[Federal Register Volume 65, Number 94 (Monday, May 15, 2000)]
[Rules and Regulations]
[Pages 30886-30913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10764]


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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.

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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.

[[Page 30887]]



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                        Category                                      Examples of regulated entities
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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

[[Page 30888]]

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 Sec. 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 Sec. 122.2 and Sec. 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 Sec. 403.3 for 
Sec. 122.2 to achieve better consistency.
    c. Final Rule. EPA is adopting the proposed rule and adopting the 
POTW definition found in Sec. 403.3 for Sec. 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 Sec. 122.4(i) where the permitting authority 
determines that it already has the required information. In many 
instances the information required to be submitted by the applicant 
(such as waste load allocations available or compliance schedules for 
existing discharges) may already be in the Director's files. Where the 
information is not available or current, the Director may not waive the 
requirement for the applicant to generate all supporting documentation. 
EPA notes that this information (as with any information which details 
how permit limits are derived) should be included in the fact sheet or 
statement of basis for the permit. See 40 CFR 124.7, 124.8, and 124.56. 
To underscore the importance of such information and to clarify an 
existing requirement, EPA has also included an express requirement in 
Secs. 122.4(i) and 122.56(b)(1) that information which demonstrates how 
the criteria for permit issuance in Sec. 122.4(i) are met is included 
in the fact sheet for the permit. EPA notes that this revision merely 
clarifies existing requirements found at Secs. 124.7, 124.8, and 124.56 
and does not result in an increased burden to the regulated community 
or permit issuing authorities.
    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 Sec. 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 
Secs. 122.1(d)(1) and 122.22(d) and move them to a new location, 
Sec. 122.21(a), because most of the requirements in these two 
paragraphs are duplicative. EPA also proposed to add language in 
proposed Sec. 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

[[Page 30889]]

discharges must submit information on effluent characteristics. On 
November 16, 1990 (55 FR 48062), EPA revised Sec. 122.21(g)(7) to add 
language which specifically addresses storm water application 
requirements. However, the addition of this language has made paragraph 
(g)(7) more difficult to read because there is a large amount of 
uninterrupted text and it is difficult to separate out requirements 
that are specific to storm water discharges. 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 Sec. 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 Sec. 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

[[Page 30890]]

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 Sec. 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 Sec. 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 multi-sector 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.
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    \1\ Before 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.)
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    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 technology-based 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.

[[Page 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 
Secs. 122.41 (j), (l)(4), and 122.44(i) and place them in Sec. 122.48. 
In addition, EPA proposed to add a cross reference to the new 
consolidated monitoring requirements at Sec. 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 Sec. 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 
Sec. 122.44(a)(1). One commenter stated that the phrase ``as 
appropriate'' in proposed Sec. 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 Sec. 122.44 already ensures 
that all of the requirements in Sec. 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 Sec. 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

[[Page 30892]]

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 
guideline-listed 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 
guideline-listed 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.

[[Page 30893]]

    (6) Enforcement Issues Associated with the Waiver. Some commenters 
expressed concerns that the proposed revision to Sec. 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 Sec. 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 Sec. 122.41(l).
    (7) Suspending the Waiver if Facility Operations Change. Some 
commenters requested that permittees be required to resume monitoring 
for all guideline-listed 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, Sec. 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 Sec. 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, Sec. 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 Sec. 122.62(a)(2) (new information) or 
Sec. 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 no-discharge 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.
---------------------------------------------------------------------------

    \2\ See 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).
---------------------------------------------------------------------------

    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

[[Page 30894]]

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 Sec. 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 Sec. 122.44(a). EPA proposed 
consolidating the Secs. 122.44(a) and 122.44(c)(2) requirements in a 
new paragraph at Sec. 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, 
Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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

[[Page 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 Sec. 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 Sec. 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 Sec. 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 on-going, 
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

[[Page 30896]]

conjunction with RCRA Sec. 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 Sec. 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 Sec. 123.44 (a)(2) and (b)(2) 
to remove those references to OWEP and its role in reviewing State-
issued general permits. EPA would also remove and reserve 40 CFR 
123.44(i).
    b. Significant Comments and EPA Response. In response to this 
revision, a commenter replied that Sec. 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 Sec. 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. Anti-Pollution 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

[[Page 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, Sec. 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,

[[Page 30898]]

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 decision-
making, 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

[[Page 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 cross-
examination 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 cross-examination 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

[[Page 30900]]

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 cross-examination, 
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 Sec. 122.44(k) was overly broad. The 
commenter believed there should be some basis in the regulations for

[[Page 30901]]

guiding permit writers and applicants as to when BMPs are appropriate 
and how they are to be implemented. EPA does not believe that 
Sec. 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 Sec. 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 Sec. 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 Sec. 123.44(b) and should read as 
Sec. 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 NPDES-
specific 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

[[Page 30902]]

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 cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    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

[[Page 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-for-profit 
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.

