NPDES Program
Regulations and Preambles
1989-1991
U.S. Environmental Protection Agency
Office of Wastewater Management
Washington, D.C. 20460
-------
1989
-------
r
Federal Register / Vol. 54, No. 200 / Wednesday . October 18, 1989 / Notices
42841
administrative i cord . subject to
provisions of law restricting public
disclosure of confidential Information. In
order to provide opportunity for public
comment. EPA will issue no final order
assessing a penalty in this proceeding
for thirty days from the date of this
Notice.
Dated; September 13. 1989.
Monte Kay,
RegiondAdnimisbvtor.
[ FR Doc. 89-24517 Filed 10-17-88:8:45 aml
BWNG COO S S l I D - W V
(FRt.—3671—71
Clean Water Act Class I I: Proposed
Admlnlstiaftvi Penalty Assessment
and Opportunity To Comment
Regarding the Lithe Blue Valley Sewer
District (LBVSD)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of proposed
administrative penalty assessment and
opportunity to comment regarding
LBVSL I.
SUMMARY: EPA is providing notice of a
proposed administrative penalty
assessment for alleged violations of the
Clean Water Act. EPA Is also providing
notice of opportunity to comment on the
proposed penalty assessment. Under 33
U.S.C. 1319(g). EPA Is authorized to
issue orders assessing civil penalties for
various violations of the Act. EPA may
issue such orders after filing a
Complaint commencing either a Class I
or Class II penalty proceeding. EPA
provides public notice of the proposed
assessment pursuant to 33 U.S.C
1319(gJ(4)(a).
Class U proceedings are conducted
under EPA s Consolidated Rules of
Practice Governing the Administrative
Assessment of Civil Penalties and the
Revocation and Suspension of Permits,
40 CFR part 22. The procedures by
which the public may submit written
comments on a proposed Class 11 order
or partidpate in a Class II proceeding.
and the procedures by which a
respondent may request a hearing. axe
set forth in the Consolidated Rules. The
deadline for submitting public comment
on a proposed Class II order is thirty
days after issuance of this public notice.
On September 25. 1989. EPA
commenced the following Class [ I
proceeding for the assessment of
penalties by filing with the Regional
Hearing Clerk. U.S. Environmental
Protection Agency. Region VII. 7
Minnesota Avenue. Kansas City. Kansas
60101. (913)250—2853. the following
Complaint In the Matter of the Little
Blue Valley Sewer District EPA Docket
No. V I I 89 -W-0009. The Complaint
proposes a penalty of $80000. for failure
to implement and enforce LBVSD’S
pretreatment program pursuant to the
terms part C. Special Conditions of the
LBVSD’s National Pollutant Discharge
mimin.ation System (NPDES) Permit No.
MO-0101087.
FOR FURThER INFORMATION CONTAC1
Persons wishing to receive a copy of
EPA’s Consolidated Rules, review the
Complaint or other documents flied in
this proceeding, comment upon the
proposed penalty assessment, or
otherwise participate in the proceeding
should contact the Regional Hearing
Clerk identified above.
The administrative record for the
proceeding is located in the EPA
Regional Office at the address stated
above, and the file will be open for
public inspection during normal
business hours. All information
submitted by the LBVSD is available as
part of the administrative record.
subject to provisions to law restricting
public disclosure of confidential
information. In order to provide
opportunity for public comment. EPA
will issue no final order assessing a
penalty in this proceeding for thirty days
from the date of this Notice.
Dated; September zs. 1989.
Mmii i Kay.
Reg ional AdmwLstza or.
[ FR Doc. 89-24515 Filed 10-17-88:8:45 am)
SILUNO coca s5 1o40.M
(FRL-3657—33
North Dakota’s Application for
National Pollutant Discharge
Elimination System (NPDES) General
Permit Authority
aosscv Environmental Protection
Agency.
acnoic Notice of application, public
comment period.
SUMMARY: On September 20, 1989, the
State of North Dakota submitted to EPA
a final application for authority to
administer general permits under the
NPDES program. Approval of this
application would authorize state
issuance of general permits, under
specific circumstances, in lieu of
individual NPDES permits. The
application received from North Dakota
is complete and is now available for
inspection and copying. EPA requests
public comments and will hold a public
hearing if sufficient public interest
existS.
DATE EPA musr receive comments and
requests for a public hearing on or
before November17, 1989.
ADDRIS Address comments and
requests for further information to Mr.
Marshall Fischer. Water Management
Division, Environmental Protection
Agency, 999 18th Street. Swte 500.
Denver. Colorado 80202—2405.
SUPPLEMENTARY INFOf 1NATIOIe EPA
regulations at 40 CFR 122.28 provide for
the issuance of general permits to
regulate discharges of waste waler
which result from substantially similar
operations, are of the same type wastes.
require the same effluent limitations.
require similar monitoring, and are more
appropriately controlled under general
permits rather than by individual
permits. State authority to issue general
permits would significantly reduce the
backlog of unissued NPDES permits and
reduce the administrative burden and
cost of issuing individual permits.
On June 13, 1975, North Dakota
received authority to administer the
NPDES program under section 402 of the
Clean Water Act. Their program, as it
currently enists. does not include
provisions for the issuance of general
permits. The State’s final application for
authority to issue general permits was
received September20. 1989. The
submittal contains a letter from the
State asking for approval, a copy of the
Memorandum of Agreement (MOA), a
supplementary NPDES program
description, and copies of relevant State
statutes and regulations. The submittal
also includes a statement by the
Attorney General certifying, with
appropriate citations to the statutes and
regulations, that the State has adequate
legal authority to administer the general
permits program.
