14588 Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 123

[FRL–5148–6]

Amendment to Requirements for

Authorized State Permit Programs

Under Section 402 of the Clean Water

Act

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to amend

the regulations concerning the

minimum requirements for federally

authorized State permitting programs

under section 402 of the Clean Water

Act. The proposed rule would explicitly

require that State law must provide any

interested person an opportunity to

challenge the approval or denial of 402

permits issued by the State in State

court. The intent of the proposed rule is

to ensure that any interested person has

the opportunity to challenge judicially

the final action on State-issued permits,

to the same extent as if the permit were

issued by EPA. Most States already have

this authority which allows for local

resolution of issues. As a result, EPA

believes today’s proposed rule will

apply to a very small number of States

with authorization to administer the

National Pollutant Discharge

Elimination System (NPDES) permit

program. EPA is not proposing at this

time to establish this requirement for

Tribal permitting programs under

section 402, but is soliciting comments

on various issues related to extending

this requirement to Tribes. No Tribes are

currently authorized to operate the

NPDES program.

DATES: Written comments on this

proposed rule must be submitted on or

before June 15, 1995.

ADDRESSES: Commenters are requested

to submit three copies of their

comments to the Comment Clerk for the

section 402 Amendment; Water Docket;

MC–4101, Environmental Protection

Agency, 401 M Street, SW., Washington

DC 20460. Commenters who would like

acknowledgement of receipt of their

comments should include a selfaddressed, stamped envelope. No

facsimiles (faxes) will be accepted.

A copy of the supporting information

for this proposal is available for review

at EPA’s Water Docket, room L–102, 401

M Street, SW., Washington, DC 20460.

For access to the docket materials, call

(202) 260–3027 between 9 a.m. and 3:30

p.m. for an appointment.

FOR FURTHER INFORMATION CONTACT:

Laura J. Phillips, Office of Wastewater

Management (OWM), Permits Division

(4203), Environmental Protection

Agency, 401 M Street, SW., Washington,

DC 20460, (202) 260–9541.

SUPPLEMENTARY INFORMATION:

Information in this preamble is

organized as follows:

I. Summary and Explanation of Today’s

Action

1. Background

2. Rationale and Authority for Proposed

Rule

3. Scope of Standing Requirement

4. Exhaustion of Administrative Remedies

5. Alternatives Under Consideration

6. Time Period for Compliance

II. Request for Comment

III. Supporting Documentation

1. Compliance With Executive Order 12866

(Regulatory Impact Analysis)

2. Compliance With Executive Order 12875

3. Paperwork Reduction Act

4. Regulatory Flexibility Act

I. Summary and Explanation of Today’s

Action

1. Background

Congress enacted the Clean Water

Act, 33 U.S.C. 1251 et seq. (‘‘CWA’’ or

‘‘the Act’’), ‘‘to restore and maintain the

chemical, physical, and biological

integrity of the Nation’s waters.’’

Section 101(a), 33 U.S.C. 1251(a). To

achieve this objective, the Act

authorizes EPA, or a State approved by

EPA, to issue permits controlling the

discharge of pollutants to navigable

waters. Section 402(a)(1), 33 U.S.C.

1342(a)(1). A State that wishes to

administer its own permit program for

discharges of pollutants, other than

dredged or fill material, to navigable

waters may submit a description of the

program it proposes to administer to

EPA for approval according to criteria

set forth in the statute. Section 402(b),

33 U.S.C. 1342(b).

EPA is authorized to treat Indian

Tribes in the same manner as States for

purposes of certain provisions of the

CWA, including section 402. Section

518(e), 33 U.S.C. 1377(e).

EPA’s regulations at 40 CFR part 123

establish minimum requirements for

federally authorized State permit

programs under section 402 of the CWA.

These regulations include federally

recognized Indian Tribes within the

definition of ‘‘State.’’ 40 CFR 122.2. EPA

is proposing to add language to part 123

that makes clear the intent that, to

receive or retain Federal authorization,

a State must have laws that afford any

interested person the opportunity to

challenge in State court the final

approval or denial of 402 permits by the

State. The intent of this proposal is to

ensure that State programs provide the

public with an opportunity to challenge

final action on 402 permits in State

courts, to the same extent as if the

permit were federally-issued. EPA is

inviting comment on various issues

related to extending this requirement to

Tribes.

