5100 Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 

9EPA’s Talent brief suggested that compliance 

with FIFRA does not necessarily mean compliance 

with the CWA, and pointed out one difference 

between CWA and FIFRA regulation, i.e., 

individual NPDES permits could address local 

water quality concerns that might not be 

specifically addressed through FIFRA’s national 

registration process. The position EPA is 

articulating in this memo would not preclude states 

from further limiting the use of a particular 

pesticide in accord with their authorities under 7 

U.S.C. 136v(a) and Wisconsin Public Intervenor v. 

Mortier, 501 U.S. 597, 613–614 (1991), to the extent 

otherwise authorized by Federal and state law. 

Furthermore, under section 510 of the CWA, States 

and other governmental entities are not precluded 

from adopting more stringent requirements to 

address local water quality concerns.

with all relevant requirements under 

FIFRA, EPA has determined that it is 

not a chemical waste or biological 

material and, therefore, is not a 

pollutant subject to NPDES permitting 

requirements. That coverage under the 

Act turns on the particular 

circumstances of its use is not 

remarkable. Indeed, when asked on the 

Senate floor whether a particular 

discharge would be regulated, the 

primary sponsor of the CWA, Senator 

Muskie (whose views regarding the 

interpretation of the CWA have been 

accorded substantial weight over the 

last four decades), stated:

I do not get into the business of defining 

or applying these definitions to particular 

kinds of pollutants. That is an administrative 

decision to be made by the Administrator. 

Sometimes a particular kind of matter is a 

pollutant in one circumstance, and not in 

another. Senate Debate on S. 2770, Nov. 2, 

1971 (117 Cong. Rec. 38,838).

Here, to determine whether a 

pesticide is a pollutant under the CWA, 

EPA believes it is appropriate to 

consider the circumstances of how a 

pesticide is applied, specifically 

whether it is applied consistent with 

relevant requirements under FIFRA. 

Rather than interpret the statutes so as 

to impose overlapping and potentially 

confusing regulatory regimes on the use 

of pesticides, this interpretation seeks to 

harmonize the CWA and FIFRA.9 Under 

this interpretation, a pesticide 

applicator is assured that complying 

with relevant requirements under 

FIFRA will mean that the activity is not 

also subject to the distinct NPDES 

permitting requirements of the CWA. 

However, like an unpermitted discharge 

of a pollutant, application of a pesticide 

in violation of relevant FIFRA 

requirements would be subject to 

enforcement under any and all 

appropriate statutes including, but not 

limited to, FIFRA and the CWA.

Please feel free to call us to discuss 

this memorandum. Your staff may call 

Louis Eby in the Office of Wastewater 

Management at (202) 564–6599 or 

William Jordan in the Office of Pesticide 

Programs at (703) 305–1049.

List of Subjects in 40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control.

Dated: January 26, 2005. 

Stephen L. Johnson, 

Deputy Administrator.

For the reasons set forth in the 

preamble, chapter I of title 40 of the 

Code of Federal Regulations is proposed 

to be amended as follows:

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

1. The authority citation for part 122 

continues to read as follows:

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

1251 et seq.

Subpart A—[Amended] 

2. Section 122.3 is amended by 

adding paragraph (h) to read as follows:

§ 122.3 Exclusions.

* * * * *

(h) The application of pesticides to 

waters of the United States consistent 

with all relevant requirements under 

FIFRA (i.e., those relevant to protecting 

water quality), in the following two 

circumstances: 

(1) The application of pesticides 

directly to waters of the United States in 

order to control pests. Examples of such 

applications include applications to 

control mosquito larvae, aquatic weeds 

or other pests that are present in the 

waters of the United States. 

(2) The application of pesticides to 

control pests that are present over 

waters of the United States, including 

near such waters, that results in a 

portion of the pesticides being 

deposited to waters of the United States; 

for example, when insecticides are 

aerially applied to a forest canopy 

where waters of the United States may 

be present below the canopy or when 

pesticides are applied over, including 

near, water for control of adult 

mosquitos or other pests.