After the close of the comment period.
the EPA Regional Administrator, with
concurrence of EPA Headquarters, will
approve or disapprove this proposed
modification to North Dakotas NPDES
program. This decision will be based
upon the contents of the submittal, all
written comments received during the
comment period and presented at the
public hearing. it one is held, and upon
meeting the requirements of 40 CFR part
123. If North Dakota’s request is
approved, the Regional Administrator
will notify the State and notice will be
published in the Federal Register. North
Dakota’s program will implement
Federal law’ however, each general
permit will be subject to EPA review
and approval as provided by 40 CFR
123.44(a)(2J. Public notice and
opportunity to request a hearing will
also be provided for each general
I
-------
Federal Resister I VoL 54. No. 200 I Wednesday, October IL 1989 I Notices
permit If the Regional Administrator
disapproves the States request for
general permit authority, he will notify
the State of the reasons for disapproval
and of any revisions or modifications
which are necessary to obtain approval.
The public may review North
Dakot&a application from 9 am. to 4
p.m.. Monday through Friday. excluding
holidays, at the Environmental
Protection Agency, Region VU!. 999 18th
Street. Denver. Colorado 80202—2405.
Copies of the submission may also be
obtained by contacting Ms. Daniela
Thigpen at the Denver address listed or
at (303) 203—1432.
Approval of the State’s general permit
program would establish no new
substantive requirements, nor would it
modify the regulatory control over any
industrial category. Program approval
would merely provide a simplified
administrative process.
Kerrigan Cough.
Acting Re ioaoiAdsiinistmtor. Region VIII.
(FR Doc. 89-24590 FIled 1O-17-89 9.45 am)
BILLING C C C I 5MB-SO-U
FEDERAL COMMUNICATIONS
COMMISSION
Applications for Consolidated
1. The Commission has before it the
following mutuafly exclusive.
applications for a new FM statioru’
MM
Ap0
city/slate
Rla Ne.
Ooc at
Ne.
& W.SA.
Ooc
5PM.
8 .458
&oedcaes
Coi
see.
GA
07091
CML
e. i.mi m M.
Oadi
8PM-
w
%
GA
57091
OML
C. Dock .itmc 5on
Dock
5PM-
R o Lkto
5a
57091
P.,mii .
e.
GA
aND.
0. South Gsmis
Cock
8PM-
ki
GA
57091
aN
I. Jvns. P.
flock
8PM-
G SM
-
e.
GA
87091
ONR.
2. Pursuant to section 309(e) of the
Communications Act of 1934. as
amended. the above applicants have
been designated for a hearing in a
consolidated proceeding upon the issues
whose headings are set forth below. The
text of each of these issues has been
standardized and is set forth in its
entirety under the coivesponding
headings at 51 FR 19347, May 20. 1988.
The letter shown before each applicant’s
name, above, is used to signify whether
the issue in question applies to that
particular applicant.
Issue Meong
A9p l aann
1.SoeAppondct.
C
LSseA ww i t.
C
2.SoeA ip e ..dC.
C
4. Ar Plazatd.....................
C
SCampersive
&8.C.O.E
A .B.C.o.€
&Ul sinam
3. If there is any non.standardized
issue in this proceeding, the full text of
the issue and the applicants to which it
applies are set forth in the appendix to
this notice. A copy of the complete IWO
in this proceeding is available in the
FCC Dockets branch (Room 2301.1919 M
Street. NW.. Washington. DC. The
complete text may also be purchased
from the Commission’s duplicating
contractor. International Transcripton
Services. Inc.. 2100 M Street. NW.
Washington. DC 20037 (Telephone No.
(202) 857-3800).
W. Jan Gay,
Assistant Chief, Audio Services DMsio,,,
Moss Medic Bureau.
Appendix
1. To determine whether Sunrise
Management Services. Inc. Is an tm . Ilwiosad
party .I tey s to the application of DJRLP
Broadcasting Partnership.
2. To determine whether DIRLP
Bruadcsling Partnerships or iun .itional
snuctuze Is a sham.
3 To determine, based on the evidence
adduced pursuant to Issues 1 and 2 above.
whether DIP.I.P Broadcasting Partnership
possesses the basic qualifications to be a
Commission licensee.
(FR D cc. 89-24540 FlIed 1O-17- 5 845am)
Ss.UNQ CCCI 571541-N
FEDERAL MARTIME COMMISSION
Agreement(s) Flied
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may Inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 L Street,
NW.. room 10220. Interested parties may
submit comments on each agreement to
the Secretary. Federal Maritime
Commission. Washington. DC 20573.
within 10 days after the date of the
Federal Register in which this notice
appears. The requirements for
comments are found in 572.603 of
of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
Commission regarding a pending
agreement.
Agreement No.: 224-200009-001.
Title: Port of San Francisco Terminal
Agreement.
Parties: City and County of San
Francisco, Tranaportacion Maritime
Mexicans. S.A. de CV.
Synopsis: The Agreement provides for
a “Bypass Container” wharfage rate for
cargo delivered or received at the Port of
San Francisco other than by vessels
making a direct call. All other terms of
the basic agreement remain unchanged.
By Order of the Federal Maritime
Commission.
Datedi October12, 1989.
Joseph C. PnI Ic I sg .
Secreta .
(FR Dcc. 89-24819 Filed 1O- 17-8R 9.45 am)
UUJNU CCCI 573041—N
FEDERAL RESERVE SYSTEM
George Gal. Foster Corp., at aL
Formations of; Acquisitions byr
Mergers of Bank Holding Camps
The companies listed in this notice
have applied for the Board’s approval
under section 3 of the Bank Holding
Company Act (12 U.S.C 1842) and
§225.14 of the Board’s Regulation Y (12
CFR 225.14) to become a bank holding
company or to acquire a bank or bank
holding company. The factors that are
,-ctiuloidered in acting on the applications
are set forth in section 3(c) of the Act (12
U.S.C 1842(c)).
