810 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–7857–5] 

State Program Requirements; 

Approval of Revisions to the National 

Pollutant Discharge Elimination 

System (NPDES) Program; Louisiana

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Approval of revisions to the 

Louisiana Pollutant Discharge 

Elimination System program. 

SUMMARY: Pursuant to a request by the 

Environmental Protection Agency (EPA) 

and as required by 40 CFR 123.62, the 

State of Louisiana submitted a request 

for approval of revisions to the 

Louisiana Pollutant Discharge 

Elimination System (LPDES) program, 

which was originally approved on 

August 27, 1996. Through the 

submission of the revised program 

authorization documents, including a 

complete program description, a 

Memorandum of Agreement (MOA) 

with EPA Region 6, and an Attorney 

General’s Statement, the Louisiana 

Department of Environmental Quality 

(LDEQ) seeks approval of the proposed 

revisions to the LPDES program. Today, 

EPA Region 6 is publishing notice of its 

approval of the revised LPDES program 

and is responding to comments received 

during the 30-day public notice period 

on the proposed revisions. EPA is 

approving the State’s request based 

upon the requirements of 40 CFR part 

123 after considering all comments 

received. 

Pursuant to an October 9, 2001, 

petition from numerous environmental 

groups in Louisiana requesting EPA 

withdraw LDEQ’s authorization to 

administer the LPDES program along 

with EPA program reviews of the water 

permitting and enforcement programs, 

EPA delineated seven performance 

measures for LDEQ in a letter dated 

February 14, 2003, from Tracy Mehan, 

former EPA Assistant Administrator for 

Water, and John Peter Suarez, former 

EPA Assistant Administrator for 

Enforcement and Compliance 

Assurance, to former Governor M. J. 

Foster. Former Governor Foster replied 

in a letter dated March 27, 2003, with 

the commitment of LDEQ and the State 

of Louisiana to complete the seven 

performance measures. With the 

submission of the revision to the LPDES 

program, LDEQ completed the last of 

the seven performance measures. 

Regional Administrator Richard Greene 

notified Governor Kathleen Blanco of 

the completion of the performance 

measures in a letter dated May 13, 2004. 

After evaluation of the comments and 

other information related to this Federal 

Register notice regarding the revision to 

the LPDES program authorization, EPA 

is denying the petition for EPA to 

withdraw LDEQ’s authorization to 

administer the LPDES program. 

Section 402 of the Clean Water Act 

(CWA) created the National Pollutant 

Discharge Elimination System (NPDES) 

program under which EPA may issue 

permits for the point source discharge of 

pollutants to waters of the United States 

under conditions required by the Act. 

Section 402(b) requires EPA to authorize 

a state to administer an equivalent state 

program, upon the Governor’s request, 

provided the state has appropriate legal 

authority and a program sufficient to 

meet the Act’s requirements. The 

regulatory requirements for state 

program approval are set forth in 40 

CFR part 123. Today, EPA is 

announcing its final approval action on 

the revisions to the LPDES program, the 

Regional Administrator has notified the 

State, has signed the revised MOA, and 

is publishing notice of the action in the 

Federal Register along with responses 

to comments received. 

Comments, Discussion, and EPA 

Responses 

EPA received 12 comments on the 

revision to the LPDES program 

authorization documents. The 

comments received were from the 

Tulane Environmental Law Clinic 

representing the Louisiana 

Environmental Action Network, the 

Louisiana Audubon Council, the Gulf 

Restoration Network, the Association of 

Community Organizations for Reform 

Now, the Lake Pontchartrain Basin 

Foundation, CFACT, the Lake Maurepas 

Society, and the Concerned Citizens of 

Livingston Parish; American Electric 

Power; and The Dow Chemical 

Company. The comments and 

responses, in their entirety are listed 

below. 

Comment 1: LDEQ has no right to 

judicial review of Administrative Law 

Judge (ALJ) decisions and thus ALJs can 

force LDEQ to issue permits the agency 

believes are illegal.

Discussion by Commenter: Louisiana 

law provides that in an adjudication by 

the Division of Administrative Law 

(DAL), the decision of the ALJ is final 

and ‘‘the agency shall have no authority 

to override such a decision or order.’’ In 

addition, La. R.S. 49:992(B)(3) states 

that ‘‘no agency or official thereof, or 

other person acting on behalf of an 

agency or official thereof, shall be 

entitled to judicial review of a decision 

made pursuant to this chapter’’. This 

provision impairs LDEQ’s ability to 

carry out the LPDES program properly 

because it cannot appeal an adverse 

decision. Consequently, LDEQ may be 

required to issue a permit that violates 

the CWA. In short, this regulation limits 

the authority of LDEQ, as the agency 

primarily responsible for administering 

the federal CWA within the state, to 

ensure that all permits it issues comply 

with the law, and instead places that 

burden on the public, who must 

intervene to object to a wrongfully 

issued permit. 

Commenters assert that EPA’s 

response is that La. R.S. 49:992(D)(2) 

allows LDEQ to be exempt from the 

DAL provisions ‘‘if required by a federal 

mandate’’. Accordingly, if EPA requires 

LDEQ to conduct or to render a final 

order in an adjudication proceeding as 

a condition of federal funding, LDEQ 

can conduct its adjudicatory hearings 

‘in house’ rather than under the DAL. 

The Program Description further states 

that ‘‘assuming [LDEQ] was to conduct 

adjudicatory hearings ‘in house’, it 

maintains the authority to do so.’’ In 

that case, the decision of the hearing 

officer would become final unless the 

Secretary grants administrative review, 

in which case he would make the final 

decision. 

Commenters believe that EPA’s 

response does not clearly address the 

problem. To the best of our knowledge, 

EPA has not yet required ‘‘as a 

condition of federal funding’’ that LDEQ 

conduct in house adjudication 

proceedings. Until and unless EPA does 

so, La. R.S. 49:992(D)(2) will be 

inapplicable and thus irrelevant. 

Accordingly, to ensure that LDEQ has 

adequate authority to administer the 

NPDES program in Louisiana, EPA’s 

approval must specifically provide that 

LDEQ conduct all adjudicatory hearings 

‘‘in house’’ rather than under the DAL 

as a condition of federal funding. 

EPA Response: The commenters are 

correct in stating that La. R.S. 49:992(B) 

precludes LDEQ from appealing an 

adverse decision in an adjudication by 

the DAL. However, EPA does not 

believe this restriction on the agency’s 

power requires withdrawal of the State’s 

authority to run the NPDES program. 

This issue arises only if a request for 

hearing is filed by the permit applicant 

within 30 days after he receives notice 

of LDEQ’s issuance of the NPDES 

permit. If the hearing request is granted 

by the Secretary of LDEQ, an 

adjudicative hearing is held by an ALJ 

with DAL, an agency independent of 

LDEQ. The ALJ’s decision concerning 

the permit appeal is final, and under 

State law, LDEQ cannot unilaterally 

revise an adverse decision or appeal it 

to State Court. Therefore, an ALJ could 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 811

order LDEQ to make revisions to a 

permit that LDEQ does not believe 

comport with the CWA.

