Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two
Federal RegisterDec 11, 1996
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SUMMARY: The Environmental Protection Agency (EPA) is today proposing
revisions to the National Pollutant Discharge Elimination System
(NPDES) regulations (40 CFR parts 122, 123, 124, and 125). This
proposal is part of an agency-wide effort to respond to a directive
issued by the President on February 21, 1995, which directed Federal
agencies to review their regulatory programs to eliminate any obsolete,
ineffective, or unduly burdensome regulations. In response to that
directive, EPA initiated a detailed review of its regulations to
determine which provisions were obsolete, duplicative, or unduly
burdensome. On June 29, 1995, EPA issued a rule (60 FR 33926) which
removed some regulatory provisions in the Office of Water program
regulations (including certain NPDES provisions) that were clearly
obsolete. Today's proposal is intended to further streamline NPDES and
RCRA permitting procedures by revising requirements in parts 122, 124,
and 125 to eliminate redundant regulatory language, provide
clarification, and remove or streamline unnecessary procedures which do
not provide any environmental benefits. Conforming changes to 40 CFR
parts 22, 117, 144, 270, and 271 are also proposed in today's notice.
These proposed revisions are identified and discussed in the
Supplementary Information section below.
DATES: Written comments on this proposed rule must be received by or
postmarked by February 10, 1997 to be considered timely.
ADDRESSES: Commenters are requested to submit written comments to: The
NPDES Round II Streamlining Rule, Comment Clerk, Water Docket MC-4101;
U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460. Commenters are requested to submit any references cited in
their comments. Commenters are also requested to submit an original and
three copies of their comments. Commenters who would like
acknowledgment of receipt of their comments should include a self-
addressed, stamped envelope. All comments must be postmarked or
delivered by hand by the comment deadline. No facsimiles (faxes) will
be accepted.
EPA will also accept comments electronically. Comments should be
addressed to the following Internet address: [email protected].
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption. Electronic comments
will be transferred onto a paper version for the official record. EPA
will attempt to clarify electronic comments if there is an apparent
error in transmission. Comments provided electronically will be
considered timely if they are submitted electronically by 11:59 P.M.
(Eastern time) February 10, 1997. As EPA is experimenting with
electronic commenting, commenters may want to submit both electronic
comments and duplicate paper comments. This document has also been
placed on the Internet for public review and downloading at the
following location: gopher.epa.gov.
The public may inspect the administrative record for this
rulemaking at EPA's Water Docket, Room M2616, 401 M Street, S.W.,
Washington, D.C. 20460, between the hours of 9 a.m. and 3:30 p.m. on
business days. For access to docket materials, please call (202) 260-
3027 for an appointment during the aforementioned hours. A reasonable
fee will be charged for copying.
FOR FURTHER INFORMATION CONTACT: Thomas Charlton, Permits Division
(4203), U.S. Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, (202) 260-6960.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are EPA, authorized
State programs, and the Regulated Community.
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Examples of regulated
Category entities
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Federal Government........................ Federal NPDES Program.
State Government.......................... State NPDES Program.
Private................................... NPDES Regulated Community.
Private................................... RCRA Regulated Community.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your organization is likely to be regulated by this action, you should
carefully read the applicability language of today's rule. If you have
any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
Organization
Information in this preamble is organized as follows:
I. Background
II. Proposed Revisions
A. Proposed Revisions to Part 122
1. Purpose and Scope (40 CFR 122.1)
2. NPDES Program Definitions (40 CFR 122.2, 124.2)
3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a),
122.21(d), 122.26(c)(1))
5. Effluent Characteristics (40 CFR 122.21(g)(7))
6. Signatories (40 CFR 122.22)
7. Group Permit Applications (40 CFR 122.26(c)(2))
8. General Permits (40 CFR 122.28)
9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv),
122.48)
10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
11. Reopener Clauses (40 CFR 122.44(c))
12. Best Management Practices (40 CFR 122.44(k))
13. Termination of Permits (40 CFR 122.64)
B. Proposed Revisions to Part 123
1. Requirements for Permitting (40 CFR 123.25)
2. Transmission of Information to EPA (40 CFR 123.44)
C. Proposed Revisions to Public Hearing Requirements for NPDES
Permit Actions and RCRA Permit Terminations
1. Background of the Current Rule
2. Proposed Elimination
a. Legal Basis
(1) The Language of Section 402(a)
(2) Reasonableness of interpretation
b. Proposed New System
(1) Permit issuance
(2) Termination of NPDES and RCRA Permits
(3) Stays of Contested Permit Conditions
(4) Procedures for Variances and New Source Determinations
(5) Transition to New Procedural Requirements
(6) Miscellaneous Changes
[[Page 65269]]
(7) Effect on State Programs
D. Proposed Reservation of Part 125, Subpart K--Criteria and
Standards for Best Management Practices Authorized under Section
304(e) of the Act
1. 40 CFR Part 125, Subpart K
2. 40 CFR 122.44(k)
E. Miscellaneous Corrections
III. Administrative Requirements
A. Executive Order 12866
B. The Regulatory Flexibility Act
C. The Paperwork Reduction Act
D. The Unfunded Mandates Reform Act
I. Background
On February 21, 1995, the President directed all Federal agencies
and departments to conduct a comprehensive review of the regulations
they administer and by June 1, 1995, identify those rules that are
obsolete or unduly burdensome. EPA conducted a review of all of its
rules, including those issued under the Federal Water Pollution Control
Act, as amended (``FWPCA'') (33 U.S.C. 1158 and 1251 et seq.) (also
cited below, as the Clean Water Act or ``CWA''), the Safe Drinking
Water Act (``SDWA'') (42 U.S.C. 300f et seq.), and the Marine
Protection, Research, and Sanctuaries Act (also known as the Ocean
Dumping Act) (33 U.S.C. 1401 et seq.). In March and April of 1995, EPA
solicited informal comments from the public, regulated entities,
States, and municipalities on ways to identify rules that are obsolete,
redundant, or unduly burdensome. Towards that end, a number of meetings
were held in the Regions. On April 3, 1995, the Office of Water issued
a preliminary report which identified those regulatory provisions that
were amenable to streamlining.
As a result of this review, EPA issued a final rule on June 29,
1995 (60 FR 33926) which removed a number of regulatory provisions that
were obsolete or redundant with other regulatory requirements. Today's
proposal is a continuation of this effort by EPA to revise the NPDES
program regulations in parts 122, 123, 124 and 125 to eliminate
redundant requirements, remove superfluous language, provide
clarification, and remove or streamline unnecessary procedures which do
not provide any environmental benefits. Included in today's notice are
proposed revisions which would revise the permit appeals process for
EPA-issued NPDES permits by replacing the evidentiary hearing
procedures found at part 124, subpart E with a direct appeal to the
Environmental Appeals Board. This is not intended to affect the permit
appeal procedures for State-authorized NPDES programs. Also contained
in today's proposal are conforming changes to parts 22, 117, 144, 270,
and 271. Today's proposal contains many of the revisions contained in
EPA's June 1, 1995 report to the President. EPA also proposes in
today's notice, amendments to its regulations that would correct
typographical errors, drafting errors, and misplaced or obsolete
references.
Today's proposal may, at times, print extensive portions of
existing regulatory text without change. This is done to better
describe the proposed revisions. For example, Sec. 122.21(g)(7) is
reprinted in its entirety to indicate where new paragraph headings are
proposed to be inserted. However, EPA does not solicit, and will not
respond to, comments on existing regulatory provisions not proposed to
be amended, nor will such provisions be subject to judicial review upon
promulgation of the final rule. EPA is soliciting comment only on the
revisions described in this preamble.
II. Proposed Revisions
A. Revisions to Part 122
1. Purpose and Scope (40 CFR 122.1)
Section 122.1 provides a general description of the purpose and
scope of the NPDES program regulations. Today, EPA proposes to amend
this section to remove superfluous language and to provide better
clarification. Paragraph (b)(2) states that concentrated animal feeding
operations, concentrated aquatic animal production facilities,
discharges into aquaculture projects, discharges of storm water, and
silvicultural point sources are all point sources requiring NPDES
permits for discharges. This information is already provided at
Secs. 122.23, 122.24, 122.25, 122.26, and 122.27. EPA proposes to
remove paragraph (b)(2). Existing paragraphs (b)(3) and (b)(4) are
proposed to be redesignated as (b)(2) and (b)(3) respectively.
References to existing Sec. 122.1(b)(3) are found at Sec. 122.2 and
Sec. 124.1. Today's notice would insert a reference to 122.1(b)(2) in
their place.
To provide better clarification, EPA is proposing to remove and
revise language found at paragraphs (c), (d), (e), and (f) and place it
in three new paragraphs (a)(3), (4), (5). Paragraphs (c), (d), (e), and
(f) would be removed. By these revisions to Sec. 122.1, EPA does not
intend to change any existing substantive requirements of the NPDES
program. EPA also proposes to provide a note at the end of this section
to assist readers in contacting EPA if they have questions regarding
the NPDES program or its rules. EPA may also provide for the electronic
submission of queries concerning the NPDES program and solicits comment
on that practice.
2. NPDES Program Definitions (40 CFR 122.2, 124.2)
In this proposed rule, EPA seeks to streamline the NPDES program
definitions found at parts 122 and 124 by removing redundant or
superfluous language found in its regulatory definitions.
a. EPA intends to amend Sec. 122.2 to add references to definitions
that are found elsewhere in parts 122 and 123. The inclusion of such
references in a single location is intended to assist readers in
finding specific provisions in the NPDES regulations. However, this
action is not intended to expand the application of those definitions
if they are restricted to a particular section. This proposed rule
would provide references to the following terms.
Animal feeding operation
Aquaculture project
Bypass
Concentrated animal feeding operation
Concentrated aquatic animal feeding operation
Individual control strategy
Municipal separate storm sewer system
Silvicultural point source
Sludge only facility
Storm water
Storm water discharge associated with industrial activity
Upset
b. In 40 CFR 124.2, EPA intends to remove definitions that are
already found in 122.2. This includes the terms, ``applicable standards
and limitations'', ``variances'', and ``NPDES''. EPA believes such
multiple definitions to be redundant because Sec. 124.2(a) already
provides that the definitions of Sec. 122.2 (as well as definitions for
the sludge management, UIC, PSD, 404, and RCRA programs) apply to part
124.
3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
Section 122.4(i) prohibits the issuance of a permit to a new source
or new discharger if the discharge would cause or contribute to a
violation of water quality standards. A new source or new discharger
may, however, obtain a permit for discharge into a water segment which
does not meet applicable water quality standards by submitting
information demonstrating that there is sufficient loading capacity
remaining in waste load allocations (WLAs) for the stream segment to
accommodate the new discharge and that existing dischargers to that
segment are subject to compliance schedules designed to bring the
segment into compliance with the applicable water quality standards.
EPA is proposing to revise these information submission
requirements to
[[Page 65270]]
allow the Director to waive the present submittal of information
requirements under Sec. 122.4(i) where the permitting authority
determines that it already has the required information. In many
instances the information required to be submitted by the applicant
(such as waste load allocations available or compliance schedules for
existing discharges) may already be in the Director's files. Where the
information is not available or current, the Director may not waive the
requirement for the applicant to generate all supporting documentation.
EPA notes that this information (as with any information which details
how permit limits are derived) should be included in the fact sheet or
statement of basis for the permit. See 40 CFR 124.7, 124.8, and 124.56.
To underscore the importance of such information and to clarify an
existing requirement, EPA also proposes to include an express
requirement in Secs. 122.4(i) and 122.56(b)(1) that information which
demonstrates how the criteria for permit issuance in Sec. 122.4(i) are
met is included in the fact sheet for the permit. EPA notes that this
revision merely clarifies existing requirements found at Secs. 124.7,
124.8, and 124.56 and does not result in an increased burden to the
regulated community or permit issuing authorities.
4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a), 122.21(d),
122.26(c)(1))
EPA's regulations contain two provisions, Secs. 122.1(d)(1) and
122.22(d) which require the use of EPA application forms for EPA-issued
permits. In today's notice EPA proposes to consolidate these provisions
and move them to a new location, Sec. 122.21(a). Section 122.1(d)(1)
requires that applicants for EPA-issued permits must submit
applications on EPA application forms when available and indicates that
most of the information requested on these application forms is
required by EPA's regulations. The provision also indicates that the
basic information required in the general form (Form 1) and the
additional information required for NPDES applications (Forms 2A
through 2D) are listed in Sec. 122.21. Applicants for State-issued
permits must use State forms which must require at a minimum the
information listed in EPA's application regulations.
Similarly, Sec. 122.21(d)(3)(i) requires that all applicants for
EPA-issued permits, other than POTWs, new sources, and ``sludge-only
facilities,'' must complete Forms 1 and either 2B or 2C of the
consolidated permit application forms to apply under Sec. 122.21.
Section 122.21(d)(3)(ii) requires that in addition to any other
applicable requirements in this part, all POTWs and other ``treatment
works treating domestic sewage,'' including ``sludge-only facilities,''
must submit with their applications the information listed at 40 CFR
501.15 (a)(2) within the time frames established in paragraph
Sec. 122.21(c)(2) of this section. Finally, Sec. 122.26(c)(1) requires
storm water discharges associated with industrial activity to submit
Form 1 and Form 2F.
Most of the requirements in these two paragraphs are duplicative.
Consequently, EPA proposes to consolidate the requirements of
Secs. 122.1(d) and 122.1(d)(3) and place them in a new paragraph
designated as Sec. 122.21(a)(2). EPA believes paragraph (a) is a more
appropriate location because it pertains to all permit applicants,
whereas, paragraph (d) concerns situations involving permit
reapplications. Section 122.1 is also not a particularly suitable
location because it concerns the scope of the NPDES program and not
application requirements. The requirements currently found at
Sec. 122.21(a) would be retained in new paragraph (a)(1). Section
122.21(d)(3) would be removed and reserved for future use. In
Sec. 122.21(c)(2)(i), EPA proposes to revise a reference to paragraph
(d)(3)(ii) found in Sec. 122.21(c)(2) (i) and (ii) to reflect those
provisions' new location, paragraph (a)(2). EPA is also in the process
of revising some of its application forms (60 FR 62546, Dec. 6, 1995).
Those proposed revisions, once finalized, will be coordinated with the
revisions proposed in today's notice. EPA also proposes to add language
in proposed Sec. 122.21(a)(2) to clarify which EPA forms may be
required for a particular discharger. This new language will also allow
for the possibility of electronic submittal of application information
in the event that the Agency approves the electronic application
submittal process. At that time, authorized-States would have the
option of using electronic submission of application information. EPA
notes that there are other ongoing efforts to update the EPA's forms
which may result in nonsubstantive revisions to paragraph (a)(2).
5. Effluent Characteristics (40 CFR 122.21(g)(7))
Section 122.21(g)(7) requires that applicants for permits for
existing manufacturing, commercial, mining, and silvicultural
discharges must submit information on effluent characteristics. On
November 16, 1990 (55 FR 48062), EPA revised Sec. 122.21(g)(7) to add
language which specifically addresses storm water application
requirements. However, the addition of this language has made paragraph
(g)(7) more difficult to read because there is a large amount of
uninterrupted text and it is difficult to separate out requirements
that are specific to storm water discharges. Today's proposal seeks to
better clarify paragraph (g)(7) through the insertion of additional
paragraph headings. No substantive changes to 40 CFR 122.21(g)(7) are
intended by this revision. EPA also proposes to revise references to
provisions in paragraph (g)(7) that are found elsewhere in the NPDES
regulations (Secs. 122.21(g)(8); 122.21 notes 1, 2, and 3;
122.26(c)(1)(i); and 122.26(d)(2)(iv)(C)(2)) to ensure those references
reflect Sec. 122.21(g)(7)'s new structure.