[[Page 30904]]

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:


Sec. 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:


Sec. 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:


Sec. 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 
Sec. 122.64 or Sec. 270.43 of this chapter during the term of the 
permit:
    (1) The complaint shall, in addition to the requirements of 
Sec. 22.14(b), contain any additional information specified in 
Sec. 124.8 of this chapter;
    (2) The Director (as defined in Sec. 124.2 of this chapter) shall 
provide public notice of the complaint in accordance with Sec. 124.10 
of this chapter, and allow for public comment in accordance with 
Sec. 124.11 of this chapter; and
    (3) The Presiding Officer shall admit into evidence the contents of 
the Administrative Record described in Sec. 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:


Sec. 117.1  Definitions.

* * * * *
    (d) Public record means the NPDES permit application or the NPDES 
permit itself and the materials comprising the administrative record 
for the permit decision specified in Sec. 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:


Sec. 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

[[Page 30905]]

Sec. 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 
Sec. 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 Sec. 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 
Sec. 122.2.
    (2) The permit program established under this part also applies to 
owners or operators of any treatment works treating domestic sewage, 
whether or not the treatment works is otherwise required to obtain an 
NPDES permit, unless all requirements implementing section 405(d) of 
the CWA applicable to the treatment works treating domestic sewage are 
included in a permit issued under the appropriate provisions of 
subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking 
Water Act, the Marine Protection, Research, and Sanctuaries Act of 
1972, or the Clean Air Act, or under State permit programs approved by 
the Administrator as adequate to assure compliance with section 405 of 
the CWA.
    (3) The Regional Administrator may designate any person subject to 
the standards for sewage sludge use and disposal as a ``treatment works 
treating domestic sewage'' as defined in Sec. 122.2, where 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 Sec. 122.21 within 180 days of being 
notified by the Regional Administrator that a permit is required. The 
Regional Administrator's decision to designate a person as a 
``treatment works treating domestic sewage'' under this paragraph shall 
be stated in the fact sheet or statement of basis for the permit.

[Note to Sec. 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:


Sec. 122.2  Definitions.

* * * * *
    Animal feeding operation is defined at Sec. 122.23.
* * * * *
    Aquaculture project is defined at Sec. 122.25.
* * * * *
    Bypass is defined at Sec. 122.41(m).
* * * * *
    Concentrated animal feeding operation is defined at Sec. 122.23.
    Concentrated aquatic animal feeding operation is defined at 
Sec. 122.24.
* * * * *
    Individual control strategy is defined at 40 CFR 123.46(c).
* * * * *
    Municipal separate storm sewer system is defined at Sec. 122.26 
(b)(4) and (b)(7).
* * * * *
    POTW is defined at Sec. 403.3 of this chapter.
* * * * *
    Publicly owned treatment works is defined at 40 CFR 403.3.
* * * * *
    Silvicultural point source is defined at Sec. 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 Sec. 122.1(b)(2).
* * * * *
    Storm water is defined at Sec. 122.26(b)(13).
    Storm water discharge associated with industrial activity is 
defined at Sec. 122.26(b)(14).
* * * * *
    Upset is defined at Sec. 122.41(n).
* * * * *

    4. Section 122.4 is amended by revising paragraph (i)(2) to read as 
follows:


Sec. 122.4  Prohibitions (applicable to State NPDES programs, see 
Sec. 123.25).

* * * * *
    (i) * * *
    (2) The existing dischargers into that segment are subject to 
compliance schedules designed to bring the segment into compliance with 
applicable water quality standards. The Director may waive the 
submission of information by the new source or new discharger required 
by paragraph (i) of this section if the Director determines that the 
Director already has adequate information to evaluate the request. An 
explanation of the development of limitations to meet the criteria of 
this paragraph (i)(2) is to be included in the fact sheet to the permit 
under Sec. 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:


Sec. 122.21  Application for a permit (applicable to State programs, 
see Sec. 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 
Sec. 122.26). When ``quantitative data'' for a pollutant are required, 
the applicant must collect a sample of effluent and analyze it for the 
pollutant in accordance with analytical methods approved under 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

[[Page 30906]]

