30886 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

maritime facilities in the area, the Coast

Guard believes there will be no impact

to small entities. Therefore, the Coast

Guard certifies under 5 U.S.C. § 605(b)

that this rule will not have a significant

economic impact on a substantial

number of small entities.

Collection of Information

This rule does not provide for a

collection of information under the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

Federalism

The Coast Guard has analyzed this

rule under the principles and criteria

contained in Executive Order 13132 and

has determined that this rule does not

have implications for federalism under

that Order.

Environment

The Coast Guard considered the

environmental impact of this rule and

concluded that, under Figure 2–1,

paragraph 34(g) of Commandant

Instruction M16475.1C, this rule is

categorically excluded from further

environmental documentation because

it establishes a safety zone.

Unfunded Mandates

The Unfunded Mandates Reform Act

of 1995 (2 U.S.C. 1531–1538) and E.O.

12875, Enhancing the Intergovernmental

Partnership, (58 FR 58093; October 28,

1993) govern the issuance of Federal

regulations that require unfunded

mandates. An unfunded mandate is a

regulation that requires a State, local, or

tribal government or the private sector

to incur direct costs without the Federal

Government’s having first provided the

funds to pay those costs. This rule will

not impose an unfunded mandate.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and record keeping

requirements, Security measures,

Waterways.

Temporary Final Regulation

For the reasons discussed in the

preamble, the Coast Guard amends 33

CFR Part 165 as follows:

PART 165—[AMENDED]

1. The authority citation for Part 165

continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;

33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5;

49 CFR 1.46.

2. From 12:01 a.m. on June 12, 2000,

until 11:59 p.m. on June 16, 2000,

§ 165.T17–002 is temporarily added to

read as follows:

§ 165.T17–002 Safety Zone; Port Graham,

Cook Inlet, Alaska.

(a) Description. The following area is

a Safety Zone: All navigable waters

within a 600-yard radius of the Heavylift vessel SWAN, located in Port

Graham, Cook Inlet, Alaska.

(b) Effective dates. This section is

effective from 12:01 a.m. on June 12,

2000, until 11:59 p.m. on June 16, 2000.

(c) Regulations. (1) The Captain of the

Port means the Captain of the Port,

Western Alaska. The Captain of the Port

may authorize or designate any Coast

Guard commissioned, warrant, or petty

officer to act on his behalf as his

representative.

(2) The general regulations governing

safety zones contained in Title 33 Code

of Federal Regulations § 165.23 apply.

No person or vessel may enter, transit

through, anchor or remain in this safety

zone, with the exception of attending

vessels, without first obtaining

permission from the Captain of the Port,

Western Alaska, or his representative.

The Captain of the Port or his

representative may be contacted in the

vicinity of the SWAN via marine VHF

channel 16. The Captain of the Port’s

representative can also be contacted by

telephone at (907) 271–6700.

Dated: April 14, 2000.

W.J. Hutmacher,

Captain, U.S. Coast Guard, Captain of the

Port, Western Alaska.

[FR Doc. 00–12151 Filed 5–12–00; 8:45 am]

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 22, 117, 122, 123, 124,

125, 144, 270, and 271

[FRL–6561–5]

RIN 2040–AC70

Amendments to Streamline the

National Pollutant Discharge

Elimination System Program

Regulations: Round Two

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is today revising the

National Pollutant Discharge

Elimination System (NPDES)

regulations. This revision 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 revision is intended to

further streamline NPDES, Resource

Conservation and Recovery Act (RCRA),

Prevention of Significant Deterioration

(PSD), and Underground Injection

Control (UIC) permitting procedures,

and CWA 301(h) variance request

procedures, by revising requirements to

eliminate redundant regulatory

language, provide clarification, and

remove or streamline unnecessary

procedures which do not provide any

environmental benefits. Conforming

changes to other requirements are also

made in today’s rule. These revisions

are identified and discussed in the

Supplementary Information section

below.

DATES: This rule becomes effective June

14, 2000. For judicial review purposes,

this final rule is promulgated as of 1:00

P.M. (eastern standard time) on May 30,

2000 as provided in.

ADDRESSES: The complete

administrative record for the final rule

have been established and includes

supporting documentation as well as

printed, paper versions of electronic

comments. Copies of information in the

record are available upon request. A

reasonable fee may be charged for

copying. The record is available for

inspection and copying from 9 a.m. to

4 p.m., Monday through Friday,

excluding legal holidays, at the Water

Docket, EPA, East Tower Basement, 401

M Street, SW, Washington, DC. For

access to docket materials, please call

(202) 260–3027.

FOR FURTHER INFORMATION CONTACT:

Howard Rubin, Water Permits

Division(4203), U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460 (202) 260–2051

or Thomas Charlton, Water 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 facilities that discharge

pollutants to waters of the United States

that are required to have National

Pollutant Discharge Elimination System

(NPDES) permits.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30887

Category Examples of regulated entities

Federal, State, Local, and Tribal

Governments.

Facilities which discharge pollutants to waters of the U.S. under the NPDES program. Facilities which discharge pollutants under the RCRA, PSD, and UIC program. Facilities requesting a CWA 301(h) variance

request.

Private Industry ........................... Facilities which discharge pollutants to waters of the U.S. under the NPDES program. Facilities which discharge pollutants under the RCRA, PSD, and UIC program. Facilities requesting a CWA 301(h) variance

request.

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

facility is likely to be regulated by this

action, you should carefully read the

applicability criteria of 122.1 and 124.1

of Title 40 of the Code of Federal

Regulations. If you have any questions

regarding the applicability of this action

to a particular entity, consult the

persons listed in the preceding FOR

FURTHER INFORMATION CONTACT section.

Organization

Information in this preamble is

organized as follows:

I. Background

II. Revisions

A. 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. Revisions to Part 123

1. Requirements for Permitting (40 CFR

123.25)

2. Transmission of Information to EPA (40

CFR 123.44)

C. Revisions to Public Hearing

Requirements for NPDES Permit Actions

and RCRA Permit Terminations

1. Summary of Proposed Rule

2. Comment and EPA Responses

3. Final Rule

D. Removal and Reservation of Part 125,

Subpart K—Criteria and Standards for

Best Management Practices Authorized

under Section 304(e) of the Act

E. Provisions Without Comments

F. Miscellaneous Corrections

III. Administrative Requirements

A. Executive Order 12866

B. Executive Order 13132

C. Executive Order 13045

D. Executive Order 13084

E. The Unfunded Mandates Reform Act

F. Regulatory Flexibility Act

G. Paperwork Reduction Act

H. National Technology Transfer and

Advancement Act

I. Congressional Review 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 its rules, including those

issued under the Federal Water

Pollution Control Act, as amended

(FWPCA) (33 U.S.C. 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. Toward that end, a

number of meetings were held with the

public by the EPA Regional Offices. On

April 3, 1995, EPA issued a preliminary

report which identified those regulatory

provisions that were amenable to

streamlining. On December 11, 1996,

EPA proposed the Amendments to

Streamline the National Pollutant

Discharge Elimination System Program

Regulations: Round Two in the Federal

Register (61 FR 65268).

Today EPA is issuing the final version

of the Round II NPDES Streamlining

Rule. This final rule revises 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 final rule are revisions which

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.

Today’s notice does not represent the

end of EPA’s efforts to reinvent and

streamline its regulations. Further

reinvention efforts are under way with

respect to the pretreatment program and

the core NPDES regulations. There is

also a continuing dialogue between EPA

and the public on permit reinvention in

the context of the National Advisory

Council for Environmental Policy and

Technology (NACEPT).

II. Revisions

A. Revisions to Part 122

1. Purpose and Scope (40 CFR 122.1)

a. Summary of Proposed Rule. Section

122.1 provides a general description of

the purpose and scope of the NPDES

program regulations. In the December

1996 proposal, EPA proposed several

non-substantive changes to remove

superfluous language and to provide for

more clarity. EPA did not intend to

change any existing substantive

requirements. To provide better service

to its customers, EPA also proposed

providing a note in this provision to

assist readers in contacting EPA if they

have questions regarding the NPDES

program or its rules. EPA also explored

the possibility of providing for the

electronic submission of queries to the

NPDES program.

b. Significant Comments and EPA

Response. Some comments were made

on the issue of providing a note or

responding to electronic queries. Some

commenters requested assurance that

any contacts listed in the note and

responses made to electronic queries be

from people who are authorized to

speak on the Agency’s behalf. Another

commenter requested that EPA develop

a location on the Office of Water’s

Internet web site that lists most frequent

queries and EPA’s responses. All other

comments regarding this section were to

express general support for the

proposed revision.

Today’s final rule provides the

address and phone number for the

30888 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

Water Permits Division (formerly known

as the Permits Division) which provides

national oversight for the NPDES,

Sewage Sludge, and Pretreatment

programs, and the website address of

that office’s homepage on the Internet.

EPA believes that EPA’s phone

receptionists are able to route callers to

the appropriate EPA staff who are

knowledgeable about a particular issue

or program area. At this time, EPA

declines to provide a system for

handling electronic queries that is

specific to the Water Permits Division

since agency-wide procedures are being

examined as part of the Agency’s effort

to respond to such queries. The Office

of Water already maintains a web site

containing frequently asked questions

regarding the NPDES program. This is

located at http://www.epa.gov/owm/.

c. Final Rule. EPA is adopting the

proposed rule and adding the

appropriate home page reference.

2. NPDES Program Definitions (40 CFR

122.2, 124.2)

a. Summary of Proposed Rule. In the

December 1996 notice, EPA proposed to

streamline the NPDES program

definitions found at parts 122 and 124

by removing redundant or superfluous

language. EPA also proposed amending

§ 122.2 to add references to definitions

that are found elsewhere in parts 122,

123, and 403. The inclusion of such

references in a single location was

intended to assist readers in finding

specific provisions in the NPDES

regulations and was not intended to

expand the application of those

definitions if they are restricted to a

particular section.

b. Significant Comments and EPA

Response. One commenter requested

that EPA define the term ‘‘nonprocess

wastewater’’. Currently there is no such

definition. Another commenter

suggested that EPA change the

definition of point source to exclude

‘‘domestic users’’ in a future rulemaking

as a way to focus resources away from

de minimis discharges. A commenter

noted that the definitions for ‘‘publicly

owned treatment works’’ (POTWs) differ

between § 122.2 and § 403.3 and

recommended that these definitions be

standardized.

EPA declines at this time to add a

definition for ‘‘nonprocess wastewater’’

since such definition was not in the

proposed rule. EPA will consider

recommendation in the next rulemaking

to streamline the NPDES regulations. At

that time, EPA will also solicit comment

on modifying the definition of point

source to exclude ‘‘domestic users’’.

EPA will adopt the POTW definition

that is found in § 403.3 for § 122.2 to

achieve better consistency.

c. Final Rule. EPA is adopting the

proposed rule and adopting the POTW

definition found in § 403.3 for § 122.2.

3. New Sources/New Dischargers (40

CFR 122.4, 124.56)

a. Summary of Proposed Rule. 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 proposed revising these

information submission requirements to

allow the Director to waive the present

submittal of information requirements

under § 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 has also

included an express requirement in

§§ 122.4(i) and 122.56(b)(1) that

information which demonstrates how

the criteria for permit issuance in

§ 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 §§ 124.7, 124.8,

and 124.56 and does not result in an

increased burden to the regulated

community or permit issuing

authorities.

All of the comments received

supported this effort. In addition to

comments providing generalized

support, there were two specific

comments. A commenter asked if new

sources/dischargers should be obligated

to provide all of the information where

the Director already has some. The EPA

feels that applicants must provide only

that information which the Director

does not have. Additionally, a

commenter asked that EPA provide

additional clarification as to what

constitutes ‘‘adequate information?’’

The EPA feels that what constitutes

‘‘adequate information’’ is the

information that is normally and

properly submitted during the permit

application process for the imposition of

water quality based effluent limitations

(WQBELs), the development of WLAs,

and § 122.4(i) permit situations.

b. Final Rule. EPA is adopting the rule

as proposed

4. EPA Application Forms (40 CFR

122.1(d)(1), 122.21(a), 122.21(d),

122.26(c)(1))

In the December 1996 notice, EPA

proposed to consolidate §§ 122.1(d)(1)

and 122.22(d) and move them to a new

location, § 122.21(a), because most of

the requirements in these two

paragraphs are duplicative. EPA also

proposed to add language in proposed

§ 122.21(a)(2) to clarify which EPA

forms may be required for a particular

discharger. The proposal also included

new language to 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. Finally, the

December 1996 notice stated there were

other ongoing efforts to update EPA’s

forms which may result in

nonsubstantive revisions to paragraph

(a)(2).

In December 1995, EPA proposed

revisions to streamline and update the

municipal (Form 2A) and sewage sludge

permit (Form 2S) application

regulations. See 60 FR 62546 (Dec. 6,

1995). Because the Form 2A/Form 2S

and Round II Streamlining rules would

have affected the same portions of the

NPDES regulations, EPA has decided in

the interest of better efficiency to merge

the Round II application revisions into

the Form 2A/Form 2S rulemaking. All

comments concerning that proposed

revision have been addressed in the

Form 2A/Form 2S final rulemaking. See

64 FR 42434 (Aug. 4, 1999).

5. Effluent Characteristics (40 CFR

122.21(g)(7))

a. Summary of Proposed Rule. Section

122.21(g)(7) requires that applicants for

permits for existing manufacturing,

commercial, mining, and silvicultural

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30889

discharges must submit information on

effluent characteristics. On November

16, 1990 (55 FR 48062), EPA revised

§ 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. The

December 1996 proposal proposed to

provide greater clarity to paragraph

(g)(7) through the insertion of additional

paragraph headings. No substantive

changes to 40 CFR 122.21(g)(7) were

proposed by this revision. EPA also

proposed to revise references to

provisions in paragraph (g)(7) that are

found elsewhere in the NPDES

regulations (40 CFR 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 § 122.21(g)(7)’s new

structure.

b. Significant Comments and

Response. In response to the proposed

insertion of additional paragraph

headings, the EPA received a comment

recommending that the last two

sentences in 40 CFR 122.21(g)(7)(ii) be

moved to 40 CFR 122.21(g)(7)(i). EPA

declines to follow that suggestion since

it believes those two sentences provide

needed clarification to the storm water

sampling procedures in paragraph (ii).

Additionally, paragraph (i) already

addresses sampling.

EPA also received a comment that the

proposed paragraph headings were

insufficient and additional clarification

was needed. In response to this

comment, the EPA has added paragraph

titles to the new paragraphs to make

them easier to read.

c. Final Rule. EPA has adopted these

revisions as proposed but with the

addition of paragraph headings. These

paragraph headings are intended to aid

in the reading of this section and do not,

in any way, modify the substantive

content of the section.

6. Signatories (40 CFR 122.22)

a. Summary of Proposed Rule. The

December 1996 proposed revision to 40

CFR 122.22 called for the elimination of

the numeric criteria for designating

responsible corporate officers who

manage one or more manufacturing,

production, or operating facilities. The

numeric criteria, which specified that

the signer ‘‘ * * * may be the manager

of * * * facilities employing more than

250 persons or having gross sales or

expenditures exceeding $25 million (in

second quarter 1980 dollars) * * * ’’,

were developed to ensure that facility

managers who sign permit applications

had 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.

However, those criteria have become

less valuable in the face of the changing

management organization of many

facilities. The December 1996 proposal

proposed replacing the numeric criteria

with more flexible narrative criteria,

which specified the authority and

responsibilities of the appropriate signer

without specifying the resource levels

that the signer manages. Under the

proposed criteria, signatories include a

manager of one or more manufacturing,

production, or operating facilities,

provided: (1) The manager was

authorized to make management

decisions which govern the operation of

the regulated facility including the

ability to allocate resources, make major

capital investments, or initiate and

direct other comprehensive measures to

assure long term environmental

compliance with environmental laws

and regulations; (2) the manager could

ensure that the necessary systems are

established or actions taken to gather

complete and accurate information for

permit application requirements; and (3)

where authority to sign documents had

been assigned or delegated to the

manager in accordance with corporate

procedures.

b. Significant Comments and EPA

Response. In response to this revision,

commenters requested that EPA allow

those who are eligible under the current

criteria to remain eligible signatories.

EPA notes that an ability to meet the

old, numeric criteria would constitute

sufficient evidence that an individual

understands the need to comply with

permits and has the authority to allocate

resources toward permit compliance

sufficient to meet the requirements of

today’s rule. Today’s rule should not be

interpreted as excluding signatories who

were eligible under the previous

criteria.

Some commenters responded that the

wording of the proposed revision,

which called for signers to have the

ability to allocate resources and make

major capital investments, excluded

many facility managers, who they

believe are the appropriate signers, and

who do not have unilateral authority

over allocation of resources. In response

to these concerns, EPA will change the

proposed language ‘‘ * * * allocate

resources, make major capital

investments’’ into ‘‘ * * * having, as an

explicit or implicit, position-related

duty of capital investment

recommendations * * * ’’. This will

increase the flexibility in designating a

signer, without eliminating the

requirement that the signer have a role

in allocating resources for

environmental compliance.

A commenter asked EPA to expand

requirements to address partnerships

managed like corporations. EPA

declines to take this action because it is

beyond the scope of the proposal and

because partnerships face different

liability issues than do corporations. In

a partnership, liability is not limited as

it is in a corporation and general

partners are held directly accountable

for the organization’s actions. It is

therefore, important that a general

partner be the signer of the permit as

required in the NPDES regulations at 40

CFR 122.22(a)(2).