6. Signatories (40 CFR 122.22)
Section 122.22 requires that all permit applications for
corporations shall be signed by a responsible corporate officer as
defined in paragraphs (a)(1)(i) or (a)(1)(ii) of that section.
Responsible corporate officer is defined at Sec. 122.22(a)(1)(i) as a
president, secretary, treasurer, or vice-president of the corporation
in charge of a principal business function, or any other person who
performs similar policy- or decision-making functions for the
corporation. Paragraph (a)(1)(ii) provides that a responsible corporate
officer may be the manager of one or more manufacturing, production, or
operating facilities employing more than 250 persons or having gross
annual sales or expenditures exceeding $25 million (in second-quarter
1980 dollars), if authority to sign documents has been assigned or
delegated to the manager in accordance with corporate procedures.
These numeric criteria (250 individuals, 25 million in second
quarter 1980 dollars) were added in 1983 (See 48 FR 39612 (Sept. 1,
1983)) to ensure that facility managers who sign permit applications
have high level corporate knowledge of a corporation's pollution
control operations and are authorized to make management decisions
which govern the operation of the regulated facility. EPA did not
intend signatories to include field supervisors or facility operators
because at the time that rule was established, we believed such
individuals might not have the ability to direct the activities of the
corporation so as to ensure that necessary procedures are established
or actions taken to gather complete and accurate information. EPA now
believes these criteria to be obsolete because they do not apply well
to current corporate
[[Page 65271]]
structures and facility operations in light of emerging trends in
automation and decentralization. The use of such rigid indicators may
operate to disqualify individuals who are best able to undertake the
responsibility of ensuring that permit applications are accurate and
complete. Today's proposal seeks to revise Sec. 122.22(a)(1)(ii) to
remove numerical criteria, and provide instead language which ensures
that facility managers who sign permit applications have high level
corporate knowledge of a corporation's pollution control operations and
are authorized to make management decisions which govern the operation
of the regulated facility including the ability to allocate resources,
make major capital investments, and initiate and direct the development
of other comprehensive measures to assure long term compliance with
environmental laws and regulations.
Instead of numeric criteria, today's proposal provides that
signatories to permit applications may include the manager of one or
more manufacturing, production, or operating facilities, provided, (1)
the manager is authorized to make management decisions which govern the
operation of the regulated facility including the ability to allocate
resources, make major capital investments, and initiate and direct
other comprehensive measures to assure long term environmental
compliance with environmental laws and regulations; (2) the manager can
ensure that the necessary systems are established or actions taken to
gather complete and accurate information for permit application
requirements; and (3) the manager has been assigned or delegated
authority to sign documents in accordance with corporate procedures.
EPA believes that today's proposed rule remains consistent with the
intent of the September 1, 1983 rulemaking to ensure that permit
application signatories are those who are best able to ensure that
accurate, complete, and truthful permit applications are submitted,
while allowing for greater flexibility in the use of signatories.
However, EPA invites comment on whether other criteria would prove more
appropriate in light of modern corporate management structures for
determining signatories for permit applications under
Sec. 122.22(a)(1)(ii).
7. Group Permit Applications (40 CFR 122.26(c)(2))
The 1987 amendments to the Clean Water Act (CWA) added section
402(p) which established a two phase approach for addressing point
source discharges of storm water. Under Section 402(p), Congress
identified five classes of point source storm water discharges that
would be included in Phase I of the Storm water program and required to
obtain NPDES permits. These are:
A discharge for which a permit has already been issued
under this section prior to February 4, 1987;
A discharge associated with industrial activity;
A discharge from a municipal separate storm sewer system
serving a population of 250,000 or more;
A discharge from a municipal separate storm sewer system
serving a population of 100,000 or more but less than 250,000; and
A discharge for which the Administrator or the State
determines that the storm water discharge contributes to a violation of
a water quality standard or is a significant contributor of pollutants
to waters of the U.S.
To implement the phase I provisions of Section 402(p) (1) through
(5), EPA published final storm water permit application regulations on
November 16, 1990 (55 FR 48063), as revised. For storm water discharges
associated with industrial activity, EPA defined eleven categories
comprising major groupings of industrial sectors that are identified
either by standard industrial classification (SIC) code or through
narrative descriptions. Industrial activities that fall within these
eleven industrial categories and which have a point source discharge of
storm water are required to seek a NPDES permit.
EPA anticipated that the implementation of the Phase I industrial
program would cover over 100,000 facilities. To ensure the timely
issuance of NPDES permits, EPA sought in the final rule to offer
several NPDES administrative approaches to facilitate extended permit
coverage as cost effectively and as efficiently as possible to large
numbers of permittees. In the November 16, 1990 final rule, EPA
provided that storm water discharges associated with industrial
activity could pursue one of three permit application options including
the submission of:
An individual permit application;
A notice of intent to be covered under a general permit;
or
A group permit application.
Today's revision focuses on group applications. This option allowed
facilities with very similar activities to form groups to submit a
joint application of which only ten percent of the group would have to
submit monitoring information. EPA developed this option to accomplish
the following goals:
To establish a procedure where adequate information would
be collected for developing permits for certain classes of storm water
discharges;
to reduce costs and administrative burdens on permit
applicants;
to reduce the amount of quantitative data by requiring
such data from only selected facilities within a group; and
to ease the burden on the permit issuing authority by
consolidating information.
In response to the group application option, EPA received over 1200
group applications encompassing 65,000 industrial activities. Using the
information provided by group applicants, EPA developed a multi-sector
storm water general permit (MSGP) which was published on September 29,
1995 (and revised on February 9, 1996). The MSGP includes baseline
conditions applicable to all industrial activities within 29 industrial
sectors and conditions that are specific to each sector. The MSGP is
available in States where EPA is the permitting authority. Industrial
facilities seeking coverage under the MSGP must submit a single page
notice of intent (NOI) to receive coverage. Where States have NPDES
authority, the MSGP is available as a model to assist those States in
providing permit coverage for storm water discharges in their
jurisdictions. While the MSGP was initially developed through the group
application process, it has evolved into a general permit whose
coverage is available to all facilities that meet its eligibility
requirements. It has also led to the development of a substantial body
of information regarding the permitting and control of storm water
discharges from industrial activity.
The group application process was designed to accommodate the
initial influx of first-time permit applications from Phase I
industrial activities and was based, in part, on the limited
availability of storm water general permits in States. However, the
deadlines for submitting group applications for Phase I facilities
expired on October 1, 1992, and coverage under storm water general
permits is now widely available. Forty States are authorized to issue
storm water general permits. EPA issues storm water general permits for
those States and jurisdictions that are without EPA authorization.
Industrial facilities may readily obtain permit coverage by submitting
a NOI to the appropriate permitting authority or through applying for
an individual permit. Consequently, EPA believes the group
[[Page 65272]]
application option is no longer needed. General permits provide a more
flexible approach to storm water coverage and can accomplish the goals
of the group permit application process (i.e., more efficient
monitoring, reduced application burdens) without requiring that
applicants form into groups prior to applying for permit
coverage.1 EPA also believes that storm water pollution prevention
plans (a principal requirement of most storm water general permits)
will ensure that permit conditions are appropriate and applicable for
the industrial activities covered. Consequently, today's notice
proposes to eliminate the group application option at
Sec. 122.26(c)(2), and proposes conforming changes to paragraph (c)(1).
The removal of the group application provisions will not impact EPA's
ability to reissue the MSGP because it is a general permit.
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\1\ However, permittees may still be classified as belonging to
specific sectors or categories for the purpose of coverage under a
general permit. This may result in the imposition of sector or
category-specific conditions.
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8. General Permits (40 CFR 122.28)
EPA's NPDES general permit program arose out of the broad grant of
authority in section 402(a) of the CWA and the decision of NRDC v.
Train, 396 F.Supp. 1393, 1402 (D.D.C. 1975), aff'd, NRDC v. Costle, 568
F.2d 1369 (D.C. Cir. 1977) which recognized EPA's authority to employ
administrative mechanisms, such as area (general) permits, to assist
the Agency in the practical administration of the NPDES permit program.
In 1979, EPA promulgated revisions to the NPDES regulations creating a
class of permits referred to as ``general permits.'' 44 FR 32873 (June
7, 1979). Under the general permit program, the permitting authority
may issue a permit to cover a class of similar dischargers or treatment
works treating domestic sewage in a defined geographic area with the
same effluent limitations.2 General permits have proven to be a
valuable tool by which to regulate classes of similar discharges. To
improve administration and operation of the general permit program and
to encourage more widespread use of general permits, the Agency is
proposing to amend the general permit regulations to allow general
permits to cover multiple categories of dischargers.
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\2\ The provision allowing general permits to address treatment
works treating domestic sewage was added by EPA's sewage sludge
permit regulations issued on May 2, 1989 (54 FR 18716).
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The current regulatory requirements for general permits are set out
at 40 CFR 122.28, and allow the Director to issue a single permit
covering more than one discharger (or treatment works treating domestic
sewage) within a specific geographic area. Historically, certain
regulatory restrictions have been applied to general permits. General
permits have been limited to specific areas corresponding to certain
geographic or political boundaries. 40 CFR 122.28(a)(1). Current
regulations also provide that general permits may regulate storm water
point sources, or a category of point sources other than storm water
that involve substantially similar types of operations, discharge the
same types of wastes or engage in the same types of sludge use or
disposal practice, require the same effluent limitations, require the
same or similar monitoring, and in the opinion of the permitting
authority, are more appropriately controlled under a general permit
than under individual permits. 40 CFR 122.28(a)(2). This provision has
been generally interpreted as limiting coverage of non-storm water
general permits to only a single category of point sources, such as a
single industrial category covered under an effluent guideline. (EPA's
regulations do allow general permits for storm water to regulate
multiple categories of point sources.)
In today's notice, EPA seeks to revise Sec. 122.28(a) (1) and (2)
to clarify that a general permit for non-storm water dischargers may
cover more than one category or subcategory of sources or treatment
works treating domestic sewage. This revision will enable greater
permit drafting flexibility and would allow the Director to write a
general permit covering (as separate categories) permittees whose
discharges or sludge use or disposal practices differ substantially,
for example, regarding flow or pollutant load, as well as for those
permittees with similar discharges or sludge use or disposal practices
(a single category). In another case, the Director might designate
different monitoring requirements for different categories based on
discharge flow or frequency and provide for this without having to
promulgate separate general permits for each group of dischargers or
treatment works treating domestic sewage in the general category.
The types of operations conducted or wastes discharged within each
category or subcategory authorized by the general permit (except for
general permits for storm water discharges) would still have to be
substantially the same. Within each identified category or subcategory,
limitations would have to be identical for all covered dischargers or
treatment works treating domestic sewage. In today's notice, EPA
proposes to revise Sec. 122.28 by adding a new paragraph, (a)(4), to
require that general permits must clearly identify the applicable
conditions for each category of dischargers or treatment works treating
domestic sewage and provide that general permits may exclude specified
sources or areas from coverage.
Today's proposal would also revise Sec. 122.28 by adding a new
paragraph, (a)(3), to provide that where dischargers (or treatment
works treating domestic sewage) are subject to water quality-based
limitations, the sources in that specific category or subcategory shall
be subject to the same water quality-based effluent limitations. While
this provision would appear at first to be redundant with existing
provisions at Sec. 122.28(a)(2)(i)(C) which require that non-storm
water sources covered under a general permit must require the same
effluent limitations, operating conditions, or standards for sewage
sludge or disposal, the restrictions contained in proposed paragraph
(a)(3) apply to storm water and non-storm water sources where water
quality-based limits are involved. EPA is proposing to add this
paragraph in part to clarify that general permit categories can be used
to impose water quality-based limitations as well as technology-based
limitations. However, paragraph (a)(3)'s requirement that sources in
categories or subcategories be subject to the same water quality-based
limits reflects EPA's position that general permits should not be used
to provide permit coverage to loosely grouped categories of dissimilar
discharges. While EPA has decided not to require that each category or
subcategory covered under a general permit discharge to waters that are
subject to the same water quality standards, permit writers may wish to
consider such a categorization particularly when calculating general
permit discharges as part of a waste load allocation.
Because the proposal would allow issuance of a single general
permit to cover multiple categories of facilities, it would facilitate
the use of general permits in areas with differing water quality
requirements or standards. It may allow the permitting authority to
issue general permits on a watershed or geographic basis to facilities
with the same water quality requirements. The proposal would allow a
permit drafted to cover a single category of dischargers or treatment
works treating domestic sewage to cover different subcategories subject
to different effluent limitations, standards, or conditions. This
should reduce the burden on the permitting agency by decreasing the
number of general permits issued. The proposal intends to provide
flexibility to deal
[[Page 65273]]
with the variations between the different dischargers or treatment
works treating domestic sewage (or water quality based stream segments)
covered under a single general permit. General permits are still
subject to the same reporting and monitoring requirements, limitations,
enforcement provisions, penalties, and other substantive requirements
as individual permits.
9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv),
122.48)
Monitoring requirements for NPDES permits are currently found in
different locations in EPA's regulations. Section 122.41(j)(1) requires
that monitoring be representative of the monitored activity. Paragraph
(j)(2) imposes requirements relating to the retention of monitoring
records. Paragraph (j)(3) places requirements on what information will
be provided in monitoring records. Paragraph (j)(4) requires that
monitoring be conducted according to part 136 testing procedures unless
otherwise specified. Paragraph (j)(5) imposes penalties for any person
who falsifies, tampers with, or knowingly renders inaccurate monitoring
devices or methods. Section 122.41(l)(4) addresses the reporting of
monitoring results and provides specific requirements relating to
Discharge Monitoring Reports (DMRs). Section 122.44(i) imposes
requirements on monitoring methodologies. Finally, Sec. 122.48 imposes
requirements for recording and reporting of monitoring results.
EPA believes this arrangement to be confusing. To provide better
clarification, EPA proposes to consolidate the monitoring provisions
found at Secs. 122.41 (j), (l)(4), and 122.44(i) and place them at
Sec. 122.48. In addition, a cross reference to the new consolidated
monitoring requirements will be placed at 122.41(j) to ensure
monitoring remains a standard condition for all NPDES permits. This
revision is not intended to result in any substantive changes to
monitoring requirements. EPA notes that the penalty provisions of 40
CFR 122.41(j)(5) (providing for penalties for falsifying, tampering or
knowingly rendering inaccurate monitoring devices or methods) remain a
standard condition of all EPA-issued NPDES permits. As described in
more detail below, 40 CFR 122.41(j)(5) (proposed Sec. 122.48(d) in
today's notice) is not required for authorized State programs. However,
40 CFR 123.27 contains a similar prohibition against falsifying,
tampering, or knowingly rendering inaccurate monitoring devices or
methods which must be included in authorized State programs.
As part of this consolidation, EPA is combining the provisions
currently found at Secs. 122.41(j)(4) and 122.44(i)(1)(iv) at proposed
Sec. 122.48(a)(3). Both of these provisions require that monitoring be
conducted in accordance with test procedures approved under 40 CFR part
136 unless an alternative test procedure has been approved under part
136. For sludge use or disposal, monitoring must be conducted in
accordance with test procedures approved under part 136 unless
otherwise specified in 40 CFR part 503. Both Secs. 122.41(j)(4) and
122.44(i)(1)(iv) were once promulgated as single provision (See 44 FR
32910 (June 7, 1979) (codified then as 40 CFR 122.20 (a)-(c))) and were
only broken out to conform to the organization of the consolidated
permit regulations. See 45 FR 33340-4, 33355, 33357, 33448, and 33450
(May 19, 1980). EPA is also clarifying that where no test procedure has
been approved under 40 CFR part 136, the Director shall specify a test
method in the permit. This reflects the current requirements found at
Sec. 122.44(i)(1)(iv) and as also expressed in EPA's June 7, 1979
rulemaking. EPA believes this revision does not result in any
substantive changes to the monitoring requirements but only clarifies
its existing interpretation of them.