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 Sec. 122.26(d) may collect flow-weighted 
composite samples using different protocols with respect to the time 
duration between the collection of sample aliquots, subject to the 
approval of the Director). However, a minimum of one grab sample may be 
taken for storm water discharges from holding ponds or other 
impoundments with a retention period greater than 24 hours. For a flow-
weighted composite sample, only one analysis of the composite of 
aliquots is required. For storm water discharge samples taken from 
discharges associated with industrial activities, quantitative data 
must be reported for the grab sample taken during the first thirty 
minutes (or as soon thereafter as practicable) of the discharge for all 
pollutants specified in Sec. 122.26(c)(1). For all storm water permit 
applicants taking flow-weighted composites, quantitative data must be 
reported for all pollutants specified in Sec. 122.26 except pH, 
temperature, cyanide, total phenols, residual chlorine, oil and grease, 
fecal coliform, and fecal streptococcus. The Director may allow or 
establish appropriate site-specific sampling procedures or 
requirements, including sampling locations, the season in which the 
sampling takes place, the minimum duration between the previous 
measurable storm event and the storm event sampled, the minimum or 
maximum level of precipitation required for an appropriate storm event, 
the form of precipitation sampled (snow melt or rain fall), protocols 
for collecting samples under part 136 of this chapter, and additional 
time for submitting data on a case-by-case basis. An applicant is 
expected to ``know or have reason to believe'' that a pollutant is 
present in an effluent based on an evaluation of the expected use, 
production, or storage of the pollutant, or on any previous analyses 
for the pollutant. (For example, any pesticide manufactured by a 
facility may be expected to be present in contaminated storm water 
runoff from the facility.)
    (iii) 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.

[[Page 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,O-dimethyl 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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:


Sec. 122.22  Signatories to permit applications and reports (applicable 
to State programs, see Sec. 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.
* * * * *


Sec. 122.24  [Amended]

    7. The paragraph heading for Sec. 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:


Sec. 122.26  Storm water discharges (applicable to State NPDES 
programs, see Sec. 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 Sec. 122.21 as modified and supplemented by the 
provisions of this paragraph.
    (i) * * *
    (E) * * *
    (4) Any information on the discharge required under 
Sec. 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 Sec. 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

[[Page 30908]]

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 Sec. 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 Sec. 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:


Sec. 122.28  General permits (applicable to State NPDES programs, see 
Sec. 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 Sec. 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 Sec. 123.44 
of this chapter for States.
* * * * *

    10. Section 122.29(c)(1)(i) is amended by revising the reference 
``Sec. 122.21(k)'' to read ``Sec. 122.21(l)''.

    11. Section 122.41 is amended by revising the second sentence in 
paragraph (l)(6)(i) to read as follows:


Sec. 122.41  Conditions applicable to all permits (applicable to State 
programs, see Sec. 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 Sec. 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:


Sec. 122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec. 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 Sec. 125.3 of this chapter. For new sources or new dischargers, 
these technology based limitations and standards are subject to the 
provisions of Sec. 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

[[Page 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 ``sludge-only 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 Sec. 122.21(g)(7) or in a notification under 
Sec. 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 
Sec. 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 Sec. 124.59 of this chapter.
* * * * *

    14. Section 122.45 is amended by revising paragraph (h)(1) to read 
as follows:


Sec. 122.45  Calculating NPDES permit conditions (applicable to State 
NPDES programs, see Sec. 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 Sec. 122.48 shall also be applied to the 
internal waste streams.
* * * * *


Sec. 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:


Sec. 122.62  Modification or revocation and reissuance of permits 
(applicable to State programs, see Sec. 123.25).

* * * * *
    (a) * * *
    (8)(i) Net limits. Upon request of a permittee who qualifies for 
effluent limitations on a net basis under Sec. 122.45(g).
    (ii) When a discharger is no longer eligible for net limitations, 
as provided in Sec. 122.45(g)(1)(ii).
* * * * *
    17. Section 122.64 is amended by revising paragraph (b) to read as 
follows:


Sec. 122.64  Termination of permits (applicable to State programs, see 
Sec. 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:


Sec. 123.25  Requirements for permitting.

    (a) * * *
    (12) Section 122.41 (a)(1) and (b) through (n)--(Applicable permit 
conditions) (Indian Tribes can satisfy

[[Page 30910]]

enforcement authority requirements under Sec. 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:


Sec. 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:


Sec. 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 
Sec. 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 
Sec. 124.12).
    (d) * * * This part also allows consolidated permits to be subject 
to a single public hearing under Sec. 124.12. * * *
* * * * *


Sec. 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).


Sec. 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).


Sec. 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:


Sec. 124.5  Modification, revocation and reissuance, or termination of 
permits.