Additionally, a commenter asked that

EPA broaden and clarify signatory

eligibility by changing language in

§ 122.22(a)(1) to allow for a signature by

any employee who (1) has the authority

to gather and verify accurately and

complete information necessary to the

filings and (2) is duly authorized by

management. EPA declines to

incorporate that suggested revision

because those two criteria by themselves

are not sufficient to ensure that

signatories 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. The commenter also asked that

EPA better define ‘‘major’’ and use the

term ‘‘funding’’ in lieu of ‘‘capital

investment’’. EPA declines to adopt

those changes because it believes that

developing a stringent definition of the

term ‘‘major’’ would only generate

problems similar to those of the

existing, numeric criteria. Lastly, EPA

believes the term ‘‘capital investment’’

has a stronger association with

infrastructure development, such as that

needed for compliance, than the term

‘‘funding’’.

c. Final Rule. As stated above, EPA is

adopting the rule as proposed with the

exception of changing the language

‘‘* * * allocate resources, make major

capital investments * * *.’’ to ‘‘having

the explicit or implicit duty of making

major capital investment

recommendations, and initiating and

directing other comprehensive measures

to assure long term environmental

compliance with environmental laws

and regulations * * * ’’.

7. Group Permit Applications (40 CFR

122.26(c)(2))

a. Summary of Proposed Rule. In the

proposal for today’s rule, EPA proposed

to remove the storm water group permit

30890 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

1Before this amendment, EPA’s general permits

regulations at 40 CFR 122.28(a)(2) provided that the

‘‘general permit may be written to regulate * * *

either: (i) Storm water point sources, or a category

of point sources other than storm water that * * *

(A) involve the same or substantially similar types

of operations; (B) Discharge the same types of

wastes or engage in the same types of sludge use

or disposal practices; (C) require the same effluent

limitations, operating conditions, or standards for

sewage sludge use or disposal; (D) Require the same

or similar monitoring; and (E) in the opinion of the

Director, are more appropriately controlled under a

general permit than under individual permits.’’

(Italics added.)

application provisions which are no

longer necessary in light of the wide

availability of general permits. 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 storm water Phase I

facilities expired on October 1, 1992,

and coverage under storm water general

permits is now widely available. At

present, forty three States are authorized

to issue general permits (with EPA

issuing storm water general permits for

those States and jurisdictions that are

without EPA authorization).

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. EPA also

believes that storm water pollution

prevention plans (a principal

requirement of most storm water general

permits) will ensure that general permit

conditions are appropriate and

applicable for the industrial activities

covered. Consequently, EPA believes

the group application option is no

longer needed. Today’s rule eliminates

the group application option at

§ 122.26(c)(2), and makes conforming

changes to paragraph (c)(1). EPA notes

that the removal of the group

application provisions will not impact

EPA’s ability to reissue the Multi-Sector

General Permit, which was developed

based on group applications, because it

is a general permit and any revisions to

it will be based on information collected

during the life of the permit.

b. Significant Comments and EPA

Response. In response to the proposed

revisions, some commenters thought

EPA should retain the group application

language until such time as it can be

confirmed that there are no programs at

the State level which are relying on the

provisions of § 122.26(c)(2) in

developing and administering storm

water programs. Commenters are

concerned that this will reduce

flexibility for States who rely on the

group application process for

information development. At present,

all State programs except the Virgin

Islands have general permit authority

and no State has elected to issue a group

permit rather than a general permit.

Therefore, EPA believes that removing

the group permit provisions will not

reduce the States’ flexibility to regulate

storm water discharges.

Commenters also believe this removal

represents a significant policy decision,

not appropriately made in regulations

designed to eliminate ‘‘obsolete,

ineffective, or unduly burdensome

regulations’’. EPA disagrees and

believes that eliminating the group

application provisions is appropriate for

this rulemaking since those provisions

are clearly obsolete and redundant in

light of general permits. Furthermore,

EPA believes that retaining group

applications may confuse permit

applicants as to whether EPA or States

will issue group permits. Since both

EPA and States are using general

permits and not group permits, EPA

believes it is important to eliminate this

potential confusion.

Some commenters noted that EPA’s

decision to remove the group permit

application provisions would foreclose

the possibility of groups not included in

the 29 sectors identified in the multisector permit seeking and obtaining

coverage under a group storm water

permit. EPA disagrees with the

commenters and notes that groups not

included in the 29 sectors can obtain

coverage under a general permit for

their storm water discharges. EPA also

notes that the multi-sector permit is a

general permit which will not be

affected by the removal of the group

permit application provisions.

Commenters also feel that the group

permit application provisions may be of

value in future Phase II storm water

permitting implementation. EPA

believes, based on discussions during

the phase II FACA meetings, that the

scope and nature of the Phase II storm

water rule is more compatible with the

use of general permits and that the

group application rules would require

that applicants submit more information

than needed. Given the widespread

availability of general permits, EPA

believes that general permits are a better

permitting mechanism.

c. Final Rule. EPA has adopted the

final rule as proposed.

8. General Permits (40 CFR 122.28)

a. Summary of Proposed Rule. In the

proposal to today’s rule, EPA proposed

to revise the NPDES regulations to allow

non-storm water general permits to

cover more than one point source

category or subcategory.1 This revision

was expected to increase the

effectiveness of general permits that are

issued on a geographic basis since it

would be easier to use a single general

permit to provide comprehensive

controls on number of different

discharges (as separate categories)

within a geographic area such as a

watershed. This revision was also

expected to result in cost savings to

permitting authorities since a single

multi-category general permit could take

the place of multiple single category

general permits.

EPA noted, however, that 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.

EPA also proposed to revise the

general permit regulations to clarify that

where dischargers are subject to water

quality-based limitations (WQBELs),

discharges within a specific category or

subcategory shall be subject to the same

WQBELs.

b. Significant Comments and EPA

response. In response to the proposal,

several commenters expressed concern

regarding WQBELs in general permits,

stating that they are more appropriate

for site-specific permits. They

recommended that only technologybased limits and best management

practices be used. EPA notes these

concerns but declines to limit general

permits to imposing only technology

based limits. EPA believes there are

situations where general permits can

effectively impose WQBELS such as

where a general permit is developed in

close coordination with a total

maximum daily load (TMDL) and/or a

wasteload allocation. There are already

cases in which general permits are being

used to impose WQBELs on facilities

with the same water quality

requirements. One example of this is in

the Commonwealth of Puerto Rico.

Puerto Rico does not allow for mixing

zones and thus discharges must meet

water quality standards at the point of

discharge making it possible to establish

WQBEL in general permits which apply

to all discharges without variation.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30891

Therefore, EPA believes that there are

enough situations in which WQBELs are

appropriate in general permits for this

modification to be useful.

A commenter has requested an

explanation of how general permits can

be used to impose WQBELs. As

mentioned above, general permits could

impose WQBELS in areas where there

are no mixing zones. A general permit

containing WQBELs, for example, could

also be developed in close coordination

with a total maximum daily load

(TMDL) and/or a wasteload allocation,

or to cover a category of dischargers at

a certain discharge level for an entire

watershed.

A commenter expressed concerns

over allowing general permits to cover

multiple categories of dischargers. The

commenter is concerned that

development of overly broad general

permits covering similar, but distinct,

practices would result in unnecessary

limits and conditions for some covered

facilities. The commenter requested

language in the preamble stating that

coverage of general permits must not be

so expansive that unnecessary

requirements are placed on any of the

categories that are regulated. Although

EPA believes that such a scenario is

possible, it is more likely that general

permits will be developed to minimize

imposing undue requirements on

facilities. Also, applicants can always

request coverage under an individual

permit if they believe a general permit’s

requirements to be unnecessarily

onerous. Thus, EPA declines to include

such language.

Additionally, a commenter has

suggested that general permits covering

multiple categories are inappropriate for

sludge disposal because of differing

methods of disposal. EPA disagrees

because general permits can be

developed with categories that are based

on differing methods of disposal.

A further comment has been made to

request that general permits be

expanded to cover cooling water

discharges and discharges from

remedial technologies for removing

Volatile Organic Compounds. EPA

believes that the creation of those

categories is best left to the permitting

authority who is familiar with the

circumstances surrounding each general

permit (subject to the requirements of 40

CFR 122.28(a)(2)), and declines to create

a specified general permit category in

this regulation. However, EPA does not

by this decision mean to imply that

general permits for such categories are

prohibited if the permitting authority

believes them to be appropriate.

Lastly, a commenter has stressed the

importance of proposed paragraph 40

CFR 122.28(a)(4) and requested that it

be retained in the final rule. EPA agrees

with the commenter and has retained

this provision in the final rule.

c. Final Rule. EPA has adopted the

final rule as proposed.

9. Monitoring (40 CFR 122.41(j),

122.41(l)(4), 122.44(i)(1)(iv), 122.48)

a. Summary of the proposed rule. In

the proposal to today’s rule, EPA

proposed to consolidate the monitoring

provisions found at §§ 122.41 (j), (l)(4),

and 122.44(i) and place them in

§ 122.48. In addition, EPA proposed to

add a cross reference to the new

consolidated monitoring requirements

at § 122.41(j) to ensure that monitoring

remains a standard condition for all

NPDES permits. This revision was not

intended to result in any substantive

changes to the NPDES monitoring

requirements. On the basis of comments

received which raise the possibility that

the proposed revisions might result in a

substantive change to the monitoring

requirements, EPA has decided to not

finalize this portion of the proposed rule

at this time. EPA expects to finalize this

consolidation in a future rulemaking

10. Effluent Guideline Limits in Permits

(40 CFR 122.44(a))

a. Summary of Proposed Rule. EPA

proposed to revise § 122.44(a) by

providing minor clarification changes in

existing paragraph (a) and redesignating

it as paragraph (a)(1), and by adding a

new paragraph, (a)(2), to allow Directors

on a case-by-case basis to not require

effluent limits and monitoring for

certain guideline-listed pollutants if a

discharger could certify that those

pollutants would not be in the

discharge.

To receive this waiver from

monitoring requirements, permittees

would have to submit a certification

(along with supporting information)

with each permit application or

application for permit renewal. The

waiver would have to be included as an

express condition in the permit. This

revision was not intended to waive

monitoring for any pollutants that

should be limited on the basis of water

quality standards. For those pollutants

whose monitoring requirements had

been waived (known hereafter as

‘‘waived pollutants’’), the proposal

would not have allowed for discharge of

those pollutants in any amount. Thus,

applicants were cautioned to not pursue

this approach if there was any

possibility that waived pollutants might

be discharged.

b. Significant Comments and EPA

Response—(1) Proposed § 122.44(a)(1).

One commenter stated that the phrase

‘‘as appropriate’’ in proposed

§ 122.44(a)(1) is misplaced, because it

modifies ‘‘effluent limitations and

standards promulgated under section

301(b)(1) or 301(b)(2)’’, but not ‘‘new

source performance standards

promulgated under section 306 of the

CWA’’. The commenter suggested that

the phrase be deleted because an

existing phrase ‘‘when applicable’’ in

the introductory text of § 122.44 already

ensures that all of the requirements in

§ 122.44 will be applied when

appropriate. EPA agrees and is removing

the term ‘‘as appropriate’’ from the final

rule. EPA is also replacing the citations

to sections 301(b)(1) and 301(b)(2) with

a single citation to section 301 of the

CWA.

(2) Proposed § 122.44(a)(2)—

Generalized Support for the Waiver

Concept. A large number of commenters

expressed support for the concept of

providing a waiver from monitoring

requirements for guideline-listed

pollutants as a way to reduce

unnecessary burdens on the regulated

community. Some commenters

indicated that the current requirements

caused significant burdens. One

commenter noted that facilities in the

organic chemicals, plastics, and

synthetic fiber (OCPSF) point source

category must have limits and

monitoring requirements for 63 organic

chemicals even though some facilities

only have the potential to discharge one

or two chemicals. Another commenter

noted the current regulatory

requirements have led to endless

questioning of departmental staff by

permittees which resulted in an

unwarranted diversion of staff time and

resources.

EPA agrees with the above comments

and is providing for a waiver from

monitoring requirements, but not a

waiver from the limit, in today’s rule as

described below.

(3) Applicability of the Waiver to First

Term Permits. Some of the commenters

expressed concerns with the availability

of this waiver for new sources. They

believed that the Agency would not

have enough data or enough familiarity

with a ‘‘new source’’ to be able to safely

apply this waiver. The commenters

recommended that the waiver be made

available to a discharger only after the

first permit term.

EPA agrees with these concerns and

believes that they apply to all new

permittees (not just ‘‘new sources’’).

Consequently, EPA is making this

waiver available only after the first term

of the permit. The Agency believes that

this restriction will greatly simplify the

waiver process since the information

generated during the first permit term

30892 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

will: (1) Assist permittees in

determining whether to seek a waiver,

(2) assist Directors in determining

whether to grant such waivers, and (3)

reduce the risk of a permittee

discharging a waived pollutant.

(4) No Discharge Limit in the Waiver.

A number of comments were received

relating to the proposed no-discharge

limit on pollutants subject to the waiver

(‘‘waived pollutants’’). Those comments

generally opined that the no-discharge

requirement would be impossible to

meet and so onerous as to discourage

use of the waiver. Some commenters

believed that it would not be possible

for a discharger to certify that a

pollutant is not present in any amount

because it might be present in amounts

below detectable levels. Some

commenters also noted that guidelinelisted pollutants may be present in trace

amounts from sources other than

manufacturing processes such as intake

water; the use of cleaners, corrosion of

equipment, pipes and fittings; or from

research operations. One commenter

noted that the no-discharge requirement

might require facilities to pretreat intake

water.

Some commenters also suggested

alternatives to the no discharge

requirement. One commenter

recommended that the waiver be

allowed for pollutants that are present

in trace amounts from sources that are

unrelated to the manufacturing process.

A commenter recommended that the

waiver be allowed where a facility is not

further adding pollutants to those

already in its intake water. Another

commenter recommended that the

waiver be allowed if the pollutant is not

regulated in the manufacturing process

as a raw material, is not present in raw

materials, is not generated as a product

or by-product, and is not present in

wastes from the manufacturing

processes in analytical quantifiable

concentrations. Some commenters

recommended that the final rule be

changed to allow permittees to certify

that the pollutant is not detectable.

Other commenters also recommended

that EPA apply the waiver in situations

where a pollutant is repeatedly found in

amounts well below the guideline-based

limit or below what are believed to be

‘‘levels of concern’’. Some commenters

suggested that EPA consider just

allowing guideline-listed pollutants to

be monitored without limits. One

commenter requested that EPA consider

retaining permit limits for guidelinelisted pollutants while removing the

minimum yearly monitoring

requirements for pollutants with permit

limits.

In response to these comments and

other considerations, EPA is issuing the

final rule to allow for the waiver from

monitoring requirements if the facility

can certify that the pollutant is not

present in its discharge or is present

only at background levels from intake

water with no increase in the pollutant

due to activities of the discharger.

EPA declines to allow monitoring

waivers for pollutants that are added by

dischargers in minute amounts (e.g., use

of common cleaners or from research

operations) because human activity

might lead to substantial increases in

those pollutant discharges which may

threaten the aquatic environment.

Consequently, there is a continuing

need to monitor those pollutants. EPA

also notes that at least one national

effluent guideline addresses the

introduction of incidental amounts of

pollutants from cleaning, maintenance,

or research operations and EPA does not

believe it is appropriate to apply the

waiver to a pollutant that is added to the

waste stream and subject to an effluent

guideline. See 40 CFR 414.11(b)

(applying the Organic Chemicals,

Plastics, and Synthetic Fibers Effluent

Guidelines to wastewater discharges

from research and development

operations). Metals or other pollutants

which can leach from pipes may also

pose a threat to the environment and

EPA believes monitoring should be

retained for such discharges. With

respect to pollutants which occur in

amounts below ‘‘levels of concern’’, the

discharge of such pollutants can also

increase from human activity and EPA

believes that monitoring is necessary to

ensure that an appropriate level of

treatment continues to be provided. EPA

does share the belief that excellent

treatment performance should be

encouraged. Therefore, EPA has

provided via guidance, a method to

reduce, but not eliminate, monitoring in

recognition of excellent performance.

See ‘‘Interim Guidance for

Performance—Based Reductions of

NPDES Permit Monitoring Frequencies’

dated April 19, 1996.

With respect to determining whether

a pollutant is not present or is present

at only background levels from intake

water without any increase of the

pollutant due to activities of the

discharger, EPA believes that this

determination can be accomplished in a

number of ways depending on the

situation. In some cases, knowledge

about a facility’s process and

infrastructure is enough to determine

that an addition will occur. For

example, a pollutant may be a known

by-product of certain processes used in

a facility and it would be reasonable for

a permitting authority to find that the

pollutant is added even if the addition

is difficult to detect in the effluent.

Similarly, knowledge that certain

industrial processes do not use or

generate a particular pollutant and that

the pollutant would not be added in

other ways may also be a sufficient basis

for concluding that a pollutant is not

added. To provide flexibility to deal

with a variety of situations, today’s rule

does not establish the minimum data

needed to make this determination.

Rather, the Director should determine

the most appropriate approach using his

or her best professional judgment. This

issue is discussed in more detail below

under the heading (5).

Today’s rule retains limits for waived

pollutants since removing those limits

may be interpreted under the Federal

permit shield provisions to allow the

discharge of those pollutants in

unlimited quantities. See 40 CFR 122.5.

(5) Process of Granting the Waiver. A

number of commenters asked what

information is required for a waiver to

be granted while noting that the

proposed rule did not state what

specific information was necessary. One

commenter asked whether a one time

analysis of the outfall would be

sufficient. Another commenter

expressed the belief that the permit

application provides sufficient

information to determine if the waiver

is appropriate. Another commenter

requested that the certification language

be revised to recognize the availability

of source information (e.g., SARA

Toxics Release Inventory or pollutant

analyses submitted with permit

application) when determining whether

to grant a waiver.

EPA believes that the amount of

information needed to grant the waiver

will vary with each permit applicant.

However, in many cases, information

sufficient to grant or deny a waiver will

be found in the permit application and

from information generated from any

prior permits issued to the facility.