10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
Currently, Sec. 122.44(a) is interpreted to require that where a
facility is covered by a particular effluent guideline, any permit
issued to that facility must contain effluent limitations for every
pollutant or parameter listed in the guideline (also known as
``guideline-listed pollutants''). These limits would be required
regardless of whether the facility would actually be discharging those
parameters. Because permittees must also monitor for all parameters
limited in a permit (see 40 CFR 122.44(i)(1)(i)), there are concerns
that this requirement may subject many facilities to the unnecessary
expense of monitoring for pollutants that they are not and will not be
discharging.
To provide permit writers with more flexibility in reducing the
burdens associated with unnecessary monitoring, EPA is proposing to
revise Sec. 122.44(a) so that it does not require limits for all
guideline-listed pollutants under certain circumstances. Existing
paragraph (a) would be redesignated as (a)(1). A new paragraph, (a)(2),
would allow permit writers on a case-by-case basis not to include
limits for guideline listed pollutants where a permit applicant
certifies and provides supporting information that the facility does
not discharge and will not discharge certain guideline-listed
pollutants. In such cases, permit writers may decide not to include a
limit for those parameters in the permit. However, it should be clearly
understood that in such instances, the permit would not authorize any
discharges of those excluded parameters in any amounts. For the
exclusion to be valid, the permit would have to contain an express
condition which notes that the permit does not authorize the discharge
of those excluded pollutants. This exclusion is good only for the term
of the permit. To receive an exclusion under proposed paragraph (a)(2),
Permittees must submit certifications (along with supporting
information) each time a permit is applied for (including permit
reissuances). For such an exclusion to be valid, it must be included as
an express condition each time a permit is issued.
EPA believes that this approach provides permittees and permit
writers with needed flexibility in reducing the burdens associated with
conducting unnecessary monitoring while ensuring that permits are not
interpreted as an authorization to discharge excluded pollutants in
unlimited amounts. This revision is not intended to allow the exclusion
of any pollutants that should be limited on the basis of water quality
standards.
Applicants should not pursue this approach if there is any
possibility those excluded parameters might be discharged. Applicants
may instead utilize the existing process of having limits placed on all
guideline-listed pollutants and seek minimum monitoring for those
parameters whose presence in the discharge is not expected. EPA
solicits comments on this proposal and also invites public comment on
other ways this process can be streamlined to remove any unnecessary
burdens with respect to limiting and monitoring for pollutants.
11. Reopener Clauses (40 CFR 122.44(c))
Section 122.44(c) provides for reopener clauses in permits. Section
122.44(c)(1)(i) requires that any permit issued to a discharger in a
primary industry category (listed in Appendix A of part 122) on or
before June 30, 1981, must contain an reopener clause to allow for
permit modification, revocation, or reissuance if an applicable
standard or limitation is promulgated under sections 301(b)(2)(C) and
(D), 304(b)(2), and 307(a)(2) of the CWA after such a permit was issued
and the standard or limitation is more stringent than what is found in
the
[[Page 65274]]
permit or controls a pollutant not limited in the permit. Where
applicable standards and limitations have already been promulgated,
Sec. 122.44(c)(1)(ii) requires that subsequent permits include those
limitations. Section 122.44(c)(3) imposes a duty on permitting
authorities to promptly modify, revoke, and reissue permits to which
Sec. 122.44(c)(1)(i) applies.
These provisions were established to implement the requirements of
a settlement agreement approved by the United States District Court for
the District of Columbia issued on June 8, 1976 in Natural Resources
Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976). See 43 FR
22161 (May 23, 1978). This settlement agreement resulted in a new
program for the establishment of effluent limitations guidelines, new
source performance standards, and pretreatment standards for 21 major
categories of industries as well as the incorporation of those limits
in permits issued to dischargers from those categories. To meet that
goal, the agreement resulted in the imposition of a number of
deadlines. On May 19, 1980 (45 FR 33449), those deadlines were replaced
with a single deadline, June 30, 1981, which is found at
Sec. 122.44(c)(1).
In today's notice, EPA proposes to remove paragraphs (c)(1),
(c)(2), and (c)(3) of Sec. 122.44. Paragraphs (c)(1) and (c)(3) apply
only to permits issued on or before June 30, 1981. These provisions are
obsolete as more than 14 years have passed since that deadline and any
permits issued on or before that date are either no longer in existence
or in administrative continuance. EPA also proposes to remove paragraph
(c)(2) and consolidate its requirements with those found at
Sec. 122.44(a). Paragraph (c)(2) provides that any permit issued after
the deadline provided by section 301(b)(2) (A), (C), and (E)
(established as March 31 1989 by the 1987 amendments to the Clean Water
Act), must meet BAT and BCT standards whether or not applicable
effluent limits have been promulgated or approved. Paragraph (c)(2)
further states that such permits need not incorporate the reopener
clause found in section paragraph (c)(1). Paragraph (c)(2) largely
reiterates requirements found at Section 122.44(a) because paragraph
(a) already requires that permits must meet all technology-based
effluent limitations and standards promulgated under section 301, all
new source performance standards under section 306 of the CWA, and
case-by-case effluent limitations determined under section 402(a)(1) of
the CWA. EPA proposes in today's notice to consolidate the requirements
of 40 CFR 122.44(a) and (c)(2) into a new paragraph, (a)(1). (As noted
in greater detail above, EPA is also creating a new paragraph, (a)(2),
which contains language concerning guideline listed pollutants.)
Proposed paragraph (a)(1) requires that permits shall include
technology-based effluent limitations and standards based on: Effluent
limitations and standards promulgated under section 301(b)(1) or
301(b)(2), as appropriate, new source performance standards promulgated
under section 306 of CWA, case-by-case effluent limitations determined
under section 402(a)(1) of CWA, or on a combination of the three, in
accordance with Sec. 125.3. For new sources or new dischargers,
paragraph (a)(2) also notes that these technology based limitations and
standards are subject to the provisions of Sec. 122.29(d) (protection
period).
Paragraph (c)(4) covers reopeners of sludge conditions in NPDES
permits. EPA is proposing to retain that provision and redesignate it
as paragraph (c).
By removing these provisions, EPA does not intend to limit the
ability of permitting authorities to place reopener clauses in permits
on a case-by-case basis particularly where reopeners may result in more
environmentally protective permit limits, standards, or conditions.
12. Best Management Practices (40 CFR 122.44(k))
As described in more detail below, EPA is proposing in today's
notice a non-substantive revision to Sec. 122.44(k) which would provide
a reference to available agency guidance on best management practices.
The addition of this language is merely intended to assist readers in
developing and implementing best management practices. It is not
intended in anyway to change the requirements of Sec. 122.44(k).
13. Termination of Permits (40 CFR 122.64)
Section 122.64 lists the causes for EPA termination of an NPDES
permit during its term, or for denial of an application for permit
renewal. If the Director decides to terminate a permit, he or she
currently must follow the procedures at Sec. 124.5, or approved State
procedures, which require preparation of a notice of intent to
terminate (a type of draft permit) and public notice and comment. (As
discussed in more detail in Section II.B below, EPA is proposing to
substitute part 22 procedures for termination of permits other than at
the request of the permittee, also known as ``termination for cause''.)
These procedures are intended primarily to assure that the rights of
the permittee are adequately considered. This is because permit
termination has been considered as essentially an enforcement
mechanism. See 45 FR 33316 (May 19, 1980); 44 FR 34249 (June 14, 1979).
However, there may be situations outside of enforcement where
termination is desirable because the permittee has discontinued
operation or connected the discharge to a POTW. In those situations,
EPA sees little benefit in requiring the procedures of Sec. 124.5 as
currently written (or part 22 as proposed).
EPA is proposing to revise Sec. 122.64 to allow the Director to
terminate a permit by giving notice to the permittee and without
following part 22 or 124 procedures where the permittee has permanently
terminated its entire discharge (by elimination of its process flow or
other discharge components) or has redirected that discharge into a
POTW. However, where a permittee objects to the termination, this
revision would require the Director to follow the existing part 124
procedures to terminate the permit. (But as noted in more detail below
at Section II.B, formal hearings under part 22 would not be necessary
since the termination would not be one for cause and today's proposal
would remove formal hearing requirements for permit terminations that
are not for cause. EPA notes that these expedited permit termination
procedures would not be allowed where a permittee is subject to pending
State and/or Federal enforcement actions including citizen suits
brought under State or Federal law. In such situations, the public has
a strong interest in participating in any permit termination
proceedings and permittees should not use expedited permit termination
procedures as a way to avoid enforcement liability. Therefore, EPA is
adding language in proposed Sec. 122.64 to state that expedited permit
termination procedures are not available to permittees that are subject
to pending State and/or Federal enforcement actions including citizen
suits brought under State or Federal law. EPA will also require that
permittees who request expedited permit termination procedures must
certify that they are not subject to any pending State and/or Federal
enforcement actions including citizen suits brought under State or
Federal law. EPA specifically invites comment on how EPA and permitees
may determine if there are pending State and/or Federal enforcement
actions. One possible approach may be to deny the availability of
expedited permit terminations where EPA, the
[[Page 65275]]
State, or any person has commenced an action against a permittee under
State and/or Federal Law, or where a permittee, the Administrator, or
the State has received notice of an intent to sue pursuant to 40 CFR
Sec. 135 or State law. EPA invites comment on that approach.
Also, EPA is not proposing to eliminate the requirement to follow
part 124 termination procedures if the pollutants will be disposed of
either in wells or by land application of effluent, even if the
permittee requests termination. In such cases, it is important that the
public be notified and able to pursue any concerns about such disposal
methods under other appropriate Federal, State or local regulatory
programs. EPA also notes that there are situations where permits are
appropriate for no discharge facilities, particularly where there is
the possibility of an inadvertent discharge into waters of the United
States.
This proposal would enable the Director to terminate permits when
the discharger has eliminated its discharge without waiting for permit
expiration. EPA notes that a permittee terminating its discharge due to
connection to a POTW would be subject to applicable pretreatment
requirements, including those in parts 403 and 405-471, along with any
local requirements. An existing categorical industrial user initiating
a discharge to a POTW must notify the POTW in accord with Sec. 403.12.
EPA also notes that permittees should be very sure that they have, in
fact, eliminated their discharge when requesting expedited permit
termination procedures. This is because any pollutants discharged by
the facility subsequent to permit termination could violate section 301
of the CWA (prohibition against unpermitted discharges).
This proposal would streamline the permit termination process
without sacrificing any procedural safeguards. EPA specifically invites
comment on whether members of the public, other than the permittee,
would have a significant interest in such terminations such that public
notice should continue to be required.
EPA is also proposing conforming changes to Sec. 124.5 procedures
to reflect abbreviated termination procedures proposed for the cases
discussed in proposed Sec. 122.64(b). One pre-notice commenter has
recommended that these expedited permit termination procedures be
employed where an existing discharger seeks to terminate its individual
permit coverage and obtain coverage under a general permit for the same
discharge. EPA invites comment on whether expedited permit termination
procedures should be employed for this and other situations.
B. Proposed Revisions to Part 123
1. Requirements for Permitting (40 CFR 123.25)
EPA is today proposing revisions to 40 CFR 123.25(a) to clarify
that certain provisions which detail penalty amounts in Sec. 122.41
(a)(2), (a)(3), and (j)(5) are not required of State NPDES programs.
Instead, the applicable penalty provisions for State NPDES programs are
found at 40 CFR 123.27. This is consistent with EPA's long standing
interpretation of the Clean Water Act and its regulations. See OGC
Opinion dated May 31, 1973. However, EPA notes that while the penalty
provisions of 122.41 (a)(2) and (a)(3) need not be included in State
NPDES programs, Sec. 122.41(a)'s condition, ``a duty to comply'' does.
With respect to existing Sec. 122.41(j) (proposed in today's notice as
Sec. 122.48(d)), EPA notes that it does not have to be included in
NPDES State Programs. However, EPA wishes it to be clear that it
interprets Sec. 123.27(a)(3) to contain the same prohibitions as those
found in paragraph Sec. 122.41(j). That is, a person who falsifies,
tampers with, or knowingly renders inaccurate, any monitoring device or
method required under a permit is subject to criminal fines and
penalties as determined under Sec. 123.27. Finally, EPA notes that
States are not prohibited from adopting penalty amounts that are the
same as those found at Sec. 122.41 if they wish to do so.
2. Transmission of Information to EPA (40 CFR 123.44)
EPA is today proposing revisions to 40 CFR 123.44 to remove
references to the Office of Water Enforcement and Permits (OWEP) and
its role in commenting on and objecting to State-issued general
permits. At one time, OWEP (now known as the Office of Wastewater
Management) was expected to play an active role in reviewing,
commenting, and objecting to State-issued general permits. Under
provisions once found at 40 CFR 123.43(b) and 124.58, authorized States
were required to provide copies of draft general permits (other than
those for separate storm sewers) to the Director of OWEP for review.
Section 123.44(a)(2) of EPA's current regulations further provides that
the Director of OWEP may comment upon, object to, or make
recommendations with respect to proposed State-issued general permits
(other than those for separate storm sewers) on EPA's behalf. The
introductory text of Sec. 123.43(b)(2) also expressly provides OWEP
with a role in objecting to State-issued general permits. Finally,
Sec. 123.44(i) makes the role of the Director of OWEP coextensive with
that of the Regional Administrator for the purposes of objecting to
proposed State-issued general permits (other than those for separate
storm sewers).
The Office of Wastewater Management no longer plays an active role
in reviewing State-issued general permits. The number of State general
permit programs have increased with a corresponding increase in the
number of State-issued general permits. This has resulted in the
Regions assuming the primary role in reviewing State-issued general
permits. Moreover, as States have gained more experience in running
general permit programs, EPA believes that an extra level of EPA review
is no longer warranted. On June 29, 1995, EPA removed Secs. 123.44(b)
and 124.58 from the Code of Federal regulations as unnecessary in light
of the Regions' primary role in reviewing State permits. See 60 FR
33931. To conform to those earlier changes and to continue EPA's effort
to streamline Federal oversight of State NPDES permit programs, EPA
proposes in today's notice to revise Sec. 123.44 (a)(2) and (b)(2) to
remove those references to OWEP and its role in reviewing State-issued
general permits. EPA would also remove and reserve 40 CFR 123.44(i).
C. Proposed Revisions to Public Hearing Requirements for NPDES Permit
Actions and RCRA Permit Terminations
EPA is today proposing substantial revisions to its existing
procedural requirements for issuing NPDES permits in those States and
territories (and in Indian Country) where EPA retains the authority to
issue NPDES permits. EPA is proposing to eliminate as unnecessary the
existing procedures for conducting formal evidentiary hearings on NPDES
permit conditions contained in 40 CFR part 124, subpart E, and is
further proposing to eliminate the alternative ``Non-Adversary Panel
Procedures'' in part 124, subpart F. EPA is also proposing to eliminate
Appendix A to part 124 (Guide to Decisionmaking under part 124) because
its role in explaining subpart E and subpart F procedures would no
longer be relevant in the absence of those subparts. EPA is also
proposing to modify the procedures for terminating NPDES and RCRA
permits. These revisions do not apply to authorized State NPDES
Programs.
[[Page 65276]]
1. Background of the Current Rule
Section 402(a) of the CWA authorizes the Administrator to issue an
NPDES permit ``after opportunity for a hearing.'' In the late 1970's,
three United States Circuit Courts of Appeals concluded that section
402(a) of the CWA requires that NPDES permit adjudications be conducted
according to formal adjudicatory procedures that meet the standards set
forth in sections 554, 556 and 557 of the Administrative Procedure Act
(``APA''). 5 U.S.C. 554, 556 & 557. These courts reasoned that the
reference to a ``hearing'' in section 402(a), in light of the ``quasi-
judicial'' nature of the fact finding involved in NPDES permit
proceedings, indicated Congressional intent to require formal
adjudicatory procedures, notwithstanding the absence of an explicit
requirement in the Act that such procedures be followed. Seacoast Anti-
Pollution League v. Costle, 572 F.2d 872, 877 (1st Cir. 1978); Marathon
Oil Co. v. EPA, 564 F.2d 1253, 1264 (9th Cir. 1977); United States
Steel Corp. v. Train, 556 F.2d 822, 833 (7th Cir. 1977).