2. Rationale and Authority for Proposed

Rule

EPA has become aware of instances in

which citizens are barred from

challenging State-issued permits

because of restrictive standing

requirements in State law. EPA believes

this is a gap in the regulations setting

minimum requirements for State 402

permit programs that needs to be

addressed.

A coalition of environmental groups

has filed two petitions requesting that

EPA withdraw the Virginia State 402

permit program, citing a limitation on

citizen standing, among other alleged

deficiencies. In particular, they allege

that recent changes in the law in the

State of Virginia have significantly

narrowed the public’s opportunity to

challenge State-issued 402 permits.

Virginia’s State Water Control Law, the

State law under which Virginia’s

authorized program is administered,

authorizes only an ‘‘owner aggrieved’’ to

challenge permits in court. VA Code

62.1–44.29. In 1990, the Virginia

legislature amended and narrowed the

statutory definition of ‘‘owner.’’ The

environmental groups allege that under

three opinions of the Virginia Court of

Appeals and the State Water Control

Law, only a permittee has standing to

challenge the issuance or denial of a 402

permit in State court. Environmental

Defense Fund v. State Water Control

Board, 12 Va. App. 456, 404 SE.2d 728

(1991), reh’g en banc denied, 1991 Va.

App. LEXIS 129; Town of Fries v. State

Water Control Board, 13 Va. App. 213,

409 SE.2d 634 (1991). See Citizens for

Clean Air v. State Air Pollution Control

Board, 13 Va. App. 430, 412 SE.2d 715

(1991)(interpreting similar language in

Virginia Air Pollution Control Law).

They allege that under these three

decisions, riparian landowners, local

governments that wish to draw drinking

water from the waters in question,

downstream permittees, local business

and property owners associations, local

civic associations and environmental

organizations whose members use the

waters in question may not challenge a

State-issued permit in State court.

The Agency is committed to moving

away from permit-by-permit oversight.

At the same time, it is critical that EPA

continue in its partnership role to

support effective State implementation.

It is also essential to provide for

meaningful local participation and
Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Proposed Rules 14589

resolution of permit specific issues. An

important component of effective public

participation is that the public have

access to judicial forums to challenge

State-issued permits to the same extent

as would be the case were EPA the

permitting authority. This approach

ensures that as EPA reduces its

oversight, both EPA and the States

remain directly accountable on a

permit-by-permit basis to the public. To

this end, EPA believes the purposes of

the CWA can best be accomplished by

providing an opportunity for review in

State court of the final approval or

denial of 402 permits by all interested

persons, as well as permittees and

permit applicants, in order to ensure an

adequate and meaningful opportunity

for public review and comment on

issues addressed by the permit. The

same concerns arise when the program

is federally administered; that is why

Congress provided for judicial review of

Federal permit actions in Federal court.

When citizens are denied the

opportunity to challenge executive

agency decisions in court, their ability

to influence permitting decisions

through other required elements of

public participation, such as through

public comments and public hearings

on proposed permits, may be seriously

compromised. If citizens perceive that a

State is not addressing their concerns

about 402 permits because the citizens

have no recourse to an impartial

judiciary, that perception also has a

chilling effect on all the remaining

forms of public participation in the

permitting process. EPA believes that in

order to effectuate the policies and

purposes of the CWA, States must

address the legitimate concerns of

citizens about 402 permits. Accordingly,

EPA is proposing to add language to

part 123 explicitly requiring that all

interested persons must have an

opportunity to challenge the final

approval or denial of 402 permits in

State court. In the judgment of EPA, this

effectively balances the CWA’s strong

policy favoring public participation in

the development of water pollution

controls with the policy to ‘‘recognize,

preserve and protect the primary

responsibilities and rights of the States

to prevent, reduce and eliminate

pollution...’’ Section 101(b), 33 U.S.C.

1251(b). It effectuates EPA’s strong

policy interest in deferring to State

administration of authorized NPDES

programs while ensuring that citizens

will be able to influence permitting

decisions through public participation

and will have access to the courts to

challenge State–issued permits to the

same extent as if the program were

federally administered.

EPA’s direct authority to specify this

requirement is found at sections 101(e),

304(i), 402(b) and (c), and 501(a) of the

CWA.

Section 501(a), 33 U.S.C. 1361(a),

confers general authority on the

Administrator to prescribe such

regulations as are necessary to carry out

her functions under the CWA. Section

304(i), 33 U.S.C. 1314(i), provides that

EPA shall promulgate guidelines

establishing the minimum procedural

and other elements of any State program

under section 402. Section 101(e)

provides that ‘‘[p]ublic participation in

the development, revision, and

enforcement of any regulation, standard,

effluent limitation, plan, or program

established by the Administrator or any

State under this chapter shall be

provided for, encouraged, and assisted

by the Administrator and the States . .