Although EPA does not believe this 

situation to be ideal, there are additional 

safeguards in place to insure final 

issuance of an NPDES permit that meets 

all the requirements of the CWA. First 

of all, pursuant to La. R.S. 30:2050.21, 

any ‘‘aggrieved person’’ may appeal a 

final permit action to State District 

Court. ‘‘Aggrieved person’’ is defined by 

La. R.S. 30:2004(17) as any ‘‘natural or 

juridical person who has a real and 

actual interest that is or may be 

adversely affected by a final action 

under this Subtitle.’’ Thus, even though 

LDEQ cannot appeal an adverse NPDES 

permit decision by an ALJ, members of 

the general public, so long as they meet 

the broad definition of ‘‘aggrieved 

person,’’ may. The public’s right to 

appeal is bolstered by the fact that any 

decision by an ALJ under these 

circumstances, that results in a major 

modification to an NPDES permit, 

requires LDEQ to prepare a new draft 

permit and notice it to the public for 

public comment. See Louisiana 

Administrative Code (LAC) 33:2903. 

Under LAC 33:3123, after the close of 

the public comment period, LDEQ must 

notify each person who has submitted 

written comments or requested notice of 

the final permit decision, and such 

notice must include reference to the 

procedures for appealing the decision. 

Another safeguard to LDEQ’s permit 

issuance process is EPA’s oversight role. 

Under the MOA signed by LDEQ and 

EPA upon authorization of the LPDES 

program, if the terms of any permit, 

including any permit over which EPA 

has waived review, are affected in any 

way by administrative action, LDEQ 

must forward to EPA a copy of the 

administrative decision, along with a 

copy of the permit affected with any 

changes identified. EPA has the right to 

object to such a modified permit under 

Section 402(d)(2) of the CWA and 40 

CFR 123.44. If EPA objects to such a 

permit and LDEQ fails to revise the 

permit to comply with EPA’s objections, 

exclusive authority to issue the permit 

reverts to EPA pursuant to 40 CFR 

123.44(h)(3). 

As a result of the additional 

safeguards in place, EPA believes 

LDEQ’s inability to appeal an adverse 

permitting decision of an ALJ does not 

undercut LDEQ’s ability to implement 

an adequate LPDES program. However, 

EPA is aware of the fact that Acts 739 

and 1332 of the 1999 Regular Session of 

the Louisiana legislature, which created 

the DAL and which precluded any 

agency of the State from seeking judicial 

review of a decision of a DAL ALJ, have 

been ruled unconstitutional by the 19th 

Judicial District Court in Louisiana. 

(See, Judge Janice C. Clark’s judgment in 

J. Robert Wooley, in his capacity as 

Commissioner of Insurance, State of 

Louisiana v. State Farm Fire and 

Casualty Insurance Company, et al., 

Suit No. 502,311 (19th J.D.C. 3/15/04). 

The District Court’s ruling is currently 

on appeal to the Louisiana Supreme 

Court, which heard oral argument on 

September 7, 2004, and has taken the 

matter under advisement. Should the 

Supreme Court’s ruling on this matter 

indicate the need to revisit this issue, 

EPA will do so at that time. 

Comment 2: The public receives no 

notice of hearings and thus has no 

opportunity to intervene.

Discussion by Commenter: An 

‘‘aggrieved person’’ can request an 

adjudicatory hearing on a disputed issue 

of fact or law, which the Secretary may 

grant ‘‘when equity and justice require’’. 

An aggrieved person also has the right 

to intervene as a party in an 

adjudicatory hearing when the 

intervention ‘‘is unlikely to unduly 

broaden the issues or to unduly impede 

the resolution of the matter under 

consideration.’’ However, these 

provisions offer the public little 

protection because state law does not 

provide the public with any right to 

notification of a request for an 

adjudicatory hearing by permit 

applicants. Nor does state law provide 

the public with a right to notification of 

the results of such a hearing. Without 

notice, the public effectively never has 

an opportunity to intervene. 

Accordingly, to ensure adequate public 

participation in adjudicatory hearings, 

EPA’s approval must be conditioned on 

LDEQ’s agreement to provide a 

minimum of 30 days notice of 

adjudicatory hearings and settlements, 

including at a minimum, notice 

published in the public notices section 

of LDEQ’s Web page (currently http://

www.deq.state.la.us/news/PubNotice) 

and public notice list-serve. 

EPA Response: CWA Section 402(b) 

and 40 CFR part 123 establish the 

minimum requirements for public 

participation in approved State NPDES 

programs. In regard to permit issuance, 

States seeking NPDES authorization 

must have authority sufficient ‘‘to 

insure that the public, and any other 

State the waters of which may be 

affected, receive notice of each 

application for a permit and to provide 

an opportunity for public hearing before 

a ruling on each such application.’’ In 

regard to enforcement, 40 CFR 123.27(d) 

requires States to provide for public 

participation in the State enforcement 

process in one of two ways: (A) The 

State must allow intervention as of right 

in any civil or administrative action to 

obtain enforcement remedies by any 

citizen with an interest that is or may be 

adversely affected; or (B) The State must 

investigate and provide written 

responses to all citizen complaints, not 

oppose intervention by any citizen 

when permissive intervention may be 

authorized by statute, rule, or 

regulation, and publish notice of and 

provide at least 30 days for public 

comment on any proposed settlement of 

a State enforcement action. EPA 

believes LDEQ is in compliance with 

the federal requirements for public 

participation in both permitting and 

enforcement. 

Pursuant to LAC 33:IX.3113, LDEQ 

provides public notice of every draft 

permit prepared by the agency and of 

every notice of intent to deny a permit 

application. As required by both federal 

and State regulations, notice is provided 

by mailing a copy of the notice to 

persons on a mailing list that includes 

any person who requests in writing to 

be on the list and by publication of the 

notice in a daily or weekly newspaper 

within the area affected by the facility 

or activity. LDEQ also publishes notices 

of draft NPDES permits on its public 

Web site. The public notice on draft 

permits provides for a public comment 

period of at least 30 days, during which 

any interested person may submit 

written comments and/or request a 

public hearing. A public hearing is held 

anytime LDEQ finds, on the basis of 

requests, a significant degree of public 

interest in a draft permit, or at the 

agency’s discretion whenever, for 

instance, a hearing might clarify one or 

more issues involved in the permit 

decision. LAC 33:IX.3115 & 3117. 