Largely because of the holdings in these cases, EPA promulgated the
current part 124 regulations in 1979, which require formal evidentiary
hearings of the type contemplated by section 554 of the APA. 44 FR
32854, 32855 (June 7, 1979). These procedures apply to any NPDES permit
decision (i.e., a decision to grant a permit, to deny a permit, or to
terminate a permit for cause under 40 CFR 122.64), and to a decision to
terminate a permit for a hazardous waste treatment, storage, or
disposal facility issued under Section 3005 of RCRA. 40 CFR 124.71,
270.43.
Under part 124, when issuing, denying, or terminating an NPDES
permit (or terminating a RCRA permit), EPA undergoes a complicated 3-
step administrative process. Step 1 begins when a discharger submits an
application for a new or revised NPDES permit. Based on the
application, the appropriate EPA Regional Office prepares a draft
permit (or draft decision to deny) detailing the proposed conditions on
the discharger. The EPA Region provides notice and an opportunity for
public comment on draft permits (40 CFR 124.10) and provides a public
hearing when there is a significant degree of public interest. 40 CFR
124.12(c). Step 1 ends when the Regional Administrator (or his or her
designee) issues a final permit decision, incorporating any changes in
the draft permit occasioned by the public comments received.
The permit takes effect 30 days after issuance unless the permittee
or any other member of the public who commented on the draft permit
initiates Step 2 (or if one of the other two exceptions at 40 CFR
124.15(b) are met i.e., a later effective date is specified in the
permit decision, or if no comments have requested a change in the draft
permit, it becomes effective immediately upon issuance). In Step 2, a
party appeals the permit decision by requesting an evidentiary hearing.
40 CFR 124.15(b). To exhaust administrative remedies, the permittee (or
the public) must request an evidentiary hearing on all contested issues
(legal and factual). The EPA Regional Administrator must then decide
whether to grant or deny the request for a hearing. The Regional
Administrator shall grant a hearing on any issue for which there is a
genuine dispute of material fact, and on any legal issue which is
intertwined with such material factual issues. The Regional
Administrator will deny a hearing on any other legal issues, or on any
factual issues for which there is no material dispute. If a hearing is
granted on any issue, an Administrative Law Judge presides over a
formal evidentiary hearing following the procedures of 40 CFR part 124
subpart E.
As an alternative to the full adjudicatory proceeding, EPA
regulations also provide that Steps 1 and 2 may be combined in a single
semi-formal hearing process before a non-adversary panel of EPA experts
(called a ``Non-Adversary Panel Procedure'' or ``NAPP''). 40 CFR part
124 subpart F. These procedures apply only to NPDES permits which
constitute an ``initial licensing'' proceeding under the Administrative
Procedure Act, or if a party to the proceeding requests such a hearing.
40 CFR 124.74(c)(8), 124.111(a)(1).
For issues decided in an evidentiary hearing or Non-Adversary Panel
Procedure (and for issues arising when a request for an evidentiary
hearing is denied), a party may initiate Step 3 by appealing the
Regional Administrator's decision to EPA's Environmental Appeals Board.
40 CFR 124.91, 124.127. The appeal provides an opportunity to review
any factual conclusions (under a ``clear error'' standard), policy
decisions, or legal conclusions. The appeal is the final prerequisite
to judicial review. The entire administrative process (that is, to
comment at Step 1, to appeal at Step 2, and to further appeal at Step
3) must be exhausted in order to obtain judicial review.
By contrast, permits issued or denied under RCRA Subtitle C, the
UIC program of the Safe Drinking Water Act, or the PSD program of the
Clean Air Act, use Steps 1 and 3 of the above-described process, but
not Step 2. In other words, a party may appeal from the Regional
Administrator's permit decision directly to the Environmental Appeals
Board. 40 CFR 124.19(a). There is no provision for formal adjudicatory
hearings, unless the RCRA, UIC, or PSD permit has been consolidated for
purposes of permit issuance with an NPDES permit for which a request
for evidentiary hearing has been granted. 40 CFR 124.71(a).
EPA's experience with the evidentiary hearing process suggests that
it causes significant delays in NPDES permit issuance without causing
noticeable improvements in the quality of the permit decisions made. As
discussed in more detail below, EPA statistics suggest that at least
80% of all requests for evidentiary hearing are resolved without a
hearing taking place or any changes being made to the permit.
Nonetheless, it takes an average of 18-21 months to complete the 2-part
appeals process for such permits. EPA has maintained the process
primarily due to concerns about the legality of adopting less formal
procedures. As discussed below, however, these concerns no longer hold
true.
2. Proposed Elimination
In EPA's opinion, formal evidentiary hearings are not required by
the CWA, nor are they necessary to protect the due process rights of
permittees or other interested parties. EPA therefore proposes to
eliminate the requirement for such hearings prior to EPA's issuance of
NPDES permits.
a. Legal Basis. (1) The Language of Section 402(a). EPA has
concluded that due to the progress of the law in the Courts of Appeals,
the Seacoast and Marathon decisions are no longer good law, and that
the CWA may be interpreted not to impose a formal hearing requirement.
As noted earlier, Section 402(a) does not explicitly state that public
hearings on NPDES permits must be conducted ``on the record,'' the
phrase normally associated with a requirement that hearings be
conducted under section 554 of the APA. The absence of an explicit
requirement in section 402(a) that formal APA procedures be used is
significant in light of certain judicial decisions that followed the
promulgation of the part 124 regulations. These decisions, which
address procedural requirements under statutory provisions other than
section 402(a) of the CWA, have abandoned the presumption that trial-
type hearings are required by the APA where a statute calls for an
adjudicatory hearing
[[Page 65277]]
without explicitly requiring formal procedures. Chemical Waste
Management v. EPA, 873 F.2d 1477 (D.C. Cir. 1989) (``CWM'') (RCRA
section 3008(h)); Buttrey v. United States, 690 F.2d 1170 (5th Cir.
1982) (CWA section 404).
In CWM, the D.C. Circuit upheld RCRA regulations establishing
informal procedures for adjudicating corrective action orders under
RCRA section 3008(h). 873 F.2d at 1478. RCRA section 3008(h) does not
specifically provide for hearings, but section 3008(b) provides that
``[a]ny order issued under this section shall become final unless * * *
the person or persons named therein request a public hearing. Upon such
a request the Administrator shall promptly conduct a public hearing.''
42 U.S.C. section 6928(b). Under the RCRA corrective action hearing
regulations at 40 CFR part 24, the operator of a hazardous waste
facility may submit written information and arguments for inclusion in
the record and may make an oral presentation at the hearing itself.
Direct and cross-examination of witnesses is not permitted, but the
Presiding Officer may direct questions to either party. The Presiding
Officer is to be either the Regional Judicial Officer or an attorney
employed by the Agency who has not had any prior connection with the
case. The RCRA regulations contain detailed requirements for the
establishment of the administrative record. The Presiding Officer must
review the record and file a recommended decision with the Regional
Administrator, who in turn renders a final decision that is judicially
reviewable under the APA. These procedures closely parallel, of course,
the procedures for processing a permit under part 124, subpart A.
In Buttrey, the Fifth Circuit upheld the hearing regulations used
by the Army Corps of Engineers to issue or deny CWA section 404
permits. 690 F.2d at 1172. Section 404 provides that the Secretary may
issue permits for the discharge of dredge or fill material ``after
notice and opportunity for public hearings.'' 33 U.S.C. section
1344(a). The Corps' section 404 procedures authorize a ``paper
hearing,'' with public notice and comment on the proposed permit
action. Corps procedures do not explicitly provide an opportunity for
oral presentations.
Both Buttrey and CWM seriously question the continuing validity of
Seacoast and Marathon. CWM, in particular, notes that the cases were
decided prior to the Supreme Court's decision in Chevron, U.S.A. v.
NRDC, 467 U.S. 837, 843 (1984), which held that where Congress has
failed to express a clear intent to the contrary, an agency charged
with administering the statute may adopt any interpretation which is
reasonable in light of the goals and purposes of the statute. Where a
statute fails to use the term ``on the record,'' the court will
evaluate whether the hearing procedures adopted by the agency are
reasonable in light of the statute and also any due process
considerations. CWM, 873 F.2d at 1482. The D.C. Circuit has also noted
that even assuming formal hearings are required for issuance of NPDES
permits, there is no absolute right to provide oral testimony or to
cross examine witnesses in such hearings. NRDC v. EPA, 859 F.2d 156,
193 (D.C. Cir. 1988) (upholding EPA's Non-Adversary Panel Procedures
and distinguishing Seacoast).
(2) Reasonableness of Interpretation. As with the 3008(h) rules and
the procedures for issuance of RCRA or UIC permits, EPA believes that
providing for informal hearings prior to issuance of NPDES permits is a
reasonable interpretation of section 402(a).
First and most important, EPA believes that formal hearings are not
necessary to protect the due process rights of permittees or other
interested parties. The leading Supreme Court case discussing due
process requirements is Mathews v. Eldridge, 424 U.S. 319 (1976).
Mathews establishes a 3-part analysis that balances the following
factors in deciding what procedures are required by the Due Process
clause: (1) The private interests at stake, (2) the risk of erroneous
decision-making, and (3) the nature of the government interest. Due
process generally requires, at a minimum, that EPA provide independent
and objective fact-finding, see Wong Yang Sung v. McGrath, 339 U.S. 33,
41 (1949), Morrisey v. Brewer, 408 U.S. 471, 489 (1972), as well as a
complete administrative record containing the information upon which
the Agency relies. See Camp v. Pitts, 411 U.S. 138, 139-142 (1973). Due
process also requires that, prior to final agency action, EPA must
provide to affected parties notice of what the Agency intends so that,
should those parties disagree, they may submit contrary arguments or
evidence. See Goss v. Lopez, 419 U.S. 565, 581 (1975). See generally,
Kenneth C. Davis, Administrative Law Treatise, 10:3, 10:7, 13:1-2,
13:7, & 18:2 (2d ed. 1980). The procedures for processing permits under
part 124 subpart A meet all of these minimum requirements.
In an NPDES permit proceeding, the private interests at stake are
those of a potential discharger in obtaining a permit to conduct its
economic activities in a lawful manner (and the interests of private
individuals in challenging permits). Yet, no personal liberty interests
are at stake, there is no ``right to pollute,'' and the granting of an
NPDES permit does not convey a property right of any sort, or any
exclusive privilege. See 40 CFR 122.25(b).
EPA has previously concluded that, in general, due process
considerations dictate that most administrative enforcement actions
should proceed under formal hearing procedures. In such a proceeding,
EPA is accusing respondents of violations of ``established legal
standards,'' and the decision maker is called upon to adjudicate
specific factual issues relating to the violations in question. See 45
FR 24,360 (Apr. 9, 1980 (promulgating part 22)). The Agency concluded
that, without full adjudicatory hearings, there was a significant risk
that EPA might be vulnerable to arguments that the Agency lacked the
means to properly resolve disputed factual matters upon which the
alleged violator's interests were dependent.
However, EPA believes that the nature of the typical hearing on an
NPDES permit will differ significantly from the type of hearing held on
a compliance or penalty order. Hearings on permits are less apt to
present the kind of factual issues regarding the conduct of the
discharger, which case law identifies as being uniquely susceptible to
resolution in a formal evidentiary hearing. Rather, the issues posed in
proceedings on permits will typically relate to legal, policy, or
technical matters concerning the appropriate limitations on the
pollutants in the discharge, which are most appropriately addressed in
informal hearings. The primary factual issues in a hearing on an NPDES
permit are likely to involve what technology-based and water quality-
based limitations are necessary for inclusion in the permit, and
whether EPA has properly derived those limits. These kinds of issues
are apt to involve wide-ranging and complex facts and are more
susceptible to resolution through analysis of a full documentary record
than through examination and cross-examination of witnesses. The goal
should then be to compile a full and fair documentary record upon which
EPA can base its decision. The procedures in subpart A allow the
permittee, other interested parties, and the Agency every opportunity
to develop just such a record. Where an issue is in dispute, the
Regional Administrator can typically resolve the dispute through
analysis of the written affidavits and arguments of
[[Page 65278]]
the parties' technical experts. The risk of an erroneous deprivation of
the discharger's rights in deciding these issues is accordingly very
low.
By contrast, there is a significant public interest in an expedited
process for issuing NPDES permits. EPA's experience since 1979 has been
that the opportunity to request an evidentiary hearing has led to
significant delays in permit issuance. EPA does not have complete data
on evidentiary hearing process all the way back to 1979. However, EPA
kept comprehensive statistics on the numbers of evidentiary hearing
requested, resolved, and pending between 1990 and 1994. As of July 1,
1994, the latest period for which data are available, 194 requests for
evidentiary hearing were pending at EPA. That is, 194 requests were
awaiting a decision by the Region on the request for evidentiary
hearing, were waiting a hearing, or were awaiting action on appeal to
the EAB.
Between March, 1990, and July 1, 1994, 59 requests for a hearing
were finally resolved, involving 55 different permits. Of those 59, 22
requests for hearing were withdrawn, 26 were denied by the Regional
Administrator (RA) or the EAB, and the remaining 11 were settled
without hearing. Only four hearings were conducted during this period,
and only one hearing resulted in EPA being ordered to make changes to
the NPDES permit. Of the 194 pending hearing requests, 19 had been
pending with the Agency for 5 years or more. For the 53 permits
resolved during the period for which EPA has data, the average time
between request and resolution was over 18 months; if one counts only
the 33 proceedings which were resolved on the merits (i.e., other than
by withdrawal of the administrative appeal), the average time increases
to over 21 months. In contrast, EAB appeals for NPDES, RCRA, or UIC
permits average under 9 months .
These statistics suggest that evidentiary hearings themselves
rarely result in changes in permits. In only 20% of the permits for
which EPA has data did the appeal process result in modifications to
the permit, and only one out of 55 of those as a direct result of a
decision in an actual evidentiary hearing. Rather, any changes to the
permits usually resulted from informal settlement discussions between
the Region and the permittee (or occasionally by unilateral decision by
the Region to change the permit). For the remainder of the requests,
the decision of the Regional Administrator or the EAB was sufficient to
resolve all issues, and the complete evidentiary hearing and appeal
process resulted in no changes to the permits.
Yet, the evidentiary hearing process clearly delays the time in
which the permit becomes fully effective. Under current regulations
(Sec. 124.60), contested permit conditions are not in effect pending
the dual appeals process. The 18-21 month average appeal time means
that many permit limits do not take effect until well into the 5-year
permit term (the 5-year term generally begins when the RA issues the
permit under Sec. 124.15). For new sources and NPDES dischargers
without a prior NPDES permit, they cannot begin to discharge until the
permit appeals are resolved. For existing sources, any new or modified
permit limits to protect water quality which are contested cannot take
effect. Thus, the long lag time in resolving permit appeals can affect
all sectors of the public. In particular, the need to pursue multiple
levels of administrative appeals imposes unnecessary costs on the
regulated community or other parties participating in the permit
processes.
The lengthy appeals process also impacts those members of the
public who have an interest in participating in the permit process.
Citizen participation is a vital component of the NPDES program.
Section 101(e) of the CWA explicitly requires EPA to provide for,
encourage, and assist in the development of requirements under the CWA.
As EPA has noted before, adequate public participation helps to ensure
permits which are protective of the environment by giving permit
writers the valuable insights of participants other than the permittee.
