Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 15, 2000 (Volume 65, Number 94)]
[Rules and Regulations]
[Page 30886-30913]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my00-17]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 22, 117, 122, 123, 124, 125, 144, 270, and 271
[FRL-6561-5]
RIN 2040-AC70

Amendments to Streamline the National Pollutant Discharge
Elimination System Program Regulations: Round Two

AGENCY: Environmental Protection Agency.
ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today revising
the National Pollutant Discharge Elimination System (NPDES)
regulations. This revision is part of an Agency-wide effort to respond
to a directive issued by the President on February 21, 1995, which
directed Federal agencies to review their regulatory programs to
eliminate any obsolete, ineffective, or unduly burdensome regulations.
In response to that directive, EPA initiated a detailed review of its
regulations to determine which provisions were obsolete, duplicative,
or unduly burdensome. On June 29, 1995, EPA issued a rule (60 FR 33926)
which removed some regulatory provisions in the Office of Water program
regulations (including certain NPDES provisions) that were clearly
obsolete. Today's revision is intended to further streamline NPDES,
Resource Conservation and Recovery Act (RCRA), Prevention of
Significant Deterioration (PSD), and Underground Injection Control
(UIC) permitting procedures, and CWA 301(h) variance request
procedures, by revising requirements to eliminate redundant regulatory
language, provide clarification, and remove or streamline unnecessary
procedures which do not provide any environmental benefits. Conforming
changes to other requirements are also made in today's rule. These
revisions are identified and discussed in the Supplementary Information
section below.

DATES: This rule becomes effective June 14, 2000. For judicial review
purposes, this final rule is promulgated as of 1:00 P.M. (eastern
standard time) on May 30, 2000 as provided in.

ADDRESSES: The complete administrative record for the final rule have
been established and includes supporting documentation as well as
printed, paper versions of electronic comments. Copies of information
in the record are available upon request. A reasonable fee may be
charged for copying. The record is available for inspection and copying
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays,
at the Water Docket, EPA, East Tower Basement, 401 M Street, SW,
Washington, DC. For access to docket materials, please call (202) 260-
3027.

FOR FURTHER INFORMATION CONTACT: Howard Rubin, Water Permits
Division(4203), U.S. Environmental Protection Agency, 401 M Street,
S.W., Washington, D.C. 20460 (202) 260-2051 or Thomas Charlton, Water
Permits Division(4203), U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460, (202) 260-6960.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this action are facilities that
discharge pollutants to waters of the United States that are required
to have National Pollutant Discharge Elimination System (NPDES)
permits.

[[Page 30887]]

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Category Examples of regulated entities
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Federal, State, Local, and Tribal Governments.......... Facilities which discharge pollutants to waters of the
U.S. under the NPDES program. Facilities which
discharge pollutants under the RCRA, PSD, and UIC
program. Facilities requesting a CWA 301(h) variance
request.
Private Industry....................................... Facilities which discharge pollutants to waters of the
U.S. under the NPDES program. Facilities which
discharge pollutants under the RCRA, PSD, and UIC
program. Facilities requesting a CWA 301(h) variance
request.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is likely to be regulated by this action, you should
carefully read the applicability criteria of 122.1 and 124.1 of Title
40 of the Code of Federal Regulations. If you have any questions
regarding the applicability of this action to a particular entity,
consult the persons listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

Organization

Information in this preamble is organized as follows:

I. Background
II. Revisions
A. Revisions to Part 122
1. Purpose and Scope (40 CFR 122.1)
2. NPDES Program Definitions (40 CFR 122.2, 124.2)
3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a),
122.21(d), 122.26(c)(1))
5. Effluent Characteristics (40 CFR 122.21(g)(7))
6. Signatories (40 CFR 122.22)
7. Group Permit Applications (40 CFR 122.26(c)(2))
8. General Permits (40 CFR 122.28)
9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv),
122.48)
10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
11. Reopener Clauses (40 CFR 122.44(c))
12. Best Management Practices (40 CFR 122.44(k))
13. Termination of Permits (40 CFR 122.64)
B. Revisions to Part 123
1. Requirements for Permitting (40 CFR 123.25)
2. Transmission of Information to EPA (40 CFR 123.44)
C. Revisions to Public Hearing Requirements for NPDES Permit
Actions and RCRA Permit Terminations
1. Summary of Proposed Rule
2. Comment and EPA Responses
3. Final Rule
D. Removal and Reservation of Part 125, Subpart K--Criteria and
Standards for Best Management Practices Authorized under Section
304(e) of the Act
E. Provisions Without Comments
F. Miscellaneous Corrections
III. Administrative Requirements
A. Executive Order 12866
B. Executive Order 13132
C. Executive Order 13045
D. Executive Order 13084
E. The Unfunded Mandates Reform Act
F. Regulatory Flexibility Act
G. Paperwork Reduction Act
H. National Technology Transfer and Advancement Act
I. Congressional Review Act

I. Background

On February 21, 1995, the President directed all Federal agencies
and departments to conduct a comprehensive review of the regulations
they administer and by June 1, 1995, identify those rules that are
obsolete or unduly burdensome. EPA conducted a review of its rules,
including those issued under the Federal Water Pollution Control Act,
as amended (FWPCA) (33 U.S.C. 1251 et seq.) (also cited below, as the
Clean Water Act or CWA), the Safe Drinking Water Act (SDWA) (42 U.S.C.
300f et seq.), and the Marine Protection, Research, and Sanctuaries Act
(also known as the Ocean Dumping Act) (33 U.S.C. 1401 et seq.). In
March and April of 1995, EPA solicited informal comments from the
public, regulated entities, States, and municipalities on ways to
identify rules that are obsolete, redundant, or unduly burdensome.
Toward that end, a number of meetings were held with the public by the
EPA Regional Offices. On April 3, 1995, EPA issued a preliminary report
which identified those regulatory provisions that were amenable to
streamlining. On December 11, 1996, EPA proposed the Amendments to
Streamline the National Pollutant Discharge Elimination System Program
Regulations: Round Two in the Federal Register (61 FR 65268).
Today EPA is issuing the final version of the Round II NPDES
Streamlining Rule. This final rule revises the NPDES program
regulations in parts 122, 123, 124 and 125 to eliminate redundant
requirements, remove superfluous language, provide clarification, and
remove or streamline unnecessary procedures which do not provide any
environmental benefits. Included in today's final rule are revisions
which revise the permit appeals process for EPA-issued NPDES permits by
replacing the evidentiary hearing procedures found at part 124, subpart
E with a direct appeal to the Environmental Appeals Board. This is not
intended to affect the permit appeal procedures for State-authorized
NPDES programs.
Today's notice does not represent the end of EPA's efforts to
reinvent and streamline its regulations. Further reinvention efforts
are under way with respect to the pretreatment program and the core
NPDES regulations. There is also a continuing dialogue between EPA and
the public on permit reinvention in the context of the National
Advisory Council for Environmental Policy and Technology (NACEPT).

II. Revisions

A. Revisions to Part 122

1. Purpose and Scope (40 CFR 122.1)
a. Summary of Proposed Rule. Section 122.1 provides a general
description of the purpose and scope of the NPDES program regulations.
In the December 1996 proposal, EPA proposed several non-substantive
changes to remove superfluous language and to provide for more clarity.
EPA did not intend to change any existing substantive requirements. To
provide better service to its customers, EPA also proposed providing a
note in this provision to assist readers in contacting EPA if they have
questions regarding the NPDES program or its rules. EPA also explored
the possibility of providing for the electronic submission of queries
to the NPDES program.
b. Significant Comments and EPA Response. Some comments were made
on the issue of providing a note or responding to electronic queries.
Some commenters requested assurance that any contacts listed in the
note and responses made to electronic queries be from people who are
authorized to speak on the Agency's behalf. Another commenter requested
that EPA develop a location on the Office of Water's Internet web site
that lists most frequent queries and EPA's responses. All other
comments regarding this section were to express general support for the
proposed revision.
Today's final rule provides the address and phone number for the

[[Page 30888]]

Water Permits Division (formerly known as the Permits Division) which
provides national oversight for the NPDES, Sewage Sludge, and
Pretreatment programs, and the website address of that office's
homepage on the Internet. EPA believes that EPA's phone receptionists
are able to route callers to the appropriate EPA staff who are
knowledgeable about a particular issue or program area. At this time,
EPA declines to provide a system for handling electronic queries that
is specific to the Water Permits Division since agency-wide procedures
are being examined as part of the Agency's effort to respond to such
queries. The Office of Water already maintains a web site containing
frequently asked questions regarding the NPDES program. This is located
at http://www.epa.gov/owm/.
c. Final Rule. EPA is adopting the proposed rule and adding the
appropriate home page reference.
2. NPDES Program Definitions (40 CFR 122.2, 124.2)
a. Summary of Proposed Rule. In the December 1996 notice, EPA
proposed to streamline the NPDES program definitions found at parts 122
and 124 by removing redundant or superfluous language. EPA also
proposed amending Sec. 122.2 to add references to definitions that are
found elsewhere in parts 122, 123, and 403. The inclusion of such
references in a single location was intended to assist readers in
finding specific provisions in the NPDES regulations and was not
intended to expand the application of those definitions if they are
restricted to a particular section.
b. Significant Comments and EPA Response. One commenter requested
that EPA define the term ``nonprocess wastewater''. Currently there is
no such definition. Another commenter suggested that EPA change the
definition of point source to exclude ``domestic users'' in a future
rulemaking as a way to focus resources away from de minimis discharges.
A commenter noted that the definitions for ``publicly owned treatment
works'' (POTWs) differ between Sec. 122.2 and Sec. 403.3 and
recommended that these definitions be standardized.
EPA declines at this time to add a definition for ``nonprocess
wastewater'' since such definition was not in the proposed rule. EPA
will consider recommendation in the next rulemaking to streamline the
NPDES regulations. At that time, EPA will also solicit comment on
modifying the definition of point source to exclude ``domestic users''.
EPA will adopt the POTW definition that is found in Sec. 403.3 for
Sec. 122.2 to achieve better consistency.
c. Final Rule. EPA is adopting the proposed rule and adopting the
POTW definition found in Sec. 403.3 for Sec. 122.2.
3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
a. Summary of Proposed Rule. Section 122.4(i) prohibits the
issuance of a permit to a new source or new discharger if the discharge
would cause or contribute to a violation of water quality standards. A
new source or new discharger may, however, obtain a permit for
discharge into a water segment which does not meet applicable water
quality standards by submitting information demonstrating that there is
sufficient loading capacity remaining in waste load allocations (WLAs)
for the stream segment to accommodate the new discharge and that
existing dischargers to that segment are subject to compliance
schedules designed to bring the segment into compliance with the
applicable water quality standards.
EPA proposed revising these information submission requirements to
allow the Director to waive the present submittal of information
requirements under Sec. 122.4(i) where the permitting authority
determines that it already has the required information. In many
instances the information required to be submitted by the applicant
(such as waste load allocations available or compliance schedules for
existing discharges) may already be in the Director's files. Where the
information is not available or current, the Director may not waive the
requirement for the applicant to generate all supporting documentation.
EPA notes that this information (as with any information which details
how permit limits are derived) should be included in the fact sheet or
statement of basis for the permit. See 40 CFR 124.7, 124.8, and 124.56.
To underscore the importance of such information and to clarify an
existing requirement, EPA has also included an express requirement in
Secs. 122.4(i) and 122.56(b)(1) that information which demonstrates how
the criteria for permit issuance in Sec. 122.4(i) are met is included
in the fact sheet for the permit. EPA notes that this revision merely
clarifies existing requirements found at Secs. 124.7, 124.8, and 124.56
and does not result in an increased burden to the regulated community
or permit issuing authorities.
All of the comments received supported this effort. In addition to
comments providing generalized support, there were two specific
comments. A commenter asked if new sources/dischargers should be
obligated to provide all of the information where the Director already
has some. The EPA feels that applicants must provide only that
information which the Director does not have. Additionally, a commenter
asked that EPA provide additional clarification as to what constitutes
``adequate information?'' The EPA feels that what constitutes
``adequate information'' is the information that is normally and
properly submitted during the permit application process for the
imposition of water quality based effluent limitations (WQBELs), the
development of WLAs, and Sec. 122.4(i) permit situations.
b. Final Rule. EPA is adopting the rule as proposed
4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a), 122.21(d),
122.26(c)(1))
In the December 1996 notice, EPA proposed to consolidate
Secs. 122.1(d)(1) and 122.22(d) and move them to a new location,
Sec. 122.21(a), because most of the requirements in these two
paragraphs are duplicative. EPA also proposed to add language in
proposed Sec. 122.21(a)(2) to clarify which EPA forms may be required
for a particular discharger. The proposal also included new language to
allow for the possibility of electronic submittal of application
information in the event that the Agency approves the electronic
application submittal process. At that time, authorized States would
have the option of using electronic submission of application
information. Finally, the December 1996 notice stated there were other
ongoing efforts to update EPA's forms which may result in
nonsubstantive revisions to paragraph (a)(2).
In December 1995, EPA proposed revisions to streamline and update
the municipal (Form 2A) and sewage sludge permit (Form 2S) application
regulations. See 60 FR 62546 (Dec. 6, 1995). Because the Form 2A/Form
2S and Round II Streamlining rules would have affected the same
portions of the NPDES regulations, EPA has decided in the interest of
better efficiency to merge the Round II application revisions into the
Form 2A/Form 2S rulemaking. All comments concerning that proposed
revision have been addressed in the Form 2A/Form 2S final rulemaking.
See 64 FR 42434 (Aug. 4, 1999).
5. Effluent Characteristics (40 CFR 122.21(g)(7))
a. Summary of Proposed Rule. Section 122.21(g)(7) requires that
applicants for permits for existing manufacturing, commercial, mining,
and silvicultural

[[Page 30889]]

discharges must submit information on effluent characteristics. On
November 16, 1990 (55 FR 48062), EPA revised Sec. 122.21(g)(7) to add
language which specifically addresses storm water application
requirements. However, the addition of this language has made paragraph
(g)(7) more difficult to read because there is a large amount of
uninterrupted text and it is difficult to separate out requirements
that are specific to storm water discharges. The December 1996 proposal
proposed to provide greater clarity to paragraph (g)(7) through the
insertion of additional paragraph headings. No substantive changes to
40 CFR 122.21(g)(7) were proposed by this revision. EPA also proposed
to revise references to provisions in paragraph (g)(7) that are found
elsewhere in the NPDES regulations (40 CFR 122.21(g)(8); 122.21, notes
1, 2, and 3; 122.26(c)(1)(i); and 122.26(d)(2)(iv)(C)(2)) to ensure
those references reflect Sec. 122.21(g)(7)'s new structure.
b. Significant Comments and Response. In response to the proposed
insertion of additional paragraph headings, the EPA received a comment
recommending that the last two sentences in 40 CFR 122.21(g)(7)(ii) be
moved to 40 CFR 122.21(g)(7)(i). EPA declines to follow that suggestion
since it believes those two sentences provide needed clarification to
the storm water sampling procedures in paragraph (ii). Additionally,
paragraph (i) already addresses sampling.
EPA also received a comment that the proposed paragraph headings
were insufficient and additional clarification was needed. In response
to this comment, the EPA has added paragraph titles to the new
paragraphs to make them easier to read.
c. Final Rule. EPA has adopted these revisions as proposed but with
the addition of paragraph headings. These paragraph headings are
intended to aid in the reading of this section and do not, in any way,
modify the substantive content of the section.
6. Signatories (40 CFR 122.22)
a. Summary of Proposed Rule. The December 1996 proposed revision to
40 CFR 122.22 called for the elimination of the numeric criteria for
designating responsible corporate officers who manage one or more
manufacturing, production, or operating facilities. The numeric
criteria, which specified that the signer `` * * * may be the manager
of * * * facilities employing more than 250 persons or having gross
sales or expenditures exceeding $25 million (in second quarter 1980
dollars) * * * '', were developed to ensure that facility managers who
sign permit applications had high-level corporate knowledge of a
corporation's pollution control operations and are authorized to make
management decisions which govern the operation of the regulated
facility. However, those criteria have become less valuable in the face
of the changing management organization of many facilities. The
December 1996 proposal proposed replacing the numeric criteria with
more flexible narrative criteria, which specified the authority and
responsibilities of the appropriate signer without specifying the
resource levels that the signer manages. Under the proposed criteria,
signatories include a manager of one or more manufacturing, production,
or operating facilities, provided: (1) The manager was authorized to
make management decisions which govern the operation of the regulated
facility including the ability to allocate resources, make major
capital investments, or initiate and direct other comprehensive
measures to assure long term environmental compliance with
environmental laws and regulations; (2) the manager could ensure that
the necessary systems are established or actions taken to gather
complete and accurate information for permit application requirements;
and (3) where authority to sign documents had been assigned or
delegated to the manager in accordance with corporate procedures.
b. Significant Comments and EPA Response. In response to this
revision, commenters requested that EPA allow those who are eligible
under the current criteria to remain eligible signatories. EPA notes
that an ability to meet the old, numeric criteria would constitute
sufficient evidence that an individual understands the need to comply
with permits and has the authority to allocate resources toward permit
compliance sufficient to meet the requirements of today's rule. Today's
rule should not be interpreted as excluding signatories who were
eligible under the previous criteria.
Some commenters responded that the wording of the proposed
revision, which called for signers to have the ability to allocate
resources and make major capital investments, excluded many facility
managers, who they believe are the appropriate signers, and who do not
have unilateral authority over allocation of resources. In response to
these concerns, EPA will change the proposed language `` * * * allocate
resources, make major capital investments'' into `` * * * having, as an
explicit or implicit, position-related duty of capital investment
recommendations * * * ''. This will increase the flexibility in
designating a signer, without eliminating the requirement that the
signer have a role in allocating resources for environmental
compliance.
A commenter asked EPA to expand requirements to address
partnerships managed like corporations. EPA declines to take this
action because it is beyond the scope of the proposal and because
partnerships face different liability issues than do corporations. In a
partnership, liability is not limited as it is in a corporation and
general partners are held directly accountable for the organization's
actions. It is therefore, important that a general partner be the
signer of the permit as required in the NPDES regulations at 40 CFR
122.22(a)(2).
Additionally, a commenter asked that EPA broaden and clarify
signatory eligibility by changing language in Sec. 122.22(a)(1) to
allow for a signature by any employee who (1) has the authority to
gather and verify accurately and complete information necessary to the
filings and (2) is duly authorized by management. EPA declines to
incorporate that suggested revision because those two criteria by
themselves are not sufficient to ensure that signatories have high
level corporate knowledge of a corporation's pollution control
operations and are authorized to make management decisions which govern
the operation of the regulated facility. The commenter also asked that
EPA better define ``major'' and use the term ``funding'' in lieu of
``capital investment''. EPA declines to adopt those changes because it
believes that developing a stringent definition of the term ``major''
would only generate problems similar to those of the existing, numeric
criteria. Lastly, EPA believes the term ``capital investment'' has a
stronger association with infrastructure development, such as that
needed for compliance, than the term ``funding''.
c. Final Rule. As stated above, EPA is adopting the rule as
proposed with the exception of changing the language ``* * * allocate
resources, make major capital investments * * *.'' to ``having the
explicit or implicit duty of making major capital investment
recommendations, and initiating and directing other comprehensive
measures to assure long term environmental compliance with
environmental laws and regulations * * * ''.
7. Group Permit Applications (40 CFR 122.26(c)(2))
a. Summary of Proposed Rule. In the proposal for today's rule, EPA
proposed to remove the storm water group permit