Inspection reports, sampling data

submitted by the applicant, and the

SARA Toxics Release Inventory all

contain information which may be

considered when a permit is being

developed and may also assist Directors

in determining whether to grant the

waiver. Directors are also free to request

any additional information they believe

they need under section 308 of the

Clean Water Act in order to make a

waiver determination. EPA wishes to

reiterate that the monitoring waiver is

good only for the term of the permit and

that permittees must reapply for it when

applying for a reissued permit.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30893

2See 40 CFR 413.03 (Monitoring Requirements

for Total Toxic Organics under the Electroplating

Point Source Category) and 40 CFR 421.3(b)

(Periodic Monitoring for Cyanide under the Primary

Beryllium Subcategory of the Nonferrous Metals

Manufacturing Point Source Category).

(6) Enforcement Issues Associated

with the Waiver. Some commenters

expressed concerns that the proposed

revision to § 122.44(a) could be

interpreted to mean that a Director

would only have enforcement authority

for waived pollutants and not for

pollutants not listed in the permit or

that the revision would abrogate the

protection provided by EPA’s permit

shield provisions.

One commenter asked how the

program will take into consideration

cases where the detection limit of a

trace pollutant may decrease as a result

of improved analytical methodologies.

Another commenter asked how EPA

would respond to the detection of an

unauthorized pollutant in a discharge,

even if the permittee had a system in

place to prevent its introduction.

EPA notes that today’s revision to

§ 122.44(a) retains limits for all

guideline-listed pollutants and is not

intended to alter EPA’s enforcement

authority. Any exceedance of the

effluent limit found in the permit would

be a permit violation regardless of

whether a waiver is in place. Today’s

rule is also not intended to change

EPA’s requirements and policies

regarding the permit shield provisions

at 40 CFR 122.5. Permittees are also

liable for any discharge of a pollutant

beyond that which serves as the basis of

the waiver. Two pertinent examples of

this include: (1) Where a waiver is based

on a discharger’s certification that the

waived pollutant is not present in the

discharge and the pollutant is

subsequently found to be present, or (2)

where a waiver is based on a

certification that the pollutant is present

only at background levels from intake

water and without any increase in the

pollutant due to activities of the

discharger and the pollutant is

subsequently found to be added to the

discharge by the discharger. Permittees

are liable for any violation of a permit

requirement and are subject to the full

range of enforcement responses. Factors

such as the nature, severity, and

frequency of violation, human health

and environmental impacts, and

compliance history of the permittee are

considered by the Director when

determining an appropriate enforcement

response. For example, in situations

where a waived pollutant thought to be

absent is discovered through improved

detection techniques or as the

unintended consequence of a change in

the facility’s operation, the Director may

issue an administrative compliance

order to require monitoring for that

pollutant, or the permit could be

modified (as a minor modification

under 40 CFR 122.63(b)(2)) to require

such monitoring. These responses may

be particularly appropriate in situations

where a pollutant is discharged in an

amount which exceeds that which

serves as the basis of the waiver but

below the guideline-listed limit.

Permittees should be aware that if

they change their facility’s operations in

a way that may result in pollutant

discharges beyond what serves as the

basis for the waiver, they are obligated

under 40 CFR 122.41(l)(2) to report that

change to the Director. If permittees

discover in their discharge, pollutant

levels which exceed what is authorized

by the waiver, they must also report that

presence to the Director in accordance

with § 122.41(l).

(7) Suspending the Waiver if Facility

Operations Change. Some commenters

requested that permittees be required to

resume monitoring for all guidelinelisted pollutants for at least one year

after a process change or change in

materials use, regardless of waiver.

EPA declines to make these suggested

changes because there are already

provisions in the NPDES regulations to

alert permit issuing authorities to

situations where it may be necessary to

reinstate monitoring. Sections

122.41(l)(1) and 122.42(a)(1) impose

reporting requirements for planned

physical alterations or additions to a

permitted facility. Section 122.44(l)(2)

requires that permittees provide

advance notice to the Director of any

planned changes to the permitted

facility or activity which may result in

non-compliance with permit

requirements, including those contained

in a monitoring waiver. Additionally,

§ 122.62(a)(1) provides for permit

modification if ‘‘[t]here are material and

substantial alterations or additions to

the permitted facility . . . which

occurred after permit issuance which

would justify the application of permit

conditions that are different or absent in

the existing permit.’’ These provisions

can inform Directors about the potential

need to reinstate sampling and grant

them sufficient authority to reinstate it.

Thus, there is no need to add a new

provision to 40 CFR 122.44.

(8) Indicator Pollutants. A commenter

noted that certain guideline-listed

pollutants are indicator pollutants and

that by waiving monitoring for an

indicator pollutant it would make sense

to waive the secondary pollutant as

well. EPA believes it is rare to encounter

a permitting situation where monitoring

is required for both indicator and

secondary pollutants. However, EPA

agrees as a general matter that if a

pollutant is regulated under an effluent

guideline as an indicator for other

pollutants, then monitoring can be

waived to the same extent of other

pollutants at the permit-issuing

authority’s discretion, if that indicator

pollutant and the secondary pollutant

are not present.

(9) Antibacksliding. A commenter

raised a concern that the proposed

revision constitutes ‘‘backsliding’’.

(Backsliding is a term of art used to

describe an impermissible relaxation of

permit limits or conditions upon permit

reissuance, see CWA § 402(o) and 40

CFR 122.44(l)). EPA notes that a

reduction in monitoring might in some

cases, constitute backsliding of a permit

‘‘condition’’ as countenanced under 40

CFR 122.44(l)(1). However,

§ 122.44(l)(1) would operate to allow

such backsliding on the basis that the

circumstances upon which the previous

permit was based have materially and

substantially changed since the time the

permit was issued and would constitute

a cause for permit modification under

§ 122.62(a)(2) (new information) or

§ 122.62(a)(3) (new regulations).

Another commenter noted that the

antibacksliding provisions could apply

if a discharger wished to modify or

renew their permit to allow for the

discharge of a guideline-listed pollutant

which had been subject to a nodischarge limit under a waiver. As

noted above, EPA is retaining the

requirement that limits be placed in

permits for all guideline-listed

pollutants and the backsliding situation

envisioned by the commenter should

not occur as a result of this rulemaking.

(10) Section 122.4(a)(2) Does not

Supersede any Monitoring Waivers in

the Effluent Guidelines. EPA notes that

there are at least two guidelines with

certification processes relating the

waiving or reducing monitoring.2 This

provision does not supersede

certification processes and requirements

already established in existing effluent

limitations guidelines and standards

because such processes may be better

tailored to situations that are specific to

the guideline and pollutant.

c. Final Rule. In response to

comments on the proposed rule, EPA

has adopted a modified version of the

proposed regulation which retains the

requirement that permits have limits for

all applicable guideline-listed pollutants

but allows for the waiver of sampling

requirements for guideline-listed

pollutants on a case-by-case basis if the

discharger can certify that the pollutant

is not present in the discharge or

30894 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

present only at background levels from

intake water with no increase due the

activities of the discharger. The waiver

must be applied for each permit

reissuance and is not available for the

first permit issued to the discharger.

(11) Reopener Clauses (40 CFR

122.44(c))

a. Summary of the Proposed Rule.

Section 122.44(c) provided for reopener

clauses in permits. For reasons

described in more detail in the proposal

(see 61 FR 65273–74), EPA proposed

removing paragraphs (c)(1), (c)(2), and

(c)(3) of § 122.44. Paragraphs (c)(1) and

(c)(3) apply only to permits issued on or

before June 30, 1981, and are obsolete.

EPA also proposed removing paragraph

(c)(2) which is redundant with the

requirements of § 122.44(a). EPA

proposed consolidating the §§ 122.44(a)

and 122.44(c)(2) requirements in a new

paragraph at § 122.44(a)(1). EPA

proposed retaining the provision for

reopeners of sludge conditions in

NPDES permits (originally found in 40

CFR 122.44(c)(4)) and redesignating it,

§ 122.44(c). By proposing to remove

these provisions, EPA did 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.

b. Significant Comments and EPA

Response. In response to EPA’s

proposal, a commenter noted that, with

paragraphs (c)(1), (c)(2) and (c)(3) gone,

the only reopener left, (c)(4), would

apply to treatment works treating

domestic sewage. The commenter

thought that this was too narrow an

application of reopeners. EPA disagrees

and notes that § 122.62 provides EPA

with broad authority to modify permits

regardless of the presence of a reopener

clause and the removal of paragraphs

(c)(1), (c)(2), and (c)(3) will not impinge

on EPA’s or a permittee’s ability to

revise permits. Another commenter disagreed with

the preamble language which implied

that permit writers could insert

reopeners other than those enumerated

at § 122.44(c). They noted that section

122.62 establishes appropriate scope of

permit modifications. As noted in its

response to the preceding comment,

EPA agrees that the authority provided

to it under § 122.62 is adequate to allow

for any necessary revisions of permits. c. Final Rule. EPA has adopted the

final rule as proposed.

(12) Best Management Practices (40 CFR

122.44(k))

a. Summary of Proposed Rule. Section

40 CFR 122.44(k), authorizes 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) authorized

under section 402(p) of the CWA for the

control of storm water discharges; (3)

numeric effluent limitations are

infeasible, or (4) the practices are

reasonably necessary to achieve effluent

limitations and standards or to carry out

the purposes and intent of the CWA. To assist the regulated community in

developing and implementing BMPs,

EPA proposed to provide a note to

§ 122.44(k) which would provide

references to available agency guidance

on developing and implementing BMPs.

The inclusion of these references was

not intended to change the substantive

requirements of § 122.44(k). BMPs are

often best tailored for specific industries

and the EPA guidance furthers that goal.

Therefore, EPA believes it is important

that regulated community know about

the existence of these documents.

b. Significant Comments and EPA

Response. One commenter objected to

EPA’s assertion that there is any

authority under the CWA for the

imposition of BMPs that have not been

promulgated under section 304(e). Since

EPA did not propose any revisions to

the regulatory requirements of

§ 122.44(k), this comment is beyond the

scope of the proposal, and EPA

therefore declines to respond. One commenter suggested EPA clarify

whether or not the proposed note in 40

CFR 122.44(k) is a regulation published

under section 304(e) of the Clean Water

Act, insofar as information in that note

pertains to control of toxic or hazardous

pollutants from activities within the

scope of section 304(e). EPA intends for

the note to be informational and does

not intend for it to impose regulatory

requirements. The Office of the Federal

Register does not allow notes to impose

regulatory requirements. One commenter stated that it is

inappropriate to include references to

specific guidance documents in a

regulation, because such guidance is

frequently updated and has no

regulatory force. The commenter

recommends that the regulation discuss

that EPA BMP guidance documents are

available and identify the EPA office or

offices, including addresses and phone

numbers, from which current lists of

BMP guidance documents can be

obtained. EPA could also put the

current BMP guidance reference list on

its Internet web site and identify the

web site as a source of the BMP

guidance reference list. The regulations

should state that the BMP documents

identified in the rule are for guidance

only, and have no regulatory force. EPA

declines to remove references to specific

guidances in the ‘‘note’’ to § 122.44(k)

since such references will assist readers

in complying with regulatory

requirements. However, EPA will also

include a list of BMP guidance on the

Office of Wastewater Management

(OWM) Internet web site and include a

reference to the web site in the ‘‘note’’.

EPA has also added language to the note

to clarify that the EPA guidance

documents are listed only for

informational purposes, and they are

not bindiing.

One commenter recommended that

the note to § 122.44(k) should state that

additional BMP documents may also be

available from the States. EPA will

include this statement.

c. Final Rule. EPA has adopted the

regulation as proposed except that the

Agency will also provide a statement in

the note to § 122.44(k) to indicate that

additional BMP documents may also be

available from the States and to provide

a reference to the Office of Wastewater

Management’s Internet home page.

(13) Termination of NPDES Permits (40

CFR 122.64) and RCRA Permits

a. Summary of Proposed Rule. In the

proposal to today’s rule, EPA proposed

to revise § 122.64 to allow the Director

to terminate a NPDES permit by giving

notice to the permittee, 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 by redirecting

its discharge into a POTW. Currently,

the NPDES regulations require that part

124 public participation procedures be

followed for terminating permits.

These expedited permit termination

procedures would not be available when

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

proceeding and permittees should not

use expedited permit termination

procedures as a way to avoid

enforcement liability. EPA would 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. This

exclusion includes citizen suits brought

under State or Federal law.

EPA did not propose to eliminate the

requirement to follow part 124

termination procedures if the pollutants

were to be disposed in wells or by land

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30895

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 noted

that there were 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.

Additionally, EPA noted 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 § 403.12.

Finally, EPA noted 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). EPA also proposed

conforming changes to § 124.5

procedures to reflect these proposed

expedited permit termination

procedures.

To effectuate these changes and do

away with administrative hearings, EPA

proposed to eliminate Subpart E of 40

CFR Part 124, as described above. The

Subpart E procedures also applied to

certain RCRA permit terminations, but

EPA found it was appropriate to

eliminate Subpart E as to RCRA permit

terminations as well, for the reasons

described in the proposal.

b. Response to Comments. Some

commenters were concerned about loss

of standing to sue where a violator’s

permit is terminated before the 60 day

notice of intent to sue period has ended.

Because they may commence an action

only after the 60 day notice period has

ended, they requested that this

procedure be prohibited at the point

where a permittee, State or the

Administrator has received a notice of

intent to sue. However, EPA notes that

in most cases, citizens lose the authority

under CWA § 505 to file suit for past

violations when a permittee has

permanently terminated its discharge,

not at the point when the permit is

terminated. (See, Gwaltney of Smithfield

Ltd. v. Chesapeake Bay Foundation,

Inc., 484 U.S. 49 (1987)) Under

Gwaltney, citizens may not file suit

under the CWA solely to enforce against

alleged violations which occurred in the

past. They may, however, file suit to

enforce against violations which are

alleged to be continuous or intermittent.

In other words, if the violation is not ongoing, there must at least be the

potential for a violation to occur in the

future. At the point the permittee

permanently ceases to discharge or has

redirected its flow, there is no longer a

potential for a violation to occur and

suits filed after that time would be

barred under Gwaltney, but not suits

filed before the discharge terminates. In

addition, Gwaltney states that ‘‘the

purpose of notice to the alleged violator

is to give it an opportunity to bring itself

into complete compliance with the Act

and thus likewise render unnecessary a

citizen suit.’’ Id. Hence, if the permittee

receives notice and then terminates its

discharge, the permittee is now

essentially in complete compliance with

the Act.

Furthermore, under non-expedited

permit termination procedures, it is

possible that the notice and comment

period could be completed and the

permit thereafter terminated within the

60 day notice-of-intent-to-sue period. As

a result, citizens would be barred from

bringing a suit under Gwaltney under

the existing regulations. Thus, the

availability of expedited permit

terminations is likely to make little

difference with respect to the ability of

citizens to enforce against permit

violations under section 505. It is also

important to note that under the

expedited system, citizens could still

appeal EPA’s decision to terminate a

permit, which if the challenge were

successful, would result in the permit

remaining in place.

Considering the foregoing, it is also

necessary to discuss the cost involved in

the non-expedited termination

procedure. The transaction cost for the

government to undergo notice and

comment is high. This high cost seems

unjustified where a permittee has

terminated its discharge and, thereafter,

its permit thus eliminating any future

threat to the environment. Given that

there would be no direct discharge and

the given rarity of a situation that would

meaningfully affect citizens’ ability to

bring suit under section 505, EPA

believes it can use its resources better

elsewhere. EPA also notes that under

section 505 of the Act, an enforcement

action is not pending during a 60 day

notice-of intent-to-sue period. It is also

important to note that the revised rule

would still allow the Director to deny

expedited permit terminations in cases

where a notice of intent to bring a

citizen suit has been filed.

Some commenters questioned why

the expedited permit termination

procedures would not be available for

permittees subject to a pending

enforcement proceeding. EPA notes that

the public has a strong interest in

participating in permit termination

proceedings where there is a pending

enforcement action and, therefore,

expedited procedures should not be

used in those situations. This is

particularly true in situations where

third parties may want to intervene in

enforcement actions. Moreover, EPA

regulations require that the public be

allowed to participate in State or

Federal Enforcement actions (see, 40

CFR 123.27(d)), and expedited permit

termination procedures could hamper

such intervention.

There were two comments

questioning why this procedure would

not be available if pollutants will be

disposed of either in wells or by land

application of effluent. Both comments

raised the issue that public notice and

comment under Federal law is not

necessary in this situation because there

are State and Federal laws which

regulate land application of effluent and

discharges into wells which will

provide for public notice and comment

and there is no need for repetition. In

EPA’s view, however, these notice and

comment provisions may not be wholly

redundant because every existing

applicable State law and all other

Federal laws which would regulate

these actions may not have a public

notice and comment requirement. This,

together with the fact that it is extremely

important for the public to be notified

that pollutants will be disposed of either

in wells or by land application of

effluent, created a need to prohibit this

expedited permit termination procedure

in such situations. Preventing the use of

this procedure in such situations and

therefore, requiring public notice and

comment at this level, will best protect

the public’s interest in this area.

c. Final Rule. The final rule adopts the

same approach that EPA proposed,

although the language of 124.5(d) has

been modified from the proposal in

order to more accurately reflect this

approach as it affects RCRA permit

terminations.

The preamble to the proposal stated

that RCRA permit terminations are first

subject to an informal process (notice

and opportunity for comment and an

informal hearing), after which a party

may request an evidentiary hearing

under Subpart E and subsequently may

appeal a permit to the Environmental

Appeals Board. The proposal failed to

distinguish, however, between permit

terminations that EPA initiates for cause

under 40 CFR 270.43 and permit

termination proceedings that occur in

30896 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

conjunction with RCRA § 3008

enforcement orders. Only the latter

types of permit terminations were

subject to the formal hearing procedures

in Subpart E. EPA’s intent in the

proposal was to make only those types

of RCRA permit terminations subject to

Part 22 instead of Subpart E. EPA did

not intend to affect the procedures for

initiating a permit termination for cause

under 270.43. Those types of permit

terminations have always been subject

to the same process that applies to

issuing RCRA permits, i.e, notice and

opportunity for comment and an

informal hearing before a final decision.