61 FR 20973-74 (May 8, 1996). The lengthy formal hearing process
effectively requires all interested parties to obtain legal counsel and
spend a significant amount of time to request, prepare for, and conduct
a trial-type hearing before an ALJ. Citizens groups interested in the
content of an NPDES permit are likely to lack the same level of
resources necessary to participate in such a proceeding that either the
government or an NPDES permittee will possess. Thus, the formal process
may pose a barrier to citizen involvement in the NPDES permit process.
In addition to affecting the government and public interests in
effective permits and effective public participation in permit
proceedings, the evidentiary hearing process also represents a
significant drain on Agency resources. EPA Regions utilized over 25
work years of staff time between 1990 and 1994 on processing requests
for evidentiary hearings, preparing for hearings, or defending before
the EAB a permittee's appeal of decisions to deny requests for
hearings. Only about 5 and \1/4\ of those work years were spent
actually preparing for or conducting the hearings; the remainder of EPA
staff time was used responding to (and usually denying) requests for a
hearing and defending a permittee's appeal of those denials before the
EAB.
The evidentiary hearing process uses significant Agency resources
with little or no apparent gain in the quality of the decision-making.
Often, the key issue before the EAB involves whether the RA properly
denied the request for evidentiary hearing, either because there was no
genuine issue of material fact raised (see In re Mayaguez Regional
Sewage Treatment Plant, Puerto Rico Aqueduct & Sewerage Authority,
NPDES Appeal No. 92-23, at 11 (EAB, Aug. 23, 1993), aff'd, Puerto Rico
Aqueduct & Sewer Auth. v. Browner, 35 F.3d 600 (1st Cir. 1994)), or
because the only issues raised were legal issues for which no hearing
is necessary (and which the EAB can resolve). EPA utilized 8 work years
between 1990 and 1994 defending denials of evidentiary hearing
requests, and very few of those decisions were reversed by the EAB. It
seems particularly unnecessary for the RA to have to review a request
for hearing, prepare a decision to deny the request on the grounds that
the only issues are ones for which there is no genuine dispute of
material fact, and then defend that decision to deny before the EAB.
Rather, it would seem to make more sense to take the legal issues
appropriate for EAB resolution straight to the EAB, and leave
resolution of the factual issues for the informal hearing process under
subpart A. In those instances where the EAB finds that the Region has
made a clear error in resolving a factual issue, the EAB could, as it
does for RCRA, UIC, or PSD permits, remand the permit decision for
further consideration including further development of the
administrative record using the informal hearing process. Furthermore,
to the extent that informal settlement discussions are necessary to
resolve outstanding issues, such discussions could and would take place
during EAB review; the formal evidentiary hearing process is not
necessary to provide an opportunity for such discussions.
Balancing the private interests at stake in an NPDES permit
proceeding with the public interest in ensuring that such permits
control discharges (and ensure protection of the environment) in an
expeditious and effective manner and the public interest in effective
citizen participation in the permit process, and given that the
availability of formal hearings do not appear to reduce
[[Page 65279]]
significantly the already low risk of erroneous decision-making, EPA
concludes that due process considerations do not mandate formal
hearings.
EPA also notes that the primary goal of the Clean Water Act is to
ensure that waters of the United States obtain ``fishable/swimmable''
status as early as possible. CWA section 101(a). Section 301(b)(1)(C),
in particular, requires that NPDES discharges do not cause or
contribute to violations of State water quality standards. The long lag
time between permit issuance and when effluent limitations take effect
under the current proceedings impairs achievement of these goals.
Finally, the number of States in which EPA is the permit issuing
authority is small and getting smaller, and EPA anticipates that its
role as a permit issuing authority will continue to diminish. Forty-two
States or Territories have obtained authorization to issue NPDES
permits; EPA retains permitting authority in only 15 States/Territories
and in Indian Country. Many States do not provide for formal hearings
prior to issuance of NPDES permits, and EPA is unaware that there have
been significant problems with the content of such permits as a
result.3 EPA sees no reason to retain formal hearings for a
fraction of the NPDES permits issued nationwide.
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\3\ However, EPA believes that the ability to judicially
challenge final permits is an essential element of public
participation under the Clean Water Act. On May 1, 1996, EPA issued
a final rule which will require that all States that administer or
seek to administer the NPDES program shall provide an opportunity
for judicial review in State court of the final approval or denial
of permits by the State that is sufficient to provide for,
encourage, and assist public participation in the NPDES permitting
process. This rule does not, at this time, apply to Indian Tribes.
See 61 FR 20972 (May 8, 1996).
---------------------------------------------------------------------------
For all of these reasons, EPA believes that neither due process nor
the Congressional goals for the NPDES program counsels in favor of
maintaining the evidentiary hearing process, and that, consistent with
the principles of Chevron, EPA may reasonably interpret Section 402(a)
to authorize use of informal hearings when issuing NPDES permits.
b. Proposed New System. (1) Permit Issuance. The existing process
for RCRA, UIC, and PSD permits has proven effective in resolving all
factual, legal, and policy issues, providing for adequate public
participation, and ensuring that permit issues are resolved in a
relatively short time frame. EPA therefore proposes to place NPDES
permits under the same system.
NPDES permits would therefore utilize Steps 1 and 3 of the existing
process; Step 2 would be eliminated. The EPA Regional Office would
continue to prepare a draft permit, provide notice and an opportunity
for public comment on the draft permit and opportunity for a public
hearing when there is a significant degree of public interest, and
issue a final permit decision, incorporating any changes in the draft
permit occasioned by the public comments received. After that initial
decision, however, a party would appeal from the Regional
Administrator's permit decision directly to the Environmental Appeals
Board. As provided in Sec. 124.19, a party could appeal any factual or
legal determination in the Regional Administrator's decision (if the
issue were properly raised in public comments on the draft permit, as
provided in 124.13).4 Subpart E would be eliminated in its
entirety.
---------------------------------------------------------------------------
\4\ The party need not, however, submit all supporting factual
information during the comment period; rather the Regional
Administrator may instruct the party to submit such information if
desired. 40 CFR 124.13 (``Commenters shall make supporting materials
not already included in the administrative record available to EPA
as directed by the Regional Administrator'') (emphasis added); 49 FR
38,042 (Sept. 26, 1984) (``Generally supporting information would
not be required to be submitted during the comment period'').
---------------------------------------------------------------------------
EPA also proposes to eliminate the NAPP procedure in subpart F.
Subpart F was designed to be a less onerous alternative hearing
procedure for NPDES permits, to substitute for subpart E when the
parties so agreed. EPA has conducted no hearings under subpart F, and
EPA is aware of only three permits where a party requested use of the
proceeding. One of those involved a RCRA permit denial in EPA Region
IX. The purpose of requesting the NAPP in that proceeding appears to
have been solely to delay final issuance of the permit denial decision.
(See the public docket for today's proposal for details.) With the
elimination of subpart E, and given the fact that there has been so
little interest in the use of subpart F, EPA sees no reason to retain
it.
(2) Termination of NPDES and RCRA Permits. EPA's regulations also
currently provide for a formal hearing prior to terminating an NPDES or
RCRA permit during its term. EPA regulations treat termination of a
RCRA or NPDES permit in the same manner as the issuance or denial of an
NPDES permit. That is, termination of a permit begins with preparation
of a draft notice of intent to terminate. The notice of intent to
terminate is subject to public comment and possibly an informal
hearing. After the informal process, the Regional Administrator issues
an initial decision, from which a party may request an evidentiary
hearing under subpart E, and subsequently an appeal to the EAB.
In developing today's proposal, EPA seriously considered proposing
to eliminate all formal hearing procedures for RCRA and NPDES permit
terminations and instead treat such terminations just like permit
issuance or denial. EPA recognizes that due process considerations may
not mandate such procedures. As noted above, issuance of an NPDES
permit conveys no property right to the permittee. Thus, the only
private interests at stake relate to the expectation of a permittee to
continue discharging until the end of a permit term, which can be up to
5 years at most. Otherwise, the permittee cannot presume it will be
able to continue discharging beyond the end of the permit term,
particularly if the permittee has violated the terms of the permit or
misrepresented information on its permit application (the bases for
terminating a permit). Thus, the private interests at stake in a permit
termination are only marginally stronger than those at stake in a
permit denial proceeding (which EPA has always conducted using informal
hearing procedures except for NPDES). Yet, EPA also recognizes some
differences between permit terminations and other permit proceedings.
In contrast to the issuance of a permit, the decision to terminate a
permit, other than at the request of the permittee, is more likely to
involve factual issues for which formal hearings are appropriate. Under
EPA regulations (40 CFR 122.64, 270.43), EPA may terminate a permit
only for reasons such as the non-compliance with the permit or failure
to have disclosed relevant information in the permit application. In
other words, a permit termination is akin to an enforcement action (and
indeed often accompanies an administrative enforcement action), where
credibility of witnesses will be a more significant concern.
On balance, EPA's preferred option is to maintain the formal
hearing requirement for these type of proceedings. EPA solicits comment
on whether the formal hearing requirement should be eliminated entirely
for RCRA and NPDES permit terminations, and whether there is an
adequate basis for doing so.
Termination of NPDES and RCRA permits is a rare occurrence; EPA is
aware of only one EPA-issued permit that has been terminated using
these procedures since 1980 (the NPDES permit for Marine Shale
Processors in Louisiana). EPA's ``Consolidated Rules
[[Page 65280]]
of Procedure'' at 40 CFR part 22 specify procedures for formal hearings
in a variety of administrative enforcement actions, including civil
compliance or penalty actions for violations of the CWA and RCRA. These
regulations also cover the suspension/revocation of permits issued
under the Marine Protection Research and Sanctuaries Act (Ocean Dumping
Act). There is no significant difference between practice and the
procedural guarantees under part 22 and under part 124 subpart E. The
only difference is that a formal hearing under part 22 begins with
EPA's issuance of a complaint against an alleged violator, whereas
subpart E constitutes an appeal of an initial decision after a non-
formal public comment and hearing process. Since there are no
significant differences between the two sets of rules, EPA sees no
reason to leave subpart E in the Code of Federal Regulations solely to
cover the very occasional involuntary NPDES or RCRA permit termination.
Instead, EPA today proposes to amend part 22 to mandate use of its
procedures for such terminations. Instead of the current three-part
process under part 124, such permit terminations would occur in a two-
step process. Step 1 would be a hearing under part 22; the outcome of
the hearing could then be appealed to the EAB under Sec. 22.30.
For terminations at the request of the permittee, the part 124
process, as modified under today's proposal, would be used. In other
words, EPA would provide for an informal public comment and hearing
under subpart A, with opportunity for appeal to the EAB. This will
allow other interested parties to comment on the proposed termination.
Also, as noted above, EPA is proposing in today's notice revisions to
Sec. 122.64(b) which would allow Directors to terminate a permit by
giving notice to the permittee and without following the part 22 or 124
procedures (or State equivalent) where the permittee has permanently
terminated its entire discharge (by elimination of its process flow or
other discharge components) or has redirected that discharge into a
POTW. EPA notes that NPDES-authorized States are not required to use
part 22 procedures for permit terminations.
EPA believes that the existing part 22 is generally adequate to
cover involuntary permit terminations without substantive amendment.
However, where permits are terminated for cause, existing part 124
treats the proceeding the same as for the issuance or denial of a
permit. EPA is proposing to incorporate relevant provisions of part 124
into such a permit termination proceeding, i.e., consideration of the
administrative record and provision for informal public comment on the
proposed permit termination. EPA is also proposing one minor
clarification to part 22. Part 22 refers to involuntary removal of a
permit as ``revocation[s].'' Since the existing NPDES and RCRA
regulations use the term ``revocation'' to refer to permits which are
to be reissued (see 40 CFR 122.62, 124.5), EPA is proposing to add the
term ``termination'' of permits to the appropriate references in part
22. EPA solicits comment on using the part 22 procedures to cover
termination of NPDES and RCRA permits, and whether further amendments
to part 22 would be necessary to make the regulations effective for
this purpose.
Today's proposal is based on the current version of part 22.
However, EPA will soon propose more comprehensive revisions to part 22
designed to make the regulations more readable and thus easier for the
public to use. The changes proposed today will be harmonized with that
proposal before final rules are issued.
(3) Stays of Contested Permit Conditions. Existing EPA regulations
at Sec. 124.15 specify that NPDES, RCRA, and UIC permits take effect 30
days after the Regional Administrator issues an initial permit
decision, unless the permit is appealed (or if one of the other
exceptions at 40 CFR 124.15(b) are met). Section 124.16(a) further
provides that if an initial permit decision is appealed by requesting
EAB review (for RCRA and UIC permits) or appealed by filing a request
for evidentiary hearing (for NPDES permits) and the request is granted,
the contested conditions of the permit (and any uncontested conditions
which are not severable from the contested ones) are stayed (i.e., they
do not take effect) pending the outcome of the appeal/evidentiary
hearing. Existing regulations at Sec. 124.60 supplement Sec. 124.16 for
purposes of NPDES permits. Section 124.60(a)(2) authorizes the Regional
Administrator to issue an order to a new source or new discharger for
whom an evidentiary hearing request has been granted authorizing the
source to begin discharging pending the outcome of the hearing process.
Section 124.60(c)(7) authorizes the Regional Administrator to impose
interim permit requirements for offshore oil rigs that do not have an
existing permit, but only when necessary to avoid ``irreparable
environmental harm.'' The provisions of Secs. 124.60(c)(1)-(c)(6)
provide detailed rules for determining what constitutes ``contested
conditions'' stayed pending an evidentiary hearing. Section 124.60(f)
specifies that the date of compliance with permit conditions which have
been stayed pending the outcome of an evidentiary hearing generally
shall be extended for the period of the stay. Other provisions of
Sec. 124.60 parallel provisions contained in Secs. 124.15, 124.16, or
124.19.
EPA today proposes substantial revisions to Sec. 124.60 consistent
with the proposal to eliminate evidentiary hearings. Sections
124.60(a)(2) and 124.60(f) grant certain relief to the regulated
community to reflect the long lag time between when a permit is issued
and when it becomes effective if an evidentiary hearing takes place. By
eliminating the evidentiary hearing step, today's proposal would
dramatically shorten that lag time. EPA believes that these provisions
would no longer be necessary and proposes to delete them. The existing
Sec. 124.60(c)(7) also provides for temporary authorization pending the
outcome of administrative review, but only for a very limited number of
facilities and only as necessary to prevent environmental damage. EPA
is unaware that this provision has ever been invoked, but is proposing
today to retain it (recodified at Sec. 124.60(a)) in case the need
arises.
The existing Secs. 124.60(a)(1), 124.60(c)(1), and 124.60(e)
generally clarify that only uncontested permit conditions take effect
pending appeal, and that the prior existing permit (if any) remains in
effect (to the extent they match the contested conditions in the new
permit). As noted above, EPA is today proposing to provide for a direct
appeal of the Regional Administrator's initial permit decision to the
EAB. The existing regulations at Sec. 124.16 contain virtually the same
requirements regarding contested permit conditions when a RCRA or UIC
permit is appealed to the EAB. Compare Sec. 124.60(a)(1) with
Sec. 124.16(a)(1); Sec. 124.60(c)(1) with Sec. 124.16(a)(2); 124.60(e)
with 124.16(c)(2). EPA proposes to eliminate the redundant portions of
Sec. 124.60 in favor of the generally applicable provisions in
Sec. 124.16. However, EPA proposes to retain the NPDES-specific
provisions of existing Sec. 124.60(c) (2)-(6) concerning what
constitutes a ``contested condition;'' these would be recodified at
Sec. 124.60(b)(2)-(6). EPA also proposes to retain the specific
language of 124.60(e) as recodified at 124.60(c).