[FR Doc. 05–1868 Filed 1–31–05; 8:45 am] 

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 442 

[OW–2004–11; FRL–7866–8] 

RIN 2040–AE65 

Effluent Limitations Guidelines, 

Pretreatment Standards, and New 

Source Performance Standards for the 

Transportation Equipment Cleaning 

Point Source Category

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to amend 

the Effluent Limitations Guidelines, 

Pretreatment Standards, and New 

Source Performance Standards for the 

Transportation Equipment Cleaning 

Point Source Category. This action 

proposes to correct a typographical error 

in the regulatory language of the 

Pretreatment Standards for New Sources 

in the existing regulation which refers to 

‘‘any existing source’’ when it should 

say ‘‘any new source.’’

In the ‘‘Rules and Regulations’’

section of the Federal Register, we are 

amending the regulatory language of the 

Pretreatment Standards for New Sources 

in the existing regulation as a direct 

final rule without prior proposal 

because we view this as a 

noncontroversial revision and anticipate 

no adverse comment. We have 

explained our reasons for this revision 

in the preamble to the direct final rule. 

If we receive no adverse comment, we 

will not take further action on this 

proposed rule. If we receive adverse 

comment, we will withdraw the direct 

final rule and it will not take effect. We 

will address all public comments in a 

subsequent final rule based on this 

proposed rule. We will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. 

The regulatory text for the proposal is 

identical to that for the direct final rule 

published in the Rules and Regulations 

section of this Federal Register. For 

further supplementary information, see 

the direct final rule.

DATES: Written comments must be 

received by April 4, 2005.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2004–

11, by one of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

Federal Register / Vol. 70, No. 20 / Tuesday, February 1, 2005 / Proposed Rules 5101

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• Mail: Water Docket, Environmental 

Protection Agency, Mailcode: 4101T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: Water Docket, EPA/

DC, EPA West, Room B102, 1301 

Constitution Ave., NW., Washington, 

DC. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. OW–2004–11. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Water Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC. This 

Docket Facility is open from 8:30 to 

4:30, Monday through Friday, excluding 

legal holidays. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Water Docket is (202) 566–2426.

FOR FURTHER INFORMATION CONTACT: Mr. 

Jesse W. Pritts, Engineering and 

Analysis Division, Office of Water 

(4303T), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: (202) 566–1038; fax number: 

(202) 566–1053; e-mail address: 

pritts.jesse@epa.gov.

SUPPLEMENTARY INFORMATION: 

What Entities Are Potentially Affected 

by This Final Rule? 

Entities potentially affected by this 

action include facilities that discharge 

wastewater from transportation 

equipment cleaning activities and 

include the following types:

Category Examples of regulated entities 

Examples of common North American Industry Classification System 

(NAICS) codes 

Industry ............................................ Facilities that generate wastewater from cleaning the interior of tank 

trucks, rail tank cars, intermodal tank containers, tank barges, or 

ocean/sea tankers used to transport materials or cargos that come 

into direct contact with tank or container interior, except where 

such tank cleanings are performed in conjunction with other industrial, commercial, or POTW operations.

311613, 311711, 311712, 311222, 

311223, 311225, 484121, 

484122, 484210, 484230, 

488390, 488490. 

EPA does not intend the preceding 

table to be exhaustive, but rather it 

provides a guide for readers regarding 

entities likely to be affected by this 

action. This table lists the types of 

entities that EPA is now aware could 

potentially be affected by this action. 

Other types of entities not listed in the 

table could also be affected. To 

determine whether your facility is 

affected by this action, you should 

carefully examine the applicability 

criteria listed at 40 CFR 442.1. If you 

still have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

Statutory and Executive Order Reviews 

For the various statutes and executive 

orders that require findings for 

rulemaking, EPA incorporates the 

findings from the direct final 

rulemaking into this companion notice 

for the purpose of providing public 

notice and opportunity for comment.

List of Subjects in 40 CFR Part 442 

Environmental protection, Barge 

cleaning, Rail tank cleaning, Tank 

cleaning, Transportation equipment 

cleaning, Waste treatment and disposal, 

Water pollution control.

Dated: January 26, 2005. 

Stephen L. Johnson, 

Deputy Administrator.

[FR Doc. 05–1861 Filed 1–31–05; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AE59 

Endangered and Threatened Wildlife 

and Plants; Proposed Endangered 

Status for the Salt Creek Tiger Beetle 

(Cicindela nevadica lincolniana)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the Salt Creek tiger beetle (Cicindela 

nevadica lincolniana) as endangered 

under the authority of the Endangered 

Species Act of 1973, as amended (Act). 

The Salt Creek tiger beetle, a member of