An evidentiary hearing to review the

final decision is not available. Instead,

these types of RCRA permit

terminations, like permit issuances, are

appealed directly to the EAB.

Accordingly, EPA has revised the

final rule to reflect that, for RCRA

permits, the elimination of Subpart E in

favor of Part 22 procedures applies only

to permit termination proceedings that

occur in conjunction with section 3008

enforcement orders.

Similarly, EPA did not intend to

change, and the final rule does not

affect, the procedures for RCRA permit

terminations that are at the request of

the permittee. (For example, the

permittee may have ceased operations

and have no remaining closure or

corrective action concerns.) EPA

processes this type of RCRA permit

termination under 40 CFR 270.42 as a

‘‘Class 1’’ modification (allowing a

change in the expiration date to cause

early permit termination, with prior

approval of the Director—see Appendix

1 to § 270.42, item A.6).

B. Revisions to Part 123

1. Requirements for Permitting (40 CFR

123.25)

a. Summary of Proposed Rule. EPA

had proposed revisions to 40 CFR

123.25(a) to clarify that certain

provisions which detail penalty

amounts in 40 CFR 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 EPA’s

Office of General Counsel Opinion,

dated May 31, 1973.

b. Significant Comments and EPA

Response. EPA received no comments

regarding this section.

c. Final Rule. EPA is adopting this

section as proposed.

2. Transmission of Information to EPA

(40 CFR 123.44)

a. Summary of Proposed Rule. In an

effort to streamline Federal oversight of

State NPDES permit programs, EPA

proposed to revise 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. Section

123.44(i) made 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).

Specifically, EPA proposed to revise

§ 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).

b. Significant Comments and EPA

Response. In response to this revision,

a commenter replied that § 123.44

provides 90 days of comments on

general permits, which eliminates the

potential flexibility of negotiating such

time frames in State/EPA Region

Memoranda of Agreement (MOAs). EPA

believes that the comment is beyond the

scope of this rule since it does not

change, or hamper the flexibility of, the

review period of § 123.44(a)(2), which

can be up to 90 days.

c. Final Rule. EPA has decided to

promulgate the proposal without change

C. Revisions to Public Hearing

Requirements for NPDES Permit Actions

and RCRA Permit Terminations

1. Summary of Proposed Rule

EPA proposed to eliminate as

unnecessary the existing procedures for

conducting formal evidentiary hearing

on NPDES permit conditions contained

in 40 CFR part 124, subpart E, and

further proposed to eliminate the

alternative ‘‘Non-Adversary Panel

Procedures’’ in part 124, subpart F. EPA

has also proposed to eliminate appendix

A to part 124 (Guide to Decision making

under Part 124) because its role in

explaining subpart E and subpart F

procedures would no longer be

meaningful in the absence of those

subparts. EPA also proposed to modify

the procedures for terminating NPDES

and RCRA permits. These revisions do

not apply to authorized State NPDES

programs.

2. Comments and EPA Responses

EPA received comments on the

proposal to eliminate evidentiary

hearings from ten commenters. All of

these comments came from members of

industry and none of them supported

the proposal to eliminate evidentiary

hearings. One commenter supported the

elimination of the subpart F procedures.

No comments were received on the

elimination of appendix A.

(i). Legal Basis. In the proposal, EPA

explained its tentative conclusion that,

due to the progress of the law in the

Courts of Appeals, the Seacoast v. AntiPollution League v. Costle, 572 F.2d 872

(1st Cir. 1978)(‘‘Seacoast’’), and

Marathon Oil Co. v. EPA, 564 F.2d 1253

(9th Cir. 1977) (‘‘Marathon’’) decisions

are no longer good law. To briefly

restate its position, EPA has revisited

the hearing requirements of section

402(a), employing the two-step analysis

of Chevron, U.S.A. v. NRDC, 467 U.S.

837 (1984), which provides that, where

Congress has failed to express a clear

intent to the contrary, an agency

charged with administering the statute

may adopt an interpretation which is

reasonable in light of the goals and

purposes of the statute. In the first step

of its Chevron analysis, the Agency has

examined the text, legislative history,

and judicial interpretations of the Act,

finding no evidence that Congress

intended to require formal evidentiary

hearings or that the text precludes

informal adjudication of permit review

petitions. Using modern due process

analysis, the Agency, in the second step

of its Chevron analysis, carefully

weighed the risks and benefits of

informal hearing procedures for NPDES

permit review, determining that these

procedures would not violate the Due

Process Clause of the Constitution.

Accordingly, the Agency has concluded

that informal hearing procedures satisfy

the hearing requirement of section

402(a).

(ii) Chevron Step One. (a) Text and

Legislative History. As EPA noted in the

proposal, 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. 61 FR 65268, 65276

(Dec. 11, 1996). One commenter

asserted that EPA placed undue

emphasis in its due process analysis on

the fact that section 402 of the Clean

Water Act does not expressly require

that the public hearings for the review

of NPDES permits be ‘‘on the record’’.

EPA acknowledges that the absence of a

record requirement in section 402 does

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30897

not necessarily mean that Congress

intended to supply only informal

adjudication of NPDES permit review

petitions. Still, as explained in the

proposal, 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

and which have abandoned the

presumption that trial-type hearings are

required by the APA where a statute

calls for an adjudicatory hearing

without explicitly requiring formal

procedures. The Agency argues nothing

more than that the absence of the phrase

‘‘on the record’’ requires a more

involved analysis of due process

requirements.

Furthermore, while EPA agrees that

the absence of a record requirement

does not automatically permit the

Agency to conclude that Congress

intended informal hearing procedures

for NPDES permit review, had Congress

intended to foreclose Agency discretion

on the matter, it would likely have

included the ‘‘on the record’’ language

that unmistakably triggers section 554 of

the Administrative Procedure Act.

Though it is possible that failure to

include a record requirement in section

402 resulted from drafting oversight, it

is clear from Buttrey v. United States,

690 F.2d 1170 (5th Cir.

1982)(‘‘Buttrey’’), that, at least with

respect to section 404, the absence of a

record requirement was deliberate. In

Buttrey, the court, analyzing identical

hearing language in section 404 of the

Act, concluded that Congress had not

intended to preclude informal hearing

procedures for permit review

proceedings. In the Agency’s opinion, it

is not reasonable to believe that the

same words that permit informal

hearings in section 404 preclude

informal hearings when used in section

402. Instead, the Agency believes that

Congress wrote these provisions without

specifying the type of hearing required

in order to allow the Agency as much

discretion in defining the required

hearing procedures as the Due Process

Clause allows.

EPA also believes that section 509 of

the Act further demonstrates that

Congress intended to reserve for the

Agency the discretion to determine

what type of hearing to hold, and also

to ensure that the statute satisfied due

process. Subsection 509(b) provides for

judicial review of determinations that

are made under the sections of the Act

listed in subsection (b)(1). Subsection

(c) provides that the court may order

that additional evidence be taken before

the Administrator for judicial

proceedings brought under subsection

(b) ‘‘in which review is sought of a

determination under this chapter

required to be made on the record after

notice and opportunity for hearing

* * *.’’ Thus, taken together,

subsections 509(b) and (c) suggest that

some of the proceedings under 509(b)

must be ‘‘on the record’’, without

specifying which ones. Of those sections

of the Act listed in subsection (b), only

section 307 contains an express record

requirement. As noted by a few of the

commenters, however, the absence of an

express record requirement does not

end our analysis.

Congress apparently preferred, for

purposes of mandating judicial

procedures under section 509(c), that

EPA would determine in most cases

whether formal hearings would be

required. Section 509(c) also

demonstrates that, as if there was any

doubt, Congress knew how to draft a

provision that expressly referred to

formal adjudicatory procedure by using

the exact language of section 554 of the

APA. More importantly, however, this

drafting leaves the statute flexible

enough to accommodate the exercise of

Agency discretion and judicial review

thereof. The very structure of the

provision strongly suggests that

Congress intended the language of

sections 402, 404, and others to permit

the Agency as much discretion as

Constitutionally permissible in deciding

whether or not informal hearing

procedures would meet the

requirements of the Due Process Clause

for each of the listed sections in section

509(b).

Despite the absence of legislative

history to suggest that Congress

intended to require formal hearing

procedures, one commenter suggests

that Congress ratified Seacoast and

Marathon when it later amended section

402 without changing the language of

the hearing requirement in subsection

(a). The theory of ‘‘reenactment’’ upon

which the commenter relies has long

been a matter of controversy and

confusion in the courts. Indeed, the

Supreme Court has observed that the

reenactment rule ‘‘has been stated in

various and not entirely consistent

terms.’’ Helvering v.Griffiths, 318 U.S.

371, 396 (1943). Despite this

inconsistency, it is clear that mere

reenactment does not necessarily

constitute ratification ‘‘because the

committees or subcommittees of

Congress may or may not know of

outstanding interpretations when they

are considering reenactment; they do

not in fact approve what they know

nothing about.’’ K. Davis,

Administrative Law, § 7.14, at 67 (2d

ed.). Even where the Congress has

knowledge of an existing interpretation

at the time of reenactment, its silence on

the interpretation ‘‘is as likely an

indication of lack of interest or

preoccupation with more pressing

matters, or a belief that the matter

would be better left to the courts or

agencies for resolution.’’ John C.

Grabow, Congressional Silence and the

Search for Legislative Intent: A Venture

Into ‘‘Speculative Unrealities’’, 64

B.U.L. Rev. 737, 759.

EPA believes that, although Congress

might have been aware that EPA had

construed section 402(a) of the Clean

Water Act to require formal adjudication

of petitions for NPDES permit review,

the Agency has no direct evidence that

Congress was aware, and certainly no

evidence to suggest that Congress

recognized that Seacoast compelled this

construction. Moreover, even had

Congress been aware of Seacoast when

section 402 of the Act was subsequently

amended, its silence only reinforces our

contention that Congress intended to

leave the form of NPDES hearing

procedures to the discretion of the

Agency.

As already noted, the legislative

history of the Clean Water Act is devoid

of language that would explain whether

or not to employ formal hearing

procedures in the review of NPDES

permits. The failure of Congress to

expressly require formal hearing

procedures, combined with the

structure of section 509 of the Act,

suggests that Congress intended EPA to

exercise its judgment in deciding

whether or not to require formal

administrative hearings for NPDES

permit review.

(b) Judicial Interpretations. EPA

understands the decisions in Chemical

Waste Management v. EPA, 873 F.2d

1477 (D.C. Cir. 1989) (‘‘CWM’’), and

Buttrey, to have seriously questioned

the continuing validity of Seacoast,

Marathon, and United States Steel Corp.

v. Train, 556 F.2d 822 (7th Cir. 1977)

(‘‘United States Steel’’). Both CWM and

Buttrey, interpreting language similar or

identical to that in section 402(a), have

concluded that Congress had not

intended to require formal hearing

procedures. In addition, CWM expressly

rejected the presumption that trial-type

hearings are required by the APA where

a statute calls for an adjudicatory

hearing. Instead, the court employs

Chevron’s two-step analysis, concluding

that it must properly defer to the

Agency’s permissible interpretation of

the statute.

One commenter suggested that the

advent of Chevron does not undermine

the decisions of Seacoast, Marathon,

30898 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

and United States Steel because these

early decisions were based on an

interpretation of the Administrative

Procedure Act, not the Clean Water Act.

This argument is flawed in two respects.

First, the decisions in Seacoast,

Marathon, and United States Steel were

all based almost exclusively upon

interpretations of the Clean Water Act,

not the Administrative Procedure Act.

Second, to the extent that Seacoast

interpreted the Administrative

Procedure Act, its interpretation has

now been expressly rejected by CWM.

CWM, 873 F.2d at 1481.

In determining whether or not EPA

had to provide formal adjudicatory

procedures for review of NPDES

permits, the Seacoast court expressly

stated that ‘‘the resolution of this issue

turns on the substantive nature of the

hearing Congress intended to provide.’’

Seacoast, 572 F.2d at 876. See also

Marathon, 564 F.2d at 1264 (‘‘The focus

of our inquiry should be on the nature

of the administrative determination

before us.’’) In attempting to discern

Congressional intent, the Court looked

first to the text and legislative history of

the Federal Water Pollution Control Act,

not the Administrative Procedure Act.

Id., at 876, n.6. Finding no guiding text

or legislative history in the Federal

Water Pollution Control Act, the court

had no choice but to rely on a

presumption of formality that the court

inferred from legislative history of the

Administrative Procedure Act and its

treatment in the courts. It is precisely

this presumption of formality that CWM

expressly rejects. CWM, 873 F.2d at

1481. With the advent of Chevron and

CWM EPA believes that it has not only

an opportunity, but an obligation, to

update its regulations to reflect the

jurisprudence of modern courts and the

needs of the environment.

Still, a commenter has suggested that,

in distinguishing section 404 from 402,

the Buttrey court endorsed the

conclusion reached by the Seacoast,

Marathon, and United States Steel

courts. Buttrey predates both Chevron

and CWM, so there is some reason to

doubt that, if Buttrey were decided

today, the court would have found need

to distinguish it from the earlier cases.

Moreover, Buttrey does not endorse the

decision reached in these cases; instead,

Buttrey merely notes that there exists

legislative history regarding section 404

to overcome the, now-defunct,

presumption of formality that led the

Seacoast, Marathon, and United States

Steel courts to require formal hearings.

Buttrey, 690 F.2d at 1175. As a matter

of logic, now that the presumption of

formality has been dissolved, the mere

absence of legislative history similar to

that of section 404 does not require or

support a finding that section 402(a)

requires formal hearings.

The same commenter also suggested

that Consolidated Coal v. EPA, 537 F.2d

1236 (4th Cir. 1976), compels the same

result as reached in Seacoast. In

Consolidated Coal, the court concluded

that, before final agency action on an

NPDES permit, the Administrator must

provide the permittee with an

opportunity for a hearing. The

Administrator had denied petitioner’s

request for a hearing on the faulty

assumption that the petitioner was

entitled to a hearing before the State

agency that had issued the permit or a

State court. The court concluded that,

‘‘[s]ince a hearing at the state level is

presently foreclosed, due process

requires that the Administrator grant a

hearing in this case.’’ Id., at 1239.

In reaching this conclusion, the court

never squarely addressed the issue of

what type of hearing due process

requires for review of NPDES permits.

Although the court quotes language

from Appalachian Power Co. v. EPA,

477 F.2d 495, 501 (4th Cir. 1973), that

would require that a hearing be granted

where the issues cannot be resolved ‘‘on

the basis of pleadings and argument,’’ it

is not clear whether the court quotes

this language for the proposition that

the Administrator must hold a hearing

before taking final agency action on an

NPDES permit, or that hearings on

NPDES permits must allow the

submission of evidence, or both.

Consolidated Coal, 537 F.2d at 1239.

Even if one were to assume that the

court quotes this language for both

propositions, the proposed procedures

meet both requirements. Moreover, it is

doubtful that this case purports to

resolve the question of what type of

hearing due process requires for NPDES

permits while addressing the matter, if

at all, only in passing.

Furthermore, Consolidated Coal,

predates both Chevron and CWM, and,

more importantly, Mathews v. Eldridge,

424 U.S. 319 (1976) (‘‘Mathews’’), which

sets forth the rubric for modern due

process analysis. The case has been

cited only twice, only once favorably,

and on neither occasion for the

proposition for which the commenter

claims that the decisions stands. See

Shoreline Associates v. Marsh, 555

F.Supp. 169, 177 (D. Md. 1983), United

States Steel, 556 F.2d 822, 836 (7th Cir.

1977). Accordingly, EPA concludes that,

for whatever proposition Consolidated

Coal may stand, there is much more

recent and reliable due process

jurisprudence upon which to base the

Agency’s analysis.

(iii) Chevron Step Two.

Reasonableness of Interpretation. EPA

believes that providing for informal

hearings prior to issuance of NPDES

permits is a reasonable interpretation of

section 402(a) because 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. Mathews

establishes a three-element balancing

test by which the decision-maker must

consider: (1) The private interests at

stake, (2) the risk of erroneous decisionmaking, and (3) the nature of the

government interest, before deciding

what procedures are required by the

Due Process Clause.

(a) Private Interest. In an NPDES

permit proceeding, the private interests

at stake are generally those of a potential

discharger in obtaining a permit to

conduct its economic activities in a

lawful manner. One commenter

contended, however, that EPA’s due

process analysis fails to adequately

assess the private interests at stake

because EPA has refused to recognize a

private property interest in NPDES

permits. EPA disagrees. Although the

NPDES regulations expressly disavow

any property interest that might accrue

in an NPDES permit, the due process

analysis discussed herein proceeds as if

a sufficient economic interest exists to

warrant a due process analysis under

the Mathews rubric. See 40 CFR

122.5(b).

Three commenters asserted that EPA

has failed to adequately assess the

magnitude of the potential impact of

erroneous permit provisions. These

commenters argued that an erroneous

permit provision could have a

catastrophic effect on the affordability of

sewer service or financial well-being of

a municipality (for issuance of NPDES

permits to POTWs). None of these

commenters has offered any evidence to

suggest that, in the typical case,

erroneous permit provisions have had or

would have such catastrophic effects.

Moreover, even if the magnitude of error

were as great as these commenters

suggest, it would be the same under

both the existing and proposed hearing

procedures. As discussed below, EPA’s

analysis suggests that the risk of error is

actually less under the proposed hearing

procedures; accordingly, the overall risk

to the private interests at stake would be

less under the procedures proposed.