LDEQ chose to provide for public 

participation in enforcement matters in 

accordance with the second method 

allowed by 40 CFR 123.27(d). The State 

investigates and provides written 

responses to citizen complaints, and 

does not oppose intervention by any 

citizen in adjudicatory hearings held at 

the request of the respondent regarding 

any disputed issue of material fact or 

law arising from a compliance order or 

penalty assessment. Such adjudicatory 

hearings are held by an ALJ with the 

DAL. LDEQ also publishes notice of 

each proposed settlement of a State 

enforcement action on its public Web 

site at least 45 days prior to final action 

on the proposed settlement, and, as a 

condition to settlement, requires 

respondents to publish notice of the 

proposed settlement in a newspaper of 

general circulation in the parish in 

which the violations occurred at least 45 

days prior to final action. 

812 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 

Although LDEQ does not provide 

specific notice to the public of the 

request for an adjudicatory hearing by 

the applicant in regard to permit 

issuance or by the respondent in regard 

to an enforcement action, neither the 

CWA nor implementing federal 

regulations require it to do so. However, 

it is easy enough for persons interested 

in a particular permit or enforcement 

matter (the existence of which is widely 

publicized by LDEQ) to find out if a 

hearing has been requested, granted or 

scheduled by contacting the Legal 

Affairs Division at LDEQ or the DAL. 

Comment 3: Timely permit issuance 

requires consistent additional funding.

Discussion by Commenter: Allowing 

facilities to operate without a valid 

discharge permit is a violation of the 

CWA Section 301(a). Even so, Louisiana 

regulations currently authorize a facility 

that submits an application at least 180 

days before the permit expires to 

continue operating until LDEQ can 

reissue the permit. The 2002 Audit 

revealed that ‘‘these continuations may 

result in DEQ not reissuing permits for 

several years.’’ As of January 2001, 54% 

of major water permits and 10% of 

minor water permits were expired. 

The Revised MOA requires that LDEQ 

reissue all expiring permits ‘‘as close as 

possible to their expiration dates,’’ and 

that LDEQ may not modify any 

continued permit. However, the 

problem remains that many facilities are 

illegally discharging into the waters of 

Louisiana without a permit. These 

facilities may be subject to an 

enforcement action for these violations. 

Thus, both the regulated community 

and the public have an interest in 

ensuring that LDEQ issue permits before 

they expire. 

LDEQ revised its LPDES Permit 

Issuance Strategy (‘‘Permit Issuance 

Strategy’’) on April 30, 2003. It provided 

$1.49 million in federal grant money for 

the 2003 fiscal year to pay for EPA 

contract support to assist with permit 

issuance. According to the report, as of 

May 1, 2003, 244 major facilities exist 

in Louisiana, and 95 of those permits 

are backlogged. The plan reports LDEQ 

will have no major permit backlog by 

the end of 2005. Of the 1637 minor 

facilities in Louisiana, 869 are operating 

under a current permit—332 are expired 

but continued, and 446 have unknown 

status. LDEQ projects it will have a 

minor permit backlog of 9.5% by the 

end of 2005. EPA considers a level of 

less than 10% expired permits to be 

indicative of a well-maintained 

program. Further, in a July 30, 2003, 

letter to Region 6, LDEQ reported that it 

had met or exceeded performance 

measures for permit issuance from 

January 1 through July 30 of 2003. This 

is excellent progress. However, LDEQ 

must reach a point where it can handle 

its permitting workload without relying 

on federal grants. Without a long-term 

budgetary solution, LDEQ will once 

again have a backlog. 

EPA’s approval must therefore be 

conditioned on assurance of adequate 

funding of LPDES, for example, (1) a 

program of permit fees adequate to 

cover the program’s administration or 

(2) the Governor’s adherence to a 

specific and signed commitment to seek 

a specific minimum level of funding for 

LPDES that EPA concludes, based on 

analysis in the record, is adequate for a 

well-maintained program. 

EPA Response: LDEQ’s LPDES 

program receives the bulk of it’s funding 

(83%) from the States’ Environmental 

Trust Fund. The Environmental Trust 

Fund receives it funding from permit 

fees and administrative penalties. 

Thirteen percent of funds that support 

the LPDES program are from the Federal 

106 Grant Program. The commentor 

notes that LDEQ has made excellent 

progress for permit issuance from 

January 1 through July 30 of 2003, and 

further states that LDEQ must reach a 

point where it can handle its permitting 

workload without relying on federal 

grants. In the first quarter of calendar 

year 2003, EPA and LDEQ agreed that in 

order to document that the State had the 

capabilities to administer the LPDES 

program, that LDEQ would issue 35 

major and provide coverage for 300 

minor individual permits for calendar 

year 2003. All work on the permits was 

to be completed by LDEQ staff. 

Contractor drafted permits were not 

included in the count. For calendar year 

2003, LDEQ drafted and issued 36 major 

permits and provided coverage for 382 

individual minor facilities. Coverage for 

236 of the minor permits were provided 

by individual permits and the remaining 

permits (186) were provided coverage 

under general permits. All of this was 

completed without contractor support. 

In calendar year 2004, LDEQ 

continues to make excellent progress in 

its permit issuance. As of August 2004, 

LDEQ has a major individual permit 

universe of 254 permits of which 84% 

are current and a minor permit universe 

of 6042 (individual and non-storm water 

general permits) of which 92% are 

current. LDEQ’s overall backlog rate for 

individual majors, minors, and nonstorm water general permits for August 

is 8%. Only one state in Region 6 has 

a better overall permit issuance rate. 

LDEQ has committed to issuing 60 

individual major and 300 individual 

minor permits for calendar year 2004. 

Of the 28 major permits and 303 minor 

permits issued so far in calendar year 

2004, six major permits and 39 minor 

permits were written by a contractor. 

Comment 4: EPA must ensure that 

LDEQ regularly inspects permitted 

facilities. 

Discussion by Commenter: La. R.S. 

30:2012 provides that ‘‘[e]very permit 

shall as a matter of law be conditioned 

upon the right of the secretary or his 

representative to make an annual 

monitoring inspection and, when 

appropriate, an exigent inspection of the 

facility operating thereunder.’’ However, 

the 2002 Audit found that LDEQ failed 

to inspect 4 percent of permitted major 

facilities in fiscal year 2000 and 2001, 

as well as 31% of minor permitted 

facilities.

Section 5.3 of the Program 

Description requires regional 

Surveillance Division personnel to 

conduct routine inspections of 

permitted major and minor discharges 

via unannounced visits in accordance 

with the NPDES Compliance 

Inspections Manual and LDEQ Standard 

Operating Procedure (SOP) #1108. It 

also lists six factors that determine the 

frequency of inspections. These factors 

are (a) facility compliance history; (b) 

facility location; (c) potential 

environmental impact; (d) operational 

practices being steady or seasonal; (e) 

grant or funding commitments made by 

LDEQ; and (f) any other relevant 

environmental, health, or enforcement 

factors. In addition, the Revised MOA 

requires the Louisiana Compliance 

Monitoring Strategy be submitted to 

EPA annually, and it will list major and 

minor permittees to be subject of state 

compliance inspections. This is a good 

improvement. However, inspections are 

essential to proper enforcement of the 

CWA, and thus EPA oversight is crucial 

to ensuring that LDEQ is conducting 

inspections properly and in a timely 

manner. 