Each application Is available for
immediate Inspection at the Federal
Reserve Bank indicated. Once the
application has been accepted for
processing. It will also be available for
inspection at the offices of the Board of
Governors. Interested persons may
express their views in writing to the
Reserve Bank or to the offices of the
Board of Covenors. Any comment on an
application that requests a hearing must
Include a statement of why a written
presentation would not suffice in lieu of
a hearing, Identifying specifically any
questions of fact that are in dispute and
summarizing the evidence that would be
presented at a hearing.
Unless otherwise noted, comments
regarding each of these applicatir
must be received not later than
November 9, 1989.
A. Federal Reserve Bank of New York
(William L. Rutledge. Vice President) 33
-------
40730
Federal Register I VoL 54. No. 190 I Tuesday. October 3. 1989 I Notices
4. Education and Training Committee:
National Press Club. First Amendment
Room
S. International Committee. World Bank.
701 18th Street. NW.. Room j4009
(Attendance notification required—
phone 202—475—9744).
\iembers oi the public wishing to
make comments to NACETT or any of
its committees are invited to submit
them in writing to R. Thomas Parker.
Designated Federal Official for
NACETT. by October 19. 1989. Please
send comments to R. Thomas Parker
(A—101 F6). EPA. 499 South Capitol
Street. SW.. Washington. DC 20460.
The meetings will be open to the
public. Additional information on the
meeting may be obtained from R.
Thomas Parker by writing to the above
address or by calling Mr. Parker at 202—
475—9741.
Dated September 21. 1989.
R. flame. Parker.
Designated Federal Official. National
Advisor, CouncilforEnvuonmentai
Technology Transfer.
(FR Doc. 89-23233 Filed 10-2-89: 945 am
WU.DSO COOS IS N
(OPP 0O253 FRL-3854-I I
State FIFRA lesue. Research and
Evaluation Group (SFIREG) Working
Committee on Registration and
Classification and Working Committee
on Enforcement and Certification;
Open Meethig
AGENCY Environmental Protection
Agency (EPA).
ACTIOtC Notice.
sUMMARr The State FIFRA Issues
Research and Evaluation Group
(SFIREG) Working Committee on
Registration and Classification will hold
a two day meeting beginning on October
2.1989 and an&liI g on October 3. 1989.
The Working Committee on
Enforcement and Certification will hold
a two-day meeting beginning on October
5. 1989 and ending on October 6. 1989.
This notice announces the location and
times for the meetings and sets forth
tentative agenda items. The meetings
are open to the public.
DATES The SPIREG Working Committee
on Registration and Classification will
meet on Monday. October 2. 1989 from
8:30 a.m. to 500 p.cl. and on Tuesday.
October 3. 1989 beginning at 830 a.m.
and adjourning at approximately noon.
The Working Committee on
Enforcement and Certification will meet
on Thursday. October 5. 1989 from 8:30
a.m. to 5:00 p.m. and on Friday. October
6. 1989 beginning at &30 a.m. and
adjourning at approximately noon.
AOORES The meeting will be held at:
Crantree Inn. 1325 North Seventh
Avenue. Bozeman, Montana 59715. (406)
587—5261 or (800) 624—5885.
OR FURThER INFORMATION CONTACfl
By mad: Arty Williams. Office of
Pesticide Programs (H7506C).
Environmental Protection Agency. 401
M SL SW.. Wklihington. DC 20460.
Office location and telephone number
Rrn. 1007. Crystal Mall No. 2. 1921
Jefferson Davis Highway. Arlington.
VA. (703) 557—3401.
SUPPLEMENTARY INFORMATIO The
tentative agenda for the meeting of the
Working Committee on Registration and
Classification Includes the following:
1. Bulk handling policy status report.
2. Channels of trade policy update.
3. Update on the Pesticide Officials Pilot
Training program.
4. Status of FIFRA 1988 regulations.
5. Good laboratory practice regulations.
Update on statements of practical
treatment workgroup.
7. Food Safety.
8. Report on September 11. 1989 meeting
with EPA on data management and
information sharing.
9. Report on the September 27. 1989
chemistry workshop.
10. Status report on efforts to resolve
whether noixunal or lower limit -
concentration shall be on pesticide
labels.
11. Report on the Termiticide Labeling
Tasldorce.
12. Enforcement issues resulting from
voluntary cancellation of pesticides in
response to FIPRA 1988 requirements.
13. Applicability of existing endangered
species labeling.
14. EPA position on pesticide labels
referring user to additional
Information for ‘ other accepted uses.”
15. Definitions of “low volume” and
“minor use” for purposes of fee
apportionment under FWR.A.
16. Other topics as appropriate.
The tentative agenda for the meeting
of the Working Committee on
Enforcement and Certification includes
the following:
1. Items I through 7 of the agenda topics
of the Working Committee on
Registration and Classification, will
also be discussed at the meeting of the
Working Committee on Enforcement
and Certification.
2. Pesticide inspector training and status
on Agency Order 3500.1.
3. National compliance strategies
progress report.
4. Fiscal Year 1990 Cooperative
Enforcement Agreements progress
review.
5. Worker protection regulations statu.s.
6. Enforcement cage tracking resolution.
7. Certification and training regulations
status.
8 Discussion on new direc!ions the
Working Committee.
9. Update on Pesticide Enforcement
Tracking System.
10. Other topics as appropriate.
Dated September 22. 1989.
Susan H. Wayland,
Acting Director. Office of Pesticide Pmgrams
IFR Doc. 89-23234 Filed 10-2-89.8.45 aml
SILUNO COOS 655040—N
IFRt.-3654-4 1
National Pollutant Discharge
ElImination System General Permit for
Construction Related ActIvities in
South Dakota
AGENCY U.S. Environmental Protection
Agency (EPA). Region TUL
ACTiON: Notice of issuance of flr.al
general permit.