(b) Risk of Error. EPA believes that

transition to informal adjudicatory

procedures will not significantly affect

the risk of error in NPDES permit review

determinations. As explained in the

proposal, NPDES permit review

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30899

determinations, unlike penalty hearings,

are less apt to raise 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. 61 FR

65268, 65277 (Dec. 11, 1996).

Nonetheless, one commenter asserts that

the risk of an erroneous decision on a

petition for review of an NPDES permit

would be greatly increased in the

absence of a right to oral testimony and

cross-examination. EPA believes these

concerns to be unwarranted. Even under

the existing subpart E regulations,

parties have no right to oral presentation

of direct or rebuttal evidence except as

allowed by the Presiding Officer upon

motion and good cause shown. 40 CFR

124.85(c). Any incremental risk of error

associated with the use of informal

hearing procedures would, thus, be

attributable only to the absence of a

right to oral cross-examination.

EPA does not believe that the absence

of a right to oral cross-examination

under the proposed hearing procedures

will significantly increase the risk of an

erroneous decision on a petition for

review. The issues that typically arise in

the review of a draft NPDES permit do

not call for the type of credibility

determinations for which crossexamination is justified. Instead, the

typical issues that arise are: (1) Has EPA

set effluent limits appropriately (e.g.,

will a discharge cause, have the

reasonable potential to cause, or

contribute to an excursion above

applicable water quality criteria such

that EPA may set a water quality-based

effluent limitation?), and (2) has EPA

correctly calculated the effluent

limitations that it has set? These

questions of fact hinge on technical

considerations for which crossexamination is not particularly useful.

Under the hearing procedures that EPA

proposes to adopt, should a party wish

to challenge the testimony of an

opposing expert witness, it may present

written evidence to contradict the

assumptions, data, and analysis of the

opposing expert. This sort of challenge

would more efficiently and reliably

reveal any error or bias in the expert’s

analysis or conclusion than would an

analysis of the expert’s courtroom

demeanor. Accordingly, EPA perceives

little or no increase in the risk of error

under the hearing procedures that EPA

is adopting.

EPA also received two comments

arguing that the hearing procedures EPA

proposed to adopt would substantially

increase the risk of error by affording

the parties inadequate opportunity to

develop the evidence necessary to

support a petition for review to be filed

with the Environmental Appeals Board.

Because EPA today employs the same

hearing procedures for NPDES permit

review as those currently used for RCRA

and UIC permits, the Agency believes

that the success of the existing RCRA/

UIC hearing procedures demonstrates

that these concerns lack foundation.

RCRA and UIC permits raise questions

of fact no less complicated than those

that arise in the review of NPDES

permits, yet the Agency has no

suggestion from its experience or from

the courts that the time allowed to

develop supporting evidence under

RCRA/UIC procedures is so short as to

violate the Due Process Clause or

adversely affect the accuracy of review.

(c) Public Interest. There is significant

public interest in an expedited process

for issuing NPDES permits. EPA’s

experience since 1979 has been that the

opportunity to request a formal

evidentiary hearing has led to

significant delays in permit issuance.

EPA’s statistics suggest that the

procedures proposed to resolve

administrative petitions are at least

twice as fast as the formal hearing

procedures now in place. The

procedures will, thus, allow needed

permit improvements to take effect

sooner, make public participation more

affordable, and reduce the burden on

government resources.

One commenter suggests, however,

that EPA incorrectly estimates the

public interest in adopting informal

hearing procedures as the reduction of

time during which unpermitted

discharges continue while a permit is

reviewed. EPA acknowledges that new

dischargers may not begin to discharge

until the process of review is complete.

40 CFR 124.16(a)(1). EPA also

acknowledges that the expired permit of

an existing discharger will be

administratively continued during the

process of review if the discharger

makes a timely application for renewal.

40 CFR 124.16(a)(2). The public interest

in expediting the process of permit

review, thus, lies, in part, in minimizing

the time during which inadequate

expired permits remain in effect. This

interest is especially significant because,

under current procedures, permit

renewal often takes in excess of five

years.

Other commenters suggest that EPA

overestimates the public interest in

adopting the proposed hearing

procedures by failing to account for the

delay that the backlog of NPDES permit

review petitions would cause at the

EAB. Again, the Agency disagrees. The

Agency has polled the Regions for an

approximate number of review petitions

pending before the Regional

Administrators. These cases, plus the

petitions for which an evidentiary

hearing has been granted but not yet

held, constitute the backlog of cases that

the EAB would assume under the

proposed hearing procedures. 61 FR

65268, 65281 (Dec. 11, 1996). Although

the number of cases backlogged is not

insignificant in terms of the EAB’s total

annual caseload, the comment fails to

consider that the total time it will take

to process an individual NPDES case

will no longer be encumbered by the

decisional process associated with the

evidentiary hearing procedures. Those

procedures included the right to appeal

a denial of an evidentiary hearing

request to the EAB, the possibility of a

reversal of the denial, a remand by the

EAB to hold an evidentiary hearing, and

at the conclusion of the hearing, an

opportunity to again file an appeal on

the merits with the EAB. Accordingly,

although the number of cases under the

new procedures that will make their

way to the EAB will initially result in

a backlog at the EAB, there is no basis

for concluding that delays in processing

cases will result compared to the old

procedures. In addition, we expect that,

once the EAB has cleared the backlog of

cases, the long-term benefits of the

informal adjudicatory procedures will

become more apparent.

One commenter suggested that the

success with which public citizen

groups have challenged NPDES permits

demonstrates that the existing hearing

procedures provide adequate

opportunity for public participation. Of

course, the fact that citizens groups

successfully challenge NPDES permits

on occasion does not somehow

diminish their interest in more

affordable participation. Instead, their

success highlights the importance of

public participation in the permit

review process. Indeed, the Senate

observed, in reporting the Water

Pollution Control Act Amendments of

1972, that the implementation of water

pollution control measures would

depend considerably ‘‘upon the

pressures and persistence which an

interested public can exert upon the

governmental process.’’ S. Rep. 414, 92d

Cong., 2d Sess. 12 (1972), reprinted in

A Legislative History of the Water

Pollution Control Act Amendments of

1972, Cong. Research Service, Comm.

Print No.1, 93d Cong., 1st Sess. (1973)

at 1430 (emphasis added). EPA believes

that a transition to informal

adjudicatory procedures for review of

NPDES permits will promote

sustainable public participation by,

amongst other things, minimizing the

activities for which legal counsel is

30900 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

required and expediting the permit

review process such that citizens groups

need commit fewer resources for shorter

duration.

Another commenter challenged the

assertion that the proposed hearing

procedures would reduce the need for

legal representation. EPA stands by its

conclusion. Even if it were true that

parties would avail themselves of

counsel under the proposed hearing

procedures with frequency equal to that

with which they avail themselves of

counsel under the existing procedures,

EPA believes that the shorter period of

review and the higher rate of settlement

expected under the proposed

procedures will minimize the quantity

of legal services required.

Three commenters contend that,

however they might otherwise reduce

the burden on citizens group

participation, the proposed hearing

procedures would more than offset

those reductions by compelling public

citizens groups to maintain a presence

in Washington, DC or bear the expense

of frequent travel. EPA disagrees. Unlike

the existing NPDES permit review

procedures, the proposed procedures do

not provide for oral presentation of

direct testimony, rebuttal, or crossexamination, and oral argument before

the Environmental Appeals Board

occurs very infrequently; thus, parties

need not maintain a Washington, DC

presence and would gain no advantage

by doing so.

The government also has an interest

in minimizing Agency resources

consumed in NPDES permit review.

Several commenters argued that, for

various reasons, EPA will not realize the

resource savings that EPA expects under

the proposed permit review procedures.

These commenters contend that the

number of petitions for administrative

review will increase while the rate of

settlement and the EAB’s rate of review

will decline. EPA believes these

concerns generally unfounded.

One of these commenters argued that

switching to informal hearing

procedures will result in an increased

number of requests for permit review

because the permit review process

would no longer prove sufficiently

onerous to discourage frivolous

objections to NPDES permits. Although

EPA anticipates that informal hearing

procedures will reduce the resource

burden upon all parties to the

administrative review, the commenter

has provided no factual basis to

conclude that less onerous process will

correlate to more ‘‘frivolous’’ petitions

for review. While one might speculate

that such a correlation exists, there is no

basis to believe that this dynamic would

have any discernible impact on the

number of review petitions at the levels

of resource commitment required under

either the existing NPDES permit review

procedures or those proposed. To the

extent that any such dynamic might be

observable, one would expect a

significantly higher rate of petitions

denied by the EAB under the RCRA/UIC

procedures than under the existing

procedures for NPDES review. No such

effect is observable, however. Moreover,

even if the Agency observes such an

effect under the proposed hearing

procedures, the Agency would properly

respond by initiating rulemaking to

sanction frivolous permit review

petitions, not by maintaining

unnecessarily burdensome hearing

procedures.

This same commenter argued that

EPA overestimates the need for informal

hearing procedures by failing to account

for a projected reduction in the rate of

petitions as the number of unpermitted

facilities declines. Even if it were true

that petitions for review of new permits

would decline appreciably in the

reasonably near future, EPA would

expect a countervailing increase in the

rate of petition for review of permit

renewals. EPA has no basis to believe

that the net effect of these hypothesized

trends will yield a significantly lower

overall rate of petition; accordingly,

EPA cannot at this time discount the

need for informal hearing procedures.

Other commenters asserted, by

contrast, that the number of petitions for

review requiring resolution by the

Agency will increase because the

number of settlements will decrease

under the proposed hearing procedures

which will overburden the

Environmental Appeals Board. Again,

were it true that the proposed hearing

procedures would somehow remove the

incentive for parties to reach settlement,

EPA would expect a much lower

settlement rate for cases currently

reviewed under the RCRA/UIC

procedures than for cases reviewed

under the existing NPDES procedures.

No such difference appears in EPA’s

post-petition statistics. While EPA does

not track pre-petition resolution of

permit disputes, EPA has no basis to

believe that fewer disputes are resolved

before petition for review of Regional

permit decisions are filed in the RCRA/

UIC program than in the NPDES

program.

Finally, one commenter warns that a

switch to informal hearing procedures

will result in more frequent requests for

public hearings on draft NPDES permits.

Even if it were true that EPA should

expect more frequent public hearing

requests, EPA believes that the net

conservation of resources under

informal hearing procedures would still

justify the transition. Public hearings on

NPDES permits are more in the nature

of a legislative hearing because they do

not require representation by counsel or

formal written submissions (unless

required by the Presiding Officer) and

the Presiding Officer may set reasonable

limits on the time allowed for oral

statements. 40 CFR 124.12. These

hearings must be requested in a timely

fashion, are required only where there is

a significant degree of public interest in

the draft permit, and occur within the

comment period. Id. All of these

limiting factors render the public

hearing process substantially less

burdensome to all parties involved than

the evidentiary hearings that they would

replace.

3. Final Rule

None of the comments received

suggest that retaining formal

adjudicatory proceedings is required

under section 402(a) or due process or

consistent with the public interest.

Therefore, EPA is today adopting the

proposed rule, eliminating evidentiary

hearing procedures, subpart F

procedures, and appendix A to part 124.

D. Removal and Reservation of Part 125,

Subpart K—Criteria and Standards for

Best Management Authorized Under

Section 304(e) of the Act

a. Summary of Proposed Rule. EPA

proposed to remove and reserve part

125, subpart K (40 CFR 125.100–

125.104) titled ‘‘Criteria and Standards

for Best Management Practices

Authorized Under Section 304(e) of the

Act’’ along with its reference at 40 CFR

123.25(a)(36). 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 in the

proposed rule (see 61 FR 65282–65283),

Subpart K was never 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.

b. Significant Comment and EPA

Response. Two commenters believed

the subpart K regulation should not be

removed, stating that the regulatory

framework provided by subpart K was

needed to guide the imposition of BMPs

and that § 122.44(k) was overly broad.

The commenter believed there should

be some basis in the regulations for

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30901

guiding permit writers and applicants as

to when BMPs are appropriate and how

they are to be implemented. EPA does

not believe that § 122.44(k) is overly

broad. BMPs and BMP plans are

intended to be flexible so that they can

be tailored to particular industries and

sites. EPA believes this flexibility is

better served by § 122.44(k) and

guidance documents which can be

tailored to specific industries or

activities.

A commenter stated that the proposal

represents a significant policy decision

that is not appropriate for inclusion in

a rulemaking designed simply to

streamline permit issuance, and that if

Subpart K is removed, there are

absolutely no limits on EPA’s discretion

in imposing the BMPs based on 40 CFR

122.44. EPA disagrees and notes that

removing subpart K is not a significant

policy decision because subpart K has

never been activated. Because subpart K

has no regulatory effect, its removal

does not affect EPA’s ability to impose

BMPs in permits. Finally, EPA notes

that the Clean Water Act and § 122.44(k)

place limits on EPA’s discretion to

include BMPs and other conditions in

NPDES permits.

c. Final Rule. Today’s final rule

adopts this revision as proposed.

E. Provisions Without Comments

Provisions in parts 22, 122, 124, and

125 in the proposed rule which were

not commented upon and not discussed

above are adopted for the reasons set

forth in the proposal.

F. Miscellaneous Corrections

a. Summary of Proposed Rule

EPA proposed 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 are

corrections and are not intended in

anyway to result in substantive changes

to its programs. In proposing these

corrections, EPA did not solicit, and has

not responded to, comments on the

existing regulatory provisions which

underlie those corrections. Furthermore,

by including these corrections in the

proposed and final rule, EPA is not

conceding that any or all such changes

required 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. In

today’s final rulemaking, EPA is

incorporating those corrections as

proposed.

b. Significant Comments and EPA

Response

EPA received a number of comments

recommending other typographical or

drafting errors, and misplaced or

obsolete references. EPA has made these

suggested changes and some of its own

where the EPA believes it made

additional unintended errors. These

changes are:

(1) A commenter has recommended

that 40 CFR 122.26(b)(7)(iii) should refer

to (b)(7)(i) or (b)(7)(ii). EPA agrees and

has made this change.

(2) A commenter has pointed out that

40 CFR 122.26(d)(2)(iii) make an

incorrect reference to (d)(a)(iii)(A)(3)

and should read (d)(2)(iii)(A)(3). EPA

agrees and has made this change.

(3) A commenter has pointed out that

40 CFR 123.44(d) makes an incorrect

reference to § 123.44(b) and should read

as § 123.44(c). EPA agrees and has made

this change.

(4) A commenter has pointed out that

40 CFR 124.10(d)(1)(vii) has a repeated

sentence that should be removed. EPA

agrees and has made this change.

(5) A commenter has pointed out the

proposed 40 CFR 122.21(a)(2)(i)(G)has a

misplaced ‘‘that’’ in the second line

which should be deleted. EPA agrees

and has made this change.

(6) A commenter has pointed out that

proposed 40 CFR 122.21(g)(7)(i) should

have reference to (g)(7)(iii) and (iv)

changed to (g)(7)(vi) and (vii). EPA

agrees and has made this change.

(7) A commenter has pointed out that

40 CFR 122.2’s definition of sludge only

facility should refer to section

122.2(b)(2) and (3) instead of section

122.1(b)(3) as it currently does. EPA

disagrees with this correction and has

not made this change.

(8) A commenter has pointed out that

40 CFR 122.21(g)(7)(v)(B) and (vi)(B) use

the term ‘‘is discharged’’, when ‘‘are

discharged is’’ more appropriate. EPA

agrees with the commenter for (vi)(B) in

the proposed rule but does not find this

applicable in (v)(B) of the proposed rule.

(9) In eliminating Subparts E and F,

EPA did not propose and does not

intend to create a right to seek

administrative review before the EAB

for NPDES general permits.

Accordingly, EPA has revised proposed

section 124.19(a) to include language

from the removed section 124.71(a) that

clarifies that there exists no right to seek

review of NPDES general permits before

the EAB. The addition of this NPDESspecific language should not be

interpreted to create or limit a right to

seek review of general permits under

any other program for which appeal to

the EAB is provided in section 124.19.

Conforming changes have also been

made to the proposed sections 124.19(b)

and 124.6(e). Finally, a reference to the

petition process in section 122.28(b)(3)

has been added to section 124.19(a) for

completeness and clarity.

III. Regulatory 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. Executive Order 13132

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

30902 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This final rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. Today’s rule is

basically deregulatory in nature and is

expected to reduce administrative and

resource burdens on affected State,

local, and tribal governments and the

private sector. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

Although section 6 of Executive Order

13132 does not apply to this rule, EPA

did consult with representatives of State

and local government in developing this

rule. The concerns of these entities have

been addressed in the final rule.

C. Executive Order 13045

Executive Order 13045, ‘‘Protection of

Children From Environmental Health

Risks and Safety Risks,’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

This rule is not an economically

significant rule as defined under

Executive Order 12866 and, therefore, is

not subject to Executive Order 13045.

D. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on these communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

This rule does not significantly or

uniquely affect the communities of

Indian tribal governments, nor does it

impose substantial direct compliance

costs on them. This rule will eliminate

redundant requirements, remove

superfluous language, provide

clarification, and remove or streamline

unnecessary procedures which do not

provide any environmental benefits, and

thus reduce the administrative burden

of the NPDES program on permit issuing

authorities, and the regulated

community. Accordingly, the

requirements of section 3 (b) of

Executive Order 13084 do not apply to

this rule.

E. 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 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 costeffective 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.

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 is basically

‘‘deregulatory’’ in nature and is

expected to reduce administrative and

resource burdens on affected State,

local, and tribal governments and the

private sector. It does not contain any

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

any one year. Thus, today’s rule is not

subject to the requirements of sections

202 and 205 of the UMRA.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more by State, local, and

tribal governments in the aggregate or by

the private sector in any one year. As

previously discussed, this rule reduces

the administrative burden of the NPDES

program on issuing authorities and the

regulated community. Thus, today’s rule

is not subject to the requirements of

sections 202 and 205 of the UMRA.

