federal law

and operate in lieu of the EPA-administered NPDES program. EPA does,

however, retain the right to object to LPDES permits proposed by LDEQ,

and if the objections are not resolved, to issue the permit itself.

Scope of the LPDES Program and Clarifications on EPA Authority and

Oversight

All NPDES files under the jurisdiction of LDEQ will be transferred

from EPA to the state within 30 days. NPDES permits under LDEQ's

jurisdiction will become state administered LPDES permits and will be

reissued (upon expiration) or modified by the state agency. All permits

brought to public notice by LDEQ after this authorization and under its

LPDES authority will be LPDES permits providing NPDES coverage to those

dischargers. [NOTE: Until otherwise notified by the State, all Notices

of Intent and Termination (NOIs and NOTs) for coverage under EPA's

general permits for storm water (only) should continue to be sent to

the EPA NOI processing center (4203), 401 M Street, S.W., Washington,

D.C. 20460. Discharge Monitoring Reports (DMRs) under those general

permits should be sent to LDEQ.]

A. EPA Authority

Louisiana's LPDES program generally covers all discharges of

pollutants subject to the federal NPDES program, with some exceptions

and clarifications. EPA will retain the permitting authority for the

following discharges in the State of Louisiana:

1. Municipal Sewage Sludge: LDEQ has not elected to not seek

authorization for the municipal sewage sludge regulatory program at

this time. EPA will thus continue to regulate municipal sewage sludge

disposal in Louisiana in accordance with Section 405 of the Act and 40

CFR Part 503.

Since EPA desires all treatment works treating domestic sewage

(TWTDS) in the State of Louisiana to be covered under a permit, EPA is

currently preparing a draft general permit to cover eligible TWTDS.

TWDTS includes facilities generating sewage sludge or otherwise

effectively controlling the quality of sewage sludge or the manner in

which it is disposed.

Enforcement for sludge management and reporting authority as

defined by 40 CFR Part 503 will be retained by EPA Region 6 until such

time as the State of Louisiana is authorized to run the sludge disposal

program.

2. Jurisdiction over Discharges in Indian Country: As noted in EPA/

LDEQ MOA (Sec. II.C.2.b, at page 7), LDEQ does not seek to administer

the LPDES program in Indian Country. EPA will thus issue NPDES permits

for discharges in Indian Country within the geographic boundaries of

Louisiana, i.e., the reservations of the Chitimacha, Coushatta, and

Tunica-Biloxi tribes. Until they are deleted by regulatory amendment,

the references to ``an Indian tribe or an authorized Indian tribal

organization'' in the definition of ``municipality'' and to ``an Indian

tribe'' in the definition of ``state'' at L.A.C. 33:IX.2313 should thus

be regarded as mere surplusage. They do not suggest that LDEQ will seek

to regulate discharges from POTWs or other facilities on Indian lands

in Louisiana. The LDEQ will work with EPA Region 6 to identify any

potential discrepancies having to do with Indian Lands or Tribes, and

will address them in the first revision to the LPDES regulations.

3. Discharges to U.S. Waters Beyond the Territorial Seas: EPA

retains the permanent NPDES authority for discharges seaward of the 3

mile territorial seas limit and within the jurisdiction of the United

States. Many of these discharges are from oil and gas exploration and

production operations in the Outer Continental Shelf area of the

Western Portion of the Gulf of Mexico, currently regulated under NPDES

general permit No. GMG290000.

4. Discharges from Cleanup of Petroleum UST Systems: In the July

22, 1996, Federal Register, EPA proposed a general NPDES permit

(LAG280000) authorizing discharges resulting from the implemention of

Corrective Action Plans for the cleanup of Petroleum UST Systems in

Louisiana. A Petroleum UST System is an undergound storage tank system

that contains petroleum or a mixture of petroleum with de minimis

quantities of other regulated substances. Such systems include those

containing motor fuels, jet fuels, distillate fuel oil, etc. In

accordance with the EPA/LDEQ MOA, EPA will retain authority to issue

the final decision on this permit. Once the permit is final it will be

transfered to the State for administration.

5. Status of applications, proposed permits, contested permit

actions, and unresolved EPA enforcement actions: Except for the files

listed below, all pending NPDES permit applications and issued NPDES

permits under jurisdiction of LDEQ will be transferred to Louisiana

within 30 days of the approval of the LPDES program. In accordance with

the signed Memorandum of Agreement, EPA will retain temporary authority

for all proposed permits until final issuance; permits contested under

evidentiary hearing proceedings until those are resolved; and

compliance files and authority for all open enforcement orders until

such time as LDEQ has issued parallel orders or EPA has resolved the

enforcement action.

Proposed Permits: EPA shall retain permit decision-making authority

over permits which are currently public notice until they are final

issued and effective. Once these permits are effective, they will be

transferred to LDEQ unless contested. The permit files will be

transferred to the state as the permits become effective.

Contested Permit Actions: EPA will retain permits for which

variances or evidentiary hearings have been requested until such time

as they are resolved. As each request is resolved, EPA will notify LDEQ

and transfer jurisdiction of the permit to LDEQ. EPA shall also

maintain enforcement lead over discharge permits with a pending

evidentiary hearing request; these will be transferred to the state

upon resolution of the issue for which the hearing was requested.

