[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Proposed Rules]
[Pages 59791-59796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25750]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 403

[FRL-6883-1]
RIN 2090-AA16


Pretreatment Program Reinvention Pilot Projects Under Project XL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Today EPA is proposing changes to the National Pretreatment 
Program regulations to allow Publicly Owned Treatment Works (POTWs) 
that have completed the Project eXcellence and Leadership (Project XL) 
selection process, including Final Project Agreement (FPA) development, 
to modify their approved local Pretreatment Programs. These POTWs would 
be allowed to modify their programs following the procedures in 40 CFR 
403.18, and implement the new local programs as described in their 
FPAs.
    In today's proposed rule, EPA recognizes that many POTWs with 
approved Pretreatment Programs have mastered the administrative and 
procedural requirements of the National Pretreatment regulations (40 
CFR Part 403). Several of these POTWs want the opportunity to implement 
local pretreatment programs with effectiveness measured against 
environmental results rather than strict adherence to programmatic and 
administrative measures. These POTWs have expressed an interest in 
Project XL to test new pilot ideas that focus resources on activities 
that they believe would provide greater environmental benefits than are 
achieved by complying with current regulatory requirements. This rule 
is intended to provide the regulatory flexibility that will enable 
these test programs to move forward. Currently, five POTWs are actively 
involved in this Project XL process.

DATES: Public Comments: All public comments on the proposed rule must 
be received on or before November 6, 2000. Comments provided 
electronically will be considered timely if they are submitted 
electronically by 11:59 p.m. (Eastern time) November 6, 2000.

ADDRESSES: Comments should be addressed to ``Project XL/CWA 
Pretreatment,'' Water Docket MC-4101; United States Environmental 
Protection Agency, Environmental Protection Agency, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Commenters are also requested to submit an original and 3 copies of 
their written comments as well as an original and 3 copies of any 
attachments, enclosures, or other documents referenced in the comments. 
Commenters who would like EPA to acknowledge receipt of their comments 
should include a self-addressed, stamped envelope. No facsimiles 
(faxes) will be accepted.
    EPA will also accept comments electronically. Comments should be 
addressed to the following Internet address: <a href="/cdn-cgi/l/email-protection#fd928ad099929e969889bd988d9c909c9491d3988d9cd39a928b"><span class="__cf_email__" data-cfemail="7b140c561f1418101e0f3b1e0b1a161a1217551e0b1a551c140d">[email protected]</span></a>. 
Electronic comments must be submitted as an ASCII, WordPerfect 5.1/6.1/
8 format file and avoid the use of special characters or any form of 
encryption. Electronic comments will be transferred into a paper 
version for the official record. EPA will attempt to clarify electronic 
comments if there is an apparent error in transmission.
    Supporting materials are also available for inspection and copying 
at U.S. EPA, Headquarters, 401 M Street, SW., Room 445 West Tower, 
Washington, DC 20460 during normal business hours. Persons wishing to 
view the materials at the Washington, DC location are encouraged to 
contact Mr. Chad Carbone in advance by telephoning (202) 260-4296.

FOR FURTHER INFORMATION CONTACT: Mr. Brian Frazer, (202) 260-0101, U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania

[[Page 59792]]

Avenue, NW., (MC 4203), Washington, DC 20460.
    The information presented in this preamble is organized as follows:

I. Authority
II. Background
    A. What is Project XL?
    A. What is EPA Proposing?
    C. Stakeholder Involvement in the XL Process
    D. What is the National Pretreatment Program?
    E. What are the Current Pretreatment Program Requirements?
    F. How Do the Current Requirements Relate to Environmental 
Objectives?
    G. Why is EPA Considering Allowing POTW Local Pilot Pretreatment 
Programs at this Time?
    H. Are There Any POTWs Currently Going Through Project XL 
Approval Process?
    I. What Are the Environmental Benefits anticipated through 
Project XL?
    J. What is the Project Duration and Completion Date?
    K. How Could the Project be Terminated?
III. Rule Description
IV. Request for Public Comments
V. Additional Information
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    H. National Technology Transfer and Advancement Act

I. Authority

    This regulation is being proposed under the authority of sections 
307, 402 and 501 of the CWA.