EPA has also determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. Thus, this rule is

not subject to the requirements of

section 203 of UMRA.

F. Regulatory Flexibility Act

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions. For

purposes of assessing the impacts of

today’s rule on small entities, small

entity is defined as: (1) A small business

that meets RFA default definitions

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30903

based on SBA size standards found in

13 CFR 121.201; (2) a small

governmental jurisdiction that is a

government of a city, county, town,

school district or special district with a

population of less than 50,000; and (3)

a small organization that is any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of today’s final rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

In determining whether a rule has a

significant economic impact on a

substantial number of small entities, the

impact of concern is any significant

adverse economic impact on small

entities, since the primary purpose of

the regulatory flexibility analyses is to

identify and address regulatory

alternatives ‘‘which minimize any

significant economic impact of the

proposed rule on small entities.’’ 5

U.S.C. Sections 603 and 604. Thus, an

agency may certify that a rule will not

have a significant economic impact on

a substantial number of small entities if

the rule relieves regulatory burden, or

otherwise has a positive economic effect

on all of the small entities subject to the

rule. Today’s final adds no increased

burden to permittees.

Most of the changes in today’s rule 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 instances, the rule will

make it easier for facilities to obtain

coverage under general permits, rather

than go through the more complicated

and expensive individual permit

procedure. It will also reduce

monitoring and record keeping for

permitees subject to effluent limitation

guidelines, and streamline permit

application requirements for storm

water dischargers and new source/ new

dischargers. Today’s rule will also

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

changes are expected to increase, and

most of the changes will actually

decrease, the costs of compliance for

NPDES discharges, including small

entities (if any). We have therefore

concluded that today’s final rule will

relieve regulatory burden for all entities.

G. Paperwork Reduction Act

This rule will streamline the

regulatory process and will not impose

any additional information collection,

reporting, or record keeping

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. There were no

comments on the proposal to this rule

regarding information collection

requests or other aspects of the

Paperwork Reduction Act. This rule

streamlines existing information

collection requirements previously

approved by OMB under ICR #2040–

0004, by reducing the burden hours

associated with that ICR by 9000 hours.

An Information Correction Worksheet

will be submitted to OMB to reduce the

burden hours associated with ICR 2040–

0004.

H. National Technology Transfer and

Advancement Act—Voluntary

Standards

Section 12(d) of the National

Technology Transfer and Advancement

Act (‘‘NTTAA’’), Public Law No. 104–

113, section 12(d) (15 U.S.C. 272 note),

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. The NTTAA directs EPA to

provide Congress, through OMB,

explanations when the agency decides

not to use available and applicable

voluntary consensus standards. This

rule does not involve any technical

standards. Therefore, EPA did not

consider the use of any voluntary

consensus standards.

I. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective June 14, 2000.

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,

Hazardous waste, Reporting and

recordkeeping requirements, Water

pollution control, Water supply.

30904 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

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: March 10, 2000.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, EPA amends 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 22.1 is amended by revising

paragraphs (a)(4) and (a)(6) to read as

follows:

§ 22.1 Scope of this part.

(a) * * *

(4) The issuance of a compliance

order or the issuance of a corrective

action order, the termination of a permit

pursuant to section 3008(a)(3), 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 part 24 of this chapter;

* * * * *

(6) The assessment of any Class II

penalty under sections 309(g) and

311(b)(6), or termination of any permit

issued pursuant to section 402(a) of the

Clean Water Act, as amended (33 U.S.C.

1319(g), 1321(b)(6), and 1342(a));

* * * * *

4. Section 22.3 is amended in

paragraph (a) by revising the definition

for ‘‘Permit action’’ in alphabetical order

to read as follows:

§ 22.3 Definitions.

(a) * * *

Permit action means the revocation,

suspension or termination of all or part

of a permit issued under section 102 of

the Marine Protection, Research, and

Sanctuaries Act (33 U.S.C. 1412) or

termination under section 402(a) of the

Clean Water Act (33 U.S.C. 1342(a)) or

section 3005(d) of the Solid Waste

Disposal Act (42 U.S.C. 6925(d)).

* * * * *

5. Section 22.44 is added to read as

follows:

§ 22.44 Supplemental rules of practice

governing the termination of permits under

section 402(a) of the Clean Water Act or

under section 3008(a)(3) of the Resource

Conservation and Recovery Act.

(a) Scope of this subpart. The

supplemental rules of practice in this

subpart shall also apply in conjunction

with the Consolidated Rules of Practice

in this part and with the administrative

proceedings for the termination of

permits under section 402(a) of the

Clean Water Act or under section

3008(a)(3) of the Resource Conservation

and Recovery Act. Notwithstanding the

Consolidated Rules of Practice, these

supplemental rules shall govern with

respect to the termination of such

permits.

(b) In any proceeding to terminate a

permit for cause under § 122.64 or

§ 270.43 of this chapter during the term

of the permit:

(1) The complaint shall, in addition to

the requirements of § 22.14(b), contain

any additional information specified in

§ 124.8 of this chapter;

(2) The Director (as defined in § 124.2

of this chapter) shall provide public

notice of the complaint in accordance

with § 124.10 of this chapter, and allow

for public comment in accordance with

§ 124.11 of this chapter; and

(3) The Presiding Officer shall admit

into evidence the contents of the

Administrative Record described in

§ 124.9 of this chapter, 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 12777,

56 FR 54757.

2. Section 117.1(d) is revised to read

as follows:

§ 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 § 124.18 of this

chapter.

* * * * *

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:

§ 122.1 Purpose and scope.

(a) Coverage. (1) The regulatory

provisions contained in this part and

parts 123, and 124 of this chapter

implement the National Pollutant

Discharge Elimination System (NPDES)

Program under sections 318, 402, and

405 of the Clean Water Act (CWA)

(Public Law 92–500, as amended, 33

U.S.C. 1251 et seq.)

(2) These provisions cover basic EPA

permitting requirements (this 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 of this

chapter), and procedures for EPA

processing of permit applications and

appeals (part 124 of this chapter).

(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

part 25 of this chapter, and supersede

the requirements of that part as they

apply to actions covered under this part

and parts 123, and 124 of this chapter.

(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 parts 125, 129,

133, 136 of this chapter and 40 CFR

subchapter N (parts 400 through 471),

and part 503 of this chapter.

(5) Certain requirements set forth in

parts 122 and 124 of this chapter are

made applicable to approved State

programs by reference in part 123 of this

chapter. These references are set forth in

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30905

§ 123.25 of this chapter. If a section or

paragraph of part 122 or 124 of this

chapter is applicable to States, through

reference in § 123.25 of this chapter,

that fact is signaled by the following

words at the end of the section or

paragraph heading: (Applicable to State

programs, see § 123.25 of this chapter).

If these words are absent, the section (or

paragraph) applies only to EPA

administered permits. Nothing in this

part and parts 123, or 124 of this chapter

precludes more stringent State

regulation of any activity covered by the

regulations in 40 CFR parts 122, 123,

and 124, 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 § 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 § 122.2,

where the Regional Administrator 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 § 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 to § 122.1: Information concerning the

NPDES program and its regulations can be

obtained by contacting the Water Permits

Division(4203), Office of Wastewater

Management, U.S.E.P.A., Ariel Rios Building,

1200 Pennsylvania Avenue, NW.,

Washington, DC 20460 at (202) 260–9545 and

by visiting the homepage at http://

www.epa.gov/owm/]

3. Section 122.2 is amended by

adding new definitions in alphabetical

order, and by revising the definitions of

‘‘POTW,’’ ‘‘Publicly owned treatment

works’’ and ‘‘Sludge-only facility’’ to

read as follows:

§ 122.2 Definitions.

* * * * *

Animal feeding operation is defined

at § 122.23.

* * * * *

Aquaculture project is defined at

§ 122.25.

* * * * *

Bypass is defined at § 122.41(m).

* * * * *

Concentrated animal feeding

operation is defined at § 122.23.

Concentrated aquatic animal feeding

operation is defined at § 122.24.

* * * * *

Individual control strategy is defined

at 40 CFR 123.46(c).

* * * * *

Municipal separate storm sewer

system is defined at § 122.26 (b)(4) and

(b)(7).

* * * * *

POTW is defined at § 403.3 of this

chapter.

* * * * *

Publicly owned treatment works is

defined at 40 CFR 403.3.

* * * * *

Silvicultural point source is defined at

§ 122.27.

* * * * *

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

§ 122.1(b)(2).

* * * * *

Storm water is defined at

§ 122.26(b)(13).

Storm water discharge associated with

industrial activity is defined at

§ 122.26(b)(14).

* * * * *

Upset is defined at § 122.41(n).

* * * * *

4. Section 122.4 is amended by

revising paragraph (i)(2) to read as

follows:

§ 122.4 Prohibitions (applicable to State

NPDES programs, see § 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 (i)(2) is to be included in the

fact sheet to the permit under

§ 124.56(b)(1) of this chapter.

5. Section 122.21 is amended by

revising paragraphs (g)(7), (g)(8), (l)(1),

(l)(2)(ii), (l)(3), (l)(4), and revising Notes

1, 2 introductory text, and 3

introductory text to read as follows:

§ 122.21 Application for a permit

(applicable to State programs, see § 123.25).

* * * * *

(g) * * *

(7) Effluent characteristics. (i)

Information on the discharge of

pollutants specified in this paragraph

(g)(7) (except information on storm

water discharges which is to be

provided as specified in § 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 part

136 of this chapter. 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) (vi) and (vii) 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

30906 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

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) Storm water discharges. 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 § 122.26(d) may collect flowweighted 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 flowweighted 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 § 122.26(c)(1).

For all storm water permit applicants

taking flow-weighted composites,

quantitative data must be reported for

all pollutants specified in § 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

part 136 of this chapter, and additional

time for submitting data on a case-bycase 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) Reporting requirements. 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 of this part)

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 pollutant

discharged which is not so limited in an

effluent limitations guideline, the

applicant must either report quantitative

data or briefly describe the reasons the

pollutant is expected to be discharged.

(B) Each applicant must indicate

whether it knows or has reason to

believe that any of the pollutants listed

in table II or table III of appendix D of

this part (the toxic pollutants and total

phenols) for which quantitative data are

not otherwise required under paragraph

(g)(7)(v) of this section are discharged

from each outfall. For every pollutant

expected to be discharged in

concentrations of 10 ppb or greater the

applicant must report quantitative data.

For acrolein, acrylonitrile, 2,4

dinitrophenol, and 2-methyl-4, 6

dinitrophenol, where any of these four

pollutants are expected to be discharged

in concentrations of 100 ppb or greater

the applicant must report quantitative

data. For every pollutant expected to be

discharged in concentrations less than

10 ppb, or in the case of acrolein,

acrylonitrile, 2,4 dinitrophenol, and 2-

methyl-4, 6 dinitrophenol, in

concentrations less than 100 ppb, the

applicant must either submit

quantitative data or briefly describe the

reasons the pollutant is expected to be

discharged. An applicant qualifying as a

small business under paragraph (g)(8) of

this section is not required to analyze

for pollutants listed in table II of

appendix D of this part (the organic

toxic pollutants).

(vii) Each applicant must indicate

whether it knows or has reason to

believe that any of the pollutants in

table V of appendix D of this part

(certain hazardous substances and

asbestos) are discharged from each

outfall. For every pollutant expected to

be discharged, the applicant must

briefly describe the reasons the

pollutant is expected to be discharged,

and report any quantitative data it has

for any pollutant.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30907

(viii) Each applicant must report

qualitative data, generated using a

screening procedure not calibrated with

analytical standards, for 2,3,7,8-

tetrachlorodibenzo-p-dioxin (TCDD) if

it:

(A) Uses or manufactures 2,4,5-

trichlorophenoxy acetic acid (2,4,5,-T);

2-(2,4,5-trichlorophenoxy) propanoic

acid (Silvex, 2,4,5,-TP); 2-(2,4,5-

trichlorophenoxy) ethyl, 2,2-

dichloropropionate (Erbon); O,Odimethyl O-(2,4,5-trichlorophenyl)

phosphorothioate (Ronnel); 2,4,5-

trichlorophenol (TCP); or

hexachlorophene (HCP); or

(B) Knows or has reason to believe

that TCDD is or may be present in an

effluent.

(8) Small business exemption. An

application which qualifies as a small

business under one of the following

criteria is exempt from the requirements

in paragraph (g)(7)(v)(A) or (g)(7)(vi)(A)

of this section to submit quantitative

data for the pollutants listed in table II

of appendix D of this part (the organic

toxic pollutants):

(i) For coal mines, a probable total

annual production of less than 100,000

tons per year.

(ii) For all other applicants, gross total

annual sales averaging less than

$100,000 per year (in second quarter

1980 dollars).

* * * * *

(l) * * * (1) The owner or operator of

any facility which may be a new source

(as defined in § 122.2 ) and which is

located in a State without an approved

NPDES program must comply with the

provisions of this paragraph (l)(1).

(2) * * *

(ii) The Regional Administrator shall

make an initial determination whether

the facility is a new source within 30

days of receiving all necessary

information under paragraph (l)(2)(i) of

this section.

(3) The Regional Administrator shall

issue a public notice in accordance with

§ 124.10 of this chapter of the new

source determination under paragraph

(l)(2) of this section. If the Regional

Administrator has determined that the

facility is a new source, the notice shall

state that the applicant must comply

with the environmental review

requirements of 40 CFR 6.600 through

6.607.

(4) Any interested party may

challenge the Regional Administrator’s

initial new source determination by

requesting review of the determination

under § 124.19 of this chapter within 30

days of the public notice of the initial

determination. If all interested parties

agree, the Environmental Appeals Board

may defer review until after a final

permit decision is made, and

consolidate review of the determination

with any review of the permit decision.

* * * * *

[Note 1: At 46 FR 2046, Jan. 8, 1981, the

Environmental Protection Agency suspended

until further notice § 122.21(g)(7)(v)(A) and

the corresponding portions of Item V–C of

the NPDES application Form 2C as they

apply to coal mines. This suspension

continues in effect.]

[Note 2: At 46 FR 22585, Apr. 20, 1981, the

Environmental Protection Agency suspended

until further notice § 122.21(g)(7)(v)(A) and

the corresponding portions of Item V–C of

the NPDES application Form 2C as they

apply to:

* * * * *

[Note 3: At 46 FR 35090, July 1, 1981, the

Environmental Protection Agency suspended

until further notice § 122.21(g)(7)(v)(A) and

the corresponding portions of Item V–C of

the NPDES application Form 2C as they

apply to:

* * * * *

6. Section 122.22 is amended by

revising paragraph (a)(1)(ii) (the note

remains unchanged) to read as follows:

§ 122.22 Signatories to permit applications

and reports (applicable to State programs,

see § 123.25).

(a) * * *

(1) * * *

(ii) The manager of one or more

manufacturing, production, or operating

facilities, provided, the manager is

authorized to make management

decisions which govern the operation of

the regulated facility including having

the explicit or implicit duty of making

major capital investment

recommendations, and initiating and

directing other comprehensive measures

to assure long term environmental

compliance with environmental laws

and regulations; the manager can ensure

that the necessary systems are

established or actions taken to gather

complete and accurate information for

permit application requirements; and

where authority to sign documents has

been assigned or delegated to the

manager in accordance with corporate

procedures.

* * * * *

§ 122.24 [Amended]

7. The paragraph heading for

§ 122.24(b), ‘‘Defintion’’ is revised to

read ‘‘Definition’’.

8. Section 122.26 is amended by

revising paragraphs (b)(7)(iii)

introductory text, (b)(20), (c)(1)

introductory text, (c)(1)(i)(E)(4),

(c)(1)(i)(F), (d)(1)(iii)(D)(1), (d)(2)(iii)

introductory text, and (d)(2)(iv)(C)(2),

and by removing and reserving

paragraph (c)(2), to read as follows:

§ 122.26 Storm water discharges

(applicable to State NPDES programs, see

§ 123.25).

* * * * *

(b) * * *

(7) * * *

(iii) Owned or operated by a

municipality other than those described

in paragraph (b)(7)(i) or (ii) of this

section and that are designated by the

Director as part of the large or medium

municipal separate storm sewer system

due to the interrelationship between the

discharges of the designated storm

sewer and the discharges from

municipal separate storm sewers

described under paragraph (b)(7)(i) or

(ii) of this section. In making this

determination the Director may consider

the following factors:

* * * * *

(20) Uncontrolled sanitary landfill

means a landfill or open dump, whether

in operation or closed, that does not

meet the requirements for runon or

runoff controls established pursuant to

subtitle D of the Solid Waste Disposal

Act.

* * * * *

(c) * * *

(1) Individual application.

Dischargers of storm water associated

with industrial activity and with small

construction activity are required to

apply for an individual permit or seek

coverage under a promulgated storm

water general permit. Facilities that are

required to obtain an individual permit,

or any discharge of storm water which

the Director is evaluating for

designation (see 124.52(c) of this

chapter) under paragraph (a)(1)(v) of

this section and is not a municipal

storm sewer, shall submit an NPDES

application in accordance with the

requirements of § 122.21 as modified

and supplemented by the provisions of

this paragraph.

(i) * * *

(E) * * *

(4) Any information on the discharge

required under § 122.21(g)(7) (vi) and

(vii);

* * * * *

(F) Operators of a discharge which is

composed entirely of storm water are

exempt from the requirements of

§ 122.21 (g)(2), (g)(3), (g)(4), (g)(5),

(g)(7)(iii), (g)(7)(iv), (g)(7)(v), and

(g)(7)(viii); and * * *

* * * * *

(d) * * *

(1) * * *

(iii) * * *

(D) * * *

(1) A grid system consisting of

perpendicular north-south and east-west

lines spaced 1⁄4 mile apart shall be

30908 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

overlaid on a map of the municipal

storm sewer system, creating a series of

cells;

* * * * *

(2) * * *

(iii) Characterization data. When

‘‘quantitative data’’ for a pollutant are

required under paragraph

(d)(2)(iii)(A)(3) of this section, the

applicant must collect a sample of

effluent in accordance with

§ 122.21(g)(7) and analyze it for the

pollutant in accordance with analytical

methods approved under part 136 of

this chapter. When no analytical

method is approved the applicant may

use any suitable method but must

provide a description of the method.