Enforcement Actions: EPA Region 6 will retain primary enforcement

authority after the date the LPDES program is approved for a number of

facilities which have unresolved compliance issues. These permittees

will continue to report to EPA on all compliance issues including

regular submittals of Discharge Monitoring Reports for their NPDES

permits. Authority for these permits can subsequently be transferred to

the State one of two ways: 1) The outstanding compliance issue can be

resolved and the permittee has returned to compliance, or, 2) the State

can issue a parallel administrative action to address the outstanding

compliance issue. As a practical consideration, enforcement authority

for municipal or parish

[[Page 47934]]

facilities that are operated by the same governmental entity will not

be transferred to the State as long as one of its major facilities has

an unresolved compliance issue. NOTE: EPA in coordination with LDEQ

will inform all permittees in writing of their reporting

responsibilities. Permittees should continue to report as specified by

both their State and Federal permits until otherwise notified.

B. Penalty Policy Status and Regulation Corrections

In a letter dated March 29, 1996, J. Dale Givens, LDEQ Secretary,

committed to developing and promulgating a penalty policy by April 1,

1997. The State is in the process of drafting the policy. EPA will work

with the State in an effort to assure that policy is consistent with

Federal policies.

The definition of ``Waters of the State'' is not included in the

definition section of the LPDES regulations. The definition of ``Waters

of the State'' for LPDES purposes is in La. R.S. 30:2073(7). This

definition will be added to the LPDES regulations at the first

opportunity.

C. Consultation Agreements Under the Endangered Species Act and the

National Historic Preservation Act

1. Agreement with U.S. Fish and Wildlife Service: Consultation

under Section 7 of the Endangered Species Act has been completed on

EPA's approval of the LPDES program. An agreement has been reached

between EPA Region 6 and the U.S. Fish and Wildlife Service (FWS) to

provide EPA oversight of LPDES permit actions with respect to federally

listed species. The conditions of the agreement signed by EPA and FWS

are listed below:

a. EPA Region 6 will oversee activities conducted by the Louisiana

Department of Environmental Quality to ensure that the conditions in

the EPA/LDEQ Memorandum of Agreement are followed (particularly

Sections III.E.1.b and III.E.1.d pertaining to provisions and

agreements in the LDEQ/FWS Memorandum of Understanding).

b. U.S. Fish and Wildlife Service will work with LDEQ in the

development of permits and provide comments on draft permits in

accordance with LDEQ/FWS Memorandum of Understanding (hereby

incorporated by reference).

c. When the FWS and LDEQ cannot agree on appropriate actions for

the protection of listed or proposed species or critical habitat

associated with a LPDES permit, and EPA is notified of FWS concerns by

LDEQ, EPA will determine whether to make a formal objection to the

issuance of the permit (in accordance with 40 CFR 123.44). EPA will

formally object to the issuance of the draft permit if FWS determines

that the action is likely to jeopardize the continued existence of a

listed or proposed species or destroy designated critical habitat.

Procedures for an EPA formal objection are outlined in the EPA/LDEQ

MOA.

d. EPA will work with LDEQ and FWS to resolve issues of concern.

Should EPA be able to facilitate a resolution of the issues that

prompted the formal objection, the objection may be withdrawn, and LDEQ

may proceed with the issuance of the permit.

e. If EPA determines to issue the permit, they will consult with

FWS, prior to permit issuance, when it is determined that the permit

action may have an effect on a federally listed species or may

jeopardize the continued existence of a proposed species or adversely

modify critical habitat, in accordance with Section 7 of the Endangered

Species Act (regulations found at 50 CFR Part 402).

The U.S. Fish and Wildlife Service and U.S. EPA Region 6 agree that

the provisions in the LDEQ/FWS MOU and the above-listed procedures

describing EPA's oversight activities of the Louisiana program are

appropriate mechanisms for the protection of federally listed or

proposed species for LDEQ issued LPDES permits; and thus the

authorization of the Louisiana State permitting program under NPDES is

not likely to adversely affect listed species or adversely modify

critical habitat, nor is likely to jeopardize the continued existence

of a proposed species in the state of Louisiana. Signed by William B.

Hathaway, Director, Water Quality Protection Division, U.S. EPA Region

6 [date: June 12, 1996]; and David Fruge, Field Supervisor, Louisiana

Field Office, U.S. Fish and Wildlife Service [date: June 20, 1996].

2. Agreement with National Marine Fisheries Service: Consultation

under Section 7 of the Endangered Species Act has been completed on

EPA's approval of the LPDES program (letters dated August 16, 1996 and

August 19, 1996). Informal consultation produced agreement between EPA

Region 6 and the National Marine Fisheries Service (NMFS) that transfer

of authority for permitting point source discharges to LDEQ would not

be likely to adversely affect federally listed marine species. The

conditions agreed upon by EPA and NMFS are listed below:

a. EPA Region 6 will oversee activities conducted by the Louisiana

Department of Environmental Quality (LDEQ) to ensure that the

conditions in the EPA/LDEQ Memorandum of Agreement are followed.

b. Annually, the National Marine Fisheries Service (NMFS) will

provide LDEQ with a list of federally-listed threatened, endangered,

and proposed species under NMFS jurisdiction, as well as proposed

critical habitat, that occur in Louisiana and that are dependent upon

marine habitat for all or part of their existence. NMFS will provide

comments on draft permits in accordance with LDEQ/NMFS Memorandum of

Understanding.

c. When the Service and LDEQ cannot agree on appropriate actions

for the protection of listed or proposed species associated with a

LPDES permit, and EPA is notified of NMFS concerns by LDEQ, EPA will

work with NMFS and LDEQ to resolve the issue, and will determine

whether to make a formal objection to the issuance of the permit (in

accordance with 40 CFR 123.44). Procedures for an EPA formal objection

are outlined in the EPA/LDEQ MOA.

d. EPA will work with LDEQ and NMFS to resolve issues of concern.