. .’’ 33 U.S.C. 1251(e). To establish

minimum public participation

requirements consistent with these

statutory goals, section 101(e) directs

the Administrator, in cooperation with

the States, to establish minimum

guidelines for public participation. Id.

Congress included the provisions

relating to public participation in

section 101(e) because it recognized that

‘‘[a] high degree of informed public

participation in the control process is

essential to the accomplishment of the

objectives we seek—a restored and

protected natural environment.’’ S. Rep.

414, 92d Cong., 2d Sess. 12 (1972),

reprinted in A Legislative History of the

Water Pollution Control Act

Amendments of 1972, Cong. Research

Service, Comm. Print No. 1, 93d Cong.,

1st Sess. 108 (1973)(hereinafter cited as

1972 Legis. Hist.) at 1430. The Senate

Conference Report observed further that

implementation of water pollution

control measures would depend, ‘‘to a

great extent, upon the pressures and

persistence which an interested public

can exert upon the governmental

process. The Environmental Protection

Agency and the State should actively

seek, encourage and assist the

involvement and participation of the

public in the process of setting water

quality requirements and in their

subsequent implementation and

enforcement.’’ Id. See also Senate

Conference Report at 72, 1972 Legis.

Hist. at 1490 (‘‘The scrutiny of the

public... is extremely important in

insuring expeditious implementation of

the authority [conferred by section 402]

and a high level of performance by all

levels of government and discharge

sources.’’) Similarly, the House directed

EPA and the States ‘‘to encourage and

assist the public so that it may fully

participate in the administrative

process.’’ H. Rep. 911, 92d Cong., 2d

Sess. 79, 1972 Legis. Hist. at 766.

Congressman Dingell, a leading sponsor

of the CWA, characterized section

101(e) as applying ‘‘across the board.’’

Id. at 108. See also id. at 249.

Section 402(b) establishes the

statutory standards applicable to the

approval of State 402 permitting

programs. These standards also reflect

the importance that Congress attached

to effective public participation in

establishing controls on water pollution.

States wishing to administer a 402

permit program must establish to the

satisfaction of the Administrator that

they have enacted laws that provide

adequate authority to carry out the State

program. Section 402(b), 33 U.S.C.

1342(b). Section 402(b)(3) contains an

explicit requirement for public

participation in the development of

State permits. Subsection (3) allows

disapproval upon a finding of

inadequate authority ‘‘[t]o 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.’’ Id. Section 402(c), 33

U.S.C. 1342(c), authorizes EPA to

withdraw a State program if it is not

being administered in accordance with

applicable requirements.

The courts have also recognized that

meaningful and adequate public

participation is an essential part of a

State program under section 402. See

Natural Resources Defense Council v.

EPA, 859 F.2d 156, 175–78 (D.C. Cir.

1988)(approving part 123 regulations

regarding citizen intervention in State

enforcement actions); Citizens for a

Better Environment v. EPA, 596 F.2d

720, reh’g denied, 596 F.2d 725 (7th Cir.

1979)(invalidating EPA approval of a

State program in the absence of prior

promulgation of guidelines regarding

citizen participation in State

enforcement actions).

Thus, the CWA vests considerable

discretion in the Administrator to set

minimum requirements applicable to

authorized 402 programs, particularly

with respect to public participation and

the rights of citizens to influence the

permitting process. See Natural

Resources Defense Council v. EPA, 859

F.2d at 175–178.

EPA’s proposal is further supported

by the statutory provisions governing

challenges to 402 permits issued by

EPA. Section 509(b)(1) of the CWA, 33

U.S.C. 1369(b)(1), provides that ‘‘any

interested person’’ may obtain judicial

review in the United States Court of
14590 Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Proposed Rules

Appeals of the Administrator’s action in

issuing or denying any permit under

section 402. There is no indication that

Congress intended that the public’s

rights to challenge permit actions would

be diminished, upon EPA’s approval of

a State 402 program, to the point that

the goal of adequate and effective public

participation in the permit issuance

process would be compromised.

(Similarly, Congress has provided

citizens the ability, except in defined

circumstances, to commence a civil

action in the United States District

Court against any person who is alleged

to be in violation of any effluent

standard or limitation under the CWA,

regardless of whether the permitting

authority is EPA or the State. Section

505(a), 33 U.S.C. 1365(a)).