II. Background

A. What Is Project XL?

    Project XL, which stands for ``eXcellence and Leadership,'' is a 
national pilot program that tests innovative ways of achieving better 
and more cost-effective public health and environmental protection 
through site-specific agreements with project sponsors. Project XL was 
announced on March 16, 1995, as a central part of the National 
Performance Review and EPA's effort to reinvent environmental 
protection. See 60 FR 27282 (May 23, 1995) and 60 FR 55569 (November 1, 
1995). The intent of Project XL is to allow EPA and regulated entities 
to experiment with pragmatic, potentially promising regulatory 
approaches, both to assess whether they provide superior environmental 
performance and other benefits at the specific facility affected, and 
whether they should be considered for wider application. Such pilot 
projects are intended to allow EPA to collect more data on a more 
focused basis prior to national rulemaking. Today's proposed regulation 
would enable implementation of specific XL projects. These efforts are 
crucial to EPA's ability to test new strategies that reduce the 
regulatory burden and promote economic growth while achieving better 
environmental and public health protection. EPA intends to evaluate the 
results of this and other XL projects to determine which specific 
elements of the project(s), if any, should be more broadly applied to 
other regulated entities for the benefit of both the economy and the 
environment.

B. What Is EPA Proposing?

    In the June 23, 1998, Federal Register (63 FR 6113-6), EPA 
requested proposals for XL projects from POTWs based on environmental 
performance measures for the pretreatment program. The process for 
reviewing and choosing acceptable pilot program candidates included 
input from POTWs, State and EPA Regional Pretreatment Coordinators, as 
well as opportunity for public participation. As discussed in more 
detail below, five POTWs have advanced to the final steps of the 
Project XL process. In today's proposal, EPA announces proposed 
revisions to the national pretreatment regulations at 40 CFR part 403 
that would allow the selected Local Pilot Pretreatment Programs to be 
implemented. These POTWs will then need to submit revised pretreatment 
programs for approval and obtain modified permits to authorize the POTW 
to implement its pilot program instead of its current Approved POTW 
Pretreatment Program. In addition, the affected states may first need 
to revise their own regulations or statutes to authorize the pilot 
programs for pretreatment XL project sponsors before this rule can be 
implemented in their jurisdictions.

C. Stakeholder Involvement in the XL Process

    EPA believes stakeholder involvement in developing Local Pilot 
Pretreatment Programs is crucial to the success of the programs, 
therefore, as part of the Project XL proposal, a POTW must clearly 
explain its process for involving stakeholders in the design of the 
pilot program. This process should be based upon the guidance set out 
in the April 23, 1997, Federal Register notice. The support of parties 
that have a stake in the program is very important. Once EPA has 
accepted a candidate based on its detailed proposal, the POTW, EPA, the 
State and local stakeholders typically finalize a Final Project 
Agreement (FPA). The FPA is a non-binding agreement that describes the 
intentions and commitments of the implementing parties. Stakeholders 
may include communities near the project, local or state governments, 
businesses, environmental and other public interest groups, or other 
similar entities. Stakeholders will also have formal opportunities to 
comment on provisions of the FPA that are incorporated in the POTW's 
revised pretreatment program under the procedures established at 40 CFR 
403.18 and this proposal.

D. What Is the National Pretreatment Program?

    The National Pretreatment Program is part of the Clean Water Act's 
(CWA's) water pollution control program. The program is a joint 
regulatory effort by local, State, and federal authorities that 
requires the control of industrial and commercial sources of pollutants 
discharged to municipal wastewater plants (called ``publicly owned 
treatment works'' or ``POTWs''). Control of pollutants prior to 
discharge of wastewater to the municipal sewer system minimizes the 
possibility of pollutants interfering with the operation of the POTW 
and reduces the levels of toxic pollutants in wastewater discharges 
from the POTW and in the sludge resulting from municipal wastewater 
treatment.

E. What Are the Current Pretreatment Program Requirements?

    The minimum requirements for an Approved POTW Pretreatment Program 
currently are published at 40 CFR 403.8(f). POTWs with Approved 
Pretreatment Programs must maintain adequate legal authority, identify 
industrial users, designate which industrial users (IUs) are 
``Significant Industrial Users'' (SIUs) (under 40 CFR 403.3(t)) and 
perform required monitoring, permitting and enforcement. Other sections 
of part 403 require POTWs with Approved Pretreatment Programs to sample 
and apply nationally applicable pretreatment standards to the 
industrial users discharging pollutants to the POTW collection system. 
POTWs are also required to develop local limits in accordance with 40 
CFR 403.5. As proposed today, EPA would allow Approval Authorities to 
require a POTW to meet requirements in an environmental performance-
based pilot program instead of certain administrative programmatic 
requirements currently required in a POTW's Approved Pretreatment 
Program under 40 CFR part 403.