Should EPA be able to facilitate a resolution of the issues that

prompted a formal objection, the objection may be withdrawn, and LDEQ

may proceed with the issuance of the permit.

e. If EPA determines to issue the permit, it will consult with NMFS

when it is determined that the permit action is likely to adversely

affect a federally listed species or may jeopardize the continued

existence of a proposed species or adversely modify critical habitat,

in accordance with Section 7 of the Endangered Species Act.

f. Where NMFS or LDEQ believes a State-drafted permit is likely to

adversely affect a federally listed species or designated critical

habitat, but EPA determines a formal objection to the permit is not

justified, EPA will work with LDEQ and NMFS to try to find a resolution

to the expressed concerns.

The National Marine Fisheries Service and U.S. EPA Region 6 agree

that the above-listed procedures are appropriate mechanisms for the

protection of federally listed or proposed species for LDEQ issued

LPDES permits; and that the authorization of the Louisiana State

permitting program under NPDES, will not be likely to adversely affect

listed species or adversely modify critical habitat, nor is likely to

jeopardize the continued existence of a proposed species. [Letter

signed by William B. Hathaway, Director, Water Quality Protection

Division, U.S. EPA Region 6 [date: August 16, 1996]; and concurrence

letter from Dr. Andrew Kemmerer, Director, Southeast Region,

[[Page 47935]]

National Marine Fisheries Service dated: August 17, 1996.]

3. Agreement with State Historic Preservation Officer: Consultation

under Section 106 of the National Historic Preservation Act has been

completed on EPA's approval of the LPDES program. An agreement has been

reached between EPA Region 6 and the Louisiana State Historic

Preservation Officer (SHPO) to provide EPA oversight of LPDES permit

actions with respect to properties listed or eligible for listing in

the National Register of Historic Places. The conditions of the

agreement signed by EPA and the SHPO are listed below:

a. EPA Region 6 will oversee activities conducted by the Louisiana

Department of Environmental Quality to ensure that the conditions in

the EPA/LDEQ Memorandum of Agreement are followed.

b. The Louisiana State Historic Preservation Officer will work with

LDEQ in the development of permits and provide comments on draft

permits in accordance with LDEQ/LSHPO Memorandum of Understanding.

c. When LSHPO and LDEQ cannot agree on appropriate actions for the

protection of historic properties associated with a LPDES permit, and

EPA is notified of LSHPO's concerns by LDEQ, EPA will determine whether

to make a formal objection to the issuance of the permit (in accordance

with 40 CFR 123.44). Procedures for an EPA formal objection are

outlined in the EPA/LDEQ MOA.

d. EPA will work with LDEQ and the LSHPO to resolve issues of

concern. Should EPA be able to facilitate a resolution of the issues

that prompted the formal objection, the objection may be withdrawn, and

LDEQ may proceed with the issuance of the permit.

e. If EPA determines to issue the permit, they will consult with

the LSHPO and the Advisory Council on Historic Preservation (ACHP) when

it is determined that a permit action will have an effect on a historic

property listed, or eligible for listing in the National Register of

Historic Places, in accordance with Section 106 of the National

Historic Preservation Act.

The Louisiana State Historic Preservation Officer and U.S. EPA

Region 6 agree that the above-listed procedures are appropriate

mechanisms for the protection of historic properties listed or eligible

for listing on the National Register of Historic Places for LDEQ issued

LPDES permits; and that the authorization of the Louisiana State

permitting program under NPDES, will not effect the above mentioned

properties. Signed by William B. Hathaway, Director, Water Quality

Protection Division, U.S. EPA Region 6 [date: March 20, 1996]; and

Gerri Hobdy, Louisiana State Historic Preservation Officer, Office of

Cultural Development, Louisiana Department of Culture, Recreation and

Tourism [date: March 25, 1996].

Responsiveness Summary

The following is a summary of the issues raised by persons

commenting on EPA's proposed approval and EPA's response to those

issues.

1. Comment Summary: Some commenters favoring approval of the LPDES

program cited Union Electric Co. v. EPA, 427 U.S. 246 (1976), claiming

EPA is required to approve the LPDES program as long as it meets CWA's

minimum requirements. Others, who oppose such approval, suggest EPA has

far more discretion in its program approval decisions and that it

should disapprove the LPDES program.

Response: In Union Electric, the Supreme Court essentially held

that EPA had limited discretion to disapprove a State Implementation

Plan under Section 110 of the Clean Air Act. The case has no direct

application to EPA actions under the Clean Water Act, but might be

instructive in determining EPA obligations in reviewing state water

quality standards. Nevertheless, EPA ``shall approve'' state NPDES

programs that conform to the requirements of CWA and 40 CFR Part 123.

In implementing this requirement, EPA does not merely look to the state

program's theoretical or ``paper'' conformity; it also examines the

state's capacity to implement a conforming program. EPA Region 6 has

examined the resources LDEQ will devote to the LPDES program and

supports (via the CWA grant process) the development of LDEQ expertise

and skills necessary for a successful program. In the judgment of EPA

Region 6, LDEQ is now capable of undertaking primary responsibility for

administration of the NPDES program in Louisiana.

2. Comment Summary: Some commenters expressed support for program

authorization, pointing out LDEQ staff was ``knowledgeable and

experienced.'' They note that LDEQ has historically issued permits for

minor discharges in more timely fashion than EPA and suggest LDEQ may

thus devote more staff resources to permitting tasks than EPA. Others,

however, claimed the Program Description lacked sufficient information

on program costs and sources of funding. They also claimed LDEQ will

necessarily be understaffed because the Program Description (Section 6,

p. 12) states that ``workload analysis of the anticipated number of

enforcement actions the LDEQ will prepare over the next two years is

difficult to project.''