* * * * *
    (d) (Applicable to State programs, see Secs. 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 Sec. 144.40 (UIC) of this chapter, a permit under 
Secs. 122.64(a) (NPDES) of this chapter or 270.43 (RCRA) of this 
chapter (for EPA-issued NPDES permits, only at the request of the 
permittee), or a permit under Sec. 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 
Sec. 124.6 of this chapter.
    (2) For EPA-issued NPDES or RCRA permits, if the Director 
tentatively decides to terminate a permit under Sec. 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 
Secs. 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 Sec. 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:


Sec. 124.6  Draft permits.

* * * * *
    (e) * * * The Regional Administrator shall give notice of 
opportunity for a public hearing (Sec. 124.12), issue a final decision 
(Sec. 124.15) and respond to comments (Sec. 124.17). * * *

[[Page 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).


Sec. 124.12  [Amended]

    9. Section 124.12(e) is removed.


Sec. 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:


Sec. 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 
Sec. 124.19 of this part. * * *
    (b) * * *
    (2) Review is requested on the permit under Sec. 124.19
* * * * *
    12. Section 124.16 is amended by revising paragraph (a) to read as 
follows:


Sec. 124.16  Stays of contested permit conditions.

    (a) Stays. (1) If a request for review of a RCRA, UIC, or NPDES 
permit under Sec. 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 Sec. 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 
Sec. 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:


Sec. 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 Sec. 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 Sec. 122.21 as 
authorized in Sec. 122.28 and then petition the Board for review as 
provided by this section. As provided in Sec. 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 Sec. 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 Sec. 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:


Sec. 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 Sec. 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 Sec. 124.19(a), the 
requester may file an appeal with the Board, in accordance with the 
other requirements of Sec. 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

[[Page 30912]]

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 Sec. 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.


Sec. 124.52  [Amended]

    15. Section 124.52 is amended by removing the words ``or 
Sec. 124.118'' in paragraphs (b) and (c).


Sec. 124.55  [Amended]

    16. Section 124.55 is amended by revising the reference 
``Sec. 124.53(d) (1) and (2)'' in paragraph (a)(2) to read 
``Sec. 124.53(e)'' and by revising the reference ``Sec. 124.53(d)'' in 
paragraph (d) to read ``Sec. 124.53(e)''.

    17. Section 124.56 is amended by revising (b)(1) to read as 
follows:


Sec. 124.56  Fact sheets (applicable to State programs, see Sec. 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 Sec. 122.44(e) of 
this chapter;
    (ii) Limitations on internal waste streams under Sec. 122.45(i) of 
this chapter;
    (iii) Limitations on indicator pollutants under Sec. 125.3(g) of 
this chapter;
    (iv) Limitations set on a case-by-case basis under Sec. 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 
Sec. 122.4(i) of this chapter, or
    (vi) Waivers from monitoring requirements granted under 
Sec. 122.44(a) of this chapter.
* * * * *


Sec. 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:


Sec. 124.60  Issuance and effective date and stays of NPDES permits.

    In addition to the requirements of Secs. 124.15, 124.16, and 
124.19, the following provisions apply to NPDES permits:
    (a) Notwithstanding the provisions of Sec. 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 Sec. 124.16(a), if an appeal of an initial 
permit decision is filed under Sec. 124.19, the force and effect of the 
contested conditions of the final permit shall be stayed until final 
agency action under Sec. 124.19(f). The Regional Administrator shall 
notify, in accordance with Sec. 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 Sec. 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 Sec. 124.16(c)(2), when an 
appeal is filed under Sec. 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:


Sec. 124.64  Appeals of variances.

* * * * *
    (b) Variance decisions made by EPA may be appealed under the 
provisions of Sec. 124.19.
    (c) Stays for section 301(g) variances. If an appeal is filed under 
Sec. 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 Secs. 124.16 and 124.60.


Sec. 124.66  [Amended]

    21. Section 124.66(a) is amended by removing the words ``Except as 
provided in Sec. 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 Sec. 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.

[[Page 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:


Sec. 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 
Secs. 122.21(m)(1) and 124.3 of this chapter.
* * * * *


Sec. 125.72  [Amended]

    3. Section 125.72(c) is amended by removing the words ``and 
Sec. 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.


Sec. 144.52  [Amended]

    2. Section 144.52(b)(2) is amended by removing from the second 
sentence the parenthetical phrase ``(except as provided in 
Sec. 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.


Sec. 270.32  [Amended]

    2. Section 270.32(c) is amended by removing from the second 
sentence the parenthetical phrase ``(except as provided in 
Sec. 124.86(c) for RCRA permits being processed under subpart E or F of 
part 124)''.


Sec. 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.


Sec. 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