The regulations setting minimum

requirements for authorized State 402

permit programs, 40 CFR part 123, do

not explicitly address requirements for

citizen standing to challenge the

approval or denial of permits in State

court. The current part 123 regulations

were originally issued on May 19, 1980.

45 FR 33290. When EPA issued those

regulations, the Agency did not

contemplate that State law might limit

the opportunity for interested citizens to

challenge final permit decisions in State

court to such a degree that it is

substantially narrower than the

opportunity afforded under section 509

to challenge federally-issued permits.

Accordingly, EPA believes it needs to

specify standing requirements in part

123. EPA seeks to add language to part

123 that would explicitly require that in

order to receive or retain authorization,

a State must afford any interested

person the opportunity to challenge the

final approval or denial of 402 permits

in State court. The proposal would

codify the Agency’s interpretation of the

CWA, as set forth above. EPA believes

the Clean Water Act authorizes the

Agency to specify this requirement as a

precondition to the assumption and

continued operation of a 402 permitting

program by a State.

The proposed rule would apply to

final actions with respect to

modification, revocation and reissuance

and termination of permits as well as

the approval or denial of permits in the

first instance.

3. Scope of Standing Requirement

EPA’s proposal makes it clear that

‘‘any interested person’’ must be

afforded standing to challenge final

action by a State in issuing or denying

a 402 permit; this proposal would

ensure consistency with the standing

afforded the public to challenge

federally-issued permits in Federal

court. The legislative history of the

CWA states explicitly that the term

‘‘interested person’’ in section 509(b) is

intended to embody the injury in fact

rule of the Administrative Procedure

Act, as set forth by the Supreme Court

in T3Sierra Club v. Morton, 405 U.S.

727 (1972). S. Conference Rep. No.

1236, 92d Cong, 2d Sess. 146 (1972),

1972 Legis. Hist. at 281, 329.

Montgomery Environmental Coalition v.

Costle, 646 F.2d 568, 576–78 (D.C. Cir.

1980). See Trustees for Alaska v. EPA,

749 F.2d 549, 554–55 (9th Cir. 1984).

EPA intends that the term ‘‘interested

person’’ as used in the proposed rule

have the same meaning that it has in

section 509(b). Today’s proposal would

ensure that citizen standing to challenge

the issuance or denial of State–issued

402 permits is similarly expansive

where the State is authorized to

administer 402 permit programs.

As interpreted by the United States

Supreme Court, the standing

requirement of Article III of the

Constitution contains three key

elements:

[A]t an irreducible minimum, Art. III

requires the party who invokes the court’s

authority to ‘‘show that he personally has

suffered some actual or threatened injury as

a result of the putatively illegal conduct of

the defendant,’’... and that the injury ‘‘fairly

can be traced to the challenged action’’ and

‘‘is likely to be redressed by a favorable

decision.’’

Valley Forge Christian College v.

Americans United for Separation of

Church and State, Inc., 454 U.S. 464,

472 (1982)(citations omitted. See also

Lujan v. Defenders of Wildlife, 504 U.S.

lll, 119 L.Ed.2d 351, 364 (1992).

With respect to the nature of the

injury that an ‘‘interested person’’ must

show to obtain standing, the Supreme

Court held in Sierra Club v. Morton, 405

U.S. at 734–35, that harm to an

economic interest is not necessary to

confer standing. Harm to an aesthetic,

environmental, or recreational interest

is sufficient, provided that the party

seeking judicial review is among the

injured. This holding was most recently

reaffirmed by the Supreme Court in

Lujan v. Defenders of Wildlife, 504 U.S.

lll, 119 L.Ed.2d at 365 (‘‘[o]f course,

the desire to use or observe an animal

species, even for purely aesthetic

purposes, is undeniably a cognizable

interest for purposes of standing.’’). See

also Japan Whaling Ass’n v. American

Cetacean Society, 478 U.S. 221, 231 n.

4 (1986); Middlesex County Sewerage

Auth. v. National Sea Clammers Ass’n,

453 U.S. 1, 16–17. This low threshold

for sufficiency of injury has been

applied in many decisions. See, e.g.,

Sierra Club v. Simkins Industries, Inc.,

847 F.2d 1109 (4th Cir. 1988), cert.

denied, 491 U.S. 904 (1989) (injury to

aesthetic and environmental interests is

sufficient where pollution would affect

a river along which a single group

member hiked); Friends of the Earth v.