Response: Chapters 4, 6, and Appendix H of the Program Description

provide detailed information on LDEQ's organization, positions,

projected costs, and sources of funding, including a projection of

enforcement resource needs. EPA Region 6 agrees with LDEQ that it is

``difficult'' to project enforcement resource needs for the next two

years, but finds the State's estimate of 600 enforcement actions

consuming 5280 workdays reasonable. Based on its review of the Program

Description, Region 6 found the LPDES program adequately staffed and

funded.

3. Comment Summary: Commenters provided anecdotal information on

LDEQ's implementation of EPA-approved programs under the Clean Air Act

(CAA) and Resource Conservation and Recovery Act (RCRA), and state

Louisiana Water Discharge Permit System (LWDPS) program in support of

LPDES program approval. Some contended that the State's adoption of new

regulations consistent with EPA's NPDES regulations showed LDEQ

understood the program and was capable of administering it. Other

commenters providing anecdotal information on LDEQ's implementation of

RCRA and CAA programs contended it showed the State was incapable or

unwilling to administer an effective NPDES program. Some pointed to the

number of Louisiana's waters which have not attained applicable water

quality standards. They claimed LDEQ is likely to render decisions

affecting water quality on the basis of political considerations and

expressed concern that federal ``monitoring'' of the LDEQ program would

be insufficient to avoid attendant declines in water quality. They

pointed out that water quality is important to the State's fishing,

recreation, and tourism industries.

Response: Whether or not anecdotal examples show Louisiana's

implementation of the CAA and RCRA programs to be exemplary or

deficient, it is not an issue which EPA can weigh heavily in its

decision to approve or disapprove a state program. EPA can not

appropriately withhold approval of a state NPDES program to coerce

improvements to a state RCRA program, nor can EPA appropriately approve

a state NPDES program just because it was satisfied with that state's

RCRA program. Each state program must be approved or disapproved on its

own merit and oversight decisions on each program must stand on their

own. EPA does not believe past administration of a state program

accurately indicates

[[Page 47936]]

how it will administer the NPDES program. As EPA has previously stated,

``the Agency does not intend to disapprove all State programs which

have had problems in the past. It views the decision on whether or not

to approve as being forward looking; the Agency is primarily concerned

that the program be effective in the future.'' 98 Fed. Reg. 33290,

33377 (May 19, 1980). Because the State's new LPDES regulations

replicate the decisional criteria of EPA's own NPDES regulations, LPDES

permits will be as least as stringent as NPDES permits issued by EPA,

and therefore, will provide equivalent protection of water quality.

LDEQ's permitting process will be subject to federal oversight and

public participation.

4. Comment Summary: Some commenters argued EPA should not approve

the LPDES program unless and until LDEQ adopts a penalty policy similar

to EPA's. Citing a decline in State-imposed penalties since 1992, they

claimed that LDEQ abuses its enforcement discretion in assessing

penalties and that the lack of a written State penalty policy leaves

EPA without a necessary oversight tool. Others suggested penalties are

a poor indicator of program effectiveness, claiming LDEQ's enforcement

program appropriately emphasizes compliance instead of penalties.

Response: EPA encourages, but does not require, that states

implementing the NPDES program adopt penalty policies equivalent to

EPA's. In a letter dated March 29, 1996, from LDEQ Secretary Dale

Givens, the State has committed to developing and promulgating a

penalty policy by April 1, 1997. EPA will work with the State in an

effort to assure that policy is consistent with federal policies.

5. Comment Summary: Some commenters requested that EPA delay

approval of the LPDES program until an ongoing FBI investigation into

influence peddling by State officials is completed.

Response: If the ongoing FBI investigation reveals criminal

wrongdoing by anyone currently associated with the LPDES program, it

seems likely that association will end. Further discussion of an

ongoing law enforcement investigation would be inappropriate here.

6. Comment Summary: Some commenters opposed approval on the grounds

that Louisiana law does not provide minimum (``not less than'')

penalties for program violations. Some also expressed concern that the

Louisiana Legislature might pass an environmental audit statute

inhibiting LDEQ's ability to penalize violators.

Response: Neither CWA Sec. 402 nor 40 CFR Part 123 require that

state law mandate minimum penalties to obtain NPDES approval. The

regulation instead requires that states possess authority to assess

civil penalties of at least $5,000 per day, per violation and criminal

penalties of at least $10,000 per day, per violation. Louisiana law

authorizes assessment of both civil and criminal penalties exceeding

these amounts. See La. R.S. 30:2025. Post-approval changes to Louisiana

law, if any, will be subject to review by EPA (in accordance with 40

CFR Sec. 123.62). If any changes render the LPDES program noncompliant

with federal requirements, EPA may withdraw program approval in

accordance with 40 CFR Sec. 123.63.

7. Comment Summary: Some commenters contended LDEQ must have the

Permits Compliance System (PCS) in place before EPA approves the LPDES

program.

Response: 40 CFR Part 123.26(e)(1) requires states to maintain a

``comprehensive inventory of all sources covered by NPDES permits and a

schedule of reports required to be submitted by permittees to the State

agency.'' EPA strongly encourages states to use the PCS system for

compliance with this requirement. LDEQ is currently connected to PCS

and EPA is actively training LDEQ staff in its use.

8. Comment Summary: One commenter suggested EPA should not approve

the LPDES program until it revises its own system of determining

significant noncompliance (SNC) and penalty assessment. The commenter

apparently believes EPA's present system precludes assessment of

penalties for more than one day's violation of a daily maximum

limitation.

Response: Nothing in its current system precludes EPA from seeking

penalties for each day a daily maximum effluent limitation is exceeded.