The applicant must provide information

characterizing the quality and quantity

of discharges covered in the permit

application, including:

* * * * *

(iv) * * *

(C) * * *

(2) Describe a monitoring program for

storm water discharges associated with

the industrial facilities identified in

paragraph (d)(2)(iv)(C) of this section, to

be implemented during the term of the

permit, including the submission of

quantitative data on the following

constituents: Any pollutants limited in

effluent guidelines subcategories, where

applicable; any pollutant listed in an

existing NPDES permit for a facility; oil

and grease, COD, pH, BOD5, TSS, total

phosphorus, total Kjeldahl nitrogen,

nitrate plus nitrite nitrogen, and any

information on discharges required

under § 122.21(g)(7) (vi) and (vii).

* * * * *

9. Section 122.28 is amended by

revising paragraphs (a)(1) introductory

text and (a)(2), adding paragraphs (a)(3)

and (a)(4), and revising paragraph (b)(1)

to read as follows:

§ 122.28 General permits (applicable to

State NPDES programs, see § 123.25).

(a) * * *

(1) Area. The general permit shall be

written to cover one or more categories

or subcategories of discharges or sludge

use or disposal practices or facilities

described in the permit under paragraph

(a)(2)(ii) of this section, except those

covered by individual permits, within a

geographic area. The area should

correspond to existing geographic or

political boundaries such as:

* * * * *

(2) Sources. The general permit may

be written to regulate one or more

categories or subcategories of discharges

or sludge use or disposal practices or

facilities, within the area described in

paragraph (a)(1) of this section, where

the sources within a covered

subcategory of discharges are either:

(i) Storm water point sources; or (ii)

One or more categories or subcategories

of point sources other than storm water

point sources, or one or more categories

or subcategories of ‘‘treatment works

treating domestic sewage’’, if the

sources or ‘‘treatment works treating

domestic sewage’’ within each category

or subcategory all:

(A) Involve the same or substantially

similar types of operations;

(B) Discharge the same types of wastes

or engage in the same types of sludge

use or disposal practices;

(C) Require the same effluent

limitations, operating conditions, or

standards for sewage sludge use or

disposal;

(D) Require the same or similar

monitoring; and (E) In the opinion of the

Director, are more appropriately

controlled under a general permit than

under individual permits.

(3) Water quality-based limits. Where

sources within a specific category or

subcategory of dischargers are subject to

water quality-based limits imposed

pursuant to § 122.44, the sources in that

specific category or subcategory shall be

subject to the same water quality-based

effluent limitations.

(4) Other requirements. (i) The general

permit must clearly identify the

applicable conditions for each category

or subcategory of dischargers or

treatment works treating domestic

sewage covered by the permit.

(ii) The general permit may exclude

specified sources or areas from

coverage.

(b) * * *(1) In general. General

permits may be issued, modified,

revoked and reissued, or terminated in

accordance with applicable

requirements of part 124 of this chapter

or corresponding State regulations.

Special procedures for issuance are

found at § 123.44 of this chapter for

States.

* * * * *

10. Section 122.29(c)(1)(i) is amended

by revising the reference ‘‘§ 122.21(k)’’

to read ‘‘§ 122.21(l)’’.

11. Section 122.41 is amended by

revising the second sentence in

paragraph (l)(6)(i) to read as follows:

§ 122.41 Conditions applicable to all

permits (applicable to State programs, see

§ 123.25).

* * * * *

(l) * * *

(6) * * * (i) * * * Any information

shall be provided orally within 24 hours

from the time the permittee becomes

aware of the circumstances. * * *

* * * * *

12. Section 122.43(b)(1) is amended

by removing from the second sentence

the words ‘‘(except as provided in

§ 124.86(c) for NPDES permits being

processed under subpart E or F of part

124 of this chapter)’’ and by revising the

word ‘‘additonal’’ in the third sentence

to read ‘‘additional’’.

13. Section 122.44 is amended by

revising paragraphs (a), (c), (e)(1), (k)

and (q) to read as follows:

§ 122.44 Establishing limitations,

standards, and other permit conditions

(applicable to State NPDES programs, see

§ 123.25).

* * * * *

(a)(1) Technology-based effluent

limitations and standards based on:

effluent limitations and standards

promulgated under section 301 of the

CWA, or new source performance

standards promulgated under section

306 of CWA, on case-by-case effluent

limitations determined under section

402(a)(1) of CWA, or a combination of

the three, in accordance with § 125.3 of

this chapter. For new sources or new

dischargers, these technology based

limitations and standards are subject to

the provisions of § 122.29(d) (protection

period).

(2) Monitoring waivers for certain

guideline-listed pollutants.

(i) The Director may authorize a

discharger subject to technology-based

effluent limitations guidelines and

standards in an NPDES permit to forego

sampling of a pollutant found at 40 CFR

Subchapter N of this chapter if the

discharger has demonstrated through

sampling and other technical factors

that the pollutant is not present in the

discharge or is present only at

background levels from intake water

and without any increase in the

pollutant due to activities of the

discharger.

(ii) This waiver is good only for the

term of the permit and is not available

during the term of the first permit

issued to a discharger.

(iii) Any request for this waiver must

be submitted when applying for a

reissued permit or modification of a

reissued permit. The request must

demonstrate through sampling or other

technical information, including

information generated during an earlier

permit term that the pollutant is not

present in the discharge or is present

only at background levels from intake

water and without any increase in the

pollutant due to activities of the

discharger.

(iv) Any grant of the monitoring

waiver must be included in the permit

as an express permit condition and the

reasons supporting the grant must be

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30909

documented in the permit’s fact sheet or

statement of basis.

(v) This provision does not supersede

certification processes and requirements

already established in existing effluent

limitations guidelines and standards.

* * * * *

(c) Reopener clause: For any permit

issued to a treatment works treating

domestic sewage (including ‘‘sludgeonly facilities’’), the Director shall

include a reopener clause to incorporate

any applicable standard for sewage

sludge use or disposal promulgated

under section 405(d) of the CWA. The

Director may promptly modify or revoke

and reissue any permit containing the

reopener clause required by this

paragraph if the standard for sewage

sludge use or disposal is more stringent

than any requirements for sludge use or

disposal in the permit, or controls a

pollutant or practice not limited in the

permit.

* * * * *

(e) * * *

(1) Limitations must control all toxic

pollutants which the Director

determines (based on information

reported in a permit application under

§ 122.21(g)(7) or in a notification under

§ 122.42(a)(1) or on other information)

are or may be discharged at a level

greater than the level which can be

achieved by the technology-based

treatment requirements appropriate to

the permittee under § 125.3(c) of this

chapter; or

* * * * *

(k) Best management practices (BMPs)

to control or abate the discharge of

pollutants when:

(1) Authorized under section 304(e) of

the CWA for the control of toxic

pollutants and hazardous substances

from ancillary industrial activities;

(2) Authorized under section 402(p) of

the CWA for the control of storm water

discharges;

(3) Numeric effluent limitations are

infeasible; or

(4) The practices are reasonably

necessary to achieve effluent limitations

and standards or to carry out the

purposes and intent of the CWA.

Note to paragraph (k)(4): Additional

technical information on BMPs and the

elements of BMPs is contained in the

following documents: Guidance Manual for

Developing Best Management Practices

(BMPs), October 1993, EPA No. 833/B–93–

004, NTIS No. PB 94–178324, ERIC No.

W498); Storm Water Management for

Construction Activities: Developing Pollution

Prevention Plans and Best Management

Practices, September 1992, EPA No. 832/R–

92–005, NTIS No. PB 92–235951, ERIC No.

N482); Storm Water Management for

Construction Activities, Developing Pollution

Prevention Plans and Best Management

Practices: Summary Guidance, EPA No. 833/

R–92–001, NTIS No. PB 93–223550; ERIC No.

W139; Storm Water Management for

Industrial Activities, Developing Pollution

Prevention Plans and Best Management

Practices, September 1992; EPA 832/R–92–

006, NTIS No. PB 92–235969, ERIC No.

N477; Storm Water Management for

Industrial Activities, Developing Pollution

Prevention Plans and Best Management

Practices: Summary Guidance, EPA 833/R–

92–002, NTIS No. PB 94–133782; ERIC No.

W492. Copies of those documents (or

directions on how to obtain them) can be

obtained by contacting either the Office of

Water Resource Center (using the EPA

document number as a reference) at (202)

260–7786; or the Educational Resources

Information Center (ERIC) (using the ERIC

number as a reference) at (800) 276–0462.

Updates of these documents or additional

BMP documents may also be available. A list

of EPA BMP guidance documents is available

on the OWM Home Page at http://

www.epa.gov/owm. In addition, States may

have BMP guidance documents.

These EPA guidance documents are

listed here only for informational

purposes; they are not binding and EPA

does not intend that these guidance

documents have any mandatory,

regulatory effect by virtue of their listing

in this note.

* * * * *

(q) Navigation. Any conditions that

the Secretary of the Army considers

necessary to ensure that navigation and

anchorage will not be substantially

impaired, in accordance with § 124.59

of this chapter.

* * * * *

14. Section 122.45 is amended by

revising paragraph (h)(1) to read as

follows:

§ 122.45 Calculating NPDES permit

conditions (applicable to State NPDES

programs, see § 123.25)

* * * * *

(h) Internal waste streams. (1) When

permit effluent limitations or standards

imposed at the point of discharge are

impractical or infeasible, effluent

limitations or standards for discharges

of pollutants may be imposed on

internal waste streams before mixing

with other waste streams or cooling

water streams. In those instances, the

monitoring required by § 122.48 shall

also be applied to the internal waste

streams.

* * * * *

§ 122.47 Schedules of Compliance

15. Section 122.47(b) introductory

text is amended by revising the word

‘‘requriements’’ to read ‘‘requirements’’.

16. Section 122.62 is amended by

revising paragraph (a)(8) to read as

follows:

§ 122.62 Modification or revocation and

reissuance of permits (applicable to State

programs, see § 123.25).

* * * * *

(a) * * *

(8)(i) Net limits. Upon request of a

permittee who qualifies for effluent

limitations on a net basis under

§ 122.45(g).

(ii) When a discharger is no longer

eligible for net limitations, as provided

in § 122.45(g)(1)(ii).

* * * * *

17. Section 122.64 is amended by

revising paragraph (b) to read as follows:

§ 122.64 Termination of permits

(applicable to State programs, see § 123.25).

* * * * *

(b) The Director shall follow the

applicable procedures in part 124 or

part 22 of this chapter, as appropriate

(or State procedures equivalent to part

124) in terminating any NPDES permit

under this section, except that if the

entire discharge is permanently

terminated by elimination of the flow or

by connection to a POTW (but not by

land application or disposal into a well),

the Director may terminate the permit

by notice to the permittee. Termination

by notice shall be effective 30 days after

notice is sent, unless the permittee

objects within that time. If the permittee

objects during that period, the Director

shall follow part 124 of this chapter or

applicable State procedures for

termination. 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. If requesting

expedited permit termination

procedures, a permittee must certify that

it is not subject to any pending State or

Federal enforcement actions including

citizen suits brought under State or

Federal law. State-authorized NPDES

programs are not required to use part 22

of this chapter procedures for NPDES

permit terminations.

PART 123—STATE PROGRAM

REQUIREMENTS

1. The authority citation for part 123

continues to read as follows:

Authority: Clean Water Act, 33 U.S.C. 1251

et seq.

2. Section 123.25 is amended by

revising paragraphs (a)(12), (a)(36) and

paragraph (b) to read as follows:

§ 123.25 Requirements for permitting.

(a) * * *

(12) Section 122.41 (a)(1) and (b)

through (n)—(Applicable permit

conditions) (Indian Tribes can satisfy

30910 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

enforcement authority requirements

under § 123.34);

* * * * *

(36) Subparts A, B, D, and H of part

125 of this chapter;

* * * * *

(b) State NPDES programs shall have

an approved continuing planning

process under 40 CFR 130.5 and shall

assure that the approved planning

process is at all times consistent with

the CWA.

* * * * *

3. Section 123.44 is amended by

revising paragraph (a)(2), introductory

text of paragraph (b)(2), the introductory

text of paragraph (d), and by removing

and reserving paragraph (i) to read as

follows:

§ 123.44 EPA review of and objections to

State permits.

(a) * * *

(2) In the case of general permits, EPA

shall have 90 days from the date of

receipt of the proposed general permit

to comment upon, object to or make

recommendations with respect to the

proposed general permit, and is not

bound by any shorter time limits set by

the Memorandum of Agreement for

general comments, objections or

recommendations.

(b) * * *

(2) Within 90 days following receipt

of a proposed permit to which he or she

has objected under paragraph (b)(1) of

this section, or in the case of general

permits within 90 days after receipt of

the proposed general permit, the

Regional Administrator shall set forth in

writing and transmit to the State

Director:

* * * * *

(d) Prior to notifying the State

Director of an objection based upon any

of the grounds set forth in paragraph (c)

of this section, the Regional

Administrator:

* * * * *

PART 124—PROCEDURES FOR

DECISION MAKING

1. The authority citation for part 124

is revised to read as follows:

Authority: Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq.; Safe

Drinking Water Act, 42 U.S.C. 300f et seq.;

Clean Water Act, 33 U.S.C. 1251 et seq.;

Clean Air Act, 42 U.S.C. 7401 et seq.

2. Section 124.1 is amended by

revising the first sentence of paragraph

(a) and revising paragraphs (b) and (c),

by removing the table entitled ‘‘Hearings

Available Under This Part’’ following

paragraph (c), and by revising the fourth

sentence of paragraph (d) to read as

follows:

§ 124.1 Purpose and scope.

(a) This part contains EPA procedures

for issuing, modifying, revoking and

reissuing, or terminating all RCRA, UIC,

PSD and NPDES ‘‘permits’’ (including

‘‘sludge-only’’ permits issued pursuant

to § 122.1(b)(2) of this chapter. * * *

(b) Part 124 is organized into four

subparts. Subpart A contains general

procedural requirements applicable to

all permit programs covered by these

provisions. Subparts B through D

supplement these general provisions

with requirements that apply to only

one or more of the programs. Subpart A

describes the steps EPA will follow in

receiving permit applications, preparing

draft permits, issuing public notices,

inviting public comment and holding

public hearings on draft permits.

Subpart A also covers assembling an

administrative record, responding to

comments, issuing a final permit

decision, and allowing for

administrative appeal of final permit

decisions. Subpart B contains specific

procedural requirements for RCRA

permits. Subpart C contains definitions

and specific procedural requirements

for PSD permits. Subpart D contains

specific procedural requirements for

NPDES permits.

(c) Part 124 offers an opportunity for

public hearings (see § 124.12).

(d) * * * This part also allows

consolidated permits to be subject to a

single public hearing under § 124.12.

***

* * * * *

§ 124.2 [Amended]

3. Section 124.2 is amended by:

a. Removing the following definitions

in paragraph (a): ‘‘Applicable standards

and limitations’’, ‘‘Consultation with the

Regional Administrator’’, ‘‘NPDES’’, and

‘‘Variance’’; and

b. Removing paragraph (c).

§ 124.3 [Amended]

4. Section 124.3 is amended by

adding the word ‘‘and’’ at the end of

paragraph (g)(3), by removing ‘‘; and’’

and inserting in its place a period in

paragraph (g)(4) and by removing

paragraph (g)(5).

§ 124.4 [Amended]

5. Section 124.4 is amended by

removing and reserving paragraph (d)

and by removing the phrase ‘‘or process

a PSD permit under subpart F as

provided in paragraph (d) of this

section’’ in paragraph (e).

6. Section 124.5 is amended by

revising paragraph (d) to read as

follows:

§ 124.5 Modification, revocation and

reissuance, or termination of permits.

* * * * *

(d) (Applicable to State programs, see

§§ 123.25 (NPDES) of this chapter,

145.11 (UIC) of this chapter, and 271.14

(RCRA) of this chapter). (1) If the

Director tentatively decides to

terminate: A permit under § 144.40

(UIC) of this chapter, a permit under

§§ 122.64(a) (NPDES) of this chapter or

270.43 (RCRA) of this chapter (for EPAissued NPDES permits, only at the

request of the permittee), or a permit

under § 122.64(b) (NPDES) of this

chapter where the permittee objects, he

or she shall issue a notice of intent to

terminate. A notice of intent to

terminate is a type of draft permit which

follows the same procedures as any

draft permit prepared under § 124.6 of

this chapter.

(2) For EPA-issued NPDES or RCRA

permits, if the Director tentatively

decides to terminate a permit under

§ 122.64(a) (NPDES) of this chapter,

other than at the request of the

permittee, or decides to conduct a

hearing under section 3008 of RCRA in

connection with the termination of a

RCRA permit, he or she shall prepare a

complaint under 40 CFR 22.13 and

22.44 of this chapter. Such termination

of NPDES and RCRA permits shall be

subject to the procedures of part 22 of

this chapter.

(3) In the case of EPA-issued permits,

a notice of intent to terminate or a

complaint shall not be issued if the

Regional Administrator and the

permittee agree to termination in the

course of transferring permit

responsibility to an approved State

under §§ 123.24(b)(1) (NPDES) of this

chapter, 145.25(b)(1) (UIC) of this

chapter, 271.8(b)(6) (RCRA) of this

chapter, or 501.14(b)(1) (sludge) of this

chapter. In addition, termination of an

NPDES permit for cause pursuant to

§ 122.64 of this chapter may be

accomplished by providing written

notice to the permittee, unless the

permittee objects.