EPA Response: EPA does not believe 

that the regulations define, with no 

flexibility, a precise number or type of 

inspections that must occur. Rather, the 

regulations in 40 CFR 123.26(e)(5) 

require States to show that they have 

‘‘procedures and ability’’ to inspect all 

major dischargers and all Class I sludge 

management facilities, where 

applicable. Thus, the regulations require 

a showing of capacity and a 

commitment to a level-of-effort for 

inspections, reserving discretion to the 

two sovereign governments to decide 

what number of inspections to 

undertake, and the identity of the 

facilities to be inspected. These 

judgments are matters of enforcement 

discretion, and under this discretion, 

EPA and LDEQ have agreed, and 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 813

included commitments in the Annual 

Performance Partnership Grant 

Agreement, that LDEQ will inspect 90% 

of the Major, 92–500 Minor, and 

Significant Minor facilities annually. It 

was also agreed that the significant 

minor definition would be determined 

and agreed upon, by EPA and LDEQ, 

prior to the beginning of each inspection 

year. For the current inspection year, 

beginning 7/1/04, the significant minor 

universe has been determined to 

represent the Total Environmental 

Solutions, Incorporated (TESI) facilities 

included in the Consent Decree 

(approximately 172 facilities). 

There is not a specific targeting 

strategy utilized in selecting the 

facilities to be included in the 90%, 

because the number represents the 

majority of the facilities in the universe, 

and because LDEQ considers the 90% to 

be a hedge on perfection, due to the fact 

that the intent is to inspect 100%. Based 

on evaluation of data for the last 

inspection year, beginning 7/1/03 and 

ending 6/30/04, EPA determined that 

LDEQ conducted inspections at 98% of 

the Major and 92–500 Minor facilities. 

In the future, because of national 

priorities, the percentage may be 

reduced, and at that time, factors for 

selection will be considered, such as 

environmental harm, location, and 

compliance history. In addition to 

meeting and exceeding the 

commitments agreed in the Annual 

Performance Partnership Grant 

Agreement, LDEQ has also conducted 

inspections at nearly 3,000 facilities, 

covered by Minor or General Permits, 

during each of the last three inspection 

years. LDEQ plans to inspect all of the 

general permit sewage treatment plants 

every 3 years. Currently, there are more 

than 4000 of these facilities. LDEQ has 

also implemented a Regional Circuit 

Rider Approach, which results in the 

issuance of a Notice of Deficiency 

(NOD) accompanied by an Expedited 

Penalty Agreement of up to $3,000 for 

minor violations. Noncompliance with 

the NOD will result in a referral to 

Enforcement for further action. 

Although EPA believes that LDEQ is 

currently conducting inspections 

properly and in a timely manner, EPA, 

as part of its oversight role, will 

continue to monitor the state’s 

inspection program through oversight 

audits and review of information 

submitted by LDEQ. 

Comment 5: Neither Region 6 nor 

LDEQ has established a timeframe for 

completing enforcement actions. 

Discussion by Commenter: The 

LPDES Program Description provides 

that the Surveillance Division is 

responsible for referring inspections or 

investigations that result in findings of 

areas of concern to the enforcement 

division within 30 working days. 

However, LDEQ has not established a 

mandated timeframe for completing 

enforcement actions, or for obtaining the 

information it needs to bring an 

enforcement action. This process alone 

can take weeks, months or years. 

Although every enforcement action 

presents its own facts and 

circumstances, LDEQ should establish a 

definitive timeframe for bringing 

enforcement actions. In the past, as 

many as 80% of water enforcement 

actions were entered over 150 days after 

the violation occurred.

EPA’s approval must therefore be 

conditioned on LDEQ’s adherence to a 

written schedule (and reporting 

obligation) that will show by 2008 that 

at least 80% of LDEQ’s water 

enforcement actions are brought within 

(1) 60 days of an inspection uncovering 

violations and (2) 150 days of a 

violation. 

EPA Response: Section I.C. of the 

MOA indicates that the state has 

primary responsibility for implementing 

the LPDES program in accordance with 

the MOA, specified sections of the 

CWA, applicable state legal authority, 

applicable requirements of 40 CFR, 

applicable federal regulations, the 

Multi-Media/Multi-year Enforcement 

Memorandum of Understanding and the 

annual Performance Partnership Grant. 

LDEQ has the primary responsibility to 

establish LPDES program priorities with 

consideration of EPA Region 6 and 

national NPDES goals, and objectives. 

The Enforcement Response Guide 

(ERG), included in the referenced 

Enforcement Actions SOP #1215, is 

consistent with the EPA ERG and 

provides a guide to be used for selecting 

the most appropriate response or set of 

responses to instances of 

noncompliance. 

The annual Performance Partnership 

Grant referenced in the MOA establishes 

timeframes for responses to specific 

activities/commitments. This agreement 

requires that the state identify and 

initiate enforcement action for majors, 

92–500 minors and significant minors 

with inspection deficiencies within 90 

days of the date which enforcement 

receives the inspection report. It also 

specifies that LDEQ identify and initiate 

enforcement actions for identified 

violations for the same classes of 

facilities within 90 days of receipt of the 

Discharge Monitoring Report (DMR). 

Based on the facility reviews conducted 

during the most recent EPA site visit, 

and review of information received at 

EPA during the year, it has been 

determined that in the majority of the 

instances, where the inspection noted 

areas of concern, actions were issued 

within an average of 20 days. It was also 

noted that in many of the instances 

where a warning letter was issued as the 

initial action, there was a follow-up 

enforcement order issued within 60 

days, escalating that initial action. 

Instances of significant non-compliance 

are addressed within the timeframes 

established in the oversight guidance. 

Isolated instances of non-compliance 

may not merit a formal enforcement 

action when the violation occurs. 

However, when these isolated instances 

are combined with inspection violations 

or other instances of non-compliance, 

action may be warranted in accordance 

with the ERG. For example, an isolated 

violation, which occurs in January, may 

not merit a Formal Enforcement Action 

until detection of a subsequent violation 

and/or inspection deficiency, which 

perhaps occurs in May. 

Comment 6: LDEQ must collect the 

penalties it assesses.

Discussion by Commenter: The 2002 

audit revealed that LDEQ had not 

collected nearly $4.5 million, equaling 

75% of the monetary penalties assessed 

in 1999, 2000, and 2001 fiscal years. 

SOP #1215 provides that an 

enforcement action may be made 

executory ‘‘if violations continue after 

issuance of a final enforcement action, 

or if a final penalty action is not paid.’’

It further provides that ‘‘the Legal 

Division has a goal that all enforcement 

cases should be brought to final 

resolution within 12 months of the 

Legal Division’s acceptance of the case.’’