As pointed out in a recent General Accounting Office report, however,

EPA's existing compliance tracking system does not take such violations

into proper account in targeting enforcement actions against facilities

in SNC and the Agency is thus expanding its systemic definition of SNC

to better address such violations. That EPA is updating and improving

its own enforcement system, however, has no bearing on whether or not

it should approve the LPDES program. The MOA between EPA and LDEQ

commits LDEQ to address SNC in a timely manner. If EPA's definition of

SNC is expanded, there will simply be more facilities in SNC for EPA

and LDEQ to address.

9. Comment Summary: Some commenters claimed EPA has inappropriately

waived its right to oversight review of many of the State's permitting

actions.

Response: CWA Sec. 402(e) authorizes EPA to waive oversight review

of state permit actions on categories of point sources, thus allowing

the Agency to concentrate its oversight resources on actions which may

have the greatest effect on water quality or in which there is a

paramount federal interest. These ``must review'' categories of

discharges are generally described at 40 CFR Sec. 123. 24(d). In the

MOA with LDEQ, EPA has retained its oversight of those categories and

added to them, requiring that LDEQ submit proposals to permit

discharges from sanitary sewer overflows, discharges from municipal

separate storm sewers, discharges which may adversely affect endangered

or threatened species, and discharges which may adversely affect

historic sites. In addition, EPA has retained its right to add to the

classes of permitting actions it will review and to require review, on

a case-by-case basis, of permits for which it has waived review.

10. Comment Summary: Some commenters contended EPA should retain

jurisdiction over all permits for which applications are currently

pending.

Response: Pursuant to CWA Sec. 402(c) and 40 CFR Sec. 124.15(a),

EPA may not unilaterally retain jurisidiction over NPDES permits for

which it has not yet issued a final permit decision in accordance with

40 CFR Sec. 124.15. See generally Central Hudson Gas & Electric Corp.

v. U.S. EPA, 587 F.2d 549 (2d Cir. 1978). To render programmatic

transition more efficient and less confusing for permit applicants and

the public, EPA and LDEQ have agreed that EPA will retain jurisdiction

over permitting actions it has already proposed. The far broader

jurisdictional retention suggested by the commenters would extend the

transition period indefinitely and thus indefinitely delay the benefits

of program authorization. Therefore, all permit applications which were

submitted to EPA (except for those designated in Scope of the LPDES

program part A.5. above) will be transferred within 30 days to the

State for permitting action.

11. Comment Summary: Some commenters claimed that EPA should not

approve LDEQ's use of general permits or should restrict it to

instances in which EPA has already issued general permits. They

expressed concern that general permits allow permit coverage for

discharges without public notice or review. They also

[[Page 47937]]

claimed such general permits may not include monitoring or reporting

requirements, depriving the public of access to effluent data. Other

commenters supported LDEQ's use of general permits as a streamlining

mechanism for both LDEQ and dischargers.

Response: EPA agrees that regulation of large numbers of similar

discharges, for which similar effluent limitations are appropriate, is

often more efficient with general permits. See generally 40 CFR

Sec. 122.28. Although LDEQ and EPA procedures for developing general

permits are different, LDEQ's procedures provide for equivalent public

notice and review. When it proposes general permits, LDEQ provides

notice to interested parties on mailing lists and in newspapers of

general circulation throughout the State, soliciting comments on those

proposals. Copies of draft general permits and fact sheets are

available for public review in the same manner as for individual

permits. Louisiana Administrative Code (L.A.C.) 33:IX.2369 requires

that all LPDES permits, including general permits, impose monitoring

and reporting requirements as needed to assure compliance with permit

conditions. Discharge monitoring reports submitted to LDEQ by general

permittees will be maintained in individual facility files which are

available for public review.

12. Comment Summary: Some commenters claim LDEQ has authority to

grant broader variances than allowed by 40 CFR Sec. 124.62.

Response: LDEQ's authority to grant variances to LPDES program

requirements is not broader than EPA's corresponding NPDES authority.

The Louisiana Attorney General (AG) has explained in the AG's Statement

that the words ``as appropriate'' in the law which gives LDEQ the

authority to grant variances [La. R.S. 30:2074(B)(4)] does not allow

for variances which would not be allowed by the CWA. This statement by

the AG is consistent with Louisiana regulation L.A.C. 33.IX.2317(A)

which prohibits LDEQ from granting variances ``which under federal law

may only be granted by EPA''; and L.A.C. 33.IX.2317(A) which prohibits

issuance of permits ``when the conditions of the permit do not provide

for compliance with the applicable requirements of the CWA * * *'' This

would also be a violation of the EPA/LDEQ MOA.

13. Comment Summary: Some commenters expressed concern that LPDES

program approval would eliminate environmental protection afforded by

the National Environmental Policy Act (NEPA) and the Endangered Species

Act (ESA). They requested that EPA not approve the LPDES program until

the State adopts equivalent statutes. Others claimed the LPDES program

would provide equivalent protection as a result of the Louisiana

Supreme Court's decision in Save Ourselves, Inc. v. Louisiana

Environmental Control Commission, 452 So.2d 1152 (La. 1984) and the

EPA/LDEQ MOA.

Response: Because state permit actions under EPA-approved programs

are not federal actions, neither NEPA nor ESA apply to them. See, e.g.,

Chesapeake Bay Foundation v. United States, 453 F.Supp. 122 (E.D. Va.

1978). Nor does CWA or 40 C.F.R. Part 123 require that states adopt

equivalent statutes to obtain NPDES program approval. EPA's approval of

state NPDES programs is itself moreover excluded from NEPA requirements

by CWA Sec. 511(c)(1). Although it is thus immaterial to its program

approval decision, EPA Region 6 hopes the Save Ourselves decision

provides a degree of environmental protection comparable to NEPA's, but

believes it may be too early to tell.