[[Page 30890]]

application provisions which are no longer necessary in light of the
wide availability of general permits. The group application process was
designed to accommodate the initial influx of first-time permit
applications from Phase I industrial activities and was based, in part,
on the limited availability of storm water general permits in States.
However, the deadlines for submitting group applications for storm
water Phase I facilities expired on October 1, 1992, and coverage under
storm water general permits is now widely available. At present, forty
three States are authorized to issue general permits (with EPA issuing
storm water general permits for those States and jurisdictions that are
without EPA authorization).
General permits provide a more flexible approach to storm water
coverage and can accomplish the goals of the group permit application
process (i.e., more efficient monitoring, reduced application burdens)
without requiring that applicants form into groups prior to applying
for permit coverage. EPA also believes that storm water pollution
prevention plans (a principal requirement of most storm water general
permits) will ensure that general permit conditions are appropriate and
applicable for the industrial activities covered. Consequently, EPA
believes the group application option is no longer needed. Today's rule
eliminates the group application option at Sec. 122.26(c)(2), and makes
conforming changes to paragraph (c)(1). EPA notes that the removal of
the group application provisions will not impact EPA's ability to
reissue the Multi-Sector General Permit, which was developed based on
group applications, because it is a general permit and any revisions to
it will be based on information collected during the life of the
permit.
b. Significant Comments and EPA Response. In response to the
proposed revisions, some commenters thought EPA should retain the group
application language until such time as it can be confirmed that there
are no programs at the State level which are relying on the provisions
of Sec. 122.26(c)(2) in developing and administering storm water
programs. Commenters are concerned that this will reduce flexibility
for States who rely on the group application process for information
development. At present, all State programs except the Virgin Islands
have general permit authority and no State has elected to issue a group
permit rather than a general permit. Therefore, EPA believes that
removing the group permit provisions will not reduce the States'
flexibility to regulate storm water discharges.
Commenters also believe this removal represents a significant
policy decision, not appropriately made in regulations designed to
eliminate ``obsolete, ineffective, or unduly burdensome regulations''.
EPA disagrees and believes that eliminating the group application
provisions is appropriate for this rulemaking since those provisions
are clearly obsolete and redundant in light of general permits.
Furthermore, EPA believes that retaining group applications may confuse
permit applicants as to whether EPA or States will issue group permits.
Since both EPA and States are using general permits and not group
permits, EPA believes it is important to eliminate this potential
confusion.
Some commenters noted that EPA's decision to remove the group
permit application provisions would foreclose the possibility of groups
not included in the 29 sectors identified in the multi-sector permit
seeking and obtaining coverage under a group storm water permit. EPA
disagrees with the commenters and notes that groups not included in the
29 sectors can obtain coverage under a general permit for their storm
water discharges. EPA also notes that the multi-sector permit is a
general permit which will not be affected by the removal of the group
permit application provisions.
Commenters also feel that the group permit application provisions
may be of value in future Phase II storm water permitting
implementation. EPA believes, based on discussions during the phase II
FACA meetings, that the scope and nature of the Phase II storm water
rule is more compatible with the use of general permits and that the
group application rules would require that applicants submit more
information than needed. Given the widespread availability of general
permits, EPA believes that general permits are a better permitting
mechanism.
c. Final Rule. EPA has adopted the final rule as proposed.
8. General Permits (40 CFR 122.28)
a. Summary of Proposed Rule. In the proposal to today's rule, EPA
proposed to revise the NPDES regulations to allow non-storm water
general permits to cover more than one point source category or
subcategory.\1\ This revision was expected to increase the
effectiveness of general permits that are issued on a geographic basis
since it would be easier to use a single general permit to provide
comprehensive controls on number of different discharges (as separate
categories) within a geographic area such as a watershed. This revision
was also expected to result in cost savings to permitting authorities
since a single multi-category general permit could take the place of
multiple single category general permits.
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\1\ Before this amendment, EPA's general permits regulations at
40 CFR 122.28(a)(2) provided that the ``general permit may be
written to regulate * * * either: (i) Storm water point sources, or
a category of point sources other than storm water that * * * (A)
involve the same or substantially similar types of operations; (B)
Discharge the same types of wastes or engage in the same types of
sludge use or disposal practices; (C) require the same effluent
limitations, operating conditions, or standards for sewage sludge
use or disposal; (D) Require the same or similar monitoring; and (E)
in the opinion of the Director, are more appropriately controlled
under a general permit than under individual permits.'' (Italics
added.)
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EPA noted, however, that the types of operations conducted or
wastes discharged within each category or subcategory authorized by the
general permit (except for general permits for storm water discharges)
would still have to be substantially the same. Within each identified
category or subcategory, limitations would have to be identical for all
covered dischargers or treatment works treating domestic sewage.
EPA also proposed to revise the general permit regulations to
clarify that where dischargers are subject to water quality-based
limitations (WQBELs), discharges within a specific category or
subcategory shall be subject to the same WQBELs.
b. Significant Comments and EPA response. In response to the
proposal, several commenters expressed concern regarding WQBELs in
general permits, stating that they are more appropriate for site-
specific permits. They recommended that only technology-based limits
and best management practices be used. EPA notes these concerns but
declines to limit general permits to imposing only technology based
limits. EPA believes there are situations where general permits can
effectively impose WQBELS such as where a general permit is developed
in close coordination with a total maximum daily load (TMDL) and/or a
wasteload allocation. There are already cases in which general permits
are being used to impose WQBELs on facilities with the same water
quality requirements. One example of this is in the Commonwealth of
Puerto Rico. Puerto Rico does not allow for mixing zones and thus
discharges must meet water quality standards at the point of discharge
making it possible to establish WQBEL in general permits which apply to
all discharges without variation.

[[Page 30891]]

Therefore, EPA believes that there are enough situations in which
WQBELs are appropriate in general permits for this modification to be
useful.
A commenter has requested an explanation of how general permits can
be used to impose WQBELs. As mentioned above, general permits could
impose WQBELS in areas where there are no mixing zones. A general
permit containing WQBELs, for example, could also be developed in close
coordination with a total maximum daily load (TMDL) and/or a wasteload
allocation, or to cover a category of dischargers at a certain
discharge level for an entire watershed.
A commenter expressed concerns over allowing general permits to
cover multiple categories of dischargers. The commenter is concerned
that development of overly broad general permits covering similar, but
distinct, practices would result in unnecessary limits and conditions
for some covered facilities. The commenter requested language in the
preamble stating that coverage of general permits must not be so
expansive that unnecessary requirements are placed on any of the
categories that are regulated. Although EPA believes that such a
scenario is possible, it is more likely that general permits will be
developed to minimize imposing undue requirements on facilities. Also,
applicants can always request coverage under an individual permit if
they believe a general permit's requirements to be unnecessarily
onerous. Thus, EPA declines to include such language.
Additionally, a commenter has suggested that general permits
covering multiple categories are inappropriate for sludge disposal
because of differing methods of disposal. EPA disagrees because general
permits can be developed with categories that are based on differing
methods of disposal.
A further comment has been made to request that general permits be
expanded to cover cooling water discharges and discharges from remedial
technologies for removing Volatile Organic Compounds. EPA believes that
the creation of those categories is best left to the permitting
authority who is familiar with the circumstances surrounding each
general permit (subject to the requirements of 40 CFR 122.28(a)(2)),
and declines to create a specified general permit category in this
regulation. However, EPA does not by this decision mean to imply that
general permits for such categories are prohibited if the permitting
authority believes them to be appropriate.
Lastly, a commenter has stressed the importance of proposed
paragraph 40 CFR 122.28(a)(4) and requested that it be retained in the
final rule. EPA agrees with the commenter and has retained this
provision in the final rule.
c. Final Rule. EPA has adopted the final rule as proposed.
9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv),
122.48)
a. Summary of the proposed rule. In the proposal to today's rule,
EPA proposed to consolidate the monitoring provisions found at
Secs. 122.41 (j), (l)(4), and 122.44(i) and place them in Sec. 122.48.
In addition, EPA proposed to add a cross reference to the new
consolidated monitoring requirements at Sec. 122.41(j) to ensure that
monitoring remains a standard condition for all NPDES permits. This
revision was not intended to result in any substantive changes to the
NPDES monitoring requirements. On the basis of comments received which
raise the possibility that the proposed revisions might result in a
substantive change to the monitoring requirements, EPA has decided to
not finalize this portion of the proposed rule at this time. EPA
expects to finalize this consolidation in a future rulemaking
10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
a. Summary of Proposed Rule. EPA proposed to revise Sec. 122.44(a)
by providing minor clarification changes in existing paragraph (a) and
redesignating it as paragraph (a)(1), and by adding a new paragraph,
(a)(2), to allow Directors on a case-by-case basis to not require
effluent limits and monitoring for certain guideline-listed pollutants
if a discharger could certify that those pollutants would not be in the
discharge.
To receive this waiver from monitoring requirements, permittees
would have to submit a certification (along with supporting
information) with each permit application or application for permit
renewal. The waiver would have to be included as an express condition
in the permit. This revision was not intended to waive monitoring for
any pollutants that should be limited on the basis of water quality
standards. For those pollutants whose monitoring requirements had been
waived (known hereafter as ``waived pollutants''), the proposal would
not have allowed for discharge of those pollutants in any amount. Thus,
applicants were cautioned to not pursue this approach if there was any
possibility that waived pollutants might be discharged.
b. Significant Comments and EPA Response--(1) Proposed
Sec. 122.44(a)(1). One commenter stated that the phrase ``as
appropriate'' in proposed Sec. 122.44(a)(1) is misplaced, because it
modifies ``effluent limitations and standards promulgated under section
301(b)(1) or 301(b)(2)'', but not ``new source performance standards
promulgated under section 306 of the CWA''. The commenter suggested
that the phrase be deleted because an existing phrase ``when
applicable'' in the introductory text of Sec. 122.44 already ensures
that all of the requirements in Sec. 122.44 will be applied when
appropriate. EPA agrees and is removing the term ``as appropriate''
from the final rule. EPA is also replacing the citations to sections
301(b)(1) and 301(b)(2) with a single citation to section 301 of the
CWA.
(2) Proposed Sec. 122.44(a)(2)--Generalized Support for the Waiver
Concept. A large number of commenters expressed support for the concept
of providing a waiver from monitoring requirements for guideline-listed
pollutants as a way to reduce unnecessary burdens on the regulated
community. Some commenters indicated that the current requirements
caused significant burdens. One commenter noted that facilities in the
organic chemicals, plastics, and synthetic fiber (OCPSF) point source
category must have limits and monitoring requirements for 63 organic
chemicals even though some facilities only have the potential to
discharge one or two chemicals. Another commenter noted the current
regulatory requirements have led to endless questioning of departmental
staff by permittees which resulted in an unwarranted diversion of staff
time and resources.
EPA agrees with the above comments and is providing for a waiver
from monitoring requirements, but not a waiver from the limit, in
today's rule as described below.
(3) Applicability of the Waiver to First Term Permits. Some of the
commenters expressed concerns with the availability of this waiver for
new sources. They believed that the Agency would not have enough data
or enough familiarity with a ``new source'' to be able to safely apply
this waiver. The commenters recommended that the waiver be made
available to a discharger only after the first permit term.
EPA agrees with these concerns and believes that they apply to all
new permittees (not just ``new sources''). Consequently, EPA is making
this waiver available only after the first term of the permit. The
Agency believes that this restriction will greatly simplify the waiver
process since the information generated during the first permit term

[[Page 30892]]

will: (1) Assist permittees in determining whether to seek a waiver,
(2) assist Directors in determining whether to grant such waivers, and
(3) reduce the risk of a permittee discharging a waived pollutant.
(4) No Discharge Limit in the Waiver. A number of comments were
received relating to the proposed no-discharge limit on pollutants
subject to the waiver (``waived pollutants''). Those comments generally
opined that the no-discharge requirement would be impossible to meet
and so onerous as to discourage use of the waiver. Some commenters
believed that it would not be possible for a discharger to certify that
a pollutant is not present in any amount because it might be present in
amounts below detectable levels. Some commenters also noted that
guideline-listed pollutants may be present in trace amounts from
sources other than manufacturing processes such as intake water; the
use of cleaners, corrosion of equipment, pipes and fittings; or from
research operations. One commenter noted that the no-discharge
requirement might require facilities to pretreat intake water.
Some commenters also suggested alternatives to the no discharge
requirement. One commenter recommended that the waiver be allowed for
pollutants that are present in trace amounts from sources that are
unrelated to the manufacturing process. A commenter recommended that
the waiver be allowed where a facility is not further adding pollutants
to those already in its intake water. Another commenter recommended
that the waiver be allowed if the pollutant is not regulated in the
manufacturing process as a raw material, is not present in raw
materials, is not generated as a product or by-product, and is not
present in wastes from the manufacturing processes in analytical
quantifiable concentrations. Some commenters recommended that the final
rule be changed to allow permittees to certify that the pollutant is
not detectable. Other commenters also recommended that EPA apply the
waiver in situations where a pollutant is repeatedly found in amounts
well below the guideline-based limit or below what are believed to be
``levels of concern''. Some commenters suggested that EPA consider just
allowing guideline-listed pollutants to be monitored without limits.
One commenter requested that EPA consider retaining permit limits for
guideline-listed pollutants while removing the minimum yearly
monitoring requirements for pollutants with permit limits.
In response to these comments and other considerations, EPA is
issuing the final rule to allow for the waiver from monitoring
requirements if the facility can certify that the pollutant is not
present in its discharge or is present only at background levels from
intake water with no increase in the pollutant due to activities of the
discharger.
EPA declines to allow monitoring waivers for pollutants that are
added by dischargers in minute amounts (e.g., use of common cleaners or
from research operations) because human activity might lead to
substantial increases in those pollutant discharges which may threaten
the aquatic environment. Consequently, there is a continuing need to
monitor those pollutants. EPA also notes that at least one national
effluent guideline addresses the introduction of incidental amounts of
pollutants from cleaning, maintenance, or research operations and EPA
does not believe it is appropriate to apply the waiver to a pollutant
that is added to the waste stream and subject to an effluent guideline.
See 40 CFR 414.11(b) (applying the Organic Chemicals, Plastics, and
Synthetic Fibers Effluent Guidelines to wastewater discharges from
research and development operations). Metals or other pollutants which
can leach from pipes may also pose a threat to the environment and EPA
believes monitoring should be retained for such discharges. With
respect to pollutants which occur in amounts below ``levels of
concern'', the discharge of such pollutants can also increase from
human activity and EPA believes that monitoring is necessary to ensure
that an appropriate level of treatment continues to be provided. EPA
does share the belief that excellent treatment performance should be
encouraged. Therefore, EPA has provided via guidance, a method to
reduce, but not eliminate, monitoring in recognition of excellent
performance. See ``Interim Guidance for Performance--Based Reductions
of NPDES Permit Monitoring Frequencies' dated April 19, 1996.
With respect to determining whether a pollutant is not present or
is present at only background levels from intake water without any
increase of the pollutant due to activities of the discharger, EPA
believes that this determination can be accomplished in a number of
ways depending on the situation. In some cases, knowledge about a
facility's process and infrastructure is enough to determine that an
addition will occur. For example, a pollutant may be a known by-product
of certain processes used in a facility and it would be reasonable for
a permitting authority to find that the pollutant is added even if the
addition is difficult to detect in the effluent. Similarly, knowledge
that certain industrial processes do not use or generate a particular
pollutant and that the pollutant would not be added in other ways may
also be a sufficient basis for concluding that a pollutant is not
added. To provide flexibility to deal with a variety of situations,
today's rule does not establish the minimum data needed to make this
determination. Rather, the Director should determine the most
appropriate approach using his or her best professional judgment. This
issue is discussed in more detail below under the heading (5).
Today's rule retains limits for waived pollutants since removing
those limits may be interpreted under the Federal permit shield
provisions to allow the discharge of those pollutants in unlimited
quantities. See 40 CFR 122.5.
(5) Process of Granting the Waiver. A number of commenters asked
what information is required for a waiver to be granted while noting
that the proposed rule did not state what specific information was
necessary. One commenter asked whether a one time analysis of the
outfall would be sufficient. Another commenter expressed the belief
that the permit application provides sufficient information to
determine if the waiver is appropriate. Another commenter requested
that the certification language be revised to recognize the
availability of source information (e.g., SARA Toxics Release Inventory
or pollutant analyses submitted with permit application) when
determining whether to grant a waiver.
EPA believes that the amount of information needed to grant the
waiver will vary with each permit applicant. However, in many cases,
information sufficient to grant or deny a waiver will be found in the
permit application and from information generated from any prior
permits issued to the facility. Inspection reports, sampling data
submitted by the applicant, and the SARA Toxics Release Inventory all
contain information which may be considered when a permit is being
developed and may also assist Directors in determining whether to grant
the waiver. Directors are also free to request any additional
information they believe they need under section 308 of the Clean Water
Act in order to make a waiver determination. EPA wishes to reiterate
that the monitoring waiver is good only for the term of the permit and
that permittees must reapply for it when applying for a reissued
permit.