However, neither the Revised MOA, the 

Program Documents, nor SOP #1215 

provide assurances that LDEQ will 

pursue the penalties they have assessed, 

much less recover them. Proper 

inspection, timely enforcement and 

aggressive penalty collection motivate 

industry to comply with the CWA. If 

any of these elements are lacking, the 

deterrent effect of penalty assessment is 

lost. 

EPA’s approval must therefore be 

conditioned on LDEQ’s adherence to a 

written schedule (and reporting 

obligation) that will show by 2008 that 

at least 80% of LDEQ’s water penalty 

assessments are collected within 60 

days of becoming final and collectable. 

EPA Response: LDEQ maintains that 

the data presented in the 2002 

legislative audit is not an accurate 

representation of the actual figures. The 

audit’s figures include several categories 

of monies not actually owed to LDEQ. 

For instance, the difference between the 

cash component in finalized settlement 

agreements and the appealed penalty 

assessments, which are associated with 

814 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 

the settlements, are not owed to LDEQ. 

Penalty assessments under appeal are 

not considered final enforcement 

actions and thus are not owed to LDEQ, 

until the appeal process has been 

completed. LDEQ maintains that 

removing monies not actually owed to 

LDEQ from the ‘‘uncollected penalties’’

calculation would significantly lower 

the uncollected amount for all media. 

Regardless of what the actual figures 

are, LDEQ has committed to 

aggressively pursue collection of all 

penalty dollars, including, if necessary, 

going to court to obtain judgment for 

those penalties that remain unpaid after 

a reasonable period of time. As a result, 

EPA does not believe it is necessary to 

require LDEQ’s adherence to the written 

schedule suggested by the commenter. 

However, as a part of its statutorily 

mandated oversight of the LPDES 

program, EPA will continue to monitor 

LDEQ’s enforcement program, including 

its assessment and collection of 

penalties, for consistency with the CWA 

and other applicable federal regulations, 

guidance and policies. 

Comment 7: LDEQ must provide 

accurate and accessible information on 

compliance status. 

Discussion by Commenter: For several 

years, LDEQ has failed to keep sufficient 

records as to self-monitoring reports, 

has maintained inaccurate compliance 

status information, and has lost or 

misfiled important documents. In 

addition, in its 2003 mid-year review of 

LDEQ, the EPA noted that ‘‘the 

Electronic Document Management 

System (EDMS) remains problematic for 

public retrieval and review of LPDES 

permits and supporting materials. The 

database contains voluminous amounts 

of information and the poor indexing of 

materials and files containing misfiled 

information makes the system difficult 

for the public to use.’’ During the 

review, EPA noted that ‘‘the EDMS was 

too cumbersome to complete the file 

review because documents were not 

correctly indexed.’’

Revised MOA IV.B.1 requires LDEQ to 

conduct ‘‘timely and substantive 

reviews and keep complete records of 

all written materials relating to the 

compliance status of LPDES 

permittees.’’ Required records include 

Compliance Schedule Reports, DMRs, 

Compliance Inspection Reports, and any 

other report required by the permit. 

Revised MOA IV.B.1.a further requires 

LDEQ to operate a system to determine 

if the self-monitoring reports are 

submitted, submitted reports are timely, 

complete and accurate, and that permit 

conditions are met. 

In order to meet these requirements, 

LDEQ has prepared SOP #1453 

governing the Permit Compliance 

System (PCS), which is a national 

database of NPDES information. The 

goals of this system are to ensure the 

accuracy, timeliness and completeness 

of all submissions. Improved accuracy, 

timeliness and completeness of 

submissions are vitally important. 

However, LDEQ must also ensure that 

the public is able to access this 

information. Importantly, LDEQ has 

committed to enter data which it deems 

appropriate, and that the decision will 

be made without public input. 

Therefore, citizens may be deprived of 

important data regarding the 

compliance of industrial and municipal 

facilities.

To improve public access, LDEQ 

should promptly allow online access to 

information. EPA’s approval must 

therefore be conditioned on (1) LDEQ’s 

immediate inclusion of full copies of 

current and future DMRs and other 

records of compliance in its electronic, 

searchable (currently ‘‘EDMS’’) records 

management system, (2) LDEQ’s 

inclusion of WENDB data elements; (3) 

LDEQ’s adherence to a schedule for 

providing online public access to CWA 

compliance records by August 2005. 

EPA Response: During the most recent 

Enforcement Program Review which 

was conducted June 2004, EPA staff 

noted significant improvements in the 

process for utilizing the EDMS at LDEQ. 

It appears that the continuous analysis 

and revisions being made to the system 

have been beneficial. LDEQ has 

enhanced the indexing system which 

provides more descriptive information 

for the documents in the system. While 

attempting to locate documents in the 

system, it was noted that documents 

included an additional description, 

which was helpful in the identification 

process. The percent of documents 

located during this review was found to 

have improved by 46% for minor 

facilities and 38% for major facilities 

from the March 2003 review. There 

were no documents found to be imaged 

under the incorrect identification 

number for the files included in the 

search. Because of the fact that DMRs 

are produced on a type of paper that 

does not scan well, those documents are 

maintained as paper records in files 

onsite. These documents were readily 

available and were found to be filed 

under the correct record numbers. The 

program documents require only that 

the state maintain adequate public files 

for each permittee at the central office 

and must be accessible to EPA and the 

public. Instructions for the various 

request options for access to public 

records are available on the LDEQ Web 

page (publicrecords@la.gov). 

Under the Program MOA, LDEQ is 

committed to enter all permit related 

and enforcement WENDB data into the 

National PCS for all Major, 92–500 

Minor and Significant Minor facilities. 

Significant Minors are identified as 

those minor facilities mutually agreed 

upon by both EPA and LDEQ and 

identified in the Annual State Program 

Performance Partnership Grant. 

Comment 8: LDEQ must provide 

public notice for all permit applications 

it receives. 

Discussion by Commenter: LDEQ 

should issue public notices for all

permit applications it receives, not just 

for major facilities and general permits. 

This enables citizens to be informed of 

all the sources of pollution in their area 

and gives them an opportunity to 

provide input during the permitting 

process. 

EPA Response: LDEQ meets or 

exceeds EPA’s public participation 

requirements in its permitting program. 

LDEQ must demonstrate to EPA that it 

can carry out the NPDES program and 

that state requirements are at least as 

stringent as the federal requirements. 

LAC 33:IX.2415.C.2 was patterned after 

the federal regulations. Federal 

regulations require that draft major 

permits undergo public noticing in a 

newspaper and go through a comment 

period. Louisiana regulations are further 

interpreted to extend this requirement 

to include minor permits, making 

Louisiana regulations more stringent 

than the federal requirements. In 

addition, the Program Description and 

LDEQ SOPs include requirements for 

issuing public notice in a newspaper for 

both major and minor individual draft 

permits. 

Comment 9: EPA must take prompt 

action if LDEQ fails to abide by the 

Revised MOA or the Program 

Description. 