In Save Ourselves, the Louisiana Supreme Court reversed a hazardous

waste permit decision of the Louisiana Environmental Control Commission

(an LDEQ predecessor), finding the Commission had failed to explain or

document its decisions on issues raised by public commenters. The

Court's decision was based in part on a public trust doctrine

established by the Natural Resources Article of the Louisiana

Constitution. At 452 So.2d 1156-57, the Court stated:

The Constitutional standard requires environmental protection

``insofar as possible and consistent with the health, safety, and

welfare of the people.'' La. Const. art. IX Sec. 1. This is a rule

of reasonableness which requires an agency or official, before

granting approval of a proposed action affecting the environment, to

determine that adverse impacts have been minimized or avoided as

much as possible consistently with the public welfare. Thus, the

constitution does not establish environmental protection as an

exclusive goal, but requires a balancing process in which

environmental costs and benefits must be given full and careful

consideration along with economic, social and other factors.

Because the Court's decision was also grounded in provisions of

Louisiana statutory law, some may interpret its public trust doctrine

discussion as nonprecedential dictum. Others may read the Save

Ourselves case as authorizing or requiring LDEQ to consider a broader

range of environmental issues in permit actions than are specifically

encompassed by its permit regulations. Under the latter reading, the

decision's effect on the development of Louisiana environmental law may

be considered comparable to the effect of Calvert Cliff's Coordinating

Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir.

1971) on development of federal NEPA jurisprudence. Recent Louisiana

judicial decisions have referenced the public trust doctrine of Save

Ourselves, but none have yet provided clear direction on LDEQ's

authority to consider or act in response to environmental issues not

otherwise addressed by its regulations. See, e.g., In the matter of

Cytec Industries, Inc., 94 1693 (La. App. 1st Cir. 02/23/96), 672 So.2d

179.

Regardless of the scope of LDEQ authority, however, it appears the

public trust doctrine imposes no specific ``action forcing'' mechanism

equivalent to NEPA's environmental impact statement requirement and

thus does not assure LDEQ will ferret out unforeseen issues not

otherwise addressed by requirements specific to its various programs.

To obtain LDEQ consideration of specific environmental problems and

potential alternatives in LPDES permit actions, interested parties

would thus be well advised to raise their concerns and suggest specific

alternatives in comments submitted for LDEQ's administrative record in

those actions.

EPA's approval of the LPDES program should not diminish the federal

protection ESA affords threatened and endangered species. Because

Louisiana law does not specifically require LDEQ to provide the same

protection, EPA and LDEQ have developed procedures, in consultation

with the U.S. Fish & Wildlife Service and National Marine Fisheries

Service, to assure program approval is unlikely to adversely affect

listed species or critical habitat. See Consultation Agreements Nos. 1

and 2, Section C, Scope of the LPDES Program, above. Region 6

anticipates that LDEQ and the appropriate Service(s) will usually avoid

such harm without the need for EPA intervention, but will not hesitate

to use its oversight authority to provide protection due under ESA.

14. Comment Summary: Some commenters urge EPA not to approve the

LPDES program because the protection now provided by the National

Historic Preservation Act (NHPA) to historic sites would be altered.

These commenters claimed the procedures outlined in the EPA/LDEQ MOA

and associated consultation agreements are insufficient protection for

historic properties in Louisiana. These commenters additionally express

[[Page 47938]]

the opinion that EPA is responsible for making determinations of

``affect'' in consultation with the State Historic Preservation Officer

(SHPO) on all permits issued by the authorized program (citing the 1992

Congressional redefinition of ``undertaking''). They viewed the MOA

provisions on consultations between LDEQ, the SHPO, and EPA Region 6 as

an unauthorized attempt to evade the procedural requirements of the

consultation regulations under Section 106 of the NHPA.

Response: EPA Region 6 agrees that the 1992 amendments to the NHPA

revised the statutory definition of ``undertaking'' for purposes of the

section 106 consultation process. However, the Advisory Council on

Historic Preservation has not yet amended its implementing regulations

to interpret the effect of that statutory change. In consultation with

the SHPO on LPDES program approval, the Region and LDEQ have thus

developed procedures for protecting historic properties, as documented

in agreements among EPA Region 6, LDEQ, and the SHPO. Under those

procedures, the Region and SHPO agree that LPDES program approval will

have no effect on historic properties. When the Advisory Council

promulgates regulations implementing the 1992 NHPA amendment, it may be

necessary to review the procedures/agreements and possibly amend them.

In view of the agreements among Region 6, LDEQ, and the SHPO,

Region 6 does not agree with the commenters' suggestion that EPA must

itself consult each time LDEQ proposes action on an LPDES permit

application. Even as federal NPDES permit actions, many of those

proposals (e.g., most permit renewals) would have no potential adverse

effect on historic properties; and LDEQ may tailor others to avoid such

potential effects after coordination with the SHPO under the outlined

procedures. If LDEQ, the SHPO, or the Advisory Council requests its

assistance to resolve issues concerning adverse effects to such

properties, EPA Region 6 will consult and, when appropriate, use its

program oversight authority to resolve potential adverse effects to

historic properties.

15. Comment Summary: Some commenters opposed approval of the LPDES

program on ``environmental justice'' grounds, contending that LDEQ may

issue permits to facilities in economically depressed areas or areas

primarily populated by minorities, while denying permits or requiring

more stringent limitations in more affluent neighborhoods. They request

that EPA Region 6 withhold approval of the LPDES program until an

ongoing investigation by EPA's Office of Civil Rights is completed.

Response: EPA is not at this time investigating any civil rights

violations by LDEQ. EPA headquarters is reviewing a complaint to

determine if that complaint meets the criteria for an investigation.