[[Page 30893]]

(6) Enforcement Issues Associated with the Waiver. Some commenters
expressed concerns that the proposed revision to Sec. 122.44(a) could
be interpreted to mean that a Director would only have enforcement
authority for waived pollutants and not for pollutants not listed in
the permit or that the revision would abrogate the protection provided
by EPA's permit shield provisions.
One commenter asked how the program will take into consideration
cases where the detection limit of a trace pollutant may decrease as a
result of improved analytical methodologies. Another commenter asked
how EPA would respond to the detection of an unauthorized pollutant in
a discharge, even if the permittee had a system in place to prevent its
introduction.
EPA notes that today's revision to Sec. 122.44(a) retains limits
for all guideline-listed pollutants and is not intended to alter EPA's
enforcement authority. Any exceedance of the effluent limit found in
the permit would be a permit violation regardless of whether a waiver
is in place. Today's rule is also not intended to change EPA's
requirements and policies regarding the permit shield provisions at 40
CFR 122.5. Permittees are also liable for any discharge of a pollutant
beyond that which serves as the basis of the waiver. Two pertinent
examples of this include: (1) Where a waiver is based on a discharger's
certification that the waived pollutant is not present in the discharge
and the pollutant is subsequently found to be present, or (2) where a
waiver is based on a certification that the pollutant is present only
at background levels from intake water and without any increase in the
pollutant due to activities of the discharger and the pollutant is
subsequently found to be added to the discharge by the discharger.
Permittees are liable for any violation of a permit requirement and are
subject to the full range of enforcement responses. Factors such as the
nature, severity, and frequency of violation, human health and
environmental impacts, and compliance history of the permittee are
considered by the Director when determining an appropriate enforcement
response. For example, in situations where a waived pollutant thought
to be absent is discovered through improved detection techniques or as
the unintended consequence of a change in the facility's operation, the
Director may issue an administrative compliance order to require
monitoring for that pollutant, or the permit could be modified (as a
minor modification under 40 CFR 122.63(b)(2)) to require such
monitoring. These responses may be particularly appropriate in
situations where a pollutant is discharged in an amount which exceeds
that which serves as the basis of the waiver but below the guideline-
listed limit.
Permittees should be aware that if they change their facility's
operations in a way that may result in pollutant discharges beyond what
serves as the basis for the waiver, they are obligated under 40 CFR
122.41(l)(2) to report that change to the Director. If permittees
discover in their discharge, pollutant levels which exceed what is
authorized by the waiver, they must also report that presence to the
Director in accordance with Sec. 122.41(l).
(7) Suspending the Waiver if Facility Operations Change. Some
commenters requested that permittees be required to resume monitoring
for all guideline-listed pollutants for at least one year after a
process change or change in materials use, regardless of waiver.
EPA declines to make these suggested changes because there are
already provisions in the NPDES regulations to alert permit issuing
authorities to situations where it may be necessary to reinstate
monitoring. Sections 122.41(l)(1) and 122.42(a)(1) impose reporting
requirements for planned physical alterations or additions to a
permitted facility. Section 122.44(l)(2) requires that permittees
provide advance notice to the Director of any planned changes to the
permitted facility or activity which may result in non-compliance with
permit requirements, including those contained in a monitoring waiver.
Additionally, Sec. 122.62(a)(1) provides for permit modification if
``[t]here are material and substantial alterations or additions to the
permitted facility . . . which occurred after permit issuance which
would justify the application of permit conditions that are different
or absent in the existing permit.'' These provisions can inform
Directors about the potential need to reinstate sampling and grant them
sufficient authority to reinstate it. Thus, there is no need to add a
new provision to 40 CFR 122.44.
(8) Indicator Pollutants. A commenter noted that certain guideline-
listed pollutants are indicator pollutants and that by waiving
monitoring for an indicator pollutant it would make sense to waive the
secondary pollutant as well. EPA believes it is rare to encounter a
permitting situation where monitoring is required for both indicator
and secondary pollutants. However, EPA agrees as a general matter that
if a pollutant is regulated under an effluent guideline as an indicator
for other pollutants, then monitoring can be waived to the same extent
of other pollutants at the permit-issuing authority's discretion, if
that indicator pollutant and the secondary pollutant are not present.
(9) Antibacksliding. A commenter raised a concern that the proposed
revision constitutes ``backsliding''. (Backsliding is a term of art
used to describe an impermissible relaxation of permit limits or
conditions upon permit reissuance, see CWA Sec. 402(o) and 40 CFR
122.44(l)). EPA notes that a reduction in monitoring might in some
cases, constitute backsliding of a permit ``condition'' as countenanced
under 40 CFR 122.44(l)(1). However, Sec. 122.44(l)(1) would operate to
allow such backsliding on the basis that the circumstances upon which
the previous permit was based have materially and substantially changed
since the time the permit was issued and would constitute a cause for
permit modification under Sec. 122.62(a)(2) (new information) or
Sec. 122.62(a)(3) (new regulations).
Another commenter noted that the antibacksliding provisions could
apply if a discharger wished to modify or renew their permit to allow
for the discharge of a guideline-listed pollutant which had been
subject to a no-discharge limit under a waiver. As noted above, EPA is
retaining the requirement that limits be placed in permits for all
guideline-listed pollutants and the backsliding situation envisioned by
the commenter should not occur as a result of this rulemaking.
(10) Section 122.4(a)(2) Does not Supersede any Monitoring Waivers
in the Effluent Guidelines. EPA notes that there are at least two
guidelines with certification processes relating the waiving or
reducing monitoring.\2\ This provision does not supersede certification
processes and requirements already established in existing effluent
limitations guidelines and standards because such processes may be
better tailored to situations that are specific to the guideline and
pollutant.
---------------------------------------------------------------------------

\2\ See 40 CFR 413.03 (Monitoring Requirements for Total Toxic
Organics under the Electroplating Point Source Category) and 40 CFR
421.3(b) (Periodic Monitoring for Cyanide under the Primary
Beryllium Subcategory of the Nonferrous Metals Manufacturing Point
Source Category).
---------------------------------------------------------------------------

c. Final Rule. In response to comments on the proposed rule, EPA
has adopted a modified version of the proposed regulation which retains
the requirement that permits have limits for all applicable guideline-
listed pollutants but allows for the waiver of sampling requirements
for guideline-listed pollutants on a case-by-case basis if the
discharger can certify that the pollutant is not present in the
discharge or

[[Page 30894]]

present only at background levels from intake water with no increase
due the activities of the discharger. The waiver must be applied for
each permit reissuance and is not available for the first permit issued
to the discharger.
(11) Reopener Clauses (40 CFR 122.44(c))
a. Summary of the Proposed Rule. Section 122.44(c) provided for
reopener clauses in permits. For reasons described in more detail in
the proposal (see 61 FR 65273-74), EPA proposed removing paragraphs
(c)(1), (c)(2), and (c)(3) of Sec. 122.44. Paragraphs (c)(1) and (c)(3)
apply only to permits issued on or before June 30, 1981, and are
obsolete. EPA also proposed removing paragraph (c)(2) which is
redundant with the requirements of Sec. 122.44(a). EPA proposed
consolidating the Secs. 122.44(a) and 122.44(c)(2) requirements in a
new paragraph at Sec. 122.44(a)(1). EPA proposed retaining the
provision for reopeners of sludge conditions in NPDES permits
(originally found in 40 CFR 122.44(c)(4)) and redesignating it,
Sec. 122.44(c). By proposing to remove these provisions, EPA did not
intend to limit the ability of permitting authorities to place reopener
clauses in permits on a case-by-case basis, particularly where
reopeners may result in more environmentally protective permit limits,
standards, or conditions.
b. Significant Comments and EPA Response. In response to EPA's
proposal, a commenter noted that, with paragraphs (c)(1), (c)(2) and
(c)(3) gone, the only reopener left, (c)(4), would apply to treatment
works treating domestic sewage. The commenter thought that this was too
narrow an application of reopeners. EPA disagrees and notes that
Sec. 122.62 provides EPA with broad authority to modify permits
regardless of the presence of a reopener clause and the removal of
paragraphs (c)(1), (c)(2), and (c)(3) will not impinge on EPA's or a
permittee's ability to revise permits.
Another commenter disagreed with the preamble language which
implied that permit writers could insert reopeners other than those
enumerated at Sec. 122.44(c). They noted that section 122.62
establishes appropriate scope of permit modifications. As noted in its
response to the preceding comment, EPA agrees that the authority
provided to it under Sec. 122.62 is adequate to allow for any necessary
revisions of permits.
c. Final Rule. EPA has adopted the final rule as proposed.
(12) Best Management Practices (40 CFR 122.44(k))
a. Summary of Proposed Rule. Section 40 CFR 122.44(k), authorizes
EPA to require BMPs in NPDES permits to control or abate the discharge
of pollutants where: (1) authorized under section 304(e) of the CWA for
the control of toxic pollutants and hazardous substances, (2)
authorized under section 402(p) of the CWA for the control of storm
water discharges; (3) numeric effluent limitations are infeasible, or
(4) the practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of
the CWA.
To assist the regulated community in developing and implementing
BMPs, EPA proposed to provide a note to Sec. 122.44(k) which would
provide references to available agency guidance on developing and
implementing BMPs. The inclusion of these references was not intended
to change the substantive requirements of Sec. 122.44(k). BMPs are
often best tailored for specific industries and the EPA guidance
furthers that goal. Therefore, EPA believes it is important that
regulated community know about the existence of these documents.
b. Significant Comments and EPA Response. One commenter objected to
EPA's assertion that there is any authority under the CWA for the
imposition of BMPs that have not been promulgated under section 304(e).
Since EPA did not propose any revisions to the regulatory requirements
of Sec. 122.44(k), this comment is beyond the scope of the proposal,
and EPA therefore declines to respond.
One commenter suggested EPA clarify whether or not the proposed
note in 40 CFR 122.44(k) is a regulation published under section 304(e)
of the Clean Water Act, insofar as information in that note pertains to
control of toxic or hazardous pollutants from activities within the
scope of section 304(e). EPA intends for the note to be informational
and does not intend for it to impose regulatory requirements. The
Office of the Federal Register does not allow notes to impose
regulatory requirements.
One commenter stated that it is inappropriate to include references
to specific guidance documents in a regulation, because such guidance
is frequently updated and has no regulatory force. The commenter
recommends that the regulation discuss that EPA BMP guidance documents
are available and identify the EPA office or offices, including
addresses and phone numbers, from which current lists of BMP guidance
documents can be obtained. EPA could also put the current BMP guidance
reference list on its Internet web site and identify the web site as a
source of the BMP guidance reference list. The regulations should state
that the BMP documents identified in the rule are for guidance only,
and have no regulatory force. EPA declines to remove references to
specific guidances in the ``note'' to Sec. 122.44(k) since such
references will assist readers in complying with regulatory
requirements. However, EPA will also include a list of BMP guidance on
the Office of Wastewater Management (OWM) Internet web site and include
a reference to the web site in the ``note''. EPA has also added
language to the note to clarify that the EPA guidance documents are
listed only for informational purposes, and they are not bindiing.
One commenter recommended that the note to Sec. 122.44(k) should
state that additional BMP documents may also be available from the
States. EPA will include this statement.
c. Final Rule. EPA has adopted the regulation as proposed except
that the Agency will also provide a statement in the note to
Sec. 122.44(k) to indicate that additional BMP documents may also be
available from the States and to provide a reference to the Office of
Wastewater Management's Internet home page.
(13) Termination of NPDES Permits (40 CFR 122.64) and RCRA Permits
a. Summary of Proposed Rule. In the proposal to today's rule, EPA
proposed to revise Sec. 122.64 to allow the Director to terminate a
NPDES permit by giving notice to the permittee, without following part
22 or 124 procedures where the permittee has permanently terminated its
entire discharge by elimination of its process flow or other discharge
components or by redirecting its discharge into a POTW. Currently, the
NPDES regulations require that part 124 public participation procedures
be followed for terminating permits.
These expedited permit termination procedures would not be
available when a permittee is subject to pending State and/or Federal
enforcement actions, including citizen suits brought under State or
Federal law. In such situations, the public has a strong interest in
participating in any permit termination proceeding and permittees
should not use expedited permit termination procedures as a way to
avoid enforcement liability. EPA would also require that permittees who
request expedited permit termination procedures must certify that they
are not subject to any pending State and/or Federal enforcement
actions. This exclusion includes citizen suits brought under State or
Federal law.
EPA did not propose to eliminate the requirement to follow part 124
termination procedures if the pollutants were to be disposed in wells
or by land

[[Page 30895]]

application of effluent, even if the permittee requests termination. In
such cases, it is important that the public be notified and able to
pursue any concerns about such disposal methods under other appropriate
Federal, State or local regulatory programs. EPA noted that there were
situations where permits are appropriate for no discharge facilities,
particularly where there is the possibility of an inadvertent discharge
into waters of the United States. Additionally, EPA noted that a
permittee terminating its discharge due to connection to a POTW would
be subject to applicable pretreatment requirements, including those in
parts 403 and 405-471, along with any local requirements. An existing
categorical industrial user initiating a discharge to a POTW must
notify the POTW in accord with Sec. 403.12.
Finally, EPA noted that permittees should be very sure that they
have, in fact, eliminated their discharge when requesting expedited
permit termination procedures. This is because any pollutants
discharged by the facility subsequent to permit termination could
violate section 301 of the CWA (prohibition against unpermitted
discharges). EPA also proposed conforming changes to Sec. 124.5
procedures to reflect these proposed expedited permit termination
procedures.
To effectuate these changes and do away with administrative
hearings, EPA proposed to eliminate Subpart E of 40 CFR Part 124, as
described above. The Subpart E procedures also applied to certain RCRA
permit terminations, but EPA found it was appropriate to eliminate
Subpart E as to RCRA permit terminations as well, for the reasons
described in the proposal.
b. Response to Comments. Some commenters were concerned about loss
of standing to sue where a violator's permit is terminated before the
60 day notice of intent to sue period has ended. Because they may
commence an action only after the 60 day notice period has ended, they
requested that this procedure be prohibited at the point where a
permittee, State or the Administrator has received a notice of intent
to sue. However, EPA notes that in most cases, citizens lose the
authority under CWA Sec. 505 to file suit for past violations when a
permittee has permanently terminated its discharge, not at the point
when the permit is terminated. (See, Gwaltney of Smithfield Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)) Under Gwaltney,
citizens may not file suit under the CWA solely to enforce against
alleged violations which occurred in the past. They may, however, file
suit to enforce against violations which are alleged to be continuous
or intermittent. In other words, if the violation is not on-going,
there must at least be the potential for a violation to occur in the
future. At the point the permittee permanently ceases to discharge or
has redirected its flow, there is no longer a potential for a violation
to occur and suits filed after that time would be barred under
Gwaltney, but not suits filed before the discharge terminates. In
addition, Gwaltney states that ``the purpose of notice to the alleged
violator is to give it an opportunity to bring itself into complete
compliance with the Act and thus likewise render unnecessary a citizen
suit.'' Id. Hence, if the permittee receives notice and then terminates
its discharge, the permittee is now essentially in complete compliance
with the Act.
Furthermore, under non-expedited permit termination procedures, it
is possible that the notice and comment period could be completed and
the permit thereafter terminated within the 60 day notice-of-intent-to-
sue period. As a result, citizens would be barred from bringing a suit
under Gwaltney under the existing regulations. Thus, the availability
of expedited permit terminations is likely to make little difference
with respect to the ability of citizens to enforce against permit
violations under section 505. It is also important to note that under
the expedited system, citizens could still appeal EPA's decision to
terminate a permit, which if the challenge were successful, would
result in the permit remaining in place.
Considering the foregoing, it is also necessary to discuss the cost
involved in the non-expedited termination procedure. The transaction
cost for the government to undergo notice and comment is high. This
high cost seems unjustified where a permittee has terminated its
discharge and, thereafter, its permit thus eliminating any future
threat to the environment. Given that there would be no direct
discharge and the given rarity of a situation that would meaningfully
affect citizens' ability to bring suit under section 505, EPA believes
it can use its resources better elsewhere. EPA also notes that under
section 505 of the Act, an enforcement action is not pending during a
60 day notice-of intent-to-sue period. It is also important to note
that the revised rule would still allow the Director to deny expedited
permit terminations in cases where a notice of intent to bring a
citizen suit has been filed.
Some commenters questioned why the expedited permit termination
procedures would not be available for permittees subject to a pending
enforcement proceeding. EPA notes that the public has a strong interest
in participating in permit termination proceedings where there is a
pending enforcement action and, therefore, expedited procedures should
not be used in those situations. This is particularly true in
situations where third parties may want to intervene in enforcement
actions. Moreover, EPA regulations require that the public be allowed
to participate in State or Federal Enforcement actions (see, 40 CFR
123.27(d)), and expedited permit termination procedures could hamper
such intervention.
There were two comments questioning why this procedure would not be
available if pollutants will be disposed of either in wells or by land
application of effluent. Both comments raised the issue that public
notice and comment under Federal law is not necessary in this situation
because there are State and Federal laws which regulate land
application of effluent and discharges into wells which will provide
for public notice and comment and there is no need for repetition. In
EPA's view, however, these notice and comment provisions may not be
wholly redundant because every existing applicable State law and all
other Federal laws which would regulate these actions may not have a
public notice and comment requirement. This, together with the fact
that it is extremely important for the public to be notified that
pollutants will be disposed of either in wells or by land application
of effluent, created a need to prohibit this expedited permit
termination procedure in such situations. Preventing the use of this
procedure in such situations and therefore, requiring public notice and
comment at this level, will best protect the public's interest in this
area.
c. Final Rule. The final rule adopts the same approach that EPA
proposed, although the language of 124.5(d) has been modified from the
proposal in order to more accurately reflect this approach as it
affects RCRA permit terminations.
The preamble to the proposal stated that RCRA permit terminations
are first subject to an informal process (notice and opportunity for
comment and an informal hearing), after which a party may request an
evidentiary hearing under Subpart E and subsequently may appeal a
permit to the Environmental Appeals Board. The proposal failed to
distinguish, however, between permit terminations that EPA initiates
for cause under 40 CFR 270.43 and permit termination proceedings that
occur in

[[Page 30896]]

conjunction with RCRA Sec. 3008 enforcement orders. Only the latter
types of permit terminations were subject to the formal hearing
procedures in Subpart E. EPA's intent in the proposal was to make only
those types of RCRA permit terminations subject to Part 22 instead of
Subpart E. EPA did not intend to affect the procedures for initiating a
permit termination for cause under 270.43. Those types of permit
terminations have always been subject to the same process that applies
to issuing RCRA permits, i.e, notice and opportunity for comment and an
informal hearing before a final decision. An evidentiary hearing to
review the final decision is not available. Instead, these types of
RCRA permit terminations, like permit issuances, are appealed directly
to the EAB.
Accordingly, EPA has revised the final rule to reflect that, for
RCRA permits, the elimination of Subpart E in favor of Part 22
procedures applies only to permit termination proceedings that occur in
conjunction with section 3008 enforcement orders.
Similarly, EPA did not intend to change, and the final rule does
not affect, the procedures for RCRA permit terminations that are at the
request of the permittee. (For example, the permittee may have ceased
operations and have no remaining closure or corrective action
concerns.) EPA processes this type of RCRA permit termination under 40
CFR 270.42 as a ``Class 1'' modification (allowing a change in the
expiration date to cause early permit termination, with prior approval
of the Director--see Appendix 1 to Sec. 270.42, item A.6).