* * * * *

7. Section 124.6 is amended by

revising the third sentence of paragraph

(e) to read as follows:

§ 124.6 Draft permits.

* * * * *

(e) * * * The Regional Administrator

shall give notice of opportunity for a

public hearing (§ 124.12), issue a final

decision (§ 124.15) and respond to

comments (§ 124.17). * * *

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30911

8. Section 124.10 is amended by

removing the words ’’, subpart E or

subpart F’’ in paragraphs (a)(1)(iii) and

(d)(2) introductory text, and by

removing the second sentence in

paragraph (d)(1)(vii).

§ 124.12 [Amended]

9. Section 124.12(e) is removed.

§ 124.14 [Amended]

10. Section 124.14(d) is removed and

reserved.

11. Section 124.15 is amended by

revising the third sentence of paragraph

(a) and by revising paragraph (b)(2) to

read as follows:

§ 124.15 Issuance and effective date of

permit.

(a) * * * This notice shall include

reference to the procedures for

appealing a decision on a RCRA, UIC,

PSD, or NPDES permit under § 124.19 of

this part. * * *

(b) * * *

(2) Review is requested on the permit

under § 124.19

* * * * *

12. Section 124.16 is amended by

revising paragraph (a) to read as follows:

§ 124.16 Stays of contested permit

conditions.

(a) Stays. (1) If a request for review of

a RCRA, UIC, or NPDES permit under

§ 124.19 of this part is filed, the effect

of the contested permit conditions shall

be stayed and shall not be subject to

judicial review pending final agency

action. Uncontested permit conditions

shall be stayed only until the date

specified in paragraph (a)(2)(i) of this

section. (No stay of a PSD permit is

available under this section.) If the

permit involves a new facility or new

injection well, new source, new

discharger or a recommencing

discharger, the applicant shall be

without a permit for the proposed new

facility, injection well, source or

discharger pending final agency action.

See also § 124.60.

(2)(i) Uncontested conditions which

are not severable from those contested

shall be stayed together with the

contested conditions. The Regional

Administrator shall identify the stayed

provisions of permits for existing

facilities, injection wells, and sources.

All other provisions of the permit for

the existing facility, injection well, or

source become fully effective and

enforceable 30 days after the date of the

notification required in paragraph

(a)(2)(ii) of this section.

(ii) The Regional Administrator shall,

as soon as possible after receiving

notification from the EAB of the filing

of a petition for review, notify the EAB,

the applicant, and all other interested

parties of the uncontested (and

severable) conditions of the final permit

that will become fully effective

enforceable obligations of the permit as

of the date specified in paragraph

(a)(2)(i) of this section . For NPDES

permits only, the notice shall comply

with the requirements of § 124.60(b).

* * * * *

13. Section 124.19 is amended by

revising the section heading, removing

the first sentence of paragraph (a)

introductory text and adding in its place

4 sentences, revising the first sentence

of paragraph (b), revising paragraph (d),

and revising the first sentence of

paragraph (f)(1) introductory text to read

as follows:

§ 124.19 Appeal of RCRA, UIC, NPDES,

and PSD Permits.

(a) Within 30 days after a RCRA, UIC,

NPDES, or PSD final permit decision (or

a decision under 270.29 of this chapter

to deny a permit for the active life of a

RCRA hazardous waste management

facility or unit) has been issued under

§ 124.15 of this part, any person who

filed comments on that draft permit or

participated in the public hearing may

petition the Environmental Appeals

Board to review any condition of the

permit decision. Persons affected by an

NPDES general permit may not file a

petition under this section or otherwise

challenge the conditions of the general

permit in further Agency proceedings.

They may, instead, either challenge the

general permit in court, or apply for an

individual NPDES permit under

§ 122.21 as authorized in § 122.28 and

then petition the Board for review as

provided by this section. As provided in

§ 122.28(b)(3), any interested person

may also petition the Director to require

an individual NPDES permit for any

discharger eligible for authorization to

discharge under an NPDES general

permit. * * *

* * * * *

(b) The Environmental Appeals Board

may also decide on its own initiative to

review any condition of any RCRA, UIC,

NPDES, or PSD permit decision issued

under this part for which review is

available under paragraph (a) of this

section. * * *

* * * * *

(d) The Regional Administrator, at

any time prior to the rendering of a

decision under paragraph (c) of this

section to grant or deny review of a

permit decision, may, upon notification

to the Board and any interested parties,

withdraw the permit and prepare a new

draft permit under § 124.6 addressing

the portions so withdrawn. The new

draft permit shall proceed through the

same process of public comment and

opportunity for a public hearing as

would apply to any other draft permit

subject to this part. Any portions of the

permit which are not withdrawn and

which are not stayed under § 124.16(a)

continue to apply.

* * * * *

(f)(1) For purposes of judicial review

under the appropriate Act, final agency

action occurs when a final RCRA, UIC,

NPDES, or PSD permit decision is

issued by EPA and agency review

procedures under this section are

exhausted. * * *

* * * * *

14. Section 124.21 is revised to read

as follows:

§ 124.21 Effective date of part 124.

(a) Part 124 of this chapter became

effective for all permits except for RCRA

permits on July 18, 1980. Part 124 of

this chapter became effective for RCRA

permits on November 19, 1980.

(b) EPA eliminated the previous

requirement for NPDES permits to

undergo an evidentiary hearing after

permit issuance, and modified the

procedures for termination of NPDES

and RCRA permits, on June 14, 2000.

(c)(1) For any NPDES permit decision

for which a request for evidentiary

hearing was granted on or prior to June

13, 2000, the hearing and any

subsequent proceedings (including any

appeal to the Environmental Appeals

Board) shall proceed pursuant to the

procedures of this part as in effect on

June 13, 2000.

(2) For any NPDES permit decision for

which a request for evidentiary hearing

was denied on or prior to June 13, 2000,

but for which the Board has not yet

completed proceedings under § 124.91,

the appeal, and any hearing or other

proceedings on remand if the Board so

orders, shall proceed pursuant to the

procedures of this part as in effect on

June 13, 2000.

(3) For any NPDES permit decision for

which a request for evidentiary hearing

was filed on or prior to June 13, 2000

but was neither granted nor denied prior

to that date, the Regional Administrator

shall, no later than July 14, 2000, notify

the requester that the request for

evidentiary hearing is being returned

without prejudice. Notwithstanding the

time limit in § 124.19(a), the requester

may file an appeal with the Board, in

accordance with the other requirements

of § 124.19(a), no later than August 13,

2000.

(4) A party to a proceeding otherwise

subject to paragraph (c) (1) or (2) of this

30912 Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations

section may, no later than June 14, 2000,

request that the evidentiary hearing

process be suspended. The Regional

Administrator shall inquire of all other

parties whether they desire the

evidentiary hearing to continue. If no

party desires the hearing to continue,

the Regional Administrator shall return

the request for evidentiary hearing in

the manner specified in paragraph (c)(3)

of this section.

(d) For any proceeding to terminate an

NPDES or RCRA permit commenced on

or prior to June 13, 2000, the Regional

Administrator shall follow the

procedures of § 124.5(d) as in effect on

June 13, 2000, and any formal hearing

shall follow the procedures of subpart E

of this part as in effect on the same date.

§ 124.52 [Amended]

15. Section 124.52 is amended by

removing the words ‘‘or § 124.118’’ in

paragraphs (b) and (c).

§ 124.55 [Amended]

16. Section 124.55 is amended by

revising the reference ‘‘§ 124.53(d) (1)

and (2)’’ in paragraph (a)(2) to read

‘‘§ 124.53(e)’’ and by revising the

reference ‘‘§ 124.53(d)’’ in paragraph (d)

to read ‘‘§ 124.53(e)’’.

17. Section 124.56 is amended by

revising (b)(1) to read as follows:

§ 124.56 Fact sheets (applicable to State

programs, see § 123.25 (NPDES).).

* * * * *

(b)(1) When the draft permit contains

any of the following conditions, an

explanation of the reasons that such

conditions are applicable:

(i) Limitations to control toxic

pollutants under § 122.44(e) of this

chapter;

(ii) Limitations on internal waste

streams under § 122.45(i) of this

chapter;

(iii) Limitations on indicator

pollutants under § 125.3(g) of this

chapter;

(iv) Limitations set on a case-by-case

basis under § 125.3 (c)(2) or (c)(3) of this

chapter, or pursuant to Section 405(d)(4)

of the CWA;

(v) Limitations to meet the criteria for

permit issuance under § 122.4(i) of this

chapter, or

(vi) Waivers from monitoring

requirements granted under § 122.44(a)

of this chapter.

* * * * *

§ 124.57 [Amended]

18. Section 124.57 is amended by

removing and reserving paragraph (b)

and by removing paragraph (c).

19. Section 124.60 is revised to read

as follows:

§ 124.60 Issuance and effective date and

stays of NPDES permits.

In addition to the requirements of

§§ 124.15, 124.16, and 124.19, the

following provisions apply to NPDES

permits:

(a) Notwithstanding the provisions of

§ 124.16(a)(1), if, for any offshore or

coastal mobile exploratory drilling rig or

coastal mobile developmental drilling

rig which has never received a final

effective permit to discharge at a ‘‘site,’’

but which is not a ‘‘new discharger’’ or

a ‘‘new source,’’ the Regional

Administrator finds that compliance

with certain permit conditions may be

necessary to avoid irreparable

environmental harm during the

administrative review, he or she may

specify in the statement of basis or fact

sheet that those conditions, even if

contested, shall remain enforceable

obligations of the discharger during

administrative review.

(b)(1) As provided in § 124.16(a), if an

appeal of an initial permit decision is

filed under § 124.19, the force and effect

of the contested conditions of the final

permit shall be stayed until final agency

action under § 124.19(f). The Regional

Administrator shall notify, in

accordance with § 124.16(a)(2)(ii), the

discharger and all interested parties of

the uncontested conditions of the final

permit that are enforceable obligations

of the discharger.

(2) When effluent limitations are

contested, but the underlying control

technology is not, the notice shall

identify the installation of the

technology in accordance with the

permit compliance schedules (if

uncontested) as an uncontested,

enforceable obligation of the permit.

(3) When a combination of

technologies is contested, but a portion

of the combination is not contested, that

portion shall be identified as

uncontested if compatible with the

combination of technologies proposed

by the requester.

(4) Uncontested conditions, if

inseverable from a contested condition,

shall be considered contested.

(5) Uncontested conditions shall

become enforceable 30 days after the

date of notice under paragraph (b)(1) of

this section.

(6) Uncontested conditions shall

include:

(i) Preliminary design and engineering

studies or other requirements necessary

to achieve the final permit conditions

which do not entail substantial

expenditures;

(ii) Permit conditions which will have

to be met regardless of the outcome of

the appeal under § 124.19;

(iii) When the discharger proposed a

less stringent level of treatment than

that contained in the final permit, any

permit conditions appropriate to meet

the levels proposed by the discharger, if

the measures required to attain that less

stringent level of treatment are

consistent with the measures required to

attain the limits proposed by any other

party; and

(iv) Construction activities, such as

segregation of waste streams or

installation of equipment, which would

partially meet the final permit

conditions and could also be used to

achieve the discharger’s proposed

alternative conditions.

(c) In addition to the requirements of

§ 124.16(c)(2), when an appeal is filed

under § 124.19 on an application for a

renewal of an existing permit and upon

written request from the applicant, the

Regional Administrator may delete

requirements from the existing permit

which unnecessarily duplicate

uncontested provisions of the new

permit.

20. Section 124.64 is amended by

revising paragraph (b), paragraph (c)

introductory text, and paragraph (d) to

read as follows:

§ 124.64 Appeals of variances.

* * * * *

(b) Variance decisions made by EPA

may be appealed under the provisions

of § 124.19.

(c) Stays for section 301(g) variances.

If an appeal is filed under § 124.19 of a

variance requested under CWA section

301(g), any otherwise applicable

standards and limitations under CWA

section 301 shall not be stayed unless:

* * * * *

(d) Stays for variances other than

section 301(g) variances are governed by

§§ 124.16 and 124.60.

§ 124.66 [Amended]

21. Section 124.66(a) is amended by

removing the words ‘‘Except as

provided in § 124.65,’’ from the first

sentence, and by revising the words

‘‘evidentiary or panel hearing under

subpart E or F.’’ in the fourth sentence

to read ‘‘appeal under § 124.19.’’

Subpart E to Part 124 [Removed]

22. Subpart E is removed.

Subpart F to Part 124 [Removed]

23. Subpart F is removed.

Appendix A to Part 124 [Removed]

24. Appendix A to Part 124 is

removed.

Federal Register / Vol. 65, No. 94 / Monday, May 15, 2000 / Rules and Regulations 30913

PART 125—CRITERIA AND

STANDARDS FOR THE NATIONAL

POLLUTANT DISCHARGE

ELIMINATION SYSTEM

1. The authority citation for part 125

is revised to read as follows:

Authority: The Clean Water Act, 33 U.S.C.

1251 et seq., unless otherwise noted.

2. Section 125.32(a) is revised to read

as follows:

§ 125.32 Method of application.

(a) A written request for a variance

under this subpart D shall be submitted

in duplicate to the Director in

accordance with §§ 122.21(m)(1) and

124.3 of this chapter.

* * * * *

§ 125.72 [Amended]

3. Section 125.72(c) is amended by

removing the words ‘‘and

§ 124.73(c)(1)’’.

Subpart K to Part 125 [Removed and

Reserved]

4. Subpart K is removed and reserved.

PART 144—UNDERGROUND

INJECTION CONTROL PROGRAM

1. The authority citation for part 144

continues to read as follows:

Authority: Safe Drinking Water Act, 42

U.S.C. 300f et seq.; Resource Conservation

and Recovery Act, 42 U.S.C. 6901 et seq.

§ 144.52 [Amended]

2. Section 144.52(b)(2) is amended by

removing from the second sentence the

parenthetical phrase ‘‘(except as

provided in § 124.86(c) for UIC permits

being processed under subpart E or F of

part 124)’’.

PART 270—EPA ADMINISTERED

PERMIT PROGRAMS: THE

HAZARDOUS WASTE PERMIT

PROGRAM

1. The authority citation for part 270

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6924,

6925, 6927, 6939, and 6974.

§ 270.32 [Amended]

2. Section 270.32(c) is amended by

removing from the second sentence the

parenthetical phrase ‘‘(except as

provided in § 124.86(c) for RCRA

permits being processed under subpart

E or F of part 124)’’.

§ 270.43 [Amended]

3. Section 270.43(b) is amended by

revising the words ‘‘part 124’’ to read

‘‘part 124 or part 22, as appropriate’’.

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

1. The authority citation for part 271

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912, and 6926.

§ 271.19 [Amended]

2. Section 271.19(e) introductory text

is amended by removing the words ‘‘in

accordance with the procedures of part

124, subpart E,’’.

[FR Doc. 00–10764 Filed 5–12–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 721

[OPPTS–50637A; FRL–6555–8]

RIN 2070–AB27

Revocation of Significant New Use

Rules for Certain Chemical Substances

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is revoking significant

new use rules (SNURs) for 2 substances

promulgated under section 5(a)(2) of the

Toxic Substances Control Act (TSCA)

based on new data. Based on the new

data the Agency no longer finds that

activities not described in the

corresponding TSCA section 5(e)

consent order or premanufacture notice

(PMN) for these chemical substances

may result in significant changes in

human or environmental exposure.

DATES: This rule is effective June 14,

2000.

FOR FURTHER INFORMATION CONTACT: For

general information contact: Barbara

Cunningham, Director, Office of

Program Management and Evaluation,

Office of Pollution Prevention and

Toxics (7401), Environmental Protection

Agency, Ariel Rios Bldg., 1200

Pennsylvania Ave., NW., Washington,

DC 20460; telephone number: (202)

554–1404; e-mail address: TSCAHotline@epa.gov.

For technical information contact:

James Alwood, Chemical Control

Division (7405), Office of Pollution

Prevention and Toxics, Environmental

Protection Agency, Ariel Rios Bldg.,

1200 Pennsylvania Ave., NW.,

Washington, DC 20460; telephone

number: (202) 260–1857; e-mail address:

alwood.jim@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

You may be potentially affected by

this action if you manufacture, import,

process, or use the chemical substances

contained in this rule. Potentially

affected categories and entities may

include, but are not limited to:

Categories NAICS

Examples of

Potentially Affected Entities

Chemical manufacturers325 Manufacturers,

importers,

processors,

and users of

chemicals

Petroleum and

coal product

industries

324 Manufacturers,

importers,

processors,

and users of

chemicals

This listing is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action. Other types of

entities not listed in the table in this

unit could also be affected. The North

American Industrial Classification

System (NAICS) codes have been

provided to assist you and others in

determining whether or not this action

applies to certain entities. To determine

whether you or your business is affected

by this action, you should carefully

examine the applicability provisions in

40 CFR 721.5. If you have any questions

regarding the applicability of this action

to a particular entity, consult the

technical person listed under ‘‘FOR

FURTHER INFORMATION CONTACT.’’

B. How Can I Get Additional

Information, Including Copies of this

Document and Other Related

Documents?

1. Electronically. You may obtain

copies of this document, and certain

other related documents that might be

available electronically, from the EPA

Internet Home Page at http://

www.epa.gov/. To access this

document, on the Home Page select

‘‘Laws and Regulations’’ and then look

up the entry for this document under

the ‘‘Federal Register-Environmental

Documents.’’ You can also go directly to

the Federal Register listings at http://

www.epa.gov/fedrgstr/.

2. In person. The Agency has

established an official record for this

action under docket control number

OPPTS–50637A. The official record

consists of the documents specifically

referenced in this action, any public

comments received during an applicable

comment period, and other information