Both EPA and LDEQ are firmly committed to environmental justice and

will work together to address it in permitting actions. Current EPA

regulations provide little room for consideration of such factors in

NPDES permitting (except in EPA's permitting actions involving ``new

sources'' to which NEPA applies). Possibly, the Louisiana public trust

doctrine (see response number 13) provides LDEQ greater ability to

respond to environmental justice concerns than EPA possesses.

16. Comment Summary: Commenters both supporting and opposing

program approval encouraged EPA to review LDEQ's new rules for

protecting confidential business information for conformity with

federal requirements. Some expressed concern the rules might inhibit

citizen access to information necessary to effective public

participation in the LPDES program.

Response: Like CWA Sec. 308(b), La. R.S. 30:2074 (D) provides trade

secrecy protection for confidential business information submitted to

LDEQ, but contains an ``effluent data'' exclusion for information

relating to discharges. Both federal and Louisiana statutes thus strike

a balance between protection of competitive business interests and of

the public's right to participate in important governmental decisions

of public effect. LDEQ's new rules [L.A.C. 33:I.Chapter 5], are

functionally equivalent to EPA's [40 CFR Part 2, Subpart B], as they

both rely on similar procedures and substantive elements for evaluating

business confidentiality claims. LDEQ's regulations do not define

``effluent data,'' but there is little reason to believe LDEQ and EPA

would reach different decisions on public access to information given

the common purpose of the federal and State statutory exclusions, i.e.,

promoting public participation in permitting and enforcement actions.

It is more likely EPA's regulatory interpretation [at 40 CFR

Sec. 2.302(a)(2)] would be accorded persuasive weight in State

confidentiality proceedings. Louisiana's regulations also provide

confidential treatment to documents in investigatory files if necessary

to ``prevent impairment of an ongoing investigation or prejudice to the

final decision regarding a violation.'' L.A.C. 33:I.501(1). This

regulation appears comparable to 5 U.S.C. Sec. 552(b)(7)(A) and 40 CFR

Sec. 2.118(a)(7)(i)(A), allowing LDEQ to avoid disclosure of sensitive

information, e.g., privileged predecisional staff recommendations or

evaluations, to the targets of potential or proposed enforcement

actions. It may not, consistent with the intent underlying La. R.S.

30:2074(D), be applied to the objective effluent data necessary to

establish a violation in enforcement proceedings. Although the public

may have to obtain independent analysis of such data (instead of

relying on written LDEQ evaluations) to effectively participate in

enforcement proceedings, that burden is consistent with EPA's own

regulations and practices.

17. Comment Summary: Some commenters opposed program approval on

the basis of claims that LDEQ copying charges unduly inhibit access to

public information needed for effective public participation in the

LPDES program. They claimed the State should provide copies of public

records free of charge, consistent with EPA practices. Others claimed

LDEQ does not respond to requests for public information.

Response: Although the federal Freedom of Information Act and EPA

regulations allow it to provide document copies at reduced or no charge

to public interest requestors, neither CWA nor EPA's regulations impose

such a requirement on states with approved NPDES programs. Unless state

information access practices frustrate the mandate of CWA Sec. 101(e)

or conflict with controlling EPA regulations, they provide no reason

for disapproval of a state program. Louisiana's practices are

consistent with that mandate and with EPA's regulations. Consistent

with 40 CFR Sec. 124.10(d), for instance, LDEQ notices of proposed

permitting actions provide the name, address, and phone number of the

person from whom a copy of the draft permit, fact sheet or statement of

basis, and application may be obtained. Charges LDEQ assesses reflect

its cost for providing the requested documents and should not greatly

inhibit public access. Even citizens unable to pay the indigent rate of

5 cents a page copy cost may freely examine such information at LDEQ

offices during normal business hours, taking notes or rendering hand-

written copies. Additionally, LDEQ no longer charges those who use

personal copiers in such onsite examinations. Commenters claiming LDEQ

has been nonresponsive to information requests provided no specific

examples. EPA Region 6 notes that La. R.S. 44:35

[[Page 47939]]

provides for expedited judicial review of a Louisiana agency's failure

to produce requested records and authorizes award of reasonable

attorney's fees for prevailing parties.

18. Comment Summary: Some commenters contended EPA should

disapprove the LPDES program for inconsistency with CWA Sec. 402(b)(3),

which requires that states provide opportunity for public hearing

before permit issuance. The commenters pointed out that L.A.C.

33:IX.2419 requires that LDEQ provide a hearing only if it finds ``a

significant degree of public interest'' in a permit action; and claim

such a provision is insufficient for compliance with the statute's

mandate.

Response: The statute requires only an ``opportunity'' for public

hearing; it does not require that a hearing be convened merely because

there is a single request. The minimum requirements for providing such

opportunity are reflected by 40 CFR Sec. 124.12(a) (i.e. when there is

sufficient public interest or at the discretion of the Director).

L.A.C. 33:IX.2419 is almost a verbatim copy of that federal regulation.

19. Comment Summary: Some commenters claimed the Program

Description's explanation of the judicial review process on LDEQ

permitting decisions was inadequate and misleading. They claimed an

applicant's request for de novo review pursuant to La. R.S. 30:2024(A)

would result in the Nineteenth Judicial District Court rendering final

permit decisions independent of LDEQ. They also claimed this was unfair

inasmuch as citizens adversely affected by permit actions were limited

to seeking judicial review under La. R.S. 30:2024(C)(1) in which the

review is normally limited to the administrative record.