Discussion by Commenter: We 

acknowledge that LDEQ has made 

significant improvements in its 

administration of the LPDES. We also 

believe that LDEQ’s current Secretary 

and Deputy Secretary have 

demonstrated a sincere desire to run a 

professional, well-maintained program. 

Nonetheless, each of the problems 

discussed above has existed since 1996, 

when EPA first authorized Louisiana to 

administer the LPDES program. The 

citizens of Louisiana are therefore being 

asked to wait for LDEQ to catch up, 

while facilities continue to operate with 

expired permits, to violate their effluent 

limits, and to illegally impair the waters 

of the State of Louisiana. Given the 

pervasive nature of these problems and 

the significant efforts required to 

remedy them, the EPA should exercise 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 815

strong oversight over LPDES until LDEQ 

has demonstrated that it has the 

regulatory and legal structure and 

funding necessary to administer the 

program in full compliance with the 

CWA and has established a track record 

of running a well-maintained program.

EPA Response: It is the intent of EPA 

to take prompt action if LDEQ does not 

meet its commitments in the MOA. EPA 

will continue its oversight and review of 

the LDEQ water permitting and 

enforcement programs at the mid-year 

and end-of-year reviews of the 

Performance Partnership Grant program. 

Twice each year, EPA reviews the 

commitments made by LDEQ and the 

progress on those commitments in the 

water permitting and enforcement 

programs. If EPA determines that 

adequate progress is not being made in 

the water program, in line with the 

LDEQ program commitments and the 

MOA, EPA will work with LDEQ on 

appropriate actions to correct noted 

deficiencies. 

Comment 10: III.D. Permit Reissuance: 

This section contains language that 

reads ‘‘in no event will permits that 

have been administratively continued 

beyond their expiration date be 

modified.’’ American Electric Power 

(AEP) requests that EPA clarify that this 

language is only applicable to ‘‘major 

modifications’’, and is not applicable to 

‘‘minor modifications’’ as defined in 40 

CFR 124.5 and 122.63 (specifically 

applicable to NPDES permits). 

Discussion by Commenter: AEP 

contends that in some cases the state 

may not process a permit application 

within the prescribed processing period 

(minimum of 180 days prior to the 

expiration date of the permit). AEP 

believes the permittee (applicant) 

should be allowed to have minor 

modifications accommodated by the 

permitting authority without having to 

re-apply and/or re-initiate the public 

participation process via re-noticing of 

the application. As such, AEP 

recommends that the draft language be 

modified to ‘‘in no event will permits 

that have been administratively 

continued beyond their expiration date 

be allowed to incorporate major 

modifications without formal 

modification of the application and reinitiation of the public participation 

process. Upon consent of the permittee, 

the Director may allow minor 

modifications to these permits.’’

EPA Response: 40 CFR 122.46 and 

LAC 33:IX. 2365 state that the effective 

term of a permit shall not exceed five 

years and shall not be extended by 

modification beyond the five year 

period. LAC 33:IX. 2321, and 40 CFR 

122.6 list two causes to administratively 

extend a permit beyond its expiration 

date, (1) the permittee has submitted a 

timely and complete application prior to 

the expiration date of the permit and (2) 

through no fault of the permittee the 

permitting authority has not reissued 

the permit. Permits continued in this 

manner remain fully effective and 

enforceable. To modify a permit that has 

been administratively continued would, 

in affect, be extending the permit 

beyond the specified period. 

Comment 11: It should be made clear 

that information appropriately declared 

‘‘proprietary’’ by the permittee cannot 

be released to the public. 

Discussion by Commenter: Section 

II.A.5 reads as follows: LDEQ will 

remain in compliance with federal right 

to know statutes and Louisiana public 

records law, while protecting sensitive 

information. Material containing 

security procedures, criminal 

intelligence information pertaining to 

terrorist-related activity, or threat or 

vulnerability assessments created, 

collected, or obtained in the prevention 

of terrorist-related activity, including 

but not limited to physical security 

information, proprietary information, 

operational plans, and the analysis of 

such information, or internal security 

information is not required to be 

disclosed under an exemption in the 

Louisiana Public Records Law (La. R.S. 

44:3.1) 

Although the exempted material is 

not regarded as public record, there is 

no prohibition from releasing the 

material. LDEQ will consider the merits 

of each request on a case-by-case basis 

while striving to achieve balance 

between the public’s right to know, 

security issues, and applicable federal 

and state statutes. 

The next to the last paragraph of this 

section as referenced above, describes 

several types of information that might 

be collected by the agency but are not 

required to be disclosed. The listing of 

information includes ‘‘proprietary 

information’’. The next paragraph states 

that though the above mentioned 

material is not regarded as public 

record, it can be released at the 

discretion of the LDEQ. 

EPA Response: The commenter is 

correct that information properly 

claimed as proprietary by the permittee 

will not be released to the public, 

provided the Secretary of LDEQ makes 

the determination that confidentiality is 

necessary to ‘‘[p]rotect trade secrets, 

proprietary secrets and information, and 

commercial or financial information.’’

La. R.S. 30:2030. However, La. R.S. 

30:2074(D)(7) and LAC 33:IX.2323 

specify that no claim of confidentiality 

will be accepted for certain categories of 

information associated with LPDES 

permit applicants or permittees, 

including all information required by 

the permit application, the permit itself, 

and any effluent or discharge data.

Comment 12: There should be no 

reason, other than those currently in the 

regulations, to limit the ability to 

modify a permit that is legally active. 

This restriction on the permitting 

agency (LDEQ) is beyond the authority 

given the EPA in either statute or 

promulgated regulations. It can only 

result in hardship on the permit holder 

with no environmental benefit. 

Discussion by Commenter: Section 

III.D. reads as follows: All expiring 

permits shall be reissued as close as 

possible to their expiration dates. In no 

event will permits which have been 

administratively continued beyond an 

expiration date be modified. The LDEQ 

may use the flexibility allowed in EPA’s 

Permitting for Environmental Results 

Initiative (August 15, 2003) to account 

for and to prioritize these facilities that 

remain in the backlog. LDEQ plans to 

utilize the approved Permit Issuance 

Strategy as its guide for permit issuance, 

and will update/revise the strategy 

yearly to reflect ongoing permit issuance 

goals. 

This section prohibits modification of 

a permit that has been administratively 

continued beyond its expiration date. It 

has been our experience that permits 

may be administratively extended for 

some time. Awaiting the often lengthy 

time necessary for a complete reissuance of an expired permit but 

continued permit when a modification 

is needed could result in substantial 

conflict with business timing or our 

ability to continue compliant operations 

under changing conditions. The relevant 

section of Louisiana Title 33 Section 

309 reads: C. If the applicant submits a 

timely and complete application 

pursuant to LAC 33:IX.309.A, and the 

department, through no fault of the 

applicant, fails to act on the application 

on or before the expiration date of the 

existing permit, the permittee shall 

continue to operate the facility under 

the terms and conditions of the expired 

permit which shall remain in effect 

until final action on the application is 

taken by the department. If the 

application is denied or the terms of the 

new permit contested, the expired 

permit shall remain in effect until the 

appeal process has been completed and 

a final decision rendered unless the 

secretary finds that an emergency exists 

which requires that immediate action be 

taken and in such case any appeal or 

request for review shall not suspend the 

implementation of the action ordered. 