SUMMARY1 On July 26. the Region V i i i
Office of the Environmental Protection
Agency published a Federal Register
notice (54 FR 31081) of ita intent to
reissue a National Pollutant Discharge
Elimination System (NPDES) general
permit for the Construction Related
Activities of Excavation Dewatering and
Hydrostatic Testing conducted within
the State of South Dakota, NPDES
permit Number SDG—070000. This permit
contains discharge requirements and
adards that are based on technology
hnd water quality consideration.
prohibitions. Best Management
Practices. andother conditions
applicable to the types of Waste waters
generated by construction facilities.
Persons seeking discharge authorization
under the general permit are required to
submit a request for discharge approval
prior to their commencement of such
discharge.
Because the Region received no
comments during the 30-day public
comment period, the final permit is
being reissued with the same conditions
as contained in the draft public noticed
permit. On behalf of the State of South
Dakota. EPA certifies that this permit
conforms to all applicable requirements
of sections 301. 3ff2. 306. and 307 of the
Clean Water Act.
Economic Impact
EPA reviewed the effect of Executive
Order 12291 on the general permit and
-------
Federal Register / VoL 54. No. 190 I Tuesday. October 3. 1989 I Notices
4o73
has determined the permit not to be
major under that Order. The proposed
permit was submitted to the Office of
Management and Budget for review as
required by the Executive Order.
Paperwork Reduction Act
EPA reviewed the requirements
imposed on regulated facilities by this
general NPDES permit under the
Paperwork Reduction Act of 1980, 44
U.S.C. 3501 et seq. The information
collection requirements of this permit
have already been approved by the
Office of Management and Budget under
submissions made for the Clean Water
Act’s NPDES permit program.
The Regulatory F!eidbility Act
After review of the facts presented in
the notice of intent printed above. I
hereby certify, pursuant to the
provisions of 5 U.S.C. 605(b). that this
general permit will not have a
significant impact on a substantial
number of small entities. Moreover, it
reduces a significant administrative
burden on regulated sources.
OATE Effective Date. This General
Permit shall be effective November 2.
1989.
Expiration Date This General Permit
shall expire at 1200 a.m.. midnight.
September 30. 1994.
FOR EIJRTHER INFORMATION CONTAC1
Mr. Marshall Fischer. Region VIII, U.S.
Environmental Protection Agency.
Compliance Branch (8WM—CJ. 999 18th
Street. Suite 500. Denver. Colorado
80202—Z4o5jelephone (303) 293—1592 or
FFS 564—1592.
SUPPLDAENTARY INFORMATION:
Cenerol Permit to Discharge under the
National Pollutant Discharge
Elimination System for Construction
Activities in South Dakota Including
Hydrostatic Testing and Excavation
Dewatering—NPDES General Permit
Number SDG-070CtV)
In compliance with the provisions of
the Clean Water Act, as amended (33
U.S.C. 1251 etseqj (hereinafter referred
to as “the Act”), facilities engaged in
either construction dewatering of
groundwatere and/or hydrostatic testing
of fluid vessels are authorized to
discharge at locations throeghout the
State of South Dakota to waters of the
United States, In accordance with
effluent limitations, monitoring
requirements and other conditions set
forth in parts I and II. hereof.
Table of Contents
I. Effluent Limitations and Monitoring
Requirements
A. Coverage under the Permit
B. Definitions
C. Specific Limitations and Self-
Morotoeng Requirements
U. Monitoring. Recording and Reporting
Requirements
A. Representative Sampling •.
B. Motutoring Procedures
C. Penalties for Tampering
0. Reporting of Monitoring Results
E. Additional Monitoring by the Perimttee
F. Records Contents -
C. Retention of Records
H. T,wenty.four Hour Notice of
Noncompliance Reporting
I. Other Noncompliance Reporting
J. Inspection and Entry
Ill. Compliance Responsibilities
A. Duty to Comply
B Penalties for Violations of Permit
Conditions
C. Need to Halt or Reduce Activity not a
Defense
0. Duty to Mitigate
E. Proper Operation and Maintenance
F. Removed Substances
G. Bypass of Treatment Facilities
H. Upset Conditions
I. Toxic Pollutants
J. Changes in Discharge of Toxic
Substances
IV. General Requirements
A. Planned Change.
B. Anticipated Noncompliance
C. Permit Actions
D. Duty to Reapply
S. Duty to Provide Information
F. Otherinfonnatfon
C. Signatory Requirements
H. Penalties for Falsification of Reports
L vadability of Reports
7. Oil and Hazardous Substance Liability
I C. Property Rights
L. Severability
M. Transfers
N. State Laws
0. Water Quality Standard
Requirements-Reopener Provision
P. lleqwring an Individual NPDES Permit
Q. Requesting an Individual NPDES
Permit
1L Requesting Coverage Under the
General Permit
Part L Effluent Limitations and
Monitoring Requirements
A. Coverage Under this Permit
I Applicability of Genexui Permit—
This general permit Is potentially
applicable to all facilities conducting
excavation dewatering In conjunction
with construction activities, as well as
pipeline hydrostatic testing with the
State of South Dakota. The water
discharged from any of these activities
must be relatively uncontaminated and
must not have the potential to contribute
non-conventional or toxic pollutant
loadings to the receiving stream.