B. Revisions to Part 123

1. Requirements for Permitting (40 CFR 123.25)
a. Summary of Proposed Rule. EPA had proposed revisions to 40 CFR
123.25(a) to clarify that certain provisions which detail penalty
amounts in 40 CFR 122.41(a)(2), (a)(3), and (j)(5) are not required of
State NPDES programs. Instead, the applicable penalty provisions for
State NPDES programs are found at 40 CFR 123.27. This is consistent
with EPA's long standing interpretation of the Clean Water Act and its
regulations. See EPA's Office of General Counsel Opinion, dated May 31,
1973.
b. Significant Comments and EPA Response. EPA received no comments
regarding this section.
c. Final Rule. EPA is adopting this section as proposed.
2. Transmission of Information to EPA (40 CFR 123.44)
a. Summary of Proposed Rule. In an effort to streamline Federal
oversight of State NPDES permit programs, EPA proposed to revise 40 CFR
123.44 to remove references to the Office of Water Enforcement and
Permits (OWEP) and its role in commenting on and objecting to State-
issued general permits. At one time, OWEP (now known as the Office of
Wastewater Management) was expected to play an active role in
reviewing, commenting, and objecting to State-issued general permits.
Section 123.44(i) made the role of the Director of OWEP coextensive
with that of the Regional Administrator for the purposes of objecting
to proposed State-issued general permits (other than those for separate
storm sewers).
Specifically, EPA proposed to revise Sec. 123.44 (a)(2) and (b)(2)
to remove those references to OWEP and its role in reviewing State-
issued general permits. EPA would also remove and reserve 40 CFR
123.44(i).
b. Significant Comments and EPA Response. In response to this
revision, a commenter replied that Sec. 123.44 provides 90 days of
comments on general permits, which eliminates the potential flexibility
of negotiating such time frames in State/EPA Region Memoranda of
Agreement (MOAs). EPA believes that the comment is beyond the scope of
this rule since it does not change, or hamper the flexibility of, the
review period of Sec. 123.44(a)(2), which can be up to 90 days.
c. Final Rule. EPA has decided to promulgate the proposal without
change

C. Revisions to Public Hearing Requirements for NPDES Permit Actions
and RCRA Permit Terminations

1. Summary of Proposed Rule
EPA proposed to eliminate as unnecessary the existing procedures
for conducting formal evidentiary hearing on NPDES permit conditions
contained in 40 CFR part 124, subpart E, and further proposed to
eliminate the alternative ``Non-Adversary Panel Procedures'' in part
124, subpart F. EPA has also proposed to eliminate appendix A to part
124 (Guide to Decision making under Part 124) because its role in
explaining subpart E and subpart F procedures would no longer be
meaningful in the absence of those subparts. EPA also proposed to
modify the procedures for terminating NPDES and RCRA permits. These
revisions do not apply to authorized State NPDES programs.
2. Comments and EPA Responses
EPA received comments on the proposal to eliminate evidentiary
hearings from ten commenters. All of these comments came from members
of industry and none of them supported the proposal to eliminate
evidentiary hearings. One commenter supported the elimination of the
subpart F procedures. No comments were received on the elimination of
appendix A.
(i). Legal Basis. In the proposal, EPA explained its tentative
conclusion that, due to the progress of the law in the Courts of
Appeals, the Seacoast v. Anti-Pollution League v. Costle, 572 F.2d 872
(1st Cir. 1978)(``Seacoast''), and Marathon Oil Co. v. EPA, 564 F.2d
1253 (9th Cir. 1977) (``Marathon'') decisions are no longer good law.
To briefly restate its position, EPA has revisited the hearing
requirements of section 402(a), employing the two-step analysis of
Chevron, U.S.A. v. NRDC, 467 U.S. 837 (1984), which provides that,
where Congress has failed to express a clear intent to the contrary, an
agency charged with administering the statute may adopt an
interpretation which is reasonable in light of the goals and purposes
of the statute. In the first step of its Chevron analysis, the Agency
has examined the text, legislative history, and judicial
interpretations of the Act, finding no evidence that Congress intended
to require formal evidentiary hearings or that the text precludes
informal adjudication of permit review petitions. Using modern due
process analysis, the Agency, in the second step of its Chevron
analysis, carefully weighed the risks and benefits of informal hearing
procedures for NPDES permit review, determining that these procedures
would not violate the Due Process Clause of the Constitution.
Accordingly, the Agency has concluded that informal hearing procedures
satisfy the hearing requirement of section 402(a).
(ii) Chevron Step One. (a) Text and Legislative History. As EPA
noted in the proposal, section 402(a) does not explicitly state that
public hearings on NPDES permits must be conducted ``on the record,''
the phrase normally associated with a requirement that hearings be
conducted under section 554 of the APA. 61 FR 65268, 65276 (Dec. 11,
1996). One commenter asserted that EPA placed undue emphasis in its due
process analysis on the fact that section 402 of the Clean Water Act
does not expressly require that the public hearings for the review of
NPDES permits be ``on the record''. EPA acknowledges that the absence
of a record requirement in section 402 does

[[Page 30897]]

not necessarily mean that Congress intended to supply only informal
adjudication of NPDES permit review petitions. Still, as explained in
the proposal, the absence of an explicit requirement in section 402(a)
that formal APA procedures be used is significant in light of certain
judicial decisions that followed the promulgation of the part 124
regulations and which have abandoned the presumption that trial-type
hearings are required by the APA where a statute calls for an
adjudicatory hearing without explicitly requiring formal procedures.
The Agency argues nothing more than that the absence of the phrase ``on
the record'' requires a more involved analysis of due process
requirements.
Furthermore, while EPA agrees that the absence of a record
requirement does not automatically permit the Agency to conclude that
Congress intended informal hearing procedures for NPDES permit review,
had Congress intended to foreclose Agency discretion on the matter, it
would likely have included the ``on the record'' language that
unmistakably triggers section 554 of the Administrative Procedure Act.
Though it is possible that failure to include a record requirement in
section 402 resulted from drafting oversight, it is clear from Buttrey
v. United States, 690 F.2d 1170 (5th Cir. 1982)(``Buttrey''), that, at
least with respect to section 404, the absence of a record requirement
was deliberate. In Buttrey, the court, analyzing identical hearing
language in section 404 of the Act, concluded that Congress had not
intended to preclude informal hearing procedures for permit review
proceedings. In the Agency's opinion, it is not reasonable to believe
that the same words that permit informal hearings in section 404
preclude informal hearings when used in section 402. Instead, the
Agency believes that Congress wrote these provisions without specifying
the type of hearing required in order to allow the Agency as much
discretion in defining the required hearing procedures as the Due
Process Clause allows.
EPA also believes that section 509 of the Act further demonstrates
that Congress intended to reserve for the Agency the discretion to
determine what type of hearing to hold, and also to ensure that the
statute satisfied due process. Subsection 509(b) provides for judicial
review of determinations that are made under the sections of the Act
listed in subsection (b)(1). Subsection (c) provides that the court may
order that additional evidence be taken before the Administrator for
judicial proceedings brought under subsection (b) ``in which review is
sought of a determination under this chapter required to be made on the
record after notice and opportunity for hearing * * *.'' Thus, taken
together, subsections 509(b) and (c) suggest that some of the
proceedings under 509(b) must be ``on the record'', without specifying
which ones. Of those sections of the Act listed in subsection (b), only
section 307 contains an express record requirement. As noted by a few
of the commenters, however, the absence of an express record
requirement does not end our analysis.
Congress apparently preferred, for purposes of mandating judicial
procedures under section 509(c), that EPA would determine in most cases
whether formal hearings would be required. Section 509(c) also
demonstrates that, as if there was any doubt, Congress knew how to
draft a provision that expressly referred to formal adjudicatory
procedure by using the exact language of section 554 of the APA. More
importantly, however, this drafting leaves the statute flexible enough
to accommodate the exercise of Agency discretion and judicial review
thereof. The very structure of the provision strongly suggests that
Congress intended the language of sections 402, 404, and others to
permit the Agency as much discretion as Constitutionally permissible in
deciding whether or not informal hearing procedures would meet the
requirements of the Due Process Clause for each of the listed sections
in section 509(b).
Despite the absence of legislative history to suggest that Congress
intended to require formal hearing procedures, one commenter suggests
that Congress ratified Seacoast and Marathon when it later amended
section 402 without changing the language of the hearing requirement in
subsection (a). The theory of ``reenactment'' upon which the commenter
relies has long been a matter of controversy and confusion in the
courts. Indeed, the Supreme Court has observed that the reenactment
rule ``has been stated in various and not entirely consistent terms.''
Helvering v.Griffiths, 318 U.S. 371, 396 (1943). Despite this
inconsistency, it is clear that mere reenactment does not necessarily
constitute ratification ``because the committees or subcommittees of
Congress may or may not know of outstanding interpretations when they
are considering reenactment; they do not in fact approve what they know
nothing about.'' K. Davis, Administrative Law, Sec. 7.14, at 67 (2d
ed.). Even where the Congress has knowledge of an existing
interpretation at the time of reenactment, its silence on the
interpretation ``is as likely an indication of lack of interest or
preoccupation with more pressing matters, or a belief that the matter
would be better left to the courts or agencies for resolution.'' John
C. Grabow, Congressional Silence and the Search for Legislative Intent:
A Venture Into ``Speculative Unrealities'', 64 B.U.L. Rev. 737, 759.
EPA believes that, although Congress might have been aware that EPA
had construed section 402(a) of the Clean Water Act to require formal
adjudication of petitions for NPDES permit review, the Agency has no
direct evidence that Congress was aware, and certainly no evidence to
suggest that Congress recognized that Seacoast compelled this
construction. Moreover, even had Congress been aware of Seacoast when
section 402 of the Act was subsequently amended, its silence only
reinforces our contention that Congress intended to leave the form of
NPDES hearing procedures to the discretion of the Agency.
As already noted, the legislative history of the Clean Water Act is
devoid of language that would explain whether or not to employ formal
hearing procedures in the review of NPDES permits. The failure of
Congress to expressly require formal hearing procedures, combined with
the structure of section 509 of the Act, suggests that Congress
intended EPA to exercise its judgment in deciding whether or not to
require formal administrative hearings for NPDES permit review.
(b) Judicial Interpretations. EPA understands the decisions in
Chemical Waste Management v. EPA, 873 F.2d 1477 (D.C. Cir. 1989)
(``CWM''), and Buttrey, to have seriously questioned the continuing
validity of Seacoast, Marathon, and United States Steel Corp. v. Train,
556 F.2d 822 (7th Cir. 1977) (``United States Steel''). Both CWM and
Buttrey, interpreting language similar or identical to that in section
402(a), have concluded that Congress had not intended to require formal
hearing procedures. In addition, CWM expressly rejected the presumption
that trial-type hearings are required by the APA where a statute calls
for an adjudicatory hearing. Instead, the court employs Chevron's two-
step analysis, concluding that it must properly defer to the Agency's
permissible interpretation of the statute.
One commenter suggested that the advent of Chevron does not
undermine the decisions of Seacoast, Marathon,

[[Page 30898]]

and United States Steel because these early decisions were based on an
interpretation of the Administrative Procedure Act, not the Clean Water
Act. This argument is flawed in two respects. First, the decisions in
Seacoast, Marathon, and United States Steel were all based almost
exclusively upon interpretations of the Clean Water Act, not the
Administrative Procedure Act. Second, to the extent that Seacoast
interpreted the Administrative Procedure Act, its interpretation has
now been expressly rejected by CWM. CWM, 873 F.2d at 1481.
In determining whether or not EPA had to provide formal
adjudicatory procedures for review of NPDES permits, the Seacoast court
expressly stated that ``the resolution of this issue turns on the
substantive nature of the hearing Congress intended to provide.''
Seacoast, 572 F.2d at 876. See also Marathon, 564 F.2d at 1264 (``The
focus of our inquiry should be on the nature of the administrative
determination before us.'') In attempting to discern Congressional
intent, the Court looked first to the text and legislative history of
the Federal Water Pollution Control Act, not the Administrative
Procedure Act. Id., at 876, n.6. Finding no guiding text or legislative
history in the Federal Water Pollution Control Act, the court had no
choice but to rely on a presumption of formality that the court
inferred from legislative history of the Administrative Procedure Act
and its treatment in the courts. It is precisely this presumption of
formality that CWM expressly rejects. CWM, 873 F.2d at 1481. With the
advent of Chevron and CWM EPA believes that it has not only an
opportunity, but an obligation, to update its regulations to reflect
the jurisprudence of modern courts and the needs of the environment.
Still, a commenter has suggested that, in distinguishing section
404 from 402, the Buttrey court endorsed the conclusion reached by the
Seacoast, Marathon, and United States Steel courts. Buttrey predates
both Chevron and CWM, so there is some reason to doubt that, if Buttrey
were decided today, the court would have found need to distinguish it
from the earlier cases. Moreover, Buttrey does not endorse the decision
reached in these cases; instead, Buttrey merely notes that there exists
legislative history regarding section 404 to overcome the, now-defunct,
presumption of formality that led the Seacoast, Marathon, and United
States Steel courts to require formal hearings. Buttrey, 690 F.2d at
1175. As a matter of logic, now that the presumption of formality has
been dissolved, the mere absence of legislative history similar to that
of section 404 does not require or support a finding that section
402(a) requires formal hearings.
The same commenter also suggested that Consolidated Coal v. EPA,
537 F.2d 1236 (4th Cir. 1976), compels the same result as reached in
Seacoast. In Consolidated Coal, the court concluded that, before final
agency action on an NPDES permit, the Administrator must provide the
permittee with an opportunity for a hearing. The Administrator had
denied petitioner's request for a hearing on the faulty assumption that
the petitioner was entitled to a hearing before the State agency that
had issued the permit or a State court. The court concluded that,
``[s]ince a hearing at the state level is presently foreclosed, due
process requires that the Administrator grant a hearing in this case.''
Id., at 1239.
In reaching this conclusion, the court never squarely addressed the
issue of what type of hearing due process requires for review of NPDES
permits. Although the court quotes language from Appalachian Power Co.
v. EPA, 477 F.2d 495, 501 (4th Cir. 1973), that would require that a
hearing be granted where the issues cannot be resolved ``on the basis
of pleadings and argument,'' it is not clear whether the court quotes
this language for the proposition that the Administrator must hold a
hearing before taking final agency action on an NPDES permit, or that
hearings on NPDES permits must allow the submission of evidence, or
both. Consolidated Coal, 537 F.2d at 1239. Even if one were to assume
that the court quotes this language for both propositions, the proposed
procedures meet both requirements. Moreover, it is doubtful that this
case purports to resolve the question of what type of hearing due
process requires for NPDES permits while addressing the matter, if at
all, only in passing.
Furthermore, Consolidated Coal, predates both Chevron and CWM, and,
more importantly, Mathews v. Eldridge, 424 U.S. 319 (1976)
(``Mathews''), which sets forth the rubric for modern due process
analysis. The case has been cited only twice, only once favorably, and
on neither occasion for the proposition for which the commenter claims
that the decisions stands. See Shoreline Associates v. Marsh, 555
F.Supp. 169, 177 (D. Md. 1983), United States Steel, 556 F.2d 822, 836
(7th Cir. 1977). Accordingly, EPA concludes that, for whatever
proposition Consolidated Coal may stand, there is much more recent and
reliable due process jurisprudence upon which to base the Agency's
analysis.
(iii) Chevron Step Two. Reasonableness of Interpretation. EPA
believes that providing for informal hearings prior to issuance of
NPDES permits is a reasonable interpretation of section 402(a) because
formal hearings are not necessary to protect the due process rights of
permittees or other interested parties. The leading Supreme Court case
discussing due process requirements is Mathews. Mathews establishes a
three-element balancing test by which the decision-maker must consider:
(1) The private interests at stake, (2) the risk of erroneous decision-
making, and (3) the nature of the government interest, before deciding
what procedures are required by the Due Process Clause.
(a) Private Interest. In an NPDES permit proceeding, the private
interests at stake are generally those of a potential discharger in
obtaining a permit to conduct its economic activities in a lawful
manner. One commenter contended, however, that EPA's due process
analysis fails to adequately assess the private interests at stake
because EPA has refused to recognize a private property interest in
NPDES permits. EPA disagrees. Although the NPDES regulations expressly
disavow any property interest that might accrue in an NPDES permit, the
due process analysis discussed herein proceeds as if a sufficient
economic interest exists to warrant a due process analysis under the
Mathews rubric. See 40 CFR 122.5(b).
Three commenters asserted that EPA has failed to adequately assess
the magnitude of the potential impact of erroneous permit provisions.
These commenters argued that an erroneous permit provision could have a
catastrophic effect on the affordability of sewer service or financial
well-being of a municipality (for issuance of NPDES permits to POTWs).
None of these commenters has offered any evidence to suggest that, in
the typical case, erroneous permit provisions have had or would have
such catastrophic effects. Moreover, even if the magnitude of error
were as great as these commenters suggest, it would be the same under
both the existing and proposed hearing procedures. As discussed below,
EPA's analysis suggests that the risk of error is actually less under
the proposed hearing procedures; accordingly, the overall risk to the
private interests at stake would be less under the procedures proposed.
(b) Risk of Error. EPA believes that transition to informal
adjudicatory procedures will not significantly affect the risk of error
in NPDES permit review determinations. As explained in the proposal,
NPDES permit review

