[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Rules and Regulations]
[Pages 5058-5061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1862]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 442

[OW-2004-11; FRL-7866-7]
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: Direct final rule.

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SUMMARY: EPA is taking direct final action to correct a typographical 
error in the Effluent Limitations Guidelines, Pretreatment Standards, 
and New Source Performance Standards for the Transportation Equipment 
Cleaning Point Source Category. The regulatory language of the 
Pretreatment Standards for New Sources in the existing regulation 
refers to ``any existing source'' when it should say ``any new 
source.'' EPA is amending the language to correct this error.

DATES: This rule is effective on May 2, 2005 without further notice, 
unless EPA receives adverse comment by April 4, 2005. If we receive 
such comment, we will publish a timely withdrawal in the Federal 
Register informing the public that this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. OW-2004-
11, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> Agency Web site: http://www.epa.gov/edocket. EDOCKET, 
EPA's electronic public docket and comment system, is EPA's preferred 
method for receiving comments. Follow the on-line instructions for 
submitting comments.
    <bullet> Mail: Water Docket, Environmental Protection Agency, 
Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    <bullet> 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 e-mail 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

[[Page 5059]]

number: (202) 566-1038; fax number: (202) 566-1053; e-mail address: 
<a href="/cdn-cgi/l/email-protection#9aeae8f3eeeee9b4f0ffe9e9ffdaffeafbb4fdf5ec"><span class="__cf_email__" data-cfemail="eb9b99829f9f98c5818e98988eab8e9b8ac58c849d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

General Information

A. 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:

------------------------------------------------------------------------
                                                           Examples of
                                                          common North
                                                            American
           Category              Examples of regulated      Industry
                                       entities          Classification
                                                         System (NAICS)
                                                              codes
------------------------------------------------------------------------
Industry......................  Facilities that         311613, 311711,
                                 generate wastewater     311712, 311222,
                                 from cleaning the       311223, 311225,
                                 interior of tank        484121, 484122,
                                 trucks, rail tank       484210, 484230,
                                 cars, intermodal tank   488390, 488490.
                                 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.
------------------------------------------------------------------------

    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.

B. What Process Governs Judicial Review for Today's Final Rule?

    In accordance with 40 CFR 23.2, today's rule is considered 
promulgated for the purposes of judicial review as of 1 p.m. Eastern 
Daylight Time, February 15, 2005. Under section 509(b)(1) of the Clean 
Water Act (CWA), judicial review of today's effluent limitations 
guidelines and standards may be obtained by filing a petition in the 
United States Circuit Court of Appeals for review within 120 days from 
the date of promulgation of these guidelines and standards. Under 
section 509(b)(2) of the CWA, the requirements of this regulation may 
not be challenged later in civil or criminal proceedings brought by EPA 
to enforce these requirements.

I. Legal Authority

    The U.S. Environmental Protection Agency is promulgating these 
regulations under the authority of sections 301, 304, 306, 307, 308, 
402, and 501 of the Clean Water Act, 33 U.S.C. 1311, 1314, 1316, 1317, 
1318, 1342, and 1361 and under authority of the Pollution Prevention 
Act of 1990 (PPA), 42 U.S.C. 13101 et seq., Public Law 101-508, 
November 5, 1990.

II. Summary of Direct Final Rule

    On August 14, 2000 (65 FR 49666), EPA published effluent 
limitations and standards for the transportation equipment cleaning 
point source category. The rule contained a typographical error. The 
regulatory language of the Pretreatment Standards for New Sources in 40 
CFR 442.16(b) refers to ``any existing source'' when it should say 
``any new source.'' In correcting this error, EPA is not substantively 
altering the final rule or expanding any regulatory requirement. 
Section 442.16(b) clearly applies to pretreatment standards for new 
sources, and therefore the use of the word ``existing'' instead of 
``new'' in this paragraph was simply a typographical error.
    EPA is publishing this rule without prior proposal because we view 
this as a noncontroversial correction and anticipate no adverse 
comment. This rule is noncontroversial because it does not change the 
requirements of the rule, but merely corrects a typographical error. We 
would expect no adverse comment on today's action. However, in the 
``Proposed Rules'' section of today's Federal Register, we are 
publishing a separate document that will serve as the proposal to 
revise the Transportation Equipment Cleaning Effluent Limitations 
Guidelines if adverse comments are filed. This rule will be effective 
on May 2, 2005 without further notice unless we receive adverse comment 
by April 4, 2005. If EPA receives adverse comment, we will publish a 
timely withdrawal in the Federal Register informing the public that the 
rule will not take effect. We will address all public comments in a 
subsequent final rule based on the proposed rule.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (see 58 FR 51735 (October 4, 1993)) 
the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to 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, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This rule merely corrects technology-based discharge limitations and 
standards. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing regulations (see 40 CFR 422 (August 14, 2000))

[[Page 5060]]

under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2040-0235, EPA ICR number 
2018.01. The information collection requirements are unchanged by 
today's action. A copy of the OMB approved Information Collection 
Request (ICR) may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed at 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's direct final rule 
on small entities, small entity is defined as: (1) A small business 
according to the regulations of the Small Business Administration (SBA) 
at 13 CFR 121.201; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. Today's 
action only corrects a typographical error in the Pretreatment 
Standards for New Sources and does not change the existing regulations.

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 UMRA section 202, 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, UMRA section 205 generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. EPA is required by UMRA section 203 to 
develop a small government agency plan before it establishes any 
regulatory requirements that may significantly or uniquely affect small 
governments, including tribal governments. The plan must provide for 
notifying potentially affected small governments, enabling officials of 
affected small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. Since this action only corrects a 
typographical error in an existing regulation, there are no costs 
associated with this action. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    EPA also determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Today's action does not establish any new regulatory 
requirements, but merely corrects a typographical error in the existing 
effluent limitations guidelines. Thus, today's rule is not subject to 
the requirements of section 203 of UMRA.

E. 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.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule corrects a 
typographical error to existing effluent limitations guidelines for the 
transportation equipment cleaning industry. Thus, Executive Order 13132 
does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (see 59 FR 22951, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
This rule does not establish any new regulatory requirements, but 
merely

[[Page 5061]]

corrects a typographical error to the existing transportation equipment 
cleaning effluent limitations guidelines. Thus, Executive Order 13175 
does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (see 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 affect 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.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This direct final rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (see 66 FR 28355 (May 22, 2001)) because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 requires that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not exclude persons (including populations) from 
participation in, deny persons (including populations) the benefits of, 
or subject persons (including populations) to discrimination under, 
such programs, policies, and activities because of their race, color, 
or national origin.
    Since this action does not establish any new regulatory 
requirements but merely corrects a typographical error to the existing 
transportation equipment cleaning effluent guidelines, there are no 
environmental justice implications of today's action.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on May 2, 2005.

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.

0
40 CFR part 442 is amended as follows:

PART 442--AMENDED

0
1. The authority citation for part 442 continues to read as follows:

    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and 
1361.

0
2. Section 442.16 is amended by revising paragraph (b) introductory 
text to read as follows:


Sec.  442.16  Pretreatment standards for new sources (PSNS).

* * * * *
    (b) As an alternative to achieving PSNS as defined in paragraph (a) 
of this section, any new source subject to paragraph (a) of this 
section may have a pollution prevention allowable discharge of 
wastewater pollutants, as defined in Sec.  442.2, if the source agrees 
to a control mechanism with the control authority as follows:
* * * * *

[FR Doc. 05-1862 Filed 1-31-05; 8:45 am]
BILLING CODE 6560-50-P


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