2. Request for Authorization— In order
to be considered eligible for
authorization to discharge waste water
under the terms and conditions of this
permit. owner, operator, and/or the
authorized agent of any flicility desiring
to discharge must submit, the following
information by certified letter at least
thirty (30) days prior to the first
anticipated date of discharge:
a. Name. address. and descriptive
location of the facility:
b. Name of principal in charge of
operation of the facility;
c. Name of water receiving the
discharge and, if known. the beneficial
use classification(s) and 10-year. 7-day
low flow of the water receiving the
discharge:
d. A brief description of the type of
activity resulting in the discharge.
including the anticipated date for
commencement of the discharge.
duration of the discharge. termination
date of the discharge. total volume,
average and maximum flow rate of the
discharge. and the source of water
which is to be discharged:
e. A brief description of the type of
water treatment processes employed:
1. A map and/or schematic diagram
showing area of the activity and
location of the waste water flow and of
any treatment system employed:
In addition for Hydrostatic Testing
Related Discharges. the following must
be included:
g. The type of vessel being tested (e.g..
pipe, tank. etc.);
h. The type of material from which the
vessel is constructed:
L Whether the vessel has been
previously used or is of virgin material:
and,
I. A description of the fluid material
normally contained and/or transported
through the vessel.
Such information should be submitted
to:
U.S Environmental Protection Agency.
Compliance Branch. Water Management.
Denver Place. Suite 500. me 18th Street.
Denver. Colorado 80Z)2-2405. Telephonm
(303) m3-1592
South Dakota Department of Water and
Natural Resources, Division of Land and
Water Quality, Surface Water Quality
Piv , Joe Pose Building. Pierre, South
Dakota 57501. Telephamsi (605) 773-SVO
The permit issuing authority shall
have up to thirty (30) days after receipt
of the information to request additional
data and! or deny the authorization
under this general permit for any
particular discharge. If the person
proposing a new discharge does not
receive a request for additional
information or a notification of denial
from the permit issuing authority.
authorization to discharge in accordance
with the conditions of the permit shall
be deemed granted. For existing
individually authorized discharges.
-------
40732
Federal Register / Vol. 54, No. 190 / Tuesday 1 October 3. 1989 I Notices
coverage under the general permit will
not be effective unless and until the
individual permit is either revoked or
inactivated. The permit issuing authority
may waive, at its discretion, the thirty
(30) day period In special cases.
8. Definitions.
1. The “30-day (and monthly)
average.” is the arithmetic average of all
samples collected during a consecutive
30-day period or calendar month.
whichever is applicable. The calendar
month shall be used for purposes of
reporting self-monitoring data on
discharge monitoring report forms.
2. “Daily Maximum” (“Daily Max.”) Is
the maximum value allowable in any
single sample or instantaneous
measurement.
3. “Composite samples” shall be flow
proportioned. The composite sample
shall, as a minimum, contain at least
four (4) samples collected over the
compositing period. Unless otherwise
specified. the time between the
collection of the first sample and the last
sample shall not be less than six (8)
hours nor more than 24 hours.
Acceptable methods for preparation of
composite samples are as follows:
a. Constant time interval between
samples, sample volume proportional to
flow rate at time of sampling:
b. Constant time interval between
sample., sample volume proportional to
total flow (volume) since last sample.
For the first sample, the flow rate at the
Lime the sample was collected may be
usedi
c. Constant sample volume, time
interval between samples proportional
to flow (i.e., sample taken every “X”
gallons of flow): and.
d. Continuous collection of sample,
with sample collection rate proportional
to flow rate.
4. A “grab” sample, for monitoring
requirements, is defined as a single “dip
and take” sample collected at a
representative point in the discharge
stream.
5. An “Instantaneous” measurement,
for monitoring requiremente, Is defined
as a single reading, observation, or
measurement
6. ‘Upset” means an exceptional
incident in which there is unintentional
and temporary noncompliance with
technology-based permit effluent
limitations because of factors beyond
the reasonable control of the pernuttee.
An upset does not include
noncompliance to the extent caused by
operational error, improperly designed
treatment facilities, inadequate
treatment facilities, lack of preventive
maintenance, or careless or improper
operation.
7. “Bypass” means the intentional
diversion of waste streams from any
portion of a treatment facility.
8. “Severe property damage” means
substantial physical damage to property.
damage to the treatment facilities which
causes them to become inoperable, or
substantial and permanent loss of
natural resources which can reasonably
be expected to occur in the absence of a
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
9. “Director ’ means Director of the
United States Environmental Protection
Agency’s Water Management Division.
10. “EPA” means the United States
Environmental Protection Agency.
11. “Sludge” Is any solid, semi-solid or
liquid residue that contains materials
removed from the wastewater during
treatment
12. “Waters of the United States”
means:
a. All other waters such as Intrastate
lakes, rivers, streams (including
intermittent streams), mudflats,
sandflata, “wetlands”. slough., prairie
potholes, wet meadows, plays lake., or
natural ponds the use, degradation, or
destruction of which would affect or
could affect Interstate or foreign
commerce Induding any such waters:
(1) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes;
(2) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce: or,
(3) Which are used or could be used
for industrial purposes by industries in
interstate commerce.
b. All impoundments of waters
otherwise defined as waters of the
United States under this definition;
c. Tributaries of waters identified In
paragraphs a.-d. of this defbutlon
d. The territorial sea:
e. “Wetlands’ adjacent to waters
(other than waters that are themselves
“wetlands”) Identified in paragraphs a.—
f. of this definition.