EPA also proposes to make a more general change to its practice
surrounding effective dates, contested permit conditions, and stays. In
the past, there has been significant confusion surrounding when a RCRA,
UIC, or PSD permit takes effect if appealed to the EAB, and somewhat
less
[[Page 65281]]
confusion with respect to the same issue for NPDES permits. Section
124.15(b) specifies that permits generally take effect 30 days after
issuance by the Regional Administrator unless EAB review is requested
under Sec. 124.19 (for RCRA, UIC, or PSD) or an evidentiary hearing is
requested (for NPDES) (or if one of the other exceptions at 40 CFR
124.15(b) are met). Existing Secs. 124.16(a) (for non-NPDES) and
124.60(c)(1) clarify that, once the EAB grants review or the RA grants
the evidentiary hearing request, contested conditions are stayed but
uncontested conditions take effect. Both sections require that the
Regional Administrator identify the uncontested provisions. Section
124.60(c)(1) explicitly requires the Regional Administrator to notify
all interested parties. The regulations are not clear, however, as to
whether any conditions of the permit are in effect during the period
between filing of the request for review and the decision to grant or
deny review. EPA has, in the past, interpreted Sec. 124.16(a)(2) to
apply during this period as well. In other words, the uncontested
conditions take effect even prior to a decision to grant or deny review
under 40 CFR 124.19. See Memorandum from Lisa K. Friedman, ``Stays of
Contested Permit Conditions,'' Mar. 22, 1988 (in the docket for today's
proposal).
EPA today proposes to amend Sec. 124.16 to clearly reflect the
Agency's interpretation. Section 124.16(a)(1) would clarify that
contested permit conditions are stayed as of the date of filing a
request for review with the EAB under Sec. 124.19, and any contested
conditions will remain stayed until EPA takes final action (either a
decision of the EAB or a decision of the Regional Administrator on
remand) under Sec. 124.19(f). Uncontested permit conditions would also
be stayed upon filing of a request for review, but only for a temporary
period. Importing language from the existing Sec. 124.60(c)(1), the new
Sec. 124.16(a)(2) would clarify that the uncontested conditions take
effect 30 days after the Regional Administrator notifies the EAB, the
permit applicant, and other interested parties as to which conditions
are uncontested. Since EPA is proposing to use the same appeals process
for NPDES permits as for other permits, the new Sec. 124.16 would apply
to NPDES permits as well.
The language of the existing Sec. 124.60(b) specifies that the
Regional Administrator may, at any time prior to the Administrative Law
Judge's (ALJ) decision in an evidentiary hearing, withdraw contested
conditions of an NPDES permit and reissue them in accordance with the
procedures of subpart A. In practice, EPA has withdrawn and reissued
permits under all statutes prior to decisions of the EAB as well as
prior to ALJ decisions. EPA therefore proposes to clarify that the
Regional Administrator may withdraw and reissue any NPDES, RCRA, UIC,
or PSD permit (or a contested condition thereof) prior to a decision of
the EAB to grant or deny review under Sec. 124.19(c). To make this
change, the existing Sec. 124.60(b), as slightly modified, would be
recodified as Sec. 124.19(d).
This proposal, once finalized, will serve the public interest by
shortening the time for appeals that may be brought by interested
citizens, allowing for the more timely resolution of these appeals,
with a shorter stay of conditions.
Finally, Sec. 124.60(f) specifies that exhaustion of the
evidentiary hearing process is a prerequisite to judicial review of an
NPDES permit. EPA proposes to eliminate this language in favor of the
general exhaustion provision at Sec. 124.19(e).
(4) Procedures for Variances and New Source Determinations. EPA
also proposes changes in various NPDES permit-related administrative
procedures. Existing regulations at Sec. 122.21(m) specify that
applications for a ``fundamentally different factors'' variance must be
filed within 180 days of promulgation of the applicable effluent
limitations guideline. Section 125.32(a) contemplates that the
application for a variance be submitted in accordance with part 124,
subpart F. (However, subpart F does not appear to have ever been used.)
All other effluent limitation variances under Sec. 122.21(m) are
processed as part of the underlying permit application in accordance
with the procedures of part 124, subpart A. EPA sees no continuing
reason to treat Fundamentally Different Factors (FDF) variances
differently. EPA therefore proposes to amend Sec. 125.32 to require an
applicant for an FDF variance to submit an application under the
procedures of part 124, subpart A. EPA will process the request for a
variance as if it were an application for an NPDES permit.
Existing Sec. 122.21(l)(2) requires EPA to make an initial
determination of whether an applicant for an NPDES permit constitutes a
``new source'' subject to the additional requirements of Sec. 122.29.
Section 122.21(l)(4) allows for appeal of that initial determination by
requesting an evidentiary hearing. Consistent with its proposal to
eliminate evidentiary hearings for NPDES permits themselves, EPA
proposes to modify this section to allow instead for an appeal of a new
source determination to the EAB. Similar to the existing language, the
proposed amendment would allow the EAB, with consent of the parties, to
defer review of the determination until a decision is made on the
permit for the source, and to consolidate review of the new source
determination with any review of the permit decision.
(5) Transition to New Procedural Requirements. If EPA decides to
issue the final rule as proposed today, there will be no further
opportunity to request an evidentiary hearing and the existing
procedural rules will be deleted from the CFR. The question arises,
however, how today's proposal will affect ongoing NPDES permit
issuance/denial or termination proceedings or RCRA permit termination
proceedings. EPA proposes largely to ``grandfather'' such proceedings
under the prior rules.
Under today's proposal, contained in Sec. 124.21, ongoing
proceedings would be treated as follows: For any NPDES permit for which
a request for evidentiary hearing was granted or denied as of the date
of the final rule, but for which a hearing had not yet been completed,
the permit process would continue under the procedures of the prior
part 124. Similarly, appeals pending before the EAB would be reviewed
under the procedures of prior part 124. In other words, the evidentiary
hearing would be conducted under the old subpart E; an appeal from the
evidentiary hearing decision (or an appeal from the denial of a request
for an evidentiary hearing) would proceed under the prior Sec. 124.91;
and any further proceedings conducted pursuant to a remand from the EAB
would proceed under the appropriate provisions of the old part 124.
Ongoing proceedings to terminate an NPDES or RCRA permit similarly
would continue under the prior rules.
EPA is proposing to grandfather these proceedings in the interests
of efficiency, fairness and minimizing the confusion to the regulated
community. As of July 1, 1994, there were two NPDES permits for which
an evidentiary hearing had been granted but the proceedings had not yet
concluded, and 17 for which an appeal was pending before the EAB.
Interested parties involved in an ongoing evidentiary hearing process
may have invested significant resources to prepare or conduct the
hearing to date, as would have EPA. It could prove to be a waste of all
parties' resources to suspend such proceedings in mid-stream. Such
preparation may have taken place even if the hearing itself has not
begun. For ongoing proceedings before the EAB, all
[[Page 65282]]
parties may have invested resources in a prior evidentiary hearing or
in briefing before the EAB. Rather than try to separate out on a case-
by-case basis which proceedings are sufficiently advanced to justify
continuing under the old rules, EPA proposes to let them all continue
if the parties wish. (Today's proposal would allow an ongoing
evidentiary hearing proceeding to be terminated with right of appeal to
the EAB if all parties agree.) EPA solicits comment on whether it is
appropriate to have these permits proceed under the prior rules or
whether EPA should suspend all current proceedings and provide instead
for an appeal to the EAB.
For any NPDES permit decision for which a request for evidentiary
hearing remains pending, considerations of efficiency and fairness are
less significant. Neither the parties nor EPA are likely to have
invested any significant resources yet. Therefore, EPA is proposing not
to grandfather these permits. Rather, EPA proposes to let interested
parties refile an appeal directly to the EAB. For such permits, the EPA
Region would, within 30 days after the final rule takes effect, notify
the requester that the request for evidentiary hearing is being
returned without prejudice. Notwithstanding the time limit in
Sec. 124.19(a), the requester would be allowed to file an appeal with
the Board, in accordance with the other requirements of Sec. 124.19(a),
within 30 days.
(6) Miscellaneous Changes. EPA proposes a conforming change to part
117, which establishes regulations concerning the reporting of releases
of hazardous substances under section 311 of the CWA. The reporting
obligation does not cover discharges of hazardous substances
``resulting from circumstances identified, reviewed, and made a part of
the public record with respect to a[n NPDES] permit.'' 40 CFR
117.12(a)(2). Section 117.1 defines the ``public record'' to include
the permit itself and the record prepared during a NAPP proceeding
under (now) subpart F. Since EPA is today proposing to eliminate
subpart F, EPA proposes to modify this definition to refer instead to
the administrative record required for all permits under Sec. 124.18.
Finally, today's proposal would amend various sections of parts
122, 124, 144, 270, and 271 to eliminate obsolete references to
subparts E or F of part 124. Many of these references authorize RCRA,
UIC, or PSD permits to be processed under subparts E or F if
consolidated with an NPDES permit undergoing an evidentiary hearing or
NAPP. As reflected by the proposed language in Sec. 124.1(d), today's
proposal would continue to authorize permits to be processed in
consolidated fashion under subpart A.
(7) Effect on State Programs. Under EPA's current regulations (40
CFR 123.25), EPA does not require States and Indian Tribes wishing to
obtain authorization to issue NPDES permits to provide for formal
evidentiary hearings, either under part 124 or part 22. Instead, EPA
requires States and Tribes to provide for the informal process outlined
in subpart A of part 124 and requires States to provide an opportunity
for judicial review in State court of the final approval or denial of
permits by the State that is sufficient to provide for, encourage, and
assist public participation in the NPDES permitting process. EPA also
does not require States nor Tribes to provide for formal hearings prior
to termination of NPDES or RCRA permits. This proposed revision
concerning permit appeal and termination procedures does not change the
requirements of State programs. However, as described in more detail
above, another revision proposed in today's package for 40 CFR
122.64(b) would allow States to terminate NPDES permits without
following part 124 procedures (or their State equivalent) under certain
circumstances. Of course, States and Tribes may continue to provide for
formal evidentiary hearings on such permit decisions if they wish,
under section 510 of the CWA and section 3009 of RCRA.
D. Proposed Removal and Reservation of Part 125, Subpart K
1. 40 CFR Part 125, Subpart K
In today's notice, EPA proposes to remove and reserve part 125,
subpart K (40 CFR 125.100-104) titled ``Criteria and Standards for Best
Management Practices Authorized Under Section 304(e) of the Act''. This
provision was originally promulgated on June 7, 1979 (44 FR 32954) and
would have established criteria and standards for imposing best
management practices (BMPs) in NPDES permits under the authority
provided in sections 304(e) and 402(a)(1) of the CWA. However, for
reasons set forth in more detail below, subpart K has never been
activated and its original purpose is now better served by EPA's
existing BMP provisions at 40 CFR 122.44(k) and accompanying guidance
for developing and implementing BMPS.
BMPs are schedules of activities, prohibitions of practices,
maintenance procedures, and other management practices to prevent or
reduce the pollution of ``waters of the United States.'' BMPs include
treatment requirements, operating procedures, and practices to control
plant site runoff, spillage or leaks, sludge or waste disposal, or
drainage from raw material storage. BMPs are authorized under two
provisions of the CWA, sections 304(e) and 402(a)(1). Section 304(e) of
the Act authorizes the Administrator to publish regulations which are
supplemental to effluent limitation guidelines, for a class or category
of point sources, for any toxic or hazardous pollutant regulated under
sections 307(a)(1) or 311 of the CWA, in order to control plant site
runoff, spillage or leaks, sludge or waste disposal, and drainage from
raw material storage, which the Administrator determines are associated
with or ancillary to the industrial manufacturing or treatment process
within such class or category of point sources and which may contribute
significant amounts of toxic or hazardous pollutants to the waters of
the United States. In addition, section 402(a)(1) of the Act authorizes
permitting authorities to include BMPs in permits using Best
Professional Judgment (BPJ). EPA's authority to impose BMPS under
section 402(a)(1) was recognized by the D.C. Circuit in NRDC v. Costle,
568 F.2d 1369 (D.C. Cir. 1977).
In addition to these statutory authorities for BMPs, EPA's
regulations at 40 CFR 122.44(k) specifically authorize EPA to require
BMPs in NPDES permits to control or abate the discharge of pollutants
where: (1) Authorized under section 304(e) of the CWA for the control
of toxic pollutants and hazardous substances, (2) numeric effluent
limitations are infeasible, or (3) the practices are reasonably
necessary to achieve effluent limitations and standards or to carry out
the purposes and intent of the CWA. EPA has used Sec. 122.44(k) to
require specific BMPs in permits and has required, as a permit
condition, that permittees develop and implement BMP plans. These are
also known as storm water pollution prevention plans (SWPPPs) in
certain storm water general permits). See EPA's ``Storm Water
Multisector General Permit for Industrial Activities finalized on
September 29, 1995 (50 FR 50804) as well as EPA's baseline storm water
general permits finalized on September 9, 1992 (57 FR 41175) and
September 25, 1992 (57 FR 44412).
The regulatory history covering the development of part 125,
subpart K is lengthy. On August 21, 1978, EPA proposed regulations (43
FR 37089) that provided a definition of ``Best Management Practices''
(``BMPs''). In addition, subpart L--``Criteria and
[[Page 65283]]
Standards for Best Management Practices Authorized Under Section 304(e)
of the Act'', was created under part 125 and was reserved for later
rulemaking.
On September 1, 1978, EPA proposed a rule to revise the existing
regulations governing the NPDES program in order to reflect new
controls on toxic and hazardous pollutants under the 1977 amendments to
the CWA. The proposed rule indicated how BMPs for on-site industrial
activities (such as materials storage and waste disposal) may be
required in NPDES permits to prevent the release of toxic and hazardous
pollutants to surface waters. This regulation was proposed under part
125, subpart L--Criteria and Standards for Imposing Best Management
Practices Under Section 304(e) of the Act (43 FR 39282).
After evaluating the comments received on the proposed regulation,
EPA promulgated the BMP regulation in part 125, subpart K on June 7,
1979 (44 FR 32954). The revised regulation described how BMPs for
control of toxic or hazardous pollutants that are ancillary to
industrial activities under section 304(e) of the Act shall be
reflected in permits, including BMPs promulgated in effluent
limitations guidelines under section 304, and BMPs established on a
case-by-case basis in permits under sections 301(b) and 402(a) of the
Act.
In addition to the regulation, EPA had intended to publish
technical information supporting the development of BMP programs in a
guidance document. However, on August 10, 1979, three days before the
regulations were to become effective, the Agency announced that the
guidance document had been unavoidably delayed and that the Agency was
deferring the effective date of the BMP regulation until 60 days after
EPA published a Federal Register notice of the availability of the BMP
program guidance document (44 FR 47063).
On March 20, 1980, EPA announced the availability of the draft
guidance document and provided a 45-day comment period (45 FR 17997).
EPA noted that after reviewing the comments on the guidance document,
the document would be finalized and a notice would be published in the
Federal Register announcing the effective date of the BMP regulations.
In response to public comment on the guidance document, the comment
period was extended twice, resulting in a 120-day comment period. After
evaluating the comments on the guidance document, the Agency made
revisions and in June 1981 published ``NPDES Best Management Practices
Guidance Document.'' (The BMP Guidance Document has since been revised.
The revised guidance was published in October 1993.) However, the
effective date of the regulation was never announced and subpart K
never became effective.
The continued inactive status of the subpart K has not hindered
EPA's ability to require BMPs in permits because Sec. 122.44(k)
remained effective. Moreover, a number of guidance documents have since
become available to assist permit issuing authorities and permittees in
developing and implementing BMPs and BMP plans. While part 125, subpart
K has remained in the Code of Federal Regulations as an inactive
regulation, it has nonetheless been valuable as a model for imposing
BMPS under 40 CFR 122.44(k). This was particularly true when there was
less guidance available on how to develop and implement BMPs.