[[Page 30899]]

determinations, unlike penalty hearings, are less apt to raise the kind
of factual issues regarding the conduct of the discharger, which case
law identifies as being uniquely susceptible to resolution in a formal
evidentiary hearing. 61 FR 65268, 65277 (Dec. 11, 1996). Nonetheless,
one commenter asserts that the risk of an erroneous decision on a
petition for review of an NPDES permit would be greatly increased in
the absence of a right to oral testimony and cross-examination. EPA
believes these concerns to be unwarranted. Even under the existing
subpart E regulations, parties have no right to oral presentation of
direct or rebuttal evidence except as allowed by the Presiding Officer
upon motion and good cause shown. 40 CFR 124.85(c). Any incremental
risk of error associated with the use of informal hearing procedures
would, thus, be attributable only to the absence of a right to oral
cross-examination.
EPA does not believe that the absence of a right to oral cross-
examination under the proposed hearing procedures will significantly
increase the risk of an erroneous decision on a petition for review.
The issues that typically arise in the review of a draft NPDES permit
do not call for the type of credibility determinations for which cross-
examination is justified. Instead, the typical issues that arise are:
(1) Has EPA set effluent limits appropriately (e.g., will a discharge
cause, have the reasonable potential to cause, or contribute to an
excursion above applicable water quality criteria such that EPA may set
a water quality-based effluent limitation?), and (2) has EPA correctly
calculated the effluent limitations that it has set? These questions of
fact hinge on technical considerations for which cross-examination is
not particularly useful. Under the hearing procedures that EPA proposes
to adopt, should a party wish to challenge the testimony of an opposing
expert witness, it may present written evidence to contradict the
assumptions, data, and analysis of the opposing expert. This sort of
challenge would more efficiently and reliably reveal any error or bias
in the expert's analysis or conclusion than would an analysis of the
expert's courtroom demeanor. Accordingly, EPA perceives little or no
increase in the risk of error under the hearing procedures that EPA is
adopting.
EPA also received two comments arguing that the hearing procedures
EPA proposed to adopt would substantially increase the risk of error by
affording the parties inadequate opportunity to develop the evidence
necessary to support a petition for review to be filed with the
Environmental Appeals Board. Because EPA today employs the same hearing
procedures for NPDES permit review as those currently used for RCRA and
UIC permits, the Agency believes that the success of the existing RCRA/
UIC hearing procedures demonstrates that these concerns lack
foundation. RCRA and UIC permits raise questions of fact no less
complicated than those that arise in the review of NPDES permits, yet
the Agency has no suggestion from its experience or from the courts
that the time allowed to develop supporting evidence under RCRA/UIC
procedures is so short as to violate the Due Process Clause or
adversely affect the accuracy of review.
(c) Public Interest. There is significant public interest in an
expedited process for issuing NPDES permits. EPA's experience since
1979 has been that the opportunity to request a formal evidentiary
hearing has led to significant delays in permit issuance. EPA's
statistics suggest that the procedures proposed to resolve
administrative petitions are at least twice as fast as the formal
hearing procedures now in place. The procedures will, thus, allow
needed permit improvements to take effect sooner, make public
participation more affordable, and reduce the burden on government
resources.
One commenter suggests, however, that EPA incorrectly estimates the
public interest in adopting informal hearing procedures as the
reduction of time during which unpermitted discharges continue while a
permit is reviewed. EPA acknowledges that new dischargers may not begin
to discharge until the process of review is complete. 40 CFR
124.16(a)(1). EPA also acknowledges that the expired permit of an
existing discharger will be administratively continued during the
process of review if the discharger makes a timely application for
renewal. 40 CFR 124.16(a)(2). The public interest in expediting the
process of permit review, thus, lies, in part, in minimizing the time
during which inadequate expired permits remain in effect. This interest
is especially significant because, under current procedures, permit
renewal often takes in excess of five years.
Other commenters suggest that EPA overestimates the public interest
in adopting the proposed hearing procedures by failing to account for
the delay that the backlog of NPDES permit review petitions would cause
at the EAB. Again, the Agency disagrees. The Agency has polled the
Regions for an approximate number of review petitions pending before
the Regional Administrators. These cases, plus the petitions for which
an evidentiary hearing has been granted but not yet held, constitute
the backlog of cases that the EAB would assume under the proposed
hearing procedures. 61 FR 65268, 65281 (Dec. 11, 1996). Although the
number of cases backlogged is not insignificant in terms of the EAB's
total annual caseload, the comment fails to consider that the total
time it will take to process an individual NPDES case will no longer be
encumbered by the decisional process associated with the evidentiary
hearing procedures. Those procedures included the right to appeal a
denial of an evidentiary hearing request to the EAB, the possibility of
a reversal of the denial, a remand by the EAB to hold an evidentiary
hearing, and at the conclusion of the hearing, an opportunity to again
file an appeal on the merits with the EAB. Accordingly, although the
number of cases under the new procedures that will make their way to
the EAB will initially result in a backlog at the EAB, there is no
basis for concluding that delays in processing cases will result
compared to the old procedures. In addition, we expect that, once the
EAB has cleared the backlog of cases, the long-term benefits of the
informal adjudicatory procedures will become more apparent.
One commenter suggested that the success with which public citizen
groups have challenged NPDES permits demonstrates that the existing
hearing procedures provide adequate opportunity for public
participation. Of course, the fact that citizens groups successfully
challenge NPDES permits on occasion does not somehow diminish their
interest in more affordable participation. Instead, their success
highlights the importance of public participation in the permit review
process. Indeed, the Senate observed, in reporting the Water Pollution
Control Act Amendments of 1972, that the implementation of water
pollution control measures would depend considerably ``upon the
pressures and persistence which an interested public can exert upon the
governmental process.'' 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. (1973) at 1430 (emphasis added). EPA believes that a
transition to informal adjudicatory procedures for review of NPDES
permits will promote sustainable public participation by, amongst other
things, minimizing the activities for which legal counsel is

[[Page 30900]]

required and expediting the permit review process such that citizens
groups need commit fewer resources for shorter duration.
Another commenter challenged the assertion that the proposed
hearing procedures would reduce the need for legal representation. EPA
stands by its conclusion. Even if it were true that parties would avail
themselves of counsel under the proposed hearing procedures with
frequency equal to that with which they avail themselves of counsel
under the existing procedures, EPA believes that the shorter period of
review and the higher rate of settlement expected under the proposed
procedures will minimize the quantity of legal services required.
Three commenters contend that, however they might otherwise reduce
the burden on citizens group participation, the proposed hearing
procedures would more than offset those reductions by compelling public
citizens groups to maintain a presence in Washington, DC or bear the
expense of frequent travel. EPA disagrees. Unlike the existing NPDES
permit review procedures, the proposed procedures do not provide for
oral presentation of direct testimony, rebuttal, or cross-examination,
and oral argument before the Environmental Appeals Board occurs very
infrequently; thus, parties need not maintain a Washington, DC presence
and would gain no advantage by doing so.
The government also has an interest in minimizing Agency resources
consumed in NPDES permit review. Several commenters argued that, for
various reasons, EPA will not realize the resource savings that EPA
expects under the proposed permit review procedures. These commenters
contend that the number of petitions for administrative review will
increase while the rate of settlement and the EAB's rate of review will
decline. EPA believes these concerns generally unfounded.
One of these commenters argued that switching to informal hearing
procedures will result in an increased number of requests for permit
review because the permit review process would no longer prove
sufficiently onerous to discourage frivolous objections to NPDES
permits. Although EPA anticipates that informal hearing procedures will
reduce the resource burden upon all parties to the administrative
review, the commenter has provided no factual basis to conclude that
less onerous process will correlate to more ``frivolous'' petitions for
review. While one might speculate that such a correlation exists, there
is no basis to believe that this dynamic would have any discernible
impact on the number of review petitions at the levels of resource
commitment required under either the existing NPDES permit review
procedures or those proposed. To the extent that any such dynamic might
be observable, one would expect a significantly higher rate of
petitions denied by the EAB under the RCRA/UIC procedures than under
the existing procedures for NPDES review. No such effect is observable,
however. Moreover, even if the Agency observes such an effect under the
proposed hearing procedures, the Agency would properly respond by
initiating rulemaking to sanction frivolous permit review petitions,
not by maintaining unnecessarily burdensome hearing procedures.
This same commenter argued that EPA overestimates the need for
informal hearing procedures by failing to account for a projected
reduction in the rate of petitions as the number of unpermitted
facilities declines. Even if it were true that petitions for review of
new permits would decline appreciably in the reasonably near future,
EPA would expect a countervailing increase in the rate of petition for
review of permit renewals. EPA has no basis to believe that the net
effect of these hypothesized trends will yield a significantly lower
overall rate of petition; accordingly, EPA cannot at this time discount
the need for informal hearing procedures.
Other commenters asserted, by contrast, that the number of
petitions for review requiring resolution by the Agency will increase
because the number of settlements will decrease under the proposed
hearing procedures which will overburden the Environmental Appeals
Board. Again, were it true that the proposed hearing procedures would
somehow remove the incentive for parties to reach settlement, EPA would
expect a much lower settlement rate for cases currently reviewed under
the RCRA/UIC procedures than for cases reviewed under the existing
NPDES procedures. No such difference appears in EPA's post-petition
statistics. While EPA does not track pre-petition resolution of permit
disputes, EPA has no basis to believe that fewer disputes are resolved
before petition for review of Regional permit decisions are filed in
the RCRA/UIC program than in the NPDES program.
Finally, one commenter warns that a switch to informal hearing
procedures will result in more frequent requests for public hearings on
draft NPDES permits. Even if it were true that EPA should expect more
frequent public hearing requests, EPA believes that the net
conservation of resources under informal hearing procedures would still
justify the transition. Public hearings on NPDES permits are more in
the nature of a legislative hearing because they do not require
representation by counsel or formal written submissions (unless
required by the Presiding Officer) and the Presiding Officer may set
reasonable limits on the time allowed for oral statements. 40 CFR
124.12. These hearings must be requested in a timely fashion, are
required only where there is a significant degree of public interest in
the draft permit, and occur within the comment period. Id. All of these
limiting factors render the public hearing process substantially less
burdensome to all parties involved than the evidentiary hearings that
they would replace.
3. Final Rule
None of the comments received suggest that retaining formal
adjudicatory proceedings is required under section 402(a) or due
process or consistent with the public interest. Therefore, EPA is today
adopting the proposed rule, eliminating evidentiary hearing procedures,
subpart F procedures, and appendix A to part 124.

D. Removal and Reservation of Part 125, Subpart K--Criteria and
Standards for Best Management Authorized Under Section 304(e) of the
Act

a. Summary of Proposed Rule. EPA proposed to remove and reserve
part 125, subpart K (40 CFR 125.100-125.104) titled ``Criteria and
Standards for Best Management Practices Authorized Under Section 304(e)
of the Act'' along with its reference at 40 CFR 123.25(a)(36). This
provision was originally promulgated on June 7, 1979 (44 FR 32954) and
would have established criteria and standards for imposing best
management practices (BMPs) in NPDES permits under the authority
provided in sections 304(e) and 402(a)(1) of the CWA. However, for
reasons set forth in more detail in the proposed rule (see 61 FR 65282-
65283), Subpart K was never activated and its original purpose is now
better served by EPA's existing BMP provisions at 40 CFR 122.44(k) and
accompanying guidance for developing and implementing BMPs.
b. Significant Comment and EPA Response. Two commenters believed
the subpart K regulation should not be removed, stating that the
regulatory framework provided by subpart K was needed to guide the
imposition of BMPs and that Sec. 122.44(k) was overly broad. The
commenter believed there should be some basis in the regulations for

[[Page 30901]]

guiding permit writers and applicants as to when BMPs are appropriate
and how they are to be implemented. EPA does not believe that
Sec. 122.44(k) is overly broad. BMPs and BMP plans are intended to be
flexible so that they can be tailored to particular industries and
sites. EPA believes this flexibility is better served by Sec. 122.44(k)
and guidance documents which can be tailored to specific industries or
activities.
A commenter stated that the proposal represents a significant
policy decision that is not appropriate for inclusion in a rulemaking
designed simply to streamline permit issuance, and that if Subpart K is
removed, there are absolutely no limits on EPA's discretion in imposing
the BMPs based on 40 CFR 122.44. EPA disagrees and notes that removing
subpart K is not a significant policy decision because subpart K has
never been activated. Because subpart K has no regulatory effect, its
removal does not affect EPA's ability to impose BMPs in permits.
Finally, EPA notes that the Clean Water Act and Sec. 122.44(k) place
limits on EPA's discretion to include BMPs and other conditions in
NPDES permits.
c. Final Rule. Today's final rule adopts this revision as proposed.

E. Provisions Without Comments

Provisions in parts 22, 122, 124, and 125 in the proposed rule
which were not commented upon and not discussed above are adopted for
the reasons set forth in the proposal.

F. Miscellaneous Corrections

a. Summary of Proposed Rule
EPA proposed a number of minor non-substantive revisions to its
regulations that would correct typographical or drafting errors, and
misplaced or obsolete references. EPA wishes to be clear that these are
corrections and are not intended in anyway to result in substantive
changes to its programs. In proposing these corrections, EPA did not
solicit, and has not responded to, comments on the existing regulatory
provisions which underlie those corrections. Furthermore, by including
these corrections in the proposed and final rule, EPA is not conceding
that any or all such changes required notice and comment. However,
these errors were discovered while developing this proposed rule and
EPA believes it is more cost effective to correct them in this
rulemaking than in a separate Federal Register notice. In today's final
rulemaking, EPA is incorporating those corrections as proposed.
b. Significant Comments and EPA Response
EPA received a number of comments recommending other typographical
or drafting errors, and misplaced or obsolete references. EPA has made
these suggested changes and some of its own where the EPA believes it
made additional unintended errors. These changes are:
(1) A commenter has recommended that 40 CFR 122.26(b)(7)(iii)
should refer to (b)(7)(i) or (b)(7)(ii). EPA agrees and has made this
change.
(2) A commenter has pointed out that 40 CFR 122.26(d)(2)(iii) make
an incorrect reference to (d)(a)(iii)(A)(3) and should read
(d)(2)(iii)(A)(3). EPA agrees and has made this change.
(3) A commenter has pointed out that 40 CFR 123.44(d) makes an
incorrect reference to Sec. 123.44(b) and should read as
Sec. 123.44(c). EPA agrees and has made this change.
(4) A commenter has pointed out that 40 CFR 124.10(d)(1)(vii) has a
repeated sentence that should be removed. EPA agrees and has made this
change.
(5) A commenter has pointed out the proposed 40 CFR
122.21(a)(2)(i)(G)has a misplaced ``that'' in the second line which
should be deleted. EPA agrees and has made this change.
(6) A commenter has pointed out that proposed 40 CFR
122.21(g)(7)(i) should have reference to (g)(7)(iii) and (iv) changed
to (g)(7)(vi) and (vii). EPA agrees and has made this change.
(7) A commenter has pointed out that 40 CFR 122.2's definition of
sludge only facility should refer to section 122.2(b)(2) and (3)
instead of section 122.1(b)(3) as it currently does. EPA disagrees with
this correction and has not made this change.
(8) A commenter has pointed out that 40 CFR 122.21(g)(7)(v)(B) and
(vi)(B) use the term ``is discharged'', when ``are discharged is'' more
appropriate. EPA agrees with the commenter for (vi)(B) in the proposed
rule but does not find this applicable in (v)(B) of the proposed rule.
(9) In eliminating Subparts E and F, EPA did not propose and does
not intend to create a right to seek administrative review before the
EAB for NPDES general permits. Accordingly, EPA has revised proposed
section 124.19(a) to include language from the removed section
124.71(a) that clarifies that there exists no right to seek review of
NPDES general permits before the EAB. The addition of this NPDES-
specific language should not be interpreted to create or limit a right
to seek review of general permits under any other program for which
appeal to the EAB is provided in section 124.19. Conforming changes
have also been made to the proposed sections 124.19(b) and 124.6(e).
Finally, a reference to the petition process in section 122.28(b)(3)
has been added to section 124.19(a) for completeness and clarity.

III. Regulatory Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to 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 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. Executive Order 13132

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct

[[Page 30902]]

compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
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. Today's rule is basically
deregulatory in nature and is expected to reduce administrative and
resource burdens on affected State, local, and tribal governments and
the private sector. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of State and local
government in developing this rule. The concerns of these entities have
been addressed in the final rule.

C. Executive Order 13045

Executive Order 13045, ``Protection of Children From Environmental
Health Risks and Safety Risks,'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not an economically significant rule as defined under
Executive Order 12866 and, therefore, is not subject to Executive Order
13045.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on these communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule does not significantly or uniquely affect the communities
of Indian tribal governments, nor does it impose substantial direct
compliance costs on them. This rule will eliminate redundant
requirements, remove superfluous language, provide clarification, and
remove or streamline unnecessary procedures which do not provide any
environmental benefits, and thus reduce the administrative burden of
the NPDES program on permit issuing authorities, and the regulated
community. Accordingly, the requirements of section 3 (b) of Executive
Order 13084 do not apply to this rule.

E. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA, a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule is basically ``deregulatory'' in nature and is
expected to reduce administrative and resource burdens on affected
State, local, and tribal governments and the private sector. It does
not contain any Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. Thus, today's rule is
not subject to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more by
State, local, and tribal governments in the aggregate or by the private
sector in any one year. As previously discussed, this rule reduces the
administrative burden of the NPDES program on issuing authorities and
the regulated community. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA has also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Thus, this rule is not subject to the requirements of
section 203 of UMRA.