C. Specific Limitations and Self-
Monitoring Requirements
1. Effluent Limitations,
a. There shall be no discharge of any
process generated waste waters except
those waste waters resultIng from
dewatering of groundwater and/or
surface runoff from construction sites
and/or hyarostatic testing of pipelines
or other fluid vessels.
b. This permit does not authorize
discharges from dewatering activities at
hazardous waste sites or discharges of
toxic materials from any location,
c. There shall be no direct discharge
of any solids and/or sludge . generated
by the treatment of the discharge.
d. There shall be no discharge of
sanitary waste waters from toilets or
related facilities,
e. There shall be no discharge of
floating solids or visible foam in other
than trace amounts.
f. No chemicals containing toxic
pollutants and/or any priority pollutants
listed at 40 CFR Part 401 are to be added
to the discharge. No chemical, except
lime or aluminum salts specifically
added as an aid to the flocculation and
settling of solids, may be added to the
discharge unless prior permission for the
use of the additive is speci.fically
granted by the permit issuing authority.
g. The use of chlorinated water (e g.,
potable tap water) for a hydrostatic test
fluid shall not be allowed unless it can
be demonstrated that the chlorine
substantially dissipates prior to
discharge and/or possesses no potential
for toxic impacts to the receiving waters.
h. The permittee shall take such steps
as are necessary to prevent or minimize
stream scouring caused by the
discharge.
I. The concentration of oil and .grease
In any single sample shall not exceed 10.
mg/L nor shall there be a visible sheen
in the discharge.
j. The pH of the discharged waters
shall not be less than 6.5 nor more than
9.0 units.
k. Total suspended solids shall be
limited ax follows:
Ywam I
—
Total e upnU.d 90 mgIL ii any sing’e grab or
‘ I 3W110 10.
2. Monitoring and Reporting
a. Daily Logs. The permittee shall
maintain a daily log relating to the
authorized discharge(s). The log shall
contain:
(1) flow information and data,
(2) sample result.,
(3) records of visual observations, and
(4) notations on any problems relating
to treatment of the discharge.
b. Samples shall be taken as often as
necessary to provide representative
information as to the nature and volume
of the discharge(s). At a minimum.
samples of each discharge shall be
taken as follows:
-------
Federal Register /VoL._54. No. 190 p Tuesday. October 3, 1989 / Notices
(1) CONSTRUCTION OEWATERINO
40733
MiU a dtags tam
P k tars patameow
sampie frequency
Saregle type
Greeter bun I Oibw Foot per Secotte (
Owing sue actual pecod of dectwg.
Less than I Qft Foot Per Second (CFS)
Owing the actual penod of d lsct iargs.. ........
FIow......._
D_. . . . .. - . . -.......
itaneoes or by conilmious rn. der.
pH . ....... .
Weekly ...
N ai ueoua or by ooi’ uiCu$ rOWUeV
0 5 and Gvease__....
Daity.....__....... . ....... . .
VIsual.
Grab.
Gland Grease
ManiNy .
Total Suspended Solids
FTow
Weekly ... . ..
Daily....
Weekly ., ,.,,._...
Daly .
Grab or Composite.
I I1. .wO Or b COfltflUOUI .uw rU,n.
Ins mianeen or by cci ien recorder.
V l euaL
Grab.
Grab or Composite.
pH —.
0 5 and Grease.
Oil and Grass.’
Handily —
Total Suspended Solids
Weekly .
(2) HYDROSTATIC TESTiNG DISCHARGES
Anticipated avefeg. disduavge rat.
Pollumul ps . I.
Sample frequency
Sample type
Greater than I Qibic Foot Per Second (CFS) —
Owing the actual penod of diachaige....
Less than I Oiblc Foot Per Second (CFS) ....
Owing the actual penod of diaduarge..._... . ...
Flow Rate.........._
DaSy....._.. .,_.... . ...
Instantaneous or by contanlous recorder.
Flow Vokime....
Daily ....... . .... -... . . . ..
Means. or Caloulate.
Insiasuaneoua or by cortuwne recorder.
pH.____________________
Daily
Gland Grease
Daily
VisuaL
Grab.
Grab or Comoonta
Instantaneous or by contesssn recorder.
Oil and Grease - ....__
Monthly
Total Suspended Sofids...._..._
Flow....
Dady..._...._...._._.._
Daiy_ . ..... .......
Flow Voe................_....._ Daily...... . .
— Daily ..... ._.
Oil end Grease...._... Daily. .....,
Oil and Grease .... . ... . .. _. Monthly ..__.. .......
Total Suspended Sokds........... . .j Daify....._...........
Measure or
Instantaneous or by continuous recorder.
Vined.
Grab.
Grab or Composite.
c. If sampling performed by the
permittee indicates a vioilation. the
permittee shall notify the permit issuing
authority in accordance with the
provisions at part ILli. of this permit.
The permittee shall also repeat the
sampling and analysis and submit the
results of the repeat analysis to the
permit issuing authority within thirty
days aftet.becoming aware of the
violation.
Part IL Monitoring Recording and
Reporting Requirements
A. Representative Sampling
Samples taken in compliance with the
‘monitoring requirements established
under Part I shall be collected from the
effluent stream prior to discharge into
the receiving waters. Samples and
measurements shall be representative of
the volume and nature of the monitored
discharge. Sludge sample. shall be
collected at a location representative of
the quality of sludge immediately prior
to the use-disposal practice.
B. Monitoring Procedures
Monitoring must be conducted
according to test procedures approved
under 40 CFR Part 136. unless other test
procedures have been specified In this
permit.
C. Penalties for Tampering
The Act provides that any person who
falsifies, tampers with, or knowingly
renders inaccurate, any monitoring
device or method required to be
maintained under this permit shall, upon
conviction, be punished by a fine of not
more than $10,000 per violation, or by
imprisonment for not more than two
years per violation, or by both.
D. Reporting of Monitoring Results
Effluent monitoring results obtained
during the previous 3 months shall be
summarized for each month and
reportpd on a Discharge Monitoring
Report Form (EPA No. 3320-1),
postmarI €d no later than the 28th day of
the month following the completed
reporting period. If no discharge occurs
during the reporting period. “no
discharge’ shall be reported. Legible
copies of these, and all other reports
required herein, shall be signed and
certified in accordance with the
Signatory Requirements (See part IV)
and submitted to the Director, Water
Management Division and the State
water pollution control agency at the
following addresses:
Original to: U.S. Environmental
Protection Agency, Region VU!. 999
lath Street, Suite 500, Denver.