At present, requirements for the preparation and implementation of
BMPs (and BMP plans) are commonly found in NPDES permits as permit
conditions under 40 CFR 122.44(k). EPA has continued to work with
industry to identify the generic BMPs that most well-operated
facilities use for pollution control, fire prevention, occupational
safety and health, or product loss prevention. Experience has shown
that BMPs can be appropriately used and that permits containing BMP
programs can effectively reduce pollutant discharges in a cost-
effective manner. BMPs are also an effective mechanism for promoting
the goals of pollution prevention. There are now a number of EPA
guidance documents available to assist permit issuing authorities and
the regulated community in developing and implementing BMPs and BMP
plans. Moreover, the BMP provisions of EPA's baseline and multisector
storm water general permits also provide guidance on how to implement
BMPs.
Given these events and the continued successful use of BMPs for
NPDES permits under existing Sec. 122.44(k) and its associated
guidance, EPA now believes that there is no longer a reason to activate
part 125, subpart K. Because BMPs are often best tailored for specific
industries, EPA believes that the use of existing Sec. 122.44(k) in
combination with guidance provides a more flexible and effective
approach in developing and implementing BMPs than that found under part
125, subpart K. Finally, the provisions of subpart K are now over 16
years old and are antiquated on a number of fronts particularly with
respect storm water discharges which form the bulk of BMP applications.
For those reasons, EPA is proposing to remove the provisions of part
125, subpart K.
2. 40 CFR 122.44(k)
In today's notice, EPA proposes to add a note to 40 CFR
Sec. 122.44(k) which lists the various EPA BMP guidance documents. This
will assist readers in developing and implementing BMPs and BMP plans.
E. Miscellaneous Corrections
EPA also proposes in today's notice a number of minor non-
substantive revisions to its regulations that would correct
typographical or drafting errors, and misplaced or obsolete references.
EPA wishes to be clear that these corrections and not intended in
anyway to result in substantive changes to its programs. In proposing
these corrections, EPA does not solicit, and will not respond to,
comments on the existing regulatory provisions which underlie those
corrections. Furthermore, by including these corrections in the
proposed rule, EPA is not conceding that any or all such changes
require notice and comment. However, these errors were discovered while
developing this proposed rule and EPA believes it is more cost
effective to correct them in this rulemaking than in a separate Federal
Register notice. EPA proposes the following corrections:
1. Section 122.1(b)(4) contains an erroneous cite to Sec. 122.1.
EPA proposes to amend Sec. 122.1(b)(4) to add the correct cite which is
Sec. 122.2.
2. In Sec. 122.21(l)(1), EPA proposes to replace the term
``paragaraph'' with its correct spelling, ``paragraph''.
3. The current heading for Sec. 122.24(b) is written incorrectly as
``Defintion''. EPA proposes to correct that error by inserting the
correct term ``Definition''.
4. Section 40 CFR 122.21(l)(2)(ii) incorrectly refers to paragraph
``(k)(2)(i)''. EPA proposes to insert the correct reference, paragraph
``(l)(2)''.
5. Section 40 CFR 122.21(l)(3) incorrectly refers to paragraph
``(k)(2)''. EPA proposes to insert the correct reference ``paragraph
(l)(2)''.
6. In Sec. 122.26(b)(15), EPA proposes to replace the term
``landill'' with its correct spelling, ``landfill''.
7. In Sec. 122.26(d)(1)(iii)(D)(1), EPA proposes to replace the
term ``overlayed'' with its correct spelling, ``overlaid''.
8. EPA proposes to remove an obsolete reference to Sec. 124.58
found in the last sentence of Sec. 122.28(b)(1). Section 124.58 was
removed from the EPA's regulations on June 29, 1995. See 60 FR 33927.
[[Page 65284]]
9. Section 122.29(c)(1)(i) incorrectly refers to
``Sec. 122.21(k)''. EPA proposes to provide the correct reference,
``Sec. 122.21(l)''.
10. In Sec. 122.41(l)(6)(i), EPA proposes to replace the term
``becames'' with the correct term, ``becomes''.
11. In Sec. 122.43(b)(1), EPA proposes to replace the term
``additonal'' with its correct spelling, ``additional''.
12. EPA proposes to correct two inaccurate cites currently found at
Sec. 122.44(i)(1)(iii). Paragraph (iii) incorrectly refers to internal
waste stream provisions as occurring at Sec. 122.45(i). The correct
cite is Sec. 122.45(h). Paragraph (iii) also incorrectly refers to
intake credit as being located at Sec. 122.45(f). The correct cite is
Sec. 122.45(g).
13. The language in paragraph Sec. 122.44(e)(1) contains a
reference to Sec. 122.21(g)(10). That cite is no longer current because
Sec. 122.21(g)(10) is reserved. EPA proposes to remove that reference.
14. In section 122.44(k), EPA proposes to amend paragraph (k)(2) to
replace the comma after with word ``infeasible'' with a semicolon. This
provision was originally promulgated with a semicolon on June 7, 1979
(44 FR 32907). However, when these provisions were combined with other
EPA permit regulations as part of the June 14, 1979 permit
consolidation proposed rulemaking (44 FR 38244), a comma was wrongly
inserted in place of the semicolon. EPA proposes to correct that
typographical error in today's notice.
15. Section 122.44(q) incorrectly refers to Sec. 124.58 in support
of the requirement that NPDES permits must include, where applicable,
conditions that the Secretary of the Army considers necessary to ensure
that navigation and anchorage will not be substantially impaired. The
correct cite is Sec. 124.59. EPA proposes to revise this paragraph to
include the correct cite.
16. In the introductory text of Sec. 122.47(b), EPA proposes to
replace the term ``requriements'' with the correct spelling,
``requirements''.
17. Section 122.62(a)(8) contains two references that are
incorrect. Paragraph (a)(8)(i) allows a permit to be modified upon
request of a permittee who qualifies for a net basis under
Sec. 122.45(h). Net basis and net limitations pertain to pollutants in
intake waters which are found at Sec. 122.45(g) and not at
Sec. 122.45(h). Paragraph (a)(ii) would allow permit modification when
a discharger is no longer eligible for net limitations, as provided in
Sec. 122.45(h)(1)(ii)(B). Net limitations are actually found at
Sec. 122.45(g)(1)(ii). EPA proposes insert the correct references in
today's notice.
18. 40 CFR 123.25(a)(36) requires that authorized States must have
legal authority to implement the provisions of part 125, subparts A, B,
C, D, H, I, J, K, L. However, subparts C, I, J, and L are currently
reserved and subpart K is proposed to be reserved in today's notice.
EPA proposes to revise 40 CFR 123.25(a)(36) to remove the references to
subparts C, I, J, K, and L.
19. In 40 CFR 123.25(b), EPA proposes to replace the citation, 40
CFR 35.1500, with the correct citation, 40 CFR 130.5. This error
occurred in 1985, when part 130 was created from former subparts of
part 35.
20. Language which is the same as that found in the definition of
``State Director'' is incorrectly inserted into the definition of
``State'' at Sec. 124.2. EPA proposes to remove that language.
21. EPA proposes to remove the term ``consultation with the
Regional Administrator'' from Sec. 124.2 because it is obsolete. This
term applies specifically to 301(k) compliance extensions which have
not been available since March 31, 1991. On June 29, 1995, EPA removed
regulatory provisions which implement Sec. 301(k). See 60 FR 33926,
June 29, 1995.
22. EPA proposes to correct two references in Sec. 124.55. Each
refers to ``certification conditions'' specified in Sec. 124.53(d); the
correct citation is to 124.53(e).
III. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. The Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for all regulations
that have a significant impact on a substantial number of small
entities. The RFA recognizes three kinds of small entities and defines
them as follows:
--Small governmental jurisdictions--any government of a district with a
population of less than 50,000.
--Small business--any business which is independently owned and
operated and not dominant in its field as defined by Small Business
Administration regulations under section 3 of the Small Business Act.
--Small organization--any not-for-profit enterprise that is
independently owned and operated and not dominant in its field (e.g.,
private hospitals and educational institutions).
Under section 605(b) of the Act, an agency may, in lieu of
preparing an initial regulatory flexibility analysis, certify that a
rule will not have a ``significant impact on a substantial number of
small entities.'' Then no further analysis is required.
Most of the changes in today's proposal are purely technical and
will have no effect on compliance costs for NPDES permittees. Also, to
the extent these technical changes clarify and simplify the
regulations, they will make them easier to understand and comply with,
reducing the burden on small entities. The other changes will reduce
the costs of obtaining and complying with NPDES permits. For instance,
the proposal would make it easier for facilities to obtain coverage
under general permits, rather than go through the more complicated and
expensive individual permit procedure. EPA also proposes to minimize
monitoring and recordkeeping for permittees subject to effluent
limitation guidelines, and streamline permit application requirements
for storm water dischargers and new sources/new dischargers. EPA is
also proposing to streamline the permit appeals and permit termination
processes, which should further reduce the costs of obtaining (or
modifying) or terminating an individual permit. None of these proposed
changes are expected to
[[Page 65285]]
increase, and most of the changes will actually decrease, the costs of
compliance for NPDES dischargers, including small entities (if any).
Therefore, I certify that the proposed rule will not have a significant
impact on a substantial number of small entities.
C. Paperwork Reduction Act
The proposed regulations are designed specifically to streamline
the regulatory process and will not impose any additional information
collection requirements on either the regulated community or permit
issuing authorities. Therefore, EPA did not prepare an Information
Request document for approval by the Office of Management and Budget.
Should any reviewer feel that the proposed rulemaking will require
additional information collection activities, they should send their
comments regarding the burden estimate or any other aspect pertaining
to collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch; EPA; 401 M St., S.W. (Mail
Code 2136); Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503, marked ``Attention: Desk Officer for EPA.'' The final rule will
respond to any OMB or public comments on any information collection
requirements generated by this proposal.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Under section 204 of the UMRA, EPA generally must develop a process
to permit elected officials of State, local and Tribal governments (or
their designated employees with authority to act on their behalf) to
provide meaningful and timely input in the development of regulatory
proposals containing significant Federal intergovernmental mandates.
These consultation requirements build on those of Executive Order 12875
(``Enhancing the Intergovernmental Partnership'').
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or Tribal
governments or the private sector. The proposed rulemaking is basically
``deregulatory'' in nature and does not impose any enforceable duties
on any of these governmental entities or the private sector.
In any event, EPA has determined that this rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in anyone year. This rule is intended to streamline
NPDES permitting requirements and should result in resource savings to
Federal and State permitting authorities as well as to the regulated
community. Thus, today's rule is not subject to the requirements of
sections 202, 204 and 205 of UMRA.
With respect to section 203 of UMRA, EPA has determined that this
rule contains no regulatory requirements that might significantly or
uniquely affect small governments. As previously stated, EPA believes
that the rule will reduce the regulatory burden on Federal and State
NPDES Permitting authorities as well as on the regulated community.
This overall reduction will be applied across the board to all
permitting authorities and the regulated community. While, EPA cannot
document the effects of these streamlining measures on each affected
entity, those smaller governments that are NPDES permittees are
expected to benefit from the proposed modifications.
List of Subjects
40 CFR Part 22
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Hazardous waste,
Penalties, Pesticides and pests, Poison prevention, Water pollution
control.
40 CFR Part 117
Environmental Protection Agency, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 123
Administrative practice and procedure, Confidential business
information, Hazardous substances, Indians-lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Water
pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians--lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
40 CFR Part 125
Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal, Water pollution control.
40 CFR Part 144
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Indians--lands,
Reporting and recordkeeping requirements, Surety bonds, Water supply.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
[[Page 65286]]
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Dated: November 21, 1996.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR parts 22, 117, 122, 123, 124, and 125, 144, 270, and 271 as
follows:
PART 22--[AMENDED]
1. The title of part 22 is revised to read as follows:
PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/
TERMINATION OR SUSPENSION OF PERMITS
2. The authority citation for part 22 is revised to read as
follows:
Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319,
1342, 1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928,
6991e and 6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and
7607(a), 9609, and 11045.
3. Section 22.01 is amended by revising paragraphs (a)(4) and
(a)(6) to read as follows:
Sec. 22.01 Scope of these rules.
(a) * * *
(4) The issuance of a compliance order or the issuance of a
corrective action order, the termination of a permit pursuant to
section 3005(d), the suspension or revocation of authority to operate
pursuant to section 3005(e), or the assessment of any civil penalty
under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act,
as amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and 6992d)),
except as provided in 40 CFR part 24;
* * * * *
(6) The assessment of any Class II penalty under section 309(g), or
the termination of any permit issued pursuant to section 402(a) of the
Clean Water Act, as amended (33 U.S.C. 1319(g), 1342(a));
* * * * *
4. Section 22.03 is amended by revising the definition for
``Consent Agreement'' to read as follows:
Sec. 22.03 Definitions.
* * * * *
Consent Agreement means any written document, signed by the
parties, containing stipulations or conclusions of fact or law and a
proposed penalty or proposed revocation/termination or suspension
acceptable to both complainant and respondent.
* * * * *
5. Section 22.13 is amended by revising paragraph (c) to read as
follows:
Sec. 22.13 Issuance of complaint.
* * * * *
(c) Other good cause exists for such action, he may institute a
proceeding for the revocation/termination or suspension of a permit by
issuing a complaint under the Act and these rules of practice. A
complaint may be for the suspension or revocation/termination of a
permit in addition to the assessment of a civil penalty.
6. Section 22.14 is amended by revising paragraph (b) introductory
text and paragraphs (b)(4), (b)(5), and (b)(6) to read as follows:
Sec. 22.14 Content and amendment of the complaint.
* * * * *
(b) Complaint for the revocation/termination, or suspension of a
permit. Each complaint for the revocation/termination or suspension of
a permit shall include:
* * * * *
(4) A request for an order either to revoke/terminate or suspend
the permit and a statement of the terms and conditions or any proposed
partial suspension or revocation/termination;
(5) A statement indicating the basis for recommending the
revocation/termination, rather than the suspension, of the permit, or
vice versa, as the case may be;
(6) Notice of the respondent's right to request a hearing on any
material fact contained in the complaint, or on the appropriateness of
the proposed revocation/termination or suspension.
* * * * *
7. Section 22.15 is amended by revising (a)(2) to read as follows:
Sec. 22.15 Answer to the complaint.
(a) * * *
(2) Contends that the amount of the penalty proposed in the
complaint or the proposed revocation/termination or suspension, as the
case may be, is inappropriate; or * * *
* * * * *
8. Section 22.17 is amended by revising the second-to-last sentence
of paragraph (a) and by revising paragraph (c) to read as follows:
Sec. 22.17 Default order.
(a) * * * If the complaint is for the revocation or suspension of a
permit, the conditions of revocation or suspension proposed in the
complaint shall become effective without further proceedings on the
date designated by the Administrator in his final order issued upon
default. * * *
* * * * *
(c) Contents of a default order. A default order shall include
findings of fact showing the grounds for the order, conclusions
regarding all material issues of law or discretion, and the penalty
which is recommended to be assessed or the terms and conditions of
permit revocation/termination or suspension, as appropriate.
* * * * *
9. Section 22.18 is amended by revising paragraph (b)(3) to read as
follows:
Sec. 22.18 Informal settlement; consent agreement and order.
* * * * *
(b) * * *
(3) consents to the assessment of a stated civil penalty or to the
stated permit revocation/termination or suspension, as the case may be.
* * *
* * * * *
10. Section 22.24 is amended by revising the first sentence to read
as follows:
Sec. 22.24 Burden of presentation; burden of persuasion.
The complainant has the burden of going forward with and of proving
that the violation occurred as set forth in the complaint and that the
proposed civil penalty, revocation/termination, or suspension, as the
case may be, is appropriate. * * *
11. Section 22.44 is added to subpart H to read as follows:
Sec. 22.44 Supplemental rules of practice governing the termination of
permits under section 402(a) of the Clean Water Act or under section
3005(d) of the Resource Conservation and Recovery Act.