[[Page 59793]]

F. How Do the Current Requirements Relate to Environmental Objectives?

    As described in 40 CFR 403.2, the general pretreatment regulations 
promote three objectives:
    (a) To prevent the introduction of pollutants into POTWs which will 
interfere with the operation of POTWs, including interference with the 
use or disposal of municipal sludge;
    (b) To prevent the introduction of pollutants into POTWs which will 
pass through the treatment works or otherwise be incompatible with such 
works; and
    (c) To improve opportunities to recycle and reclaim municipal and 
industrial wastewaters and sludges.
    These objectives require local programs to be designed so they are 
preventative in nature, and therefore, any pilot program also would 
need to maintain this preventative approach. The specific requirements 
for an Approved POTW Pretreatment Program are intended to achieve these 
objectives. Individual pretreatment programs, however, are not 
routinely required to report on the achievement of environmental 
measures.
    The 1991 National Pretreatment Program Report to Congress provides 
extensive data related to the sources and amounts of pollutants 
discharged to POTWs, the removal of pollutants by secondary treatment 
technology, and the general effectiveness of the pretreatment program. 
The 1991 Report did, however, point to a serious lack of comprehensive 
environmental data with which to fully assess the effectiveness of both 
the national and local pretreatment programs. These project XL pilots 
would help to provide data for this purpose.

G. Why Is EPA Considering Allowing POTW Local Pilot Pretreatment 
Programs at this Time?

    Some POTWs have mastered the administrative aspects of the 
pretreatment program (identifying industrial users, permitting, 
monitoring, etc.) and want to move into more environmental performance-
based processes. These POTWs have expressed an interest in focusing 
their resources on activities that they believe would provide greater 
environmental benefit than is achieved by complying with the current 
requirements. Some POTWs want to be able to make decisions on 
allocating resources based on the risk associated with the industrial 
contributions they receive or other factors. Others want to be able to 
focus more resources on ambient monitoring in their receiving waters 
and/or to integrate their pretreatment programs with their storm water 
monitoring programs. In general, these POTWs want the opportunity to 
redirect limited resources away from currently required activities that 
they do not believe are benefitting the environment and toward 
activities that may achieve measurable improvements in the environment.
    EPA developed the Project XL program to provide regulated entities 
the flexibility to conduct innovative pilot projects. Today's proposed 
rule represents an attempt to spur innovation in the pretreatment 
program to increase environmental benefits and, in conjunction with the 
streamlining proposal, (see 64 FR 39564) to determine if further 
streamlining of the program is needed, how streamlining can achieve 
environmental improvements and in what direction those future 
streamlining efforts should be directed.

H. Are There Any POTWs Currently Going Through Project XL Approval 
Process?

    In order to implement the pretreatment XL projects, EPA is 
proposing a rule that would provide regulatory flexibility under the 
Clean Water Act. Currently, five (5) POTWs have requested flexibility 
through the Project XL FPA approval process. The POTWs are: The 
Narragansett Bay Commission (NBC) in Rhode Island; the Jeffersontown 
Wastewater Treatment Plant (WWTP), owned and operated by the Louisville 
and Jefferson County Metropolitan Sewer District (MSD) in Kentucky; the 
Metropolitan Water Reclamation District of Greater Chicago (Chicago) in 
Illinois; the City of Albuquerque (Albuquerque), New Mexico; and the 
City of Denton (Denton), Texas. The FPA for NBC lays out the following 
flexibilities: (1) Reduced self-monitoring requirements for ten (10) 
categorical industrial users (CIUs) for tier 1 facilities, (2) reduced 
inspection frequency for ten (10) CIUs tier 1 facilities from once 
every year to once every two years and, (3) allow participating CIUs 
tier 1 facilities to not sample for pollutants not expected to be 
present. Under the FPA for MSD, the POTW is requesting flexibility to 
(1) use an alternative definition for significant industrial user 
(SIU), (2) allow participating CIUs to not sample for pollutants not 
expected to be present and (3) use an alternative definition of 
significant noncompliance (SNC). The Chicago FPA describes flexibility 
that includes (1) use of an alternative (in relation to the 
pretreatment streamlining proposal) definition for de minimis 
categorical industrial user (CIU) and (2) reduced self-monitoring and 
self-reporting requirements for participating CIUs and (3) use 
alternative monitoring methods. The Albuquerque FPA lays out 
flexibility to (1) use an alternative definition of SIU, (2) use an 
alternative definition of SNC, (3) reduce permitting requirements for 
participating IUs, (4) use alternative monitoring methods and (5) 
reduce reporting requirements for participating IUs. The Denton FPA 
lays out flexibility to (1) reduce its monitoring of participating IUs 
and (2) reduce its inspection of participating IUs. In exchange for 
these flexibilities, each individual POTW would need to commit to 
produce certain proportional amounts of superior environment 
performance as laid out in the FPA and maintain all legal and 
preventative environmental health and safety standards. Complete 
project site-specific descriptions can be found on the web at: http://www.epa.gov/projectxl/.