Consolidated Rail Corp., 768 F.2d 57, 61

(2d Cir. 1985) (recreational use of a river

and offense to aesthetic values are

sufficient to demonstrate injury in fact).

4. Exhaustion of Administrative

Remedies

A requirement that all interested

persons have the opportunity to

challenge final permitting actions

judicially should be distinguished from

a requirement that interested persons

must exhaust administrative remedies

in order to preserve their opportunity to

challenge permitting actions judicially.

For example, Federal regulations require

that interested persons must raise

reasonably ascertainable issues during

the public comment period on a draft

402 permit (40 CFR 124.13) and must

request an evidentiary hearing on a

permit decision they wish to challenge

(40 CFR 124.74). Today’s proposal does

not affect the authority of States to

adopt similar, reasonable requirements

that interested persons exhaust available

administrative remedies in order to

preserve their opportunity to challenge

final permitting actions in State court.

5. Alternatives Under Consideration

EPA also considered amending part

123 to require that State law must

provide an opportunity for judicial

review of a final State permit action

under section 402 by the permit

applicant and any person who

participated in the public comment

process. See section 502(b)(6) of the

Clean Air Act, 42 U.S.C. 7661a(b)(6).

The Agency prefers the ‘‘any interested

person’’ language because it tracks

section 509(b)(1) of the CWA, which

allows ‘‘any interested person’’ to

challenge specified final actions of the

Administrator, including the issuance or

denial of any permit under section 402,

in the United States Court of Appeals.

It is also consistent with existing

regulations under the CWA which allow

‘‘any interested person’’ to request an

evidentiary hearing on a Regional

Administrator’s final permit decision.

40 CFR 124.74. As noted above, States

would be free under today’s proposal to

impose reasonable requirements that

interested persons must exhaust

administrative remedies, such as

participation in the public comment

process, in order to preserve their

opportunity to challenge a final

permitting action in State court.
Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Proposed Rules 14591

EPA solicits comment on whether it

should adopt a requirement, in lieu of

the proposed regulatory language, that

State law must provide an opportunity

for judicial review of a final permitting

action under section 402 by the permit

applicant and any person who

participated in the public comment

process.

6. Time Period for Compliance

Under EPA’s existing regulations, any

approved State 402 program that

requires revision to conform to today’s

proposal, when it is finally

promulgated, would need to be revised

within one year of the date of final

promulgation of today’s proposed rule,

unless the State must amend or enact a

statute in order to make the required

revision. In that case, under EPA’s

existing regulations, the revision must

take place within two years. 40 CFR

123.62(e). EPA is considering amending

the regulations to require that States

revise their programs sooner than

specified under 40 CFR 123.62(e) to

bring the program into compliance with

today’s proposed rule. For example,

EPA is considering requiring that if a

State must amend or enact a statute to

make the necessary revisions to its law,

this must be done during the first

legislative session that begins after the

date of promulgation of today’s proposal

as a final rule. EPA requests comment

on whether it should impose a

requirement that States revise their

programs sooner than specified under

40 CFR 123.62(e) to bring the program

into compliance with today’s proposed

rule, and if so, what would be an

appropriate shortened time period for

compliance.

II. Request for Comment

EPA solicits comment on all aspects

of today’s proposal. In particular, EPA

seeks comment on the appropriateness

of the proposal from a legal and a policy

perspective; on the ‘‘any interested

person’’ language as proposed; on the

alternative that would require that State

law must provide an opportunity for

judicial review of a final permitting

action under section 402 by the permit

applicant and any person who

participated in the public comment

process, as discussed above; and on any

alternative language that would specify

appropriate explicit standing

requirements applicable to authorized

State 402 programs.

EPA also requests comment on

whether it should amend the regulations

to require States to revise their programs

sooner than would otherwise be

required under 40 CFR 123.62(e) to

bring the program into compliance with

today’s proposed rule, when it is finally

promulgated.

EPA is not proposing at this time to

establish this requirement for Tribal

permitting programs under section 402.

Tribes are just beginning the

development of various Clean Water Act

programs and the issues of sovereign

immunity and access to Tribal courts

must be carefully considered. No Tribes

are currently authorized to operate the

NPDES program. EPA is soliciting

comments on various issues, including

the issue of sovereign immunity, related

to extending this requirement to Tribes.