Response: These commenters appear to confuse the standard of review

with scope of review under La. R.S. 30:2024(C). As explained in the

Program Description, controlling State jurisprudence limits the scope

of judicial review under that provision to LDEQ's decision (or

indecision) on whether to grant an adjudicatory hearing requested under

LRS 30:2024(A); the merits of LDEQ's permit decisions are not subject

to review in such proceedings. See In the matter of Carline Tank

Services, Inc., 623 So.2d 669 (La. App. 1st Cir. 1993). The de novo

(i.e., new evidence) review standard presumably allows LDEQ to

interpose reasons for denying a hearing which do not appear on the

administrative record when, for instance, it has rendered no formal

decision within the 30 days provided by the statute.

The commenters claim Pardue v. Stevens, 558 So.2d 1149 (La. App.

1st Cir. 1989) shows that Louisiana law allows a reviewing court to

``issue its own permits'' following de novo review. Pardue involved

review of a Coastal Use Permit under La. R.S. 49:213.16(F), a statute

which does not apply to the LPDES program. Indeed, Louisiana's

legislature has specifically excluded the LPDES program from a similar

State statutory provision which would otherwise allow judicial issuance

of permits in ``show cause'' proceedings. See La. R.S. 49:962.1(D). It

is difficult to imagine a clearer manifestation of legislative intent

that the judiciary is not to ``issue'' LPDES permits.

Simply stated, the State court reviews LDEQ's decision to grant a

hearing, not the conditions or requirements of the final permit under

consideration. The only issue on which de novo review is allowed is

whether LDEQ should have granted a permit applicant's request for

adjudication. Following such review, the court will presumably either

find no hearing was required or remand the matter for adjudication.

``Aggrieved parties,'' whether permit applicants or citizens with

potentially affected aesthetic or recreational interests, may obtain

judicial review of final decisions on LPDES permit terms only in

accordance with La. R.S. 30:2024(C)(1), which provides for summary

review in accordance with La. R.S. 49:964, i.e., on the administrative

record. See generally In the Matter of Recovery I, Inc., 635 So.2d 690

(La. App. 1st Cir. 1994); In the matter of Carline Tank Services,

supra.

20. Comment Summary: Some commenters requested that EPA disapprove

the State's program submission until the State enacts a statute

providing for State court jurisdiction over citizen suits equivalent to

federal district court jurisdiction under CWA Sec. 505. These

commenters were concerned that, under La. R.S. 30:2026, LDEQ could

preempt State court jurisdiction over a citizen suit by issuing a

compliance order and requested EPA ``reassurance'' that CWA Sec. 505

would continue to apply in Louisiana.

Response: Neither CWA nor 40 CFR Part 123 requires that a state

provide its courts with jurisdiction over citizen suits to obtain EPA

approval of its NPDES program. La. R.S. 30:2026, however, provides such

jurisdiction in Louisiana. That State statute is comparable to CWA

Sec. 505, but differs in several respects, one of which appears to be

the basis for the comment. In contrast to corresponding CWA provisions,

the Louisiana statute prohibits citizen suits if, within 30 days of

notice, the alleged violator ``is * * * under any order issued * * * to

enforce any provision of this Subtitle.'' La. R.S. 30:2026(B)(3)(a).

EPA approval of a State NPDES program does not divest the federal

courts of jurisdiction over citizen suits under CWA Sec. 505. Pursuant

to CWA Sec. 309(g)(6)(A)(ii), however, state proceedings ``comparable

to'' EPA administrative penalty assessments preempt subsequent penalty

actions, including actions under CWA Sec. 505, for the same violations.

EPA does not believe that non-punitive compliance orders issued by

state agencies are comparable to EPA administrative penalty actions

under CWA Sec. 309(g). The federal courts, however, have reached

differing conclusions on that issue. Compare Citizens for a Better

Environment v. Union Oil Co. of California, 83 F.3d 1111 (9th Cir.

1996) with North & South Rivers Watershed Ass'n v. Scituate, 949 F.2d

552 (1st Cir. 1991).

21. Comment Summary: Some commenters submitted a petition raising

concerns on alleged pollution from Hunt Correctional Center and the

Louisiana Correctional Institute for Women. The petition urged public

officials to bring these facilities into compliance.

Response: The petition raises no issues of direct relevance to

EPA's program approval decision. EPA has recently received a notice of

intent to file suit against these State correctional facilities from

Sierra Club Legal Defense Fund. EPA is currently discussing the matter

with LDEQ and the Louisiana Department of Corrections.

22. Comment Summary: Some commenters supporting LPDES program

approval noted that it is both inconvenient and expensive to obtain

permits for surface water discharges from two separate agencies. They

claimed that program oversight is a more appropriate role for EPA and

that EPA retains the right to withdraw the program if LDEQ does not

implement it appropriately.

Response: ``It is the policy of Congress that the States * * *

implement the permit programs under sections 402 and 404 of this [Clean

Water] Act.'' CWA Sec. 101(b). Today's program approval is also

consistent with that policy and with the goal of preventing ``needless

duplication of paperwork'' under CWA Sec. 101(f).

[[Page 47940]]

Other Federal Statutes

A. Small Business Regulatory Enforcement Fairness Act

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted a report

containing this rule and other required information to the U.S. Senate,

the U.S. House of Representatives and the Comptroller General of the

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

B. Regulatory Flexibility Act

After review of the facts presented in this document, I hereby

certify, pursuant to the provisions of 5 U.S.C. 605(b), that this

authorization will not have a significant impact on a substantial

number of small entities. The approval of the Louisiana NPDES permit

program merely transfers responsibilities for administration of the

NPDES permit program from Federal to State government. This change will

allow small entities more convenient access to the regulatory process.

I hereby authorize the LPDES program in accordance with 40 CFR part

123.

Dated: August 27, 1996.

Jane N. Saginaw,

Regional Administrator.

[FR Doc. 96-23067 Filed 9-10-96; 8:45 am]

BILLING CODE 6560-50-P