816 Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 

Permits continued under this Section 

remain fully effective and enforceable. 

EPA Response: 40 CFR 122.46 and 

LAC 33:IX. 2365 state that the effective 

term of a permit shall not exceed five 

years and shall not be extended by 

modification beyond the five year 

period. LAC 33:IX. 2321, and 40 CFR 

122.6 list two causes to administratively 

extend a permit beyond its expiration 

date, (1) the permittee has submitted a 

timely and complete application prior to 

the expiration date of the permit and (2) 

through no fault of the permittee the 

permitting authority has not reissued 

the permit. Permits continued in this 

manner remain fully effective and 

enforceable. To modify a permit that has 

been administratively continued would, 

in affect, be extending the permit 

beyond the specified period. 

Petition To Withdraw LPDES Program 

On October 9, 2001, a petition for 

withdrawal of the CWA NPDES program 

authorization for the State of Louisiana 

was filed by the Tulane Environmental 

Law Clinic on behalf of the Louisiana 

Environmental Action Network, 

Louisiana Audubon Council, Gulf Coast 

Restoration Network, Association of 

Community Organizations for Reform 

Now, Lake Pontchartrain Basin 

Foundation, CFACT, Lake Maurepas 

Society, Concerned Citizens of 

Livingston Parish, St. John Citizens for 

Environmental Justice, Louisiana 

Communities United and Concerned 

Citizens of Iberville Parish. 

Supplements to the October 9, 2001, 

petition were filed on December 19, 

2001, February 22, 2002, and September 

17, 2002. 

The petition, as supplemented (‘‘the 

Petition’’), alleges that the State of 

Louisiana is not administering the 

LPDES program in accordance with the 

CWA, 40 CFR part 123 or the MOA 

signed by EPA and LDEQ upon program 

authorization. Specifically, the Petition 

alleges: 

(1) Deficiencies in the States’s 

permitting program, including 

insufficient statutes and regulations to 

ensure meaningful public participation, 

lax procedures for identifying point 

sources and a large backlog of expired 

permits;

(2) Deficiencies in the State’s 

compliance monitoring system, 

including insufficient record keeping 

regarding self-monitoring reports, 

inaccurate and inaccessible information 

on compliance status, inadequate 

compliance inspections and inadequate 

guidance to the regulated community; 

(3) Deficiencies in the State’s 

enforcement program, including failure 

to timely identify NPDES violations, 

failure to bring enforcement actions 

sufficient to deter future violations, 

failure to issue timely enforcement 

actions, failure to assess and collect 

penalties, improper use of beneficial 

environmental projects (BEPs) and 

failure to comply with the requirements 

for public participation in the 

enforcement process; 

(4) Deficiencies in the State’s records 

management; and 

(5) Deficiencies in the State’s legal 

authority, including an inability to 

appeal permits altered by the 

administrative review process and a 

failure to promulgate new authorities 

necessary to comply with the 

requirements of NPDES authorization. 

Based on these allegations, the 

Petition requests that EPA initiate 

formal proceedings to withdraw the 

LPDES program under Section 402(c)(3) 

of the CWA and 40 CFR 123.64(b), 

including a public hearing as provided 

for under those sections. 

In response to the Petition and in 

accordance with 40 CFR 123.64(b), EPA 

staff conducted an informal 

investigation of the allegations in the 

Petition to determine whether cause 

exists to commence withdrawal 

proceedings. EPA’s informal 

investigation included on-site reviews 

of LPDES files, interviews with LDEQ 

management and staff, and an 

evaluation by EPA staff of information 

and data concerning program 

implementation provided in writing to 

EPA by LDEQ. The data collected as a 

result of the informal investigation 

supplemented the large body of 

information already in EPA’s possession 

as a result of EPA’s ongoing statutory 

oversight responsibilities with respect to 

the LPDES program. Simultaneous with 

EPA’s informal investigation under 40 

CFR 123.64(b), former Governor M.J. 

Foster, Jr. convened a special Governor’s 

Task Force to review the administration 

of the LPDES program, also in response 

to citizens’ concerns. 

Both the multi-stakeholder Task Force 

created by Governor Foster, and EPA, 

through performance of its general 

oversight duties and through its 

informal investigation, found 

weaknesses in LDEQ’s operation of the 

LPDES program. The Governor’s Task 

Force shared its findings in 

recommendations to the Governor for 

improvements in the State program. 

EPA worked directly with LDEQ in the 

development of a list of seven 

performance measures aimed at 

addressing both EPA’s and the citizens’

concerns. These seven performance 

measures, which were forwarded to 

Governor Foster in a February 14, 2003, 

letter from EPA Assistant 

Administrators for the Office of Water 

and the Office of Enforcement and 

Compliance Assurance, identified 

specific actions to be performed by 

LDEQ within specified time frames in 

the areas of NPDES permitting and 

enforcement. The actions included 

drafting and issuing a specified number 

of permits, improving public access to 

LDEQ files, clarifying certain 

requirements under LDEQ’s Penalty rule 

and its BEP rule, clarifying and 

implementing procedures in regard to 

LDEQ’s unilateral enforcement actions, 

revising all LPDES program 

authorization documents and providing 

a legal opinion from LDEQ counsel and 

the Louisiana Attorney General’s Office 

regarding the State’s ability to enforce 

penalties against municipalities. Further 

discussion of the Performance Measures 

and the various changes made to the 

LPDES program can be found in EPA’s 

Federal Register notice of the revised 

LPDES program authorization 

documents, 69 FR 50199, August 13, 

2004. 

By letter dated May 12, 2004, EPA 

Regional Administrator Richard Greene 

informed the Governor of Louisiana that 

LDEQ had successfully completed all 

seven performance measures. EPA is 

greatly encouraged by the timely 

completion of these performance 

measures and by the State of Louisiana’s 

renewed commitment to making its 

NPDES program as strong and effective 

as any in the Country. In June, 2004, 

EPA staff performed a follow-up review 

of LDEQ’s administration of the LPDES 

program in order to assess LDEQ’s 

implementation of the processes and 

procedures outlined in the revised 

LPDES program authorization 

documents. As a result of that review, 

EPA staff determined that LDEQ was 

implementing the changes agreed to as 

a result of the performance measures 

and that the agency’s administration of 

the LPDES program showed marked 

improvement.