F. Regulatory Flexibility Act

The 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 rule on small entities, small entity is defined as: (1) A small
business that meets RFA default definitions

[[Page 30903]]

based on SBA size standards found in 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. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C.
Sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all of the small entities subject to the
rule. Today's final adds no increased burden to permittees.
Most of the changes in today's rule are purely technical and will
have no effect on compliance costs for NPDES permittees. Also, to the
extent these technical changes clarify and simplify the regulations,
they will make them easier to understand and comply with, reducing the
burden on small entities. The other changes will reduce the costs of
obtaining and complying with NPDES permits. For instances, the rule
will make it easier for facilities to obtain coverage under general
permits, rather than go through the more complicated and expensive
individual permit procedure. It will also reduce monitoring and record
keeping for permitees subject to effluent limitation guidelines, and
streamline permit application requirements for storm water dischargers
and new source/ new dischargers. Today's rule will also streamline the
permit appeals and permit termination processes, which should further
reduce the costs of obtaining (or modifying) or terminating an
individual permit. None of these changes are expected to increase, and
most of the changes will actually decrease, the costs of compliance for
NPDES discharges, including small entities (if any). We have therefore
concluded that today's final rule will relieve regulatory burden for
all entities.

G. Paperwork Reduction Act

This rule will streamline the regulatory process and will not
impose any additional information collection, reporting, or record
keeping requirements on either the regulated community or permit
issuing authorities. Therefore, EPA did not prepare an Information
Request document for approval by the Office of Management and Budget.
There were no comments on the proposal to this rule regarding
information collection requests or other aspects of the Paperwork
Reduction Act. This rule streamlines existing information collection
requirements previously approved by OMB under ICR #2040-0004, by
reducing the burden hours associated with that ICR by 9000 hours. An
Information Correction Worksheet will be submitted to OMB to reduce the
burden hours associated with ICR 2040-0004.

H. National Technology Transfer and Advancement Act--Voluntary
Standards

Section 12(d) of the National Technology Transfer and Advancement
Act (``NTTAA''), Public Law No. 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
rule does not involve any technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.

I. 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 June 14, 2000.

List of Subjects

40 CFR Part 22

Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Hazardous waste,
Penalties, Pesticides and pests, Poison prevention, Water pollution
control.

40 CFR Part 117

Environmental Protection Agency, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.

40 CFR Part 123

Administrative practice and procedure, Confidential business
information, Hazardous substances, Indians-lands, Intergovernmental
relations, Penalties, Reporting and recordkeeping requirements, Water
pollution control.

40 CFR Part 124

Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians--lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 125

Environmental protection, Reporting and recordkeeping requirements,
Waste treatment and disposal, Water pollution control.

40 CFR Part 144

Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Indians--lands,
Reporting and recordkeeping requirements, Surety bonds, Water supply.

40 CFR Part 270

Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.

[[Page 30904]]

40 CFR Part 271

Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.

Dated: March 10, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR parts
22, 117, 122, 123, 124, and 125, 144, 270, and 271 as follows:

PART 22--[AMENDED]

1. The title of part 22 is revised to read as follows:

PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/
TERMINATION OR SUSPENSION OF PERMITS

2. The authority citation for part 22 is revised to read as
follows:

Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319,
1342, 1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928,
6991e and 6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and
7607(a), 9609, and 11045.

3. Section 22.1 is amended by revising paragraphs (a)(4) and (a)(6)
to read as follows:

Sec. 22.1 Scope of this part.

(a) * * *
(4) The issuance of a compliance order or the issuance of a
corrective action order, the termination of a permit pursuant to
section 3008(a)(3), the suspension or revocation of authority to
operate pursuant to section 3005(e), or the assessment of any civil
penalty under sections 3008, 9006, and 11005 of the Solid Waste
Disposal Act, as amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and
6992d)), except as provided in part 24 of this chapter;
* * * * *
(6) The assessment of any Class II penalty under sections 309(g)
and 311(b)(6), or termination of any permit issued pursuant to section
402(a) of the Clean Water Act, as amended (33 U.S.C. 1319(g),
1321(b)(6), and 1342(a));
* * * * *

4. Section 22.3 is amended in paragraph (a) by revising the
definition for ``Permit action'' in alphabetical order to read as
follows:

Sec. 22.3 Definitions.

(a) * * *
Permit action means the revocation, suspension or termination of
all or part of a permit issued under section 102 of the Marine
Protection, Research, and Sanctuaries Act (33 U.S.C. 1412) or
termination under section 402(a) of the Clean Water Act (33 U.S.C.
1342(a)) or section 3005(d) of the Solid Waste Disposal Act (42 U.S.C.
6925(d)).
* * * * *

5. Section 22.44 is added to read as follows:

Sec. 22.44 Supplemental rules of practice governing the termination of
permits under section 402(a) of the Clean Water Act or under section
3008(a)(3) of the Resource Conservation and Recovery Act.

(a) Scope of this subpart. The supplemental rules of practice in
this subpart shall also apply in conjunction with the Consolidated
Rules of Practice in this part and with the administrative proceedings
for the termination of permits under section 402(a) of the Clean Water
Act or under section 3008(a)(3) of the Resource Conservation and
Recovery Act. Notwithstanding the Consolidated Rules of Practice, these
supplemental rules shall govern with respect to the termination of such
permits.
(b) In any proceeding to terminate a permit for cause under
Sec. 122.64 or Sec. 270.43 of this chapter during the term of the
permit:
(1) The complaint shall, in addition to the requirements of
Sec. 22.14(b), contain any additional information specified in
Sec. 124.8 of this chapter;
(2) The Director (as defined in Sec. 124.2 of this chapter) shall
provide public notice of the complaint in accordance with Sec. 124.10
of this chapter, and allow for public comment in accordance with
Sec. 124.11 of this chapter; and
(3) The Presiding Officer shall admit into evidence the contents of
the Administrative Record described in Sec. 124.9 of this chapter, and
any public comments received.

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS
SUBSTANCES

1. The authority citation for part 117 continues to read as
follows:

Authority: Secs. 311 and 501(a), Federal Water Pollution Control
Act (33 U.S.C. 1251 et. seq.), (``the Act'') and Executive Order
11735, superseded by Executive Order 12777, 56 FR 54757.

2. Section 117.1(d) is revised to read as follows:

Sec. 117.1 Definitions.

* * * * *
(d) Public record means the NPDES permit application or the NPDES
permit itself and the materials comprising the administrative record
for the permit decision specified in Sec. 124.18 of this chapter.
* * * * *

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.

2. Section 122.1 is revised to read as follows:

Sec. 122.1 Purpose and scope.

(a) Coverage. (1) The regulatory provisions contained in this part
and parts 123, and 124 of this chapter implement the National Pollutant
Discharge Elimination System (NPDES) Program under sections 318, 402,
and 405 of the Clean Water Act (CWA) (Public Law 92-500, as amended, 33
U.S.C. 1251 et seq.)
(2) These provisions cover basic EPA permitting requirements (this
part 122), what a State must do to obtain approval to operate its
program in lieu of a Federal program and minimum requirements for
administering the approved State program (part 123 of this chapter),
and procedures for EPA processing of permit applications and appeals
(part 124 of this chapter).
(3) These provisions also establish the requirements for public
participation in EPA and State permit issuance and enforcement and
related variance proceedings, and in the approval of State NPDES
programs. These provisions carry out the purposes of the public
participation requirements of part 25 of this chapter, and supersede
the requirements of that part as they apply to actions covered under
this part and parts 123, and 124 of this chapter.
(4) The NPDES permit program has separate additional provisions
that are used by permit issuing authorities to determine what
requirements must be placed in permits if issued. These provisions are
located at parts 125, 129, 133, 136 of this chapter and 40 CFR
subchapter N (parts 400 through 471), and part 503 of this chapter.
(5) Certain requirements set forth in parts 122 and 124 of this
chapter are made applicable to approved State programs by reference in
part 123 of this chapter. These references are set forth in

[[Page 30905]]

Sec. 123.25 of this chapter. If a section or paragraph of part 122 or
124 of this chapter is applicable to States, through reference in
Sec. 123.25 of this chapter, that fact is signaled by the following
words at the end of the section or paragraph heading: (Applicable to
State programs, see Sec. 123.25 of this chapter). If these words are
absent, the section (or paragraph) applies only to EPA administered
permits. Nothing in this part and parts 123, or 124 of this chapter
precludes more stringent State regulation of any activity covered by
the regulations in 40 CFR parts 122, 123, and 124, whether or not under
an approved State program.
(b) Scope of the NPDES permit requirement. (1) The NPDES program
requires permits for the discharge of ``pollutants'' from any ``point
source'' into ``waters of the United States.'' The terms ``pollutant'',
``point source'' and ``waters of the United States'' are defined at
Sec. 122.2.
(2) The permit program established under this part also applies to
owners or operators of any treatment works treating domestic sewage,
whether or not the treatment works is otherwise required to obtain an
NPDES permit, unless all requirements implementing section 405(d) of
the CWA applicable to the treatment works treating domestic sewage are
included in a permit issued under the appropriate provisions of
subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking
Water Act, the Marine Protection, Research, and Sanctuaries Act of
1972, or the Clean Air Act, or under State permit programs approved by
the Administrator as adequate to assure compliance with section 405 of
the CWA.
(3) The Regional Administrator may designate any person subject to
the standards for sewage sludge use and disposal as a ``treatment works
treating domestic sewage'' as defined in Sec. 122.2, where the Regional
Administrator finds that a permit is necessary to protect public health
and the environment from the adverse effects of sewage sludge or to
ensure compliance with the technical standards for sludge use and
disposal developed under CWA section 405(d). Any person designated as a
``treatment works treating domestic sewage'' shall submit an
application for a permit under Sec. 122.21 within 180 days of being
notified by the Regional Administrator that a permit is required. The
Regional Administrator's decision to designate a person as a
``treatment works treating domestic sewage'' under this paragraph shall
be stated in the fact sheet or statement of basis for the permit.

[Note to Sec. 122.1: Information concerning the NPDES program and
its regulations can be obtained by contacting the Water Permits
Division(4203), Office of Wastewater Management, U.S.E.P.A., Ariel
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
at (202) 260-9545 and by visiting the homepage at http://
www.epa.gov/owm/]

3. Section 122.2 is amended by adding new definitions in
alphabetical order, and by revising the definitions of ``POTW,''
``Publicly owned treatment works'' and ``Sludge-only facility'' to read
as follows:

Sec. 122.2 Definitions.

* * * * *
Animal feeding operation is defined at Sec. 122.23.
* * * * *
Aquaculture project is defined at Sec. 122.25.
* * * * *
Bypass is defined at Sec. 122.41(m).
* * * * *
Concentrated animal feeding operation is defined at Sec. 122.23.
Concentrated aquatic animal feeding operation is defined at
Sec. 122.24.
* * * * *
Individual control strategy is defined at 40 CFR 123.46(c).
* * * * *
Municipal separate storm sewer system is defined at Sec. 122.26
(b)(4) and (b)(7).
* * * * *
POTW is defined at Sec. 403.3 of this chapter.
* * * * *
Publicly owned treatment works is defined at 40 CFR 403.3.
* * * * *
Silvicultural point source is defined at Sec. 122.27.
* * * * *
Sludge-only facility means any ``treatment works treating domestic
sewage'' whose methods of sewage sludge use or disposal are subject to
regulations promulgated pursuant to section 405(d) of the CWA and is
required to obtain a permit under Sec. 122.1(b)(2).
* * * * *
Storm water is defined at Sec. 122.26(b)(13).
Storm water discharge associated with industrial activity is
defined at Sec. 122.26(b)(14).
* * * * *
Upset is defined at Sec. 122.41(n).
* * * * *

4. Section 122.4 is amended by revising paragraph (i)(2) to read as
follows:

Sec. 122.4 Prohibitions (applicable to State NPDES programs, see
Sec. 123.25).

* * * * *
(i) * * *
(2) The existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into compliance with
applicable water quality standards. The Director may waive the
submission of information by the new source or new discharger required
by paragraph (i) of this section if the Director determines that the
Director already has adequate information to evaluate the request. An
explanation of the development of limitations to meet the criteria of
this paragraph (i)(2) is to be included in the fact sheet to the permit
under Sec. 124.56(b)(1) of this chapter.

5. Section 122.21 is amended by revising paragraphs (g)(7), (g)(8),
(l)(1), (l)(2)(ii), (l)(3), (l)(4), and revising Notes 1, 2
introductory text, and 3 introductory text to read as follows:

Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).

* * * * *
(g) * * *
(7) Effluent characteristics. (i) Information on the discharge of
pollutants specified in this paragraph (g)(7) (except information on
storm water discharges which is to be provided as specified in
Sec. 122.26). When ``quantitative data'' for a pollutant are required,
the applicant must collect a sample of effluent and analyze it for the
pollutant in accordance with analytical methods approved under part 136
of this chapter. When no analytical method is approved the applicant
may use any suitable method but must provide a description of the
method. When an applicant has two or more outfalls with substantially
identical effluents, the Director may allow the applicant to test only
one outfall and report that the quantitative data also apply to the
substantially identical outfall. The requirements in paragraphs (g)(7)
(vi) and (vii) of this section that an applicant must provide
quantitative data for certain pollutants known or believed to be
present do not apply to pollutants present in a discharge solely as the
result of their presence in intake water; however, an applicant must
report such pollutants as present. Grab samples must be used for pH,
temperature, cyanide, total phenols, residual chlorine, oil and grease,
fecal coliform and fecal streptococcus. For all other pollutants, 24-
hour composite samples must be used. However, a minimum of one grab
sample may be taken for effluents from holding ponds or other
impoundments with a retention

[[Page 30906]]

period greater than 24 hours. In addition, for discharges other than
storm water discharges, the Director may waive composite sampling for
any outfall for which the applicant demonstrates that the use of an
automatic sampler is infeasible and that the minimum of four (4) grab
samples will be a representative sample of the effluent being
discharged.
(ii) Storm water discharges. For storm water discharges, all
samples shall be collected from the discharge resulting from a storm
event that is greater than 0.1 inch and at least 72 hours from the
previously measurable (greater than 0.1 inch rainfall) storm event.
Where feasible, the variance in the duration of the event and the total
rainfall of the event should not exceed 50 percent from the average or
median rainfall event in that area. For all applicants, a flow-weighted
composite shall be taken for either the entire discharge or for the
first three hours of the discharge. The flow-weighted composite sample
for a storm water discharge may be taken with a continuous sampler or
as a combination of a minimum of three sample aliquots taken in each
hour of discharge for the entire discharge or for the first three hours
of the discharge, with each aliquot being separated by a minimum period
of fifteen minutes (applicants submitting permit applications for storm
water discharges under Sec. 122.26(d) may collect flow-weighted
composite samples using different protocols with respect to the time
duration between the collection of sample aliquots, subject to the
approval of the Director). However, a minimum of one grab sample may be
taken for storm water discharges from holding ponds or other
impoundments with a retention period greater than 24 hours. For a flow-
weighted composite sample, only one analysis of the composite of
aliquots is required. For storm water discharge samples taken from
discharges associated with industrial activities, quantitative data
must be reported for the grab sample taken during the first thirty
minutes (or as soon thereafter as practicable) of the discharge for all
pollutants specified in Sec. 122.26(c)(1). For all storm water permit
applicants taking flow-weighted composites, quantitative data must be
reported for all pollutants specified in Sec. 122.26 except pH,
temperature, cyanide, total phenols, residual chlorine, oil and grease,
fecal coliform, and fecal streptococcus. The Director may allow or
establish appropriate site-specific sampling procedures or
requirements, including sampling locations, the season in which the
sampling takes place, the minimum duration between the previous
measurable storm event and the storm event sampled, the minimum or
maximum level of precipitation required for an appropriate storm event,
the form of precipitation sampled (snow melt or rain fall), protocols
for collecting samples under part 136 of this chapter, and additional
time for submitting data on a case-by-case basis. An applicant is
expected to ``know or have reason to believe'' that a pollutant is
present in an effluent based on an evaluation of the expected use,
production, or storage of the pollutant, or on any previous analyses
for the pollutant. (For example, any pesticide manufactured by a
facility may be expected to be present in contaminated storm water
runoff from the facility.)
(iii) Reporting requirements. Every applicant must report
quantitative data for every outfall for the following pollutants:

Biochemical Oxygen Demand (BOD5)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
pH

(iv) The Director may waive the reporting requirements for
individual point sources or for a particular industry category for one
or more of the pollutants listed in paragraph (g)(7)(iii) of this
section if the applicant has demonstrated that such a waiver is
appropriate because information adequate to support issuance of a
permit can be obtained with less stringent requirements.
(v) Each applicant with processes in one or more primary industry
category (see appendix A of this part) contributing to a discharge must
report quantitative data for the following pollutants in each outfall
containing process wastewater:
(A) The organic toxic pollutants in the fractions designated in
table I of appendix D of this part for the applicant's industrial
category or categories unless the applicant qualifies as a small
business under paragraph (g)(8) of this section. Table II of appendix D
of this part lists the organic toxic pollutants in each fraction. The
fractions result from the sample preparation required by the analytical
procedure which uses gas chromatography/mass spectrometry. A
determination that an applicant falls within a particular industrial
category for the purposes of selecting fractions for testing is not
conclusive as to the applicant's inclusion in that category for any
other purposes. See Notes 2, 3, and 4 of this section.
(B) The pollutants listed in table III of appendix D of this part
(the toxic metals, cyanide, and total phenols).
(vi)(A) Each applicant must indicate whether it knows or has reason
to believe that any of the pollutants in table IV of appendix D of this
part (certain conventional and nonconventional pollutants) is
discharged from each outfall. If an applicable effluent limitations
guideline either directly limits the pollutant or, by its express
terms, indirectly limits the pollutant through limitations on an
indicator, the applicant must report quantitative data. For every
pollutant discharged which is not so limited in an effluent limitations
guideline, the applicant must either report quantitative data or
briefly describe the reasons the pollutant is expected to be
discharged.
(B) Each applicant must indicate whether it knows or has reason to
believe that any of the pollutants listed in table II or table III of
appendix D of this part (the toxic pollutants and total phenols) for
which quantitative data are not otherwise required under paragraph
(g)(7)(v) of this section are discharged from each outfall. For every
pollutant expected to be discharged in concentrations of 10 ppb or
greater the applicant must report quantitative data. For acrolein,
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol,
where any of these four pollutants are expected to be discharged in
concentrations of 100 ppb or greater the applicant must report
quantitative data. For every pollutant expected to be discharged in
concentrations less than 10 ppb, or in the case of acrolein,
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, in
concentrations less than 100 ppb, the applicant must either submit
quantitative data or briefly describe the reasons the pollutant is
expected to be discharged. An applicant qualifying as a small business
under paragraph (g)(8) of this section is not required to analyze for
pollutants listed in table II of appendix D of this part (the organic
toxic pollutants).
(vii) Each applicant must indicate whether it knows or has reason
to believe that any of the pollutants in table V of appendix D of this
part (certain hazardous substances and asbestos) are discharged from
each outfall. For every pollutant expected to be discharged, the
applicant must briefly describe the reasons the pollutant is expected
to be discharged, and report any quantitative data it has for any
pollutant.