I. What Are the Environmental Benefits Anticipated Through Project XL?

    These XL projects are expected to achieve superior environmental 
performance beyond that which is achieved under the current CWA 
regulatory system by allowing local agencies the ability to identify 
environmental goals and allocate the necessary resources on a site 
specific local basis. Specifically, these projects are expected to 
produce additional benefits by (i) reducing pollutant loadings to the 
environment or some other environmental benefit beyond that currently 
achieved through the existing pretreatment program (including 
collecting environmental performance data and data related to 
environmental impacts in order to measure the environmental benefit), 
(ii) reduced or optimized costs related to implementation of the 
pretreatment program with the savings used to attain environmental 
benefits elsewhere in the watershed in any media, and (iii) providing 
EPA with information on how the pretreatment program might be better 
oriented towards the achievement of measures of environmental 
performance. These objectives are consistent with the principles of the 
National Performance Review.
    EPA's intent is to allow Local Pilot Pretreatment Programs to be 
administered by those POTWs that best further those objectives. Each 
pilot program's method of achieving the environmental benefit should be 
transferable so that other programs may be able to implement the method 
and also achieve increased environmental benefits.

[[Page 59794]]

J. What Is the Project Duration and Completion Date?

    Under Project XL, local Pilot Pretreatment Programs may be approved 
to operate for the term expressed in the FPA. Prior to the end of the 
FPA approval period (at least 180 days), the POTW may apply for a 
renewal or extension of the project period in accordance with the terms 
of the FPA. If a POTW is not able to meet the performance goals of its 
Local Pilot Pretreatment Program, the Pretreatment Approval Authority 
(either EPA or the authorized State) could allow the performance 
measures to be adjusted if the primary objectives of the Local Pilot 
Pretreatment Program would be met. The revised Local Pilot Pretreatment 
Program would need to be approved in accordance with the FPA and the 
procedures in 40 CFR 403.18.
    If the primary objectives of the proposal are not being met, the 
Approval Authority would direct the POTW to discontinue implementing 
the Local Pilot Pretreatment Program and resume implementation of its 
previously approved pretreatment program. The Pretreatment Approval 
Authority would need to ensure that the POTW's NPDES permit includes a 
reopener clause to implement this procedure.
    The results of the pilots, including recommendations in POTW 
reports, may be used to determine the direction of future Pretreatment 
Program streamlining and/or reinvention.

K. How Could the Project Be Terminated?

    Either the Approval Authority or the POTW may terminate a project 
earlier than the final project agreement's (FPA) anticipated end date. 
Parties will follow procedures set out in the FPA. The implementing 
permits will also reflect the possibility of early termination. When 
the NPDES permitting agency modifies the POTW's NPDES permit to 
incorporate the flexibility allowed by today's rule, it must include a 
`reopener' provision that requires the POTW to return to compliance 
with current pretreatment requirements at the expiration or termination 
of the FPA, including an interim compliance period, if needed. 
Additional details are available in the site-specific FPAs.

III. Rule Description

    Today's proposed rule will modify 40 CFR part 403 to allow 
Pretreatment Approval Authorities (EPA or State) to grant regulatory 
flexibility to selected Project XL POTWs with approved FPAs. The 
regulatory flexibility would allow these specific POTWs to implement 
Pretreatment Programs that include legal authorities and requirements 
that are different than the administrative requirements in 40 CFR part 
403. The POTW would need to submit any such alternative requirements as 
a substantial program modification in accordance with the procedures 
outlined in 40 CFR 403.18. The approved modified program would need to 
be incorporated as an enforceable part of the POTW's NPDES permit. The 
Approval Authority would approve or disapprove the pilot program using 
the procedures in 40 CFR 403.18.
    For example, the POTW would work through the Project XL process as 
described above. The POTW either would or has already developed the 
necessary FPA with stakeholder participation (local interest groups, 
State representatives, EPA, any other interested parties). The POTW 
would use the FPA as the blueprint when developing a revision of the 
POTW's approved local pretreatment program. The POTW would submit the 
revised program to its Approval Authority (State or EPA region) 
requesting a substantial program modification using the procedures 
outlined in 40 CFR 403.18. The Approval Authority would review the 
program modification request to determine that it contains the 
provisions of the blue-print FPA and makes a determination to approve 
or deny the request. The proposal for modification is publicly noticed 
following the procedures in 40 CFR 403.11 and 40 CFR 403.18. After the 
close of the public comment period, the Approval Authority will 
consider and respond to public comments and revise the POTW's 
pretreatment program accordingly. Then the POTWs NPDES permit will be 
modified by adding the modified pretreatment program as an enforceable 
part of the permit.