Based upon the comments received on

this proposal, EPA may propose

regulatory action in the future with

respect to review of Tribally–issued

NPDES permits. EPA also invites

comment about how it could phase in

such a requirement for Tribes, if the

Agency moves forward with such a

proposal in the future.

EPA is aware that access to Tribal

courts may not be as broad as access to

State courts. (EPA addressed some

issues with regard to Tribal regulation of

nonmembers, as well as differences in

Tribal criminal enforcement programs,

in the preamble to and/or the final

regulation on NPDES authority for

Tribes, 58 FR 67966, December 22,

1993.) EPA specifically invites comment

on (1) these differences with regard to

access to Tribal courts for appeal of

NPDES permits (which may be issued to

nonmembers of the Tribe), (2) the basis

of the differences, (3) as well as any

alternative procedures that may be used

to provide for an appeal of final Tribal

NPDES permit actions, if a Tribal court

system is not available to a person.

III. Supporting Documentation

1. Compliance With Executive Order

12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant,’’ and therefore

subject to review by the Office of

Management and Budget (OMB) and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely and materially affecting 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; and

(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.

EPA believes that only a very few

authorized States may be impacted by

this proposed rule. The proposed action

is consistent with and effectuates the

public participation provisions of the

CWA. As a result, EPA has determined

that the final rule does not meet the

definition of a significant regulation,

and, therefore, the Agency is not

conducting a Regulatory Impact

Analysis.

It has also been determined that this

proposed rule is not a ‘‘significant

regulatory action’’ under the terms of

Executive Order 12866 and is therefore

not subject to OMB review.

2. Compliance With Executive Order

12875

Under Executive Order 12875,

entitled Enhancing the

Intergovernmental Partnership, the

Agency is required to develop an

effective process to permit elected

officials and other representatives of

State and Tribal governments to provide

meaningful and timely input in the

development of regulatory proposals.

EPA fully supports this objective and

has initiated a consultation process with

both States and Tribes which will be

continued through proposal and the

public comment period. The Agency

will be contacting each State

individually for their views on this

proposal. With regard to Indian Tribes,

EPA is aware of the complex issues

associated with applying this proposal

to Tribes and is soliciting comments on

those issues. EPA will work both with

representatives of Tribes as well as

through the Agency’s American Indian

Environmental Office to assure a full

opportunity for review and comment on

today’s proposal and also to ensure an

understanding of Tribal concerns or

issues raised by today’s proposal rule.

EPA anticipates a reaction from the

relatively few NPDES-authorized States

which restrict standing to challenge

State-issued NPDES permits. Businesses

and municipalities in States which

restrict standing may argue that

allowing standing will make it more

difficult to obtain a permit due to court

challenges by citizens. However, based

on EPA’s experience in States which

already provide broad standing to

challenge permits, EPA does not expect

that any significant portion of permits

will be challenged in State courts.
14592 Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 / Proposed Rules

EPA believes that it has developed an

effective process for receiving comments

on this proposed rulemaking and has

met the consultation requirements for

States, federally recognized Tribes and

localities under the terms of Executive

Order 12875.

3. Paperwork Reduction Act

This proposed rule does not contain

information requirements subject to

OMB review under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

4. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601 et seq., EPA must

prepare a Regulatory Flexibility

Analysis for regulations having a

significant impact on a substantial

number of small entities.

This proposed rule applies only to

States with authorization to administer

the NPDES permit program. States are

not considered small entities under the

RFA. Therefore, pursuant to section

605(b) of the Regulatory Flexibility Act,

I certify that this proposed rule will not

have a significant impact on a

substantial number of small entities.

List of Subjects in 40 CFR Part 123

Environmental protection,

Administrative practice and procedure,

Water pollution control.

Dated: March 9, 1995.

Carol M. Browner,

Administrator.

For the reasons set forth in this

preamble, part 123, chapter I, title 40 of

the Code of Federal Regulations is

proposed to be amended as follows:

PART 123—[AMENDED]

1. The authority citation for part 123

continues to read as follows:

Authority: Clean Water Act, 33 U.S.C. 1251

et seq.

2. Section 123.30 is added to read as

follows:

§ 123.30 Judicial review of approval or

denial of permits.

All States that administer or seek to

administer a program under this part

must provide any interested person an

opportunity for judicial review in State

Court of the final approval or denial of

permits by the State. This requirement

does not apply to Indian Tribes.

[FR Doc. 95–6676 Filed 3–16–95; 8:45 am]

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