[[Page 30907]]

(viii) Each applicant must report qualitative data, generated using
a screening procedure not calibrated with analytical standards, for
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
(A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid
(2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-
TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon);
O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel);
2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or
(B) Knows or has reason to believe that TCDD is or may be present
in an effluent.
(8) Small business exemption. An application which qualifies as a
small business under one of the following criteria is exempt from the
requirements in paragraph (g)(7)(v)(A) or (g)(7)(vi)(A) of this section
to submit quantitative data for the pollutants listed in table II of
appendix D of this part (the organic toxic pollutants):
(i) For coal mines, a probable total annual production of less than
100,000 tons per year.
(ii) For all other applicants, gross total annual sales averaging
less than $100,000 per year (in second quarter 1980 dollars).
* * * * *
(l) * * * (1) The owner or operator of any facility which may be a
new source (as defined in Sec. 122.2 ) and which is located in a State
without an approved NPDES program must comply with the provisions of
this paragraph (l)(1).
(2) * * *
(ii) The Regional Administrator shall make an initial determination
whether the facility is a new source within 30 days of receiving all
necessary information under paragraph (l)(2)(i) of this section.
(3) The Regional Administrator shall issue a public notice in
accordance with Sec. 124.10 of this chapter of the new source
determination under paragraph (l)(2) of this section. If the Regional
Administrator has determined that the facility is a new source, the
notice shall state that the applicant must comply with the
environmental review requirements of 40 CFR 6.600 through 6.607.
(4) Any interested party may challenge the Regional Administrator's
initial new source determination by requesting review of the
determination under Sec. 124.19 of this chapter within 30 days of the
public notice of the initial determination. If all interested parties
agree, the Environmental Appeals Board may defer review until after a
final permit decision is made, and consolidate review of the
determination with any review of the permit decision.
* * * * *
[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and
the corresponding portions of Item V-C of the NPDES application Form
2C as they apply to coal mines. This suspension continues in
effect.]
[Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and
the corresponding portions of Item V-C of the NPDES application Form
2C as they apply to:
* * * * *
[Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and
the corresponding portions of Item V-C of the NPDES application Form
2C as they apply to:
* * * * *

6. Section 122.22 is amended by revising paragraph (a)(1)(ii) (the
note remains unchanged) to read as follows:

Sec. 122.22 Signatories to permit applications and reports (applicable
to State programs, see Sec. 123.25).

(a) * * *
(1) * * *
(ii) The manager of one or more manufacturing, production, or
operating facilities, provided, the manager is authorized to make
management decisions which govern the operation of the regulated
facility including having the explicit or implicit duty of making major
capital investment recommendations, and initiating and directing other
comprehensive measures to assure long term environmental compliance
with environmental laws and regulations; the manager can ensure that
the necessary systems are established or actions taken to gather
complete and accurate information for permit application requirements;
and where authority to sign documents has been assigned or delegated to
the manager in accordance with corporate procedures.
* * * * *

Sec. 122.24 [Amended]

7. The paragraph heading for Sec. 122.24(b), ``Defintion'' is
revised to read ``Definition''.
8. Section 122.26 is amended by revising paragraphs (b)(7)(iii)
introductory text, (b)(20), (c)(1) introductory text, (c)(1)(i)(E)(4),
(c)(1)(i)(F), (d)(1)(iii)(D)(1), (d)(2)(iii) introductory text, and
(d)(2)(iv)(C)(2), and by removing and reserving paragraph (c)(2), to
read as follows:

Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 123.25).

* * * * *
(b) * * *
(7) * * *
(iii) Owned or operated by a municipality other than those
described in paragraph (b)(7)(i) or (ii) of this section and that are
designated by the Director as part of the large or medium municipal
separate storm sewer system due to the interrelationship between the
discharges of the designated storm sewer and the discharges from
municipal separate storm sewers described under paragraph (b)(7)(i) or
(ii) of this section. In making this determination the Director may
consider the following factors:
* * * * *
(20) Uncontrolled sanitary landfill means a landfill or open dump,
whether in operation or closed, that does not meet the requirements for
runon or runoff controls established pursuant to subtitle D of the
Solid Waste Disposal Act.
* * * * *
(c) * * *
(1) Individual application. Dischargers of storm water associated
with industrial activity and with small construction activity are
required to apply for an individual permit or seek coverage under a
promulgated storm water general permit. Facilities that are required to
obtain an individual permit, or any discharge of storm water which the
Director is evaluating for designation (see 124.52(c) of this chapter)
under paragraph (a)(1)(v) of this section and is not a municipal storm
sewer, shall submit an NPDES application in accordance with the
requirements of Sec. 122.21 as modified and supplemented by the
provisions of this paragraph.
(i) * * *
(E) * * *
(4) Any information on the discharge required under
Sec. 122.21(g)(7) (vi) and (vii);
* * * * *
(F) Operators of a discharge which is composed entirely of storm
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3),
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii);
and * * *
* * * * *
(d) * * *
(1) * * *
(iii) * * *
(D) * * *
(1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ mile apart shall be

[[Page 30908]]

overlaid on a map of the municipal storm sewer system, creating a
series of cells;
* * * * *
(2) * * *
(iii) Characterization data. When ``quantitative data'' for a
pollutant are required under paragraph (d)(2)(iii)(A)(3) of this
section, the applicant must collect a sample of effluent in accordance
with Sec. 122.21(g)(7) and analyze it for the pollutant in accordance
with analytical methods approved under part 136 of this chapter. When
no analytical method is approved the applicant may use any suitable
method but must provide a description of the method. The applicant must
provide information characterizing the quality and quantity of
discharges covered in the permit application, including:
* * * * *
(iv) * * *
(C) * * *
(2) Describe a monitoring program for storm water discharges
associated with the industrial facilities identified in paragraph
(d)(2)(iv)(C) of this section, to be implemented during the term of the
permit, including the submission of quantitative data on the following
constituents: Any pollutants limited in effluent guidelines
subcategories, where applicable; any pollutant listed in an existing
NPDES permit for a facility; oil and grease, COD, pH, BOD5, TSS, total
phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and
any information on discharges required under Sec. 122.21(g)(7) (vi) and
(vii).
* * * * *

9. Section 122.28 is amended by revising paragraphs (a)(1)
introductory text and (a)(2), adding paragraphs (a)(3) and (a)(4), and
revising paragraph (b)(1) to read as follows:

Sec. 122.28 General permits (applicable to State NPDES programs, see
Sec. 123.25).

(a) * * *
(1) Area. The general permit shall be written to cover one or more
categories or subcategories of discharges or sludge use or disposal
practices or facilities described in the permit under paragraph
(a)(2)(ii) of this section, except those covered by individual permits,
within a geographic area. The area should correspond to existing
geographic or political boundaries such as:
* * * * *
(2) Sources. The general permit may be written to regulate one or
more categories or subcategories of discharges or sludge use or
disposal practices or facilities, within the area described in
paragraph (a)(1) of this section, where the sources within a covered
subcategory of discharges are either:
(i) Storm water point sources; or (ii) One or more categories or
subcategories of point sources other than storm water point sources, or
one or more categories or subcategories of ``treatment works treating
domestic sewage'', if the sources or ``treatment works treating
domestic sewage'' within each category or subcategory all:
(A) Involve the same or substantially similar types of operations;
(B) Discharge the same types of wastes or engage in the same types
of sludge use or disposal practices;
(C) Require the same effluent limitations, operating conditions, or
standards for sewage sludge use or disposal;
(D) Require the same or similar monitoring; and (E) In the opinion
of the Director, are more appropriately controlled under a general
permit than under individual permits.
(3) Water quality-based limits. Where sources within a specific
category or subcategory of dischargers are subject to water quality-
based limits imposed pursuant to Sec. 122.44, the sources in that
specific category or subcategory shall be subject to the same water
quality-based effluent limitations.
(4) Other requirements. (i) The general permit must clearly
identify the applicable conditions for each category or subcategory of
dischargers or treatment works treating domestic sewage covered by the
permit.
(ii) The general permit may exclude specified sources or areas from
coverage.
(b) * * *(1) In general. General permits may be issued, modified,
revoked and reissued, or terminated in accordance with applicable
requirements of part 124 of this chapter or corresponding State
regulations. Special procedures for issuance are found at Sec. 123.44
of this chapter for States.
* * * * *

10. Section 122.29(c)(1)(i) is amended by revising the reference
``Sec. 122.21(k)'' to read ``Sec. 122.21(l)''.

11. Section 122.41 is amended by revising the second sentence in
paragraph (l)(6)(i) to read as follows:

Sec. 122.41 Conditions applicable to all permits (applicable to State
programs, see Sec. 123.25).

* * * * *
(l) * * *
(6) * * * (i) * * * Any information shall be provided orally within
24 hours from the time the permittee becomes aware of the
circumstances. * * *
* * * * *

12. Section 122.43(b)(1) is amended by removing from the second
sentence the words ``(except as provided in Sec. 124.86(c) for NPDES
permits being processed under subpart E or F of part 124 of this
chapter)'' and by revising the word ``additonal'' in the third sentence
to read ``additional''.
13. Section 122.44 is amended by revising paragraphs (a), (c),
(e)(1), (k) and (q) to read as follows:

Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).

* * * * *
(a)(1) Technology-based effluent limitations and standards based
on: effluent limitations and standards promulgated under section 301 of
the CWA, or new source performance standards promulgated under section
306 of CWA, on case-by-case effluent limitations determined under
section 402(a)(1) of CWA, or a combination of the three, in accordance
with Sec. 125.3 of this chapter. For new sources or new dischargers,
these technology based limitations and standards are subject to the
provisions of Sec. 122.29(d) (protection period).
(2) Monitoring waivers for certain guideline-listed pollutants.
(i) The Director may authorize a discharger subject to technology-
based effluent limitations guidelines and standards in an NPDES permit
to forego sampling of a pollutant found at 40 CFR Subchapter N of this
chapter if the discharger has demonstrated through sampling and other
technical factors that the pollutant is not present in the discharge or
is present only at background levels from intake water and without any
increase in the pollutant due to activities of the discharger.
(ii) This waiver is good only for the term of the permit and is not
available during the term of the first permit issued to a discharger.
(iii) Any request for this waiver must be submitted when applying
for a reissued permit or modification of a reissued permit. The request
must demonstrate through sampling or other technical information,
including information generated during an earlier permit term that the
pollutant is not present in the discharge or is present only at
background levels from intake water and without any increase in the
pollutant due to activities of the discharger.
(iv) Any grant of the monitoring waiver must be included in the
permit as an express permit condition and the reasons supporting the
grant must be

[[Page 30909]]

documented in the permit's fact sheet or statement of basis.
(v) This provision does not supersede certification processes and
requirements already established in existing effluent limitations
guidelines and standards.
* * * * *
(c) Reopener clause: For any permit issued to a treatment works
treating domestic sewage (including ``sludge-only facilities''), the
Director shall include a reopener clause to incorporate any applicable
standard for sewage sludge use or disposal promulgated under section
405(d) of the CWA. The Director may promptly modify or revoke and
reissue any permit containing the reopener clause required by this
paragraph if the standard for sewage sludge use or disposal is more
stringent than any requirements for sludge use or disposal in the
permit, or controls a pollutant or practice not limited in the permit.
* * * * *
(e) * * *
(1) Limitations must control all toxic pollutants which the
Director determines (based on information reported in a permit
application under Sec. 122.21(g)(7) or in a notification under
Sec. 122.42(a)(1) or on other information) are or may be discharged at
a level greater than the level which can be achieved by the technology-
based treatment requirements appropriate to the permittee under
Sec. 125.3(c) of this chapter; or
* * * * *
(k) Best management practices (BMPs) to control or abate the
discharge of pollutants when:
(1) Authorized under section 304(e) of the CWA for the control of
toxic pollutants and hazardous substances from ancillary industrial
activities;
(2) Authorized under section 402(p) of the CWA for the control of
storm water discharges;
(3) Numeric effluent limitations are infeasible; or
(4) The practices are reasonably necessary to achieve effluent
limitations and standards or to carry out the purposes and intent of
the CWA.

Note to paragraph (k)(4): Additional technical information on
BMPs and the elements of BMPs is contained in the following
documents: Guidance Manual for Developing Best Management Practices
(BMPs), October 1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324,
ERIC No. W498); Storm Water Management for Construction Activities:
Developing Pollution Prevention Plans and Best Management Practices,
September 1992, EPA No. 832/R-92-005, NTIS No. PB 92-235951, ERIC
No. N482); Storm Water Management for Construction Activities,
Developing Pollution Prevention Plans and Best Management Practices:
Summary Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC
No. W139; Storm Water Management for Industrial Activities,
Developing Pollution Prevention Plans and Best Management Practices,
September 1992; EPA 832/R-92-006, NTIS No. PB 92-235969, ERIC No.
N477; Storm Water Management for Industrial Activities, Developing
Pollution Prevention Plans and Best Management Practices: Summary
Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492.
Copies of those documents (or directions on how to obtain them) can
be obtained by contacting either the Office of Water Resource Center
(using the EPA document number as a reference) at (202) 260-7786; or
the Educational Resources Information Center (ERIC) (using the ERIC
number as a reference) at (800) 276-0462. Updates of these documents
or additional BMP documents may also be available. A list of EPA BMP
guidance documents is available on the OWM Home Page at http://
www.epa.gov/owm. In addition, States may have BMP guidance
documents.

These EPA guidance documents are listed here only for informational
purposes; they are not binding and EPA does not intend that these
guidance documents have any mandatory, regulatory effect by virtue of
their listing in this note.
* * * * *
(q) Navigation. Any conditions that the Secretary of the Army
considers necessary to ensure that navigation and anchorage will not be
substantially impaired, in accordance with Sec. 124.59 of this chapter.
* * * * *

14. Section 122.45 is amended by revising paragraph (h)(1) to read
as follows:

Sec. 122.45 Calculating NPDES permit conditions (applicable to State
NPDES programs, see Sec. 123.25)

* * * * *
(h) Internal waste streams. (1) When permit effluent limitations or
standards imposed at the point of discharge are impractical or
infeasible, effluent limitations or standards for discharges of
pollutants may be imposed on internal waste streams before mixing with
other waste streams or cooling water streams. In those instances, the
monitoring required by Sec. 122.48 shall also be applied to the
internal waste streams.
* * * * *

Sec. 122.47 Schedules of Compliance

15. Section 122.47(b) introductory text is amended by revising the
word ``requriements'' to read ``requirements''.

16. Section 122.62 is amended by revising paragraph (a)(8) to read
as follows:

Sec. 122.62 Modification or revocation and reissuance of permits
(applicable to State programs, see Sec. 123.25).

* * * * *
(a) * * *
(8)(i) Net limits. Upon request of a permittee who qualifies for
effluent limitations on a net basis under Sec. 122.45(g).
(ii) When a discharger is no longer eligible for net limitations,
as provided in Sec. 122.45(g)(1)(ii).
* * * * *
17. Section 122.64 is amended by revising paragraph (b) to read as
follows:

Sec. 122.64 Termination of permits (applicable to State programs, see
Sec. 123.25).

* * * * *
(b) The Director shall follow the applicable procedures in part 124
or part 22 of this chapter, as appropriate (or State procedures
equivalent to part 124) in terminating any NPDES permit under this
section, except that if the entire discharge is permanently terminated
by elimination of the flow or by connection to a POTW (but not by land
application or disposal into a well), the Director may terminate the
permit by notice to the permittee. Termination by notice shall be
effective 30 days after notice is sent, unless the permittee objects
within that time. If the permittee objects during that period, the
Director shall follow part 124 of this chapter or applicable State
procedures for termination. Expedited permit termination procedures are
not available to permittees that are subject to pending State and/or
Federal enforcement actions including citizen suits brought under State
or Federal law. If requesting expedited permit termination procedures,
a permittee must certify that it is not subject to any pending State or
Federal enforcement actions including citizen suits brought under State
or Federal law. State-authorized NPDES programs are not required to use
part 22 of this chapter procedures for NPDES permit terminations.

PART 123--STATE PROGRAM REQUIREMENTS

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 123.25 is amended by revising paragraphs (a)(12),
(a)(36) and paragraph (b) to read as follows:

Sec. 123.25 Requirements for permitting.

(a) * * *
(12) Section 122.41 (a)(1) and (b) through (n)--(Applicable permit
conditions) (Indian Tribes can satisfy

[[Page 30910]]

enforcement authority requirements under Sec. 123.34);
* * * * *
(36) Subparts A, B, D, and H of part 125 of this chapter;
* * * * *
(b) State NPDES programs shall have an approved continuing planning
process under 40 CFR 130.5 and shall assure that the approved planning
process is at all times consistent with the CWA.
* * * * *

3. Section 123.44 is amended by revising paragraph (a)(2),
introductory text of paragraph (b)(2), the introductory text of
paragraph (d), and by removing and reserving paragraph (i) to read as
follows:

Sec. 123.44 EPA review of and objections to State permits.

(a) * * *
(2) In the case of general permits, EPA shall have 90 days from the
date of receipt of the proposed general permit to comment upon, object
to or make recommendations with respect to the proposed general permit,
and is not bound by any shorter time limits set by the Memorandum of
Agreement for general comments, objections or recommendations.
(b) * * *
(2) Within 90 days following receipt of a proposed permit to which
he or she has objected under paragraph (b)(1) of this section, or in
the case of general permits within 90 days after receipt of the
proposed general permit, the Regional Administrator shall set forth in
writing and transmit to the State Director:
* * * * *
(d) Prior to notifying the State Director of an objection based
upon any of the grounds set forth in paragraph (c) of this section, the
Regional Administrator:
* * * * *

PART 124--PROCEDURES FOR DECISION MAKING

1. The authority citation for part 124 is revised to read as
follows:

Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.