EPA has concluded our informal 

investigation of the allegations in the 

Petition and determined that cause does 

not exist to initiate program withdrawal 

proceedings. The criteria for responding 

to citizens’ petitions for withdrawal of 

state NPDES programs are set out in 40 

CFR 123.63. These criteria relate 

generally to the State’s legal authorities, 

program administration and 

enforcement activities (see 40 CFR 

123.63(a)(1)–(3)), as well as other 

components. Those criteria are general 

in nature and vest EPA with discretion 

in deciding whether cause exists to 

commence proceedings to withdraw a 

state’s NPDES authority. For example, 

40 CFR 123.63(a)(3) states that the 

Federal Register / Vol. 70, No. 3 / Wednesday, January 5, 2005 / Notices 817

1EPA’s record for this decision contains a 

‘‘Crosswalk’’ between the specific allegations in the 

Petition and EPA’s findings in regard to each 

allegation. To receive a copy of this Crosswalk, 

please contact Cathy Gilmore at (214) 665–6766 or 

Renea Ryland at (214) 665–2130.

Administrator may withdraw program 

approval when the state’s enforcement 

program fails to comply with the 

requirements of 40 CFR part 123, 

including (i) failure to act on permit or 

other program violations, (ii) failure to 

seek and collect adequate penalties, and 

(iii) failure to inspect and monitor 

regulated facilities. However, Federal 

regulations do not specify with any 

precision the number of times a state 

must, for instance, fail to act on permit 

or other program violations before 

NPDES authority should be withdrawn. 

Rather, the CWA and the regulations 

vest EPA with substantial discretion to 

determine whether a State is failing to 

meet minimum federal requirements. 

The structure of the CWA provides for 

primary NPDES authority to rest with 

the states, and Congress intended for 

EPA to exercise its oversight capacity in 

furtherance of appropriate State 

regulations of point source discharges 

under Section 402(b). With no bright 

line separating an insufficient program 

from a sufficient one, EPA must use its 

discretion to determine if the particular 

actions or inactions of an NPDES 

authorized state fall within a range of 

what EPA considers acceptable under 

the CWA and 40 CFR part 123. 

In certain areas identified in the 

Petition, EPA concluded that 

improvements were warranted in the 

State’s administration of the program. 

These areas related primarily to 

recordkeeping, data management and 

compliance and enforcement. The State 

has made substantial improvements in 

these areas. EPA is continuing to work 

with Louisiana, as EPA works with all 

State NPDES permitting authorities, to 

achieve ever greater levels of 

environmental protection. However, as 

the program now stands, EPA has 

concluded that the LPDES program is 

within the range of NPDES program 

practices required under the CWA and 

40 CFR part 123, so that withdrawal 

proceedings are not an appropriate 

response.1

Thus, EPA has determined that cause 

does not exist to commence formal 

withdrawal proceedings under 40 CFR 

123.64(b). EPA will continue to monitor 

the State’s program, both through 

routine oversight procedures, as well as 

through special national initiatives such 

as the Permitting for Environmental 

Results (PER) program. If any additional 

concerns are noted in the State’s LPDES 

program as a result of this oversight, 

they will be addressed at that time.

FOR FURTHER INFORMATION CONTACT: Ms. 

Diane Smith, EPA Region 6, 1445 Ross 

Avenue, Dallas, Texas 75202, 

Telephone: (214) 665–7191, or via email to the following address: 

smith.diane@epa.gov. 

Conclusion 

After evaluation of the comments and 

other information related to this Federal 

Register notice regarding the revision to 

the LPDES program authorization, I 

hereby provide public notice of the 

approval for the State of Louisiana to 

administer, in accordance with 40 CFR 

part 123, the LPDES program and denial 

of the petition for EPA to withdraw 

LDEQ’s authorization to administer the 

LPDES program.

Dated: December 28, 2004. 

Richard E. Greene, 

Regional Administrator, EPA Region 6.

[FR Doc. 05–178 Filed 1–4–05; 8:45 am] 

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS 

COMMISSION 

Notice of Public Information 

Collection(s) Being Reviewed by the 

Federal Communications Commission 

for Extension Under Delegated 

Authority 

December 22, 2004.

SUMMARY: The Federal Communications 

Commission, as part of its continuing 

effort to reduce paperwork burden 

invites the general public and other 

Federal agencies to take this 

opportunity to comment on the 

following information collection(s), as 

required by the Paperwork Reduction 

Act (PRA) of 1995, Public Law No. 104–

13. An agency may not conduct or 

sponsor a collection of information 

unless it displays a currently valid 

control number. No person shall be 

subject to any penalty for failing to 

comply with a collection of information 

subject to the Paperwork Reduction Act 

that does not display a valid control 

number. Comments are requested 

concerning (a) whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the Commission, including 

whether the information shall have 

practical utility; (b) the accuracy of the 

Commission’s burden estimate; (c) ways 

to enhance the quality, utility, and 

clarity of the information collected; and 

(d) ways to minimize the burden of the 

collection of information on the 

respondents, including the use of 

automated collection techniques or 

other forms of information technology.

DATES: Written Paperwork Reduction 

Act (PRA) comments should be 

submitted on or before March 7, 2005. 

If you anticipate that you will be 

submitting comments, but find it 

difficult to do so within the period of 

time allowed by this notice, you should 

advise the contact listed below as soon 

as possible.

ADDRESSES: Direct all Paperwork 

Reduction Act (PRA) comments to 

Cathy Williams, Federal 

Communications Commission, Room 1–

C823, 445 12th Street, SW., Washington, 

DC 20554 or via the Internet to 

Cathy.Williams@fcc.gov.

FOR FURTHER INFORMATION CONTACT: For 

additional information or copies of the 

information collection(s), contact Cathy 

Williams at (202) 418–2918 or via the 

Internet at Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION: 

OMB Control Number: 3060–1072. 

Title: Digital Channel Election Form: 

Third Round Election, FCC Form 386. 

Form Number: FCC Form 386. 

Type of Review: Extension of a 

currently approved collection 

Respondents: Business or other forprofit entities; Not-for-profit 

institutions. 

Number of Respondents: 85. 

Estimated Time per Response: 2–5 

hours. 

Frequency of Response: One-time 

reporting requirement. 

Total Annual Burden: 173 hours. 

Total Annual Cost: $86,000. 

Privacy Impact Assessment: No 

impact(s). 

Needs and Uses: On September 7, 

2004, the FCC released the Report and 

Order, In the Matter of Second Periodic 

Review of the Commission’s Rules and 

Policies Affecting the Conversion to 

Digital Television, MB Docket No. 03–

15, FCC 04–192, which implements 

several steps necessary for the 

continued progress of the conversion of 

the nation’s television system from 

analog to digital (DTV) technology. The 

Order established the timing and 

procedures necessary to determine the 

post-transition core channels on which 

digital stations will operate, to be 

specified in a new Table of Allotments 

to be issued by the Commission. The 

Order implements a multi-step channel 

election process which starts with 

licensees/permittees filing certain preelection certifications on FCC Form 381. 

Television broadcast licensees and 

permittees that have not received a 

tentative channel designation by the 

third round in the channel election 

process will use FCC Form 386 to make