IV. Request for Public Comments

    The Agency requests public comments on today's Rule.

V. Additional Information

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 Office of Management and Budget (OMB) review 
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 in 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 entitlement, grants, 
user fees, or loan programs of 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.
    Because the annualized cost of this final rule will be 
significantly less than $100 million and will not meet any of the other 
criteria specified 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.
    Executive Order 12866 also encourages agencies to provide a 
meaningful public comment period, and suggests that in most cases the 
comment period should be 60 days. In consideration of the very limited 
scope of today's rulemaking and the considerable public involvement in 
the development of the proposed Final Project Agreements subject to 
today's rule, EPA considers 30 days to be sufficient in providing a 
meaningful public comment period for today's action.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements 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 not-for-profit 
enterprises, and small governmental jurisdictions. This rule will not 
have a significant impact on a substantial number of small entities 
because the modifications to the pretreatment regulations EPA is 
allowing would reduce the regulatory costs to POTWs and industrial 
users of complying with the pretreatment requirements and affect a 
small number of dischargers. Therefore, EPA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

C. Paperwork Reduction Act

    An Information Collection Request (ICR) document is currently being 
prepared by EPA.The ICR will be

[[Page 59795]]

submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
    The proposed rule provides regulatory flexibility to participating 
sponsors. The changes in information collection requirements as a 
consequence of the rule allow participating facilities to satisfy the 
reporting requirements with a single yearly report and provide 
certification in lieu of not sampling for pollutants not present if 
certain conditions are met. Also, this regulatory change can result in 
decreased reporting and recordkeeping burdens for participating 
facilities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of 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.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. In addition, because 
this rule contains no regulatory requirements that might significantly 
or uniquely affect small governments, it is not subject to UMRA section 
203.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The 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 subject to Executive Order 13045 because it is not 
an economically significant rule, as defined by Executive Order 12866, 
and because it does not involve decisions based on environmental health 
or safety risks.

F. Executive Order 13132: Federalism

    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 funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the regulation. EPA may also not issue a regulation that has 
federalism implications and that preempts State law, unless the Agency 
consults with the State and local officials early in the process of 
developing the regulation.
    This proposed 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. 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 
fully coordinate and consult with the affected state and local 
officials in developing this rule.

G. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    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 those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to 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 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. Today's rule does not significantly 
or uniquely affect the communities of Indian tribal governments. There 
are no communities of Indian tribal governments located in the vicinity 
of the affected facility. Accordingly, the requirements of section 3(b) 
of Executive Order 13084 do not apply to this rule.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law

[[Page 59796]]

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 standard. This proposed rulemaking does 
not involve technical standards. Therefore, EPA is not considering the 
use of any voluntary consensus standards. EPA welcomes comments on this 
aspect of the proposed rulemaking and, specifically, invites the public 
to identify potentially-applicable voluntary consensus standards and to 
explain why such standards should be used in this regulation.

    Dated: September 29, 2000.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, part 403, title 40, 
chapter I of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW 
SOURCES OF POLLUTION

    1. The authority for Part 403 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

    2. Section 403.20 is added to read as follows:


Sec. 403.20  Pretreatment Program Reinvention Pilot Projects Under 
Project XL.

    The Approval Authority may allow any publicly owned treatment works 
(POTW) that has a final ``Project XL'' agreement to implement a 
Pretreatment Program that includes legal authorities and requirements 
that are different than the administrative requirements otherwise 
applicable under this part. The POTW must submit any such alternative 
requirements as a substantial program modification in accordance with 
the procedures outlined in Sec. 403.18. The approved modified program 
must be incorporated as an enforceable part of the POTW's NPDES permit. 
The Approval Authority must include a reopener clause in the POTW's 
NPDES permit that directs the POTW to discontinue implementing the 
approved alternative requirements and resume implementation of its 
previously approved pretreatment program if the primary objectives of 
the Local Pilot Pretreatment Program are not met or the ``Project XL'' 
agreement expires or is otherwise terminated.

[FR Doc. 00-25750 Filed 10-5-00; 8:45 am]
BILLING CODE 6560-50-P `


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