2. Section 124.1 is amended by revising the first sentence of
paragraph (a) and revising paragraphs (b) and (c), by removing the
table entitled ``Hearings Available Under This Part'' following
paragraph (c), and by revising the fourth sentence of paragraph (d) to
read as follows:

Sec. 124.1 Purpose and scope.

(a) This part contains EPA procedures for issuing, modifying,
revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES
``permits'' (including ``sludge-only'' permits issued pursuant to
Sec. 122.1(b)(2) of this chapter. * * *
(b) Part 124 is organized into four subparts. Subpart A contains
general procedural requirements applicable to all permit programs
covered by these provisions. Subparts B through D supplement these
general provisions with requirements that apply to only one or more of
the programs. Subpart A describes the steps EPA will follow in
receiving permit applications, preparing draft permits, issuing public
notices, inviting public comment and holding public hearings on draft
permits. Subpart A also covers assembling an administrative record,
responding to comments, issuing a final permit decision, and allowing
for administrative appeal of final permit decisions. Subpart B contains
specific procedural requirements for RCRA permits. Subpart C contains
definitions and specific procedural requirements for PSD permits.
Subpart D contains specific procedural requirements for NPDES permits.
(c) Part 124 offers an opportunity for public hearings (see
Sec. 124.12).
(d) * * * This part also allows consolidated permits to be subject
to a single public hearing under Sec. 124.12. * * *
* * * * *

Sec. 124.2 [Amended]

3. Section 124.2 is amended by:
a. Removing the following definitions in paragraph (a):
``Applicable standards and limitations'', ``Consultation with the
Regional Administrator'', ``NPDES'', and ``Variance''; and
b. Removing paragraph (c).

Sec. 124.3 [Amended]

4. Section 124.3 is amended by adding the word ``and'' at the end
of paragraph (g)(3), by removing ``; and'' and inserting in its place a
period in paragraph (g)(4) and by removing paragraph (g)(5).

Sec. 124.4 [Amended]

5. Section 124.4 is amended by removing and reserving paragraph (d)
and by removing the phrase ``or process a PSD permit under subpart F as
provided in paragraph (d) of this section'' in paragraph (e).

6. Section 124.5 is amended by revising paragraph (d) to read as
follows:

Sec. 124.5 Modification, revocation and reissuance, or termination of
permits.

* * * * *
(d) (Applicable to State programs, see Secs. 123.25 (NPDES) of this
chapter, 145.11 (UIC) of this chapter, and 271.14 (RCRA) of this
chapter). (1) If the Director tentatively decides to terminate: A
permit under Sec. 144.40 (UIC) of this chapter, a permit under
Secs. 122.64(a) (NPDES) of this chapter or 270.43 (RCRA) of this
chapter (for EPA-issued NPDES permits, only at the request of the
permittee), or a permit under Sec. 122.64(b) (NPDES) of this chapter
where the permittee objects, he or she shall issue a notice of intent
to terminate. A notice of intent to terminate is a type of draft permit
which follows the same procedures as any draft permit prepared under
Sec. 124.6 of this chapter.
(2) For EPA-issued NPDES or RCRA permits, if the Director
tentatively decides to terminate a permit under Sec. 122.64(a) (NPDES)
of this chapter, other than at the request of the permittee, or decides
to conduct a hearing under section 3008 of RCRA in connection with the
termination of a RCRA permit, he or she shall prepare a complaint under
40 CFR 22.13 and 22.44 of this chapter. Such termination of NPDES and
RCRA permits shall be subject to the procedures of part 22 of this
chapter.
(3) In the case of EPA-issued permits, a notice of intent to
terminate or a complaint shall not be issued if the Regional
Administrator and the permittee agree to termination in the course of
transferring permit responsibility to an approved State under
Secs. 123.24(b)(1) (NPDES) of this chapter, 145.25(b)(1) (UIC) of this
chapter, 271.8(b)(6) (RCRA) of this chapter, or 501.14(b)(1) (sludge)
of this chapter. In addition, termination of an NPDES permit for cause
pursuant to Sec. 122.64 of this chapter may be accomplished by
providing written notice to the permittee, unless the permittee
objects.
* * * * *
7. Section 124.6 is amended by revising the third sentence of
paragraph (e) to read as follows:

Sec. 124.6 Draft permits.

* * * * *
(e) * * * The Regional Administrator shall give notice of
opportunity for a public hearing (Sec. 124.12), issue a final decision
(Sec. 124.15) and respond to comments (Sec. 124.17). * * *

[[Page 30911]]

8. Section 124.10 is amended by removing the words '', subpart E or
subpart F'' in paragraphs (a)(1)(iii) and (d)(2) introductory text, and
by removing the second sentence in paragraph (d)(1)(vii).

Sec. 124.12 [Amended]

9. Section 124.12(e) is removed.

Sec. 124.14 [Amended]

10. Section 124.14(d) is removed and reserved.

11. Section 124.15 is amended by revising the third sentence of
paragraph (a) and by revising paragraph (b)(2) to read as follows:

Sec. 124.15 Issuance and effective date of permit.

(a) * * * This notice shall include reference to the procedures for
appealing a decision on a RCRA, UIC, PSD, or NPDES permit under
Sec. 124.19 of this part. * * *
(b) * * *
(2) Review is requested on the permit under Sec. 124.19
* * * * *
12. Section 124.16 is amended by revising paragraph (a) to read as
follows:

Sec. 124.16 Stays of contested permit conditions.

(a) Stays. (1) If a request for review of a RCRA, UIC, or NPDES
permit under Sec. 124.19 of this part is filed, the effect of the
contested permit conditions shall be stayed and shall not be subject to
judicial review pending final agency action. Uncontested permit
conditions shall be stayed only until the date specified in paragraph
(a)(2)(i) of this section. (No stay of a PSD permit is available under
this section.) If the permit involves a new facility or new injection
well, new source, new discharger or a recommencing discharger, the
applicant shall be without a permit for the proposed new facility,
injection well, source or discharger pending final agency action. See
also Sec. 124.60.
(2)(i) Uncontested conditions which are not severable from those
contested shall be stayed together with the contested conditions. The
Regional Administrator shall identify the stayed provisions of permits
for existing facilities, injection wells, and sources. All other
provisions of the permit for the existing facility, injection well, or
source become fully effective and enforceable 30 days after the date of
the notification required in paragraph (a)(2)(ii) of this section.
(ii) The Regional Administrator shall, as soon as possible after
receiving notification from the EAB of the filing of a petition for
review, notify the EAB, the applicant, and all other interested parties
of the uncontested (and severable) conditions of the final permit that
will become fully effective enforceable obligations of the permit as of
the date specified in paragraph (a)(2)(i) of this section . For NPDES
permits only, the notice shall comply with the requirements of
Sec. 124.60(b).
* * * * *
13. Section 124.19 is amended by revising the section heading,
removing the first sentence of paragraph (a) introductory text and
adding in its place 4 sentences, revising the first sentence of
paragraph (b), revising paragraph (d), and revising the first sentence
of paragraph (f)(1) introductory text to read as follows:

Sec. 124.19 Appeal of RCRA, UIC, NPDES, and PSD Permits.

(a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit
decision (or a decision under 270.29 of this chapter to deny a permit
for the active life of a RCRA hazardous waste management facility or
unit) has been issued under Sec. 124.15 of this part, any person who
filed comments on that draft permit or participated in the public
hearing may petition the Environmental Appeals Board to review any
condition of the permit decision. Persons affected by an NPDES general
permit may not file a petition under this section or otherwise
challenge the conditions of the general permit in further Agency
proceedings. They may, instead, either challenge the general permit in
court, or apply for an individual NPDES permit under Sec. 122.21 as
authorized in Sec. 122.28 and then petition the Board for review as
provided by this section. As provided in Sec. 122.28(b)(3), any
interested person may also petition the Director to require an
individual NPDES permit for any discharger eligible for authorization
to discharge under an NPDES general permit. * * *
* * * * *
(b) The Environmental Appeals Board may also decide on its own
initiative to review any condition of any RCRA, UIC, NPDES, or PSD
permit decision issued under this part for which review is available
under paragraph (a) of this section. * * *
* * * * *
(d) The Regional Administrator, at any time prior to the rendering
of a decision under paragraph (c) of this section to grant or deny
review of a permit decision, may, upon notification to the Board and
any interested parties, withdraw the permit and prepare a new draft
permit under Sec. 124.6 addressing the portions so withdrawn. The new
draft permit shall proceed through the same process of public comment
and opportunity for a public hearing as would apply to any other draft
permit subject to this part. Any portions of the permit which are not
withdrawn and which are not stayed under Sec. 124.16(a) continue to
apply.
* * * * *
(f)(1) For purposes of judicial review under the appropriate Act,
final agency action occurs when a final RCRA, UIC, NPDES, or PSD permit
decision is issued by EPA and agency review procedures under this
section are exhausted. * * *
* * * * *

14. Section 124.21 is revised to read as follows:

Sec. 124.21 Effective date of part 124.

(a) Part 124 of this chapter became effective for all permits
except for RCRA permits on July 18, 1980. Part 124 of this chapter
became effective for RCRA permits on November 19, 1980.
(b) EPA eliminated the previous requirement for NPDES permits to
undergo an evidentiary hearing after permit issuance, and modified the
procedures for termination of NPDES and RCRA permits, on June 14, 2000.
(c)(1) For any NPDES permit decision for which a request for
evidentiary hearing was granted on or prior to June 13, 2000, the
hearing and any subsequent proceedings (including any appeal to the
Environmental Appeals Board) shall proceed pursuant to the procedures
of this part as in effect on June 13, 2000.
(2) For any NPDES permit decision for which a request for
evidentiary hearing was denied on or prior to June 13, 2000, but for
which the Board has not yet completed proceedings under Sec. 124.91,
the appeal, and any hearing or other proceedings on remand if the Board
so orders, shall proceed pursuant to the procedures of this part as in
effect on June 13, 2000.
(3) For any NPDES permit decision for which a request for
evidentiary hearing was filed on or prior to June 13, 2000 but was
neither granted nor denied prior to that date, the Regional
Administrator shall, no later than July 14, 2000, notify the requester
that the request for evidentiary hearing is being returned without
prejudice. Notwithstanding the time limit in Sec. 124.19(a), the
requester may file an appeal with the Board, in accordance with the
other requirements of Sec. 124.19(a), no later than August 13, 2000.
(4) A party to a proceeding otherwise subject to paragraph (c) (1)
or (2) of this

[[Page 30912]]

section may, no later than June 14, 2000, request that the evidentiary
hearing process be suspended. The Regional Administrator shall inquire
of all other parties whether they desire the evidentiary hearing to
continue. If no party desires the hearing to continue, the Regional
Administrator shall return the request for evidentiary hearing in the
manner specified in paragraph (c)(3) of this section.
(d) For any proceeding to terminate an NPDES or RCRA permit
commenced on or prior to June 13, 2000, the Regional Administrator
shall follow the procedures of Sec. 124.5(d) as in effect on June 13,
2000, and any formal hearing shall follow the procedures of subpart E
of this part as in effect on the same date.

Sec. 124.52 [Amended]

15. Section 124.52 is amended by removing the words ``or
Sec. 124.118'' in paragraphs (b) and (c).

Sec. 124.55 [Amended]

16. Section 124.55 is amended by revising the reference
``Sec. 124.53(d) (1) and (2)'' in paragraph (a)(2) to read
``Sec. 124.53(e)'' and by revising the reference ``Sec. 124.53(d)'' in
paragraph (d) to read ``Sec. 124.53(e)''.

17. Section 124.56 is amended by revising (b)(1) to read as
follows:

Sec. 124.56 Fact sheets (applicable to State programs, see Sec. 123.25
(NPDES).).

* * * * *
(b)(1) When the draft permit contains any of the following
conditions, an explanation of the reasons that such conditions are
applicable:
(i) Limitations to control toxic pollutants under Sec. 122.44(e) of
this chapter;
(ii) Limitations on internal waste streams under Sec. 122.45(i) of
this chapter;
(iii) Limitations on indicator pollutants under Sec. 125.3(g) of
this chapter;
(iv) Limitations set on a case-by-case basis under Sec. 125.3
(c)(2) or (c)(3) of this chapter, or pursuant to Section 405(d)(4) of
the CWA;
(v) Limitations to meet the criteria for permit issuance under
Sec. 122.4(i) of this chapter, or
(vi) Waivers from monitoring requirements granted under
Sec. 122.44(a) of this chapter.
* * * * *

Sec. 124.57 [Amended]

18. Section 124.57 is amended by removing and reserving paragraph
(b) and by removing paragraph (c).

19. Section 124.60 is revised to read as follows:

Sec. 124.60 Issuance and effective date and stays of NPDES permits.

In addition to the requirements of Secs. 124.15, 124.16, and
124.19, the following provisions apply to NPDES permits:
(a) Notwithstanding the provisions of Sec. 124.16(a)(1), if, for
any offshore or coastal mobile exploratory drilling rig or coastal
mobile developmental drilling rig which has never received a final
effective permit to discharge at a ``site,'' but which is not a ``new
discharger'' or a ``new source,'' the Regional Administrator finds that
compliance with certain permit conditions may be necessary to avoid
irreparable environmental harm during the administrative review, he or
she may specify in the statement of basis or fact sheet that those
conditions, even if contested, shall remain enforceable obligations of
the discharger during administrative review.
(b)(1) As provided in Sec. 124.16(a), if an appeal of an initial
permit decision is filed under Sec. 124.19, the force and effect of the
contested conditions of the final permit shall be stayed until final
agency action under Sec. 124.19(f). The Regional Administrator shall
notify, in accordance with Sec. 124.16(a)(2)(ii), the discharger and
all interested parties of the uncontested conditions of the final
permit that are enforceable obligations of the discharger.
(2) When effluent limitations are contested, but the underlying
control technology is not, the notice shall identify the installation
of the technology in accordance with the permit compliance schedules
(if uncontested) as an uncontested, enforceable obligation of the
permit.
(3) When a combination of technologies is contested, but a portion
of the combination is not contested, that portion shall be identified
as uncontested if compatible with the combination of technologies
proposed by the requester.
(4) Uncontested conditions, if inseverable from a contested
condition, shall be considered contested.
(5) Uncontested conditions shall become enforceable 30 days after
the date of notice under paragraph (b)(1) of this section.
(6) Uncontested conditions shall include:
(i) Preliminary design and engineering studies or other
requirements necessary to achieve the final permit conditions which do
not entail substantial expenditures;
(ii) Permit conditions which will have to be met regardless of the
outcome of the appeal under Sec. 124.19;
(iii) When the discharger proposed a less stringent level of
treatment than that contained in the final permit, any permit
conditions appropriate to meet the levels proposed by the discharger,
if the measures required to attain that less stringent level of
treatment are consistent with the measures required to attain the
limits proposed by any other party; and
(iv) Construction activities, such as segregation of waste streams
or installation of equipment, which would partially meet the final
permit conditions and could also be used to achieve the discharger's
proposed alternative conditions.
(c) In addition to the requirements of Sec. 124.16(c)(2), when an
appeal is filed under Sec. 124.19 on an application for a renewal of an
existing permit and upon written request from the applicant, the
Regional Administrator may delete requirements from the existing permit
which unnecessarily duplicate uncontested provisions of the new permit.

20. Section 124.64 is amended by revising paragraph (b), paragraph
(c) introductory text, and paragraph (d) to read as follows:

Sec. 124.64 Appeals of variances.

* * * * *
(b) Variance decisions made by EPA may be appealed under the
provisions of Sec. 124.19.
(c) Stays for section 301(g) variances. If an appeal is filed under
Sec. 124.19 of a variance requested under CWA section 301(g), any
otherwise applicable standards and limitations under CWA section 301
shall not be stayed unless:
* * * * *
(d) Stays for variances other than section 301(g) variances are
governed by Secs. 124.16 and 124.60.

Sec. 124.66 [Amended]

21. Section 124.66(a) is amended by removing the words ``Except as
provided in Sec. 124.65,'' from the first sentence, and by revising the
words ``evidentiary or panel hearing under subpart E or F.'' in the
fourth sentence to read ``appeal under Sec. 124.19.''

Subpart E to Part 124 [Removed]

22. Subpart E is removed.

Subpart F to Part 124 [Removed]

23. Subpart F is removed.

Appendix A to Part 124 [Removed]

24. Appendix A to Part 124 is removed.

[[Page 30913]]

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

1. The authority citation for part 125 is revised to read as
follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq., unless
otherwise noted.

2. Section 125.32(a) is revised to read as follows:

Sec. 125.32 Method of application.

(a) A written request for a variance under this subpart D shall be
submitted in duplicate to the Director in accordance with
Secs. 122.21(m)(1) and 124.3 of this chapter.
* * * * *

Sec. 125.72 [Amended]

3. Section 125.72(c) is amended by removing the words ``and
Sec. 124.73(c)(1)''.

Subpart K to Part 125 [Removed and Reserved]

4. Subpart K is removed and reserved.

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

1. The authority citation for part 144 continues to read as
follows:

Authority: Safe Drinking Water Act, 42 U.S.C. 300f et seq.;
Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.

Sec. 144.52 [Amended]

2. Section 144.52(b)(2) is amended by removing from the second
sentence the parenthetical phrase ``(except as provided in
Sec. 124.86(c) for UIC permits being processed under subpart E or F of
part 124)''.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM

1. The authority citation for part 270 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.

Sec. 270.32 [Amended]

2. Section 270.32(c) is amended by removing from the second
sentence the parenthetical phrase ``(except as provided in
Sec. 124.86(c) for RCRA permits being processed under subpart E or F of
part 124)''.

Sec. 270.43 [Amended]

3. Section 270.43(b) is amended by revising the words ``part 124''
to read ``part 124 or part 22, as appropriate''.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS

1. The authority citation for part 271 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912, and 6926.

Sec. 271.19 [Amended]

2. Section 271.19(e) introductory text is amended by removing the
words ``in accordance with the procedures of part 124, subpart E,''.

[FR Doc. 00-10764 Filed 5-12-00; 8:45 am]
BILLING CODE 6560-50-P

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Amendments to Streamline the National Pollutant Discharge Elimination System Program Regulations: Round Two

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