Colorado 80202—2405. Attention:
Water Management Division
Compliance Branch (8WM—C)
Copy to: South Dakota Department of
Water and Natural Resources.
Division of Land and Water Quality.
Surface Water Quality Program. oe
Foss Building. Pierre. South Dakota
57501
H. Additional Monitoring by the
Permitte.
If the permittee monitors ny pollutant
more frequently than required by this
permit using test procedures approved
under 40 CFP. 136 or as specified in this
permit. the results of this monitoring
shall be included in the calculation and
reporting of the data submitted in the
DMR. Such increased frequency shall
also be indicated.
F. Records Contents
Records of monitoring information
shall includet
1. The date, exact place. and time of
sampling or measurements:
2. The initials or name(s) of the
Individual(s) who performed the
sampling or measurements:
3. The date(s) analyses were
performedi
4. The time(s) analyses were initiated;
5. The initials or name(s) of
individual(s) who performed the
analyses:
B, References and written procedures.
when available, for the analytical
techniques or methods usech and.
7. The results of such analyses,
including the bench sheets. instrument
readouts, computer disks or tapes. etc..
used La determine these results.
G. Retention of Records
The permittee shall retain records of
all monitoring information. including all
calibration and maintenance records
-------
40734
Federal Register / Vol. 54. No. 190 / Tuesday, October 3. 1989 / Notices
and all original strip chart recordings for
continuous monitoring instrumentation.
copies of all reports required by this
permit. and records of all data used to
complete the application for this permit.
for a period of at least three years from
the date of the sample, measurement.
report or application. This period may
be extended by request of the Director
at any time. Data collected on site.
copies of Discharge Monitoring Reports,
and a copy of this NPDES permit must
be maintained on-site during the
duration of activity at the permitted
location.
H. Twenty-four Hour Notice of
Noncompliance Reporting
1. The permittee shall report any
noncompliance which may seriously
endanger health or the environment as
soon as possible, but no later than
twenty-four (24) hours from the time the
permittee first became aware of the
circumstances. The report shall be made
to the EPA. Region VIII. Emergency
Response Branch at (303) 293—1788 and
the State of South Dakota at (605) 773—
3231.
2. The following occurrences of
noncompliance shall be reported by
telephone to the EPA. Region VIII.
Compliance Branch at (303) 293-1589
and the State of South Dakota at (605)
773-3151 by the first workday (8.00 a.m.—
4:30 p.m. Mountain Time) after the day
the permittee became aware of the
circumstances:
a. Any unanticipated bypass which
exceeds any effluent limitation In the
permit (See port IJLG.. Bypass of
Treatment Facilities.);
b. Any upset which exceeds any
effluent limitation in the permit (See
part fILM.. Upset C’onditions.); or.
c. Violation of a maximum daily
discharge limitation for any of the
pollutants listed in the permit to be
reported within 24 hours.
3. A written submission shall also be
provided within five days of the time
that the permfttee becomes aware of the
circumstances. The written submission
shall contain:
a. A desciption of the noncompliance
and its cause:
b. Period of noncompliance. Including
exact dates and times:
c. The estimated time noncompliance
is expected to continue, if it has not
been corrected: and.
d. Steps taken or planned to reduce.
eliminate, and prevent reoccurrence of
the noncompliance.
4. The Director may waive the written
report on a case-by-case basis if the oral
report has been received within 24 hours
oy the Compliance Branch. Water
Management Division. Denver.
Colorado. by phone. (303) 293—1589.
5. Reports shall be submitted to the
address in port lID.. Reporting of
Monitoring Results.
1. Other Noncompliance Reporting
Instances of noncompliance not
required to be reported within 24 hours
shall be reported at the time that
monitoring reports for part 11.0. are
submitted. The reports shall contain the
Information listed in part 11.1-1.2.
J. Inspection and Entry
The permittee shall allow the Director.
or an authorizedrepresentative. upon
the presentation of credentials and other
documents as may be required by law,
to
1. Enter upon the permittee’s premises
where a regulated facility or activity is
located or conducted. or where records
must be kept under the conditions of this
permit
2. Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit
3. Inspect at reasonable times any
facilities. equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under this permit and.
4. Sample or monitor at reasonable
times, for the purpose of assuring permit
compliance or as otherwise authorized
by the Act. any substances or
parameters at any location.
Part III. Compliance Responsibilities
A. Duty to Comply
The permittee must comply with all
condii±ons of this permit Any permit
noncompliance constitutes a violation of
the Act and is grounds for enforcement
action. for permit termination.
revocation and reissuance. or
modification. or for denial of a permit
renewal application. The permittee shall
give the Director advance notice of any
planned changes at the permitted
facility or of an activity which may
result in permit noncompliance.
B. Penalties for Violations of Permit
Conditions
The Act provides that any person who
violates a permit condition
Implementing sections 301. 302. 306, 307.
308. 318, or 405 of the Act Is subject to a
civil penalty not to exceed $25,000 per
day of such violation. Any person who
willfully or negligently violates permit
conditions implementing sections 301,
302. 306, 307. or 308 of the Act is subject
to a fine of not less than $5,000. nor
more than $50,000 per day of violation.
or by imprisonment for not more than
three (3) years. or both. Except as
provided in permit conditions on port
l1I.G.. Bypass of Treatment Facilities
and part III.H.. Upset Conditions.
nothing in this permit shall be construed
to relieve the permittee of the civil or
criminal penalties for noncompliance.