(a) Scope of these Supplemental Rules. These supplemental rules of
practice shall govern, in conjunction with the preceding Consolidated
Rules of Practice (40 CFR part 22), administrative proceedings for the
termination of permits under section 402(a) of the Clean Water Act or
under section 3005(d) of the Resource Conservation and Recovery Act.
Where
[[Page 65287]]
inconsistencies exist between these supplemental rules and the
Consolidated Rules, these Supplemental Rules shall apply.
(b) In any proceeding to terminate a permit for cause under 40 CFR
122.64 or 270.42 during the term of the permit:
(1) The complaint shall, in addition to the requirements of
Sec. 22.14(b), contain any additional information specified in 40 CFR
124.8;
(2) The Director (as defined in 40 CFR 124.2) shall provide public
notice of the complaint in accordance with 40 CFR 124.10, and allow for
public comment in accordance with 40 CFR 124.11; and
(3) The Presiding Officer shall admit into evidence the contents of
the Administrative Record described in 40 CFR 124.9, and any public
comments received.
PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES
1. The authority citation for part 117 continues to read as
follows:
Authority: Secs. 311 and 501(a), Federal Water Pollution Control
Act (33 U.S.C. 1251 et. seq.), (``the Act'') and Executive Order
11735, superseded by Executive Order 12177, 56 FR 54757.
2. Section 117.1(d) is revised to read as follows:
Sec. 117.1 Definitions.
* * * * *
(d) Public record means the NPDES permit application or the NPDES
permit itself and the materials comprising the administrative record
for the permit decision specified in 40 CFR 124.18.
* * * * *
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority citation for part 122 continues to read as
follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 122.1 is revised to read as follows:
Sec. 122.1 Purpose and scope.
(a) Coverage. (1) The regulatory provisions contained in 40 CFR
parts 122, 123, and 124 implement the National Pollutant Discharge
Elimination System (NPDES) Program under sections 318, 402, and 405 of
the Clean Water Act (CWA) (Pub. L. 92-500, as amended, 33 U.S.C. 1251
et seq.)
(2) These provisions cover basic EPA permitting requirements (part
122), what a State must do to obtain approval to operate its program in
lieu of a Federal program and minimum requirements for administering
the approved State program (part 123), and procedures for EPA
processing of permit applications and appeals (part 124).
(3) These provisions also establish the requirements for public
participation in EPA and State permit issuance and enforcement and
related variance proceedings, and in the approval of State NPDES
programs. These provisions carry out the purposes of the public
participation requirements of 40 CFR part 25, and supersede the
requirements of that part as they apply to actions covered under parts
122, 123, and 124.
(4) The NPDES permit program has separate additional provisions
that are used by permit issuing authorities to determine what
requirements must be placed in permits if issued. These provisions are
located at 40 CFR parts 125, 129, 133, 136, 40 CFR subchapter N (parts
400 through 460), and 40 CFR part 503.
(5) Certain requirements set forth in parts 122 and 124 are made
applicable to approved State programs by reference in part 123. These
references are set forth in Sec. 123.25. If a section or paragraph of
part 122 or 124 is applicable to States, through reference in
Sec. 123.25, that fact is signaled by the following words at the end of
the section or paragraph heading: (Applicable to State programs, see
Sec. 123.25). If these words are absent, the section (or paragraph)
applies only to EPA administered permits. Nothing in parts 122, 123, or
124 precludes more stringent State regulation of any activity covered
by these regulations, whether or not under an approved State program.
(b) Scope of the NPDES permit requirement. (1) The NPDES program
requires permits for the discharge of ``pollutants'' from any ``point
source'' into ``waters of the United States.'' The terms ``pollutant'',
``point source'' and ``waters of the United States'' are defined at
Sec. 122.2.
(2) The permit program established under this part also applies to
owners or operators of any treatment works treating domestic sewage,
whether or not the treatment works is otherwise required to obtain an
NPDES permit, unless all requirements implementing section 405(d) of
the CWA applicable to the treatment works treating domestic sewage are
included in a permit issued under the appropriate provisions of
subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking
Water Act, the Marine Protection, Research, and Sanctuaries Act of
1972, or the Clean Air Act, or under State permit programs approved by
the Administrator as adequate to assure compliance with section 405 of
the CWA.
(3) The Regional Administrator may designate any person subject to
the standards for sewage sludge use and disposal as a ``treatment works
treating domestic sewage'' as defined in Sec. 122.2, where he or she
finds that a permit is necessary to protect public health and the
environment from the adverse effects of sewage sludge or to ensure
compliance with the technical standards for sludge use and disposal
developed under CWA section 405(d). Any person designated as a
``treatment works treating domestic sewage'' shall submit an
application for a permit under Sec. 122.21 within 180 days of being
notified by the Regional Administrator that a permit is required. The
Regional Administrator's decision to designate a person as a
``treatment works treating domestic sewage'' under this paragraph shall
be stated in the fact sheet or statement of basis for the permit.
[Note: Information concerning the NPDES program and its regulations
can be obtained by contacting the Permits Division (4203), Office of
Wastewater Management, U.S.E.P.A., 401 M Street, SW., Washington, DC
20460 at (202) 260-9545.]
3. Section 122.2 is amended by adding new definitions in
alphabetical order, and by revising the definition of ``Sludge-only
facility'' to read as follows:
Sec. 122.2 Definitions.
* * * * *
Animal feeding operation is defined at Sec. 122.23 of this part.
* * * * *
Aquaculture project is defined at Sec. 122.25 of this part.
* * * * *
Bypass is defined at Sec. 122.41(m) of this part.
* * * * *
Concentrated animal feeding operation is defined at Sec. 122.23 of
this part.
Concentrated aquatic animal feeding operation is defined at
Sec. 122.24 of this part.
* * * * *
Individual control strategy is defined at 40 CFR 123.46(c).
* * * * *
Municipal separate storm sewer system is defined at Sec. 122.26
(b)(4) and (b)(7) of this part.
* * * * *
Silvicultural point source is defined at Sec. 122.27 of this part.
* * * * *
[[Page 65288]]
Sludge-only facility means any ``treatment works treating domestic
sewage'' whose methods of sewage sludge use or disposal are subject to
regulations promulgated pursuant to section 405(d) of the CWA, and is
required to obtain a permit under Sec. 122.1(b)(2) of this part.
* * * * *
Storm water is defined at Sec. 122.26(b)(13) of this part.
Storm water discharge associated with industrial activity is
defined at Sec. 122.26(b)(14) of this part.
* * * * *
Upset is defined at Sec. 122.41(n) of this part.
4. Section 122.4 is amended by revising paragraph (i)(2) to read as
follows:
Sec. 122.4 Prohibitions (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(i) * * *
(2) The existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into compliance with
applicable water quality standards. The Director may waive the
submission of information by the new source or new discharger required
by paragraph (i) of this section if the Director determines that the
Director already has adequate information to evaluate the request. An
explanation of the development of limitations to meet the criteria of
this paragraph is to be included in the fact sheet to the permit under
Sec. 124.56(b)(1).
5. Section 122.21 is amended by revising paragraphs (a), (c)(2)(i),
(c)(2)(ii), (g)(7), (g)(8), (l)(1), (l)(2)(ii), (l)(3), (l)(4), and
notes 1, and the introductory text of notes 2, and 3; and by removing
and reserving paragraph (d)(3) to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
(a) Duty to apply. (1) Any person who discharges or proposes to
discharge pollutants or who owns or operates a ``sludge-only facility''
and who does not have an effective permit, except persons covered by
general permits under Sec. 122.28, excluded under Sec. 122.3, or a user
of a privately owned treatment works unless the Director requires
otherwise under Sec. 122.44(m), shall submit a complete application to
the Director in accordance with this section and part 124.
(2) Application Forms: (i) All applicants for EPA-issued permits
must submit applications on EPA permit application forms. More than one
application form may be required from a facility depending on the
number and types of discharges or outfalls found there. Applications
for EPA-issued permits shall be submitted as follows:
(A) All applicants must submit Form 1 containing general
information except as otherwise provided in another EPA application
form.
(B) Applicants for new and existing POTWs must submit the
information contained in Sec. 122.21 (f) and (j).
(C) Applicants for concentrated animal feeding operations or
aquatic animal production facilities must submit Form 2B.
(D) Applicants for existing industrial facilities (including
manufacturing facilities, commercial facilities, mining activities,
silvicultural activities, privately owned waste treatment facilities,
and water treatment facilities plants whether publicly or privately
owned that discharge process wastewater must submit Form 2C.
(E) Applicants for new industrial facilities that discharge process
wastewater must submit Form 2D.
(F) Applicants for new and existing industrial facilities that
discharge only nonprocess wastewater must submit Form 2E.
(G) Applicants for new and existing industrial facilities that
whose discharge is composed entirely of storm water must submit Form
2F. If the discharge is composed of storm water and non-storm water,
the applicant must also submit, Forms 2C, 2D, and/or 2E, as appropriate
(in addition to Form 2F).
(H) In addition to any other applicable requirements in this part,
all POTWs and other ``treatment works treating domestic sewage,''
including ``sludge-only facilities,'' must submit with their
applications the information listed at 40 CFR 501.15(a)(2) within the
timeframes established in paragraph (c)(2) of this section.
(ii) The application information required by Sec. 122.21(a)(2)(i)
may be electronically submitted if such method of submittal is approved
by EPA or authorized NPDES State Director.
(iii) Applicants can obtain copies of these forms by contacting the
Water Management Divisions (or equivalent division which contains the
NPDES permitting function) of the EPA Regional Offices. The Regional
Offices' addresses can be found at Sec. 1.7 of this title.
(iv) Applicants for State-issued permits must use State forms which
must require at a minimum the information required for permit
applications in this paragraph(a).
* * * * *
(c) * * *
(2) * * *
(i) Any existing ``treatment works treating domestic sewage''
required to have, or requesting site-specific pollutant limits as
provided in 40 CFR part 503, must submit the permit application
information required by paragraph(a)(2) of this section within 180 days
after publication of a standard applicable to its sewage sludge use or
disposal practice(s). After this 180 day period, ``treatment works
treating domestic sewage'' may only apply for site-specific pollutant
limits for good cause and such requests must be made within 180 days of
becoming aware that good cause exists.
(ii) Any ``treatment works treating domestic sewage'' with a
currently effective NPDES permit, not addressed under paragraph
(c)(2)(i) of this section, must submit the application information
required by paragraph (a)(2) of this section at the time of its next
NPDES permit renewal application. Such information must be submitted in
accordance with paragraph (d) of this section.
* * * * *
(g) * * *
(7) Effluent characteristics. (i) Information on the discharge of
pollutants specified in this paragraph (g)(7) of this section (except
information on storm water discharges which is to be provided as
specified in Sec. 122.26). When ``quantitative data'' for a pollutant
are required, the applicant must collect a sample of effluent and
analyze it for the pollutant in accordance with analytical methods
approved under 40 CFR part 136. When no analytical method is approved
the applicant may use any suitable method but must provide a
description of the method. When an applicant has two or more outfalls
with substantially identical effluents, the Director may allow the
applicant to test only one outfall and report that the quantitative
data also apply to the substantially identical outfall. The
requirements in paragraphs (g)(7) (iii) and (iv) of this section that
an applicant must provide quantitative data for certain pollutants
known or believed to be present do not apply to pollutants present in a
discharge solely as the result of their presence in intake water;
however, an applicant must report such pollutants as present. Grab
samples must be used for pH, temperature, cyanide, total phenols,
residual chlorine, oil and grease, fecal coliform and fecal
streptococcus. For all other pollutants, 24-hour composite samples must
be used. However, a minimum of one grab sample may be taken for
effluents from holding ponds or other impoundments with a retention
[[Page 65289]]
period greater than 24 hours. In addition, for discharges other than
storm water discharges, the Director may waive composite sampling for
any outfall for which the applicant demonstrates that the use of an
automatic sampler is infeasible and that the minimum of four (4) grab
samples will be a representative sample of the effluent being
discharged.
(ii) For storm water discharges, all samples shall be collected
from the discharge resulting from a storm event that is greater than
0.1 inch and at least 72 hours from the previously measurable (greater
than 0.1 inch rainfall) storm event. Where feasible, the variance in
the duration of the event and the total rainfall of the event should
not exceed 50 percent from the average or median rainfall event in that
area. For all applicants, a flow-weighted composite shall be taken for
either the entire discharge or for the first three hours of the
discharge. The flow-weighted composite sample for a storm water
discharge may be taken with a continuous sampler or as a combination of
a minimum of three sample aliquots taken in each hour of discharge for
the entire discharge or for the first three hours of the discharge,
with each aliquot being separated by a minimum period of fifteen
minutes (applicants submitting permit applications for storm water
discharges under Sec. 122.26(d) may collect flow-weighted composite
samples using different protocols with respect to the time duration
between the collection of sample aliquots, subject to the approval of
the Director). However, a minimum of one grab sample may be taken for
storm water discharges from holding ponds or other impoundments with a
retention period greater than 24 hours. For a flow-weighted composite
sample, only one analysis of the composite of aliquots is required. For
storm water discharge samples taken from discharges associated with
industrial activities, quantitative data must be reported for the grab
sample taken during the first thirty minutes (or as soon thereafter as
practicable) of the discharge for all pollutants specified in
Sec. 122.26(c)(1). For all storm water permit applicants taking flow-
weighted composites, quantitative data must be reported for all
pollutants specified in Sec. 122.26 except pH, temperature, cyanide,
total phenols, residual chlorine, oil and grease, fecal coliform, and
fecal streptococcus. The Director may allow or establish appropriate
site-specific sampling procedures or requirements, including sampling
locations, the season in which the sampling takes place, the minimum
duration between the previous measurable storm event and the storm
event sampled, the minimum or maximum level of precipitation required
for an appropriate storm event, the form of precipitation sampled (snow
melt or rain fall), protocols for collecting samples under 40 CFR part
136, and additional time for submitting data on a case-by-case basis.
An applicant is expected to ``know or have reason to believe'' that a
pollutant is present in an effluent based on an evaluation of the
expected use, production, or storage of the pollutant, or on any
previous analyses for the pollutant. (For example, any pesticide
manufactured by a facility may be expected to be present in
contaminated storm water runoff from the facility.)
(iii) Every applicant must report quantitative data for every
outfall for the following pollutants:
Biochemical Oxygen Demand (BOD5)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
pH
(iv) The Director may waive the reporting requirements for
individual point sources or for a particular industry category for one
or more of the pollutants listed in paragraph (g)(7)(iii) of this
section if the applicant has demonstrated that such a waiver is
appropriate because information adequate to support issuance of a
permit can be obtained with less stringent requirements.
(v) Each applicant with processes in one or more primary industry
category (see appendix A to part 122) contributing to a discharge must
report quantitative data for the following pollutants in each outfall
containing process wastewater:
(A) The organic toxic pollutants in the fractions designated in
table I of appendix D of this part for the applicant's industrial
category or categories unless the applicant qualifies as a small
business under paragraph (g)(8) of this section. Table II of appendix D
of this part lists the organic toxic pollutants in each fraction. The
fractions result from the sample preparation required by the analytical
procedure which uses gas chromatography/mass spectrometry. A
determination that an applicant falls within a particular industrial
category for the purposes of selecting fractions for testing is not
conclusive as to the applicant's inclusion in that category for any
other purposes. [See Notes 2, 3, and 4 of this section.]
(B) The pollutants listed in table III of appendix D of this part
(the toxic metals, cyanide, and total phenols).
(vi)(A) Each applicant must indicate whether it knows or has reason
to believe that any of the pollutants in table IV of appendix D of this
part (certain conventional and nonconventional pollutants) is
discharged from each outfall. If an applicable effluent limitations
guideline either directly limits the pollutant or, by its express
terms, indirectly limits the pollutant through limitations on an
indicator, the applicant must report quantitative data. For every
pol
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