C. Need to Halt or Reduce Activity aVot
a Defense
It shall not be a defense for a
perinittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the conditions
of this permit
0. Duty to Mitigate
The permittee shall take all
reasonable steps to minimize or prevent
any discharge in violation of this permit
which has a reasonable likelihood of
adversely affecting human health or the
environment
E Proper Operation and Mai.ite. ’ ance
The perinittee shall at all times
properly operate and maintain all
facilities and systems of treatment and
control (and related appurtenances)
which are installed or used by the
pernuttee to achieve compliance with
the conditions of this permit. Proper
operation and maintenance also
includes adequate laboratory controls
and appropriate quality assurance
procedures. This provision requires the
operation of back-up or auxiliary
facilities or similar systems which are
Installed by a permittee only when the
operation is necessary to achieve
compliance with the conditions of the
Jemut. However, the permittee shall
‘operate. as a minimum, one complete set
of each main line unit treatment process.
whether or not this process is needed to
achieve permit effluent compliance.
F. Removed Substances
Collected screenings. grit, solids.
sludges. or other pollutants removed in
the course of treatment shall be buried
or disposed of In such a manner so as to
prevent any pollutant from entering any
waters of the state or creating a health
hazard. Sludge/digester supernatant and
filter backwash shall not be directly
blended with or enter either the final
plant discharge and/or waters of the
United States.
C. Bypass of Treatment Facilities
1. Bypass Not Exceeding Limitations
The permittee may allow any bypass
to occur which does not cause effluent
limitations to be exceeded, but only if it
also is for essential maintenance to
assure efficient operation. These
-------
Federal Register / Vol. 54. No. 190 I Tuesday, October 3. 1989 I Notices
40735
bypasses are not subject to the
provisions of paragraphs 2. and 3. of this
section.
2. Notice.
a. Anticipated bypass. If the permittee
knows in advance of thB need for a
bypass, it shall submit prior notice. if
possible at least 60 days before the date
of the bypass.
b. Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass as required under
part 11.11.. Twenty-four Hour Reporting.
3. Prohibition of Bypass
a. Bypass is prohibited and the
Director may take enforcement action
against a permittee for a bypass, unless:
(1) The bypass was unavoidable to
prevent loss of life, personal Injury, or
severe property damage
(2) There were no feasible alternatives
to the bypass, such as the use of
auxiliary treatment facilities, retention
of untreated wastes, or maintenance
during normal periods of equipment
downtime. This condition is not satisfied
if adequate back-up equipment should
have been installed In the exercise of
reasonable engineering judgament to
prevent a bypass which occurred during
normal periods of equipment downtime
or preventive maintenancs: and,
(3) The permittee submitted notices as
required under paragraph 2: of this
section.
H. Upset Conditions
1. Effect eLan Update
An upset constitutes an affirmative
defense to an action brought for
noncompliance with technology-based
permit effluent limitations if the
requirements of paragraph 2. of this
section are met. No determination made
during administrative review of claims
that noncompliance was caused by
upset, and before an action for
noncompliance, is final admlii1i fratlye
action subject to judicial review (Le..
Permittees will have the opportunity for
a judicial determination on any claim of
upset only in an enforcement action
brought for noncompliance with
technology-based permit affluent
limitations),
2. Conditions necessary for a
demonstration of upset
A permittee who wishes to establish
the affirmative defense of upset shall
demonstrate, through properly signed.
contemporaneous operating logs, or
other relevant evidence that:
a. An upset occurred and that the
permittee can identify the cause(s) of
the upset:
b. The permitted facility was at the
time being properly operatedi
c. The permittee submitted notice of
the upset as required under Part ILH..
Twenty.four Hour Notice of
Noncompliance Reporting. and.
d. The pennittee complied with any
remedial measures required under part
111.0.. Duty to Mitigate.
3. BurdeI of Proof
In any enforcement proceeding. the
permittee seeking to establish the
occurrence of an upset has the burden of
proof.
1. Toxic Pollutants
The perinittee shall comply with
effluent standards or prohibitions
established under section 307 (a) of the
Act for toxic pollutants within the time
provided in the regulations that
establish those standards or
prohibitions, even if the permit has not
yet been modified to incorporate the
requirement
I. Changes in Discharge of Toxic
Substances
Notification shall be provided to the
Director as soon as the permittee knows
of, or has reason to believe:
1. That any activity has occurred or
will occur which would result in the
discharge, on a routine or frequent basis.
of any toxic pollutant which is not
limited in the permit, if that discharge
will exceed the highest of the following
“notification levels”:
a. One hundred micrograms per liter
(100 ug/L);
b. Two hundred micrograms per liter
(200 ug/.IJ for acrolein and acrylonithie:
five hundred micrograms per liter (500
ug/L) for 2.4-dinitrophenol and for 2.
methyl.4. 6-dinitrophenok and one
milligrim per liter (1 mg/L) for
antimony
c. Five (5) times the maximum
concentration value reported for that
pollutant in the permit application in
accordance with 40 CFR 122.21(g)(7); or,
d. The level established by the
Director in accordance with 40 CFR
122.44(f).
2. That any activity ha. occurred or
will occur which would result in any
discharge, on a non-routine or infrequent
basis. of a toxic pollutant which is not
limited In the permit. if that discharge
will exceed the highest of the following
“notification levels”:
a. Five hundred micrograms per liter
(500 ug/L);
b. One milligram per liter (1 mg/L) for
antimony:
c. Ten (10) times the maximum
concentration value reported for that
pollutant In the permit application in
accordance with 40 CFR 122.21(8117): or.
di The level established by the
Director in accordance with 40 CFR
122.44(f).
Part IV. General Requirements
A. Planned Changes
The permittee shall give notice to ‘he
Director as soon as possible of any
planned physical alterations or
additions to the permitted facility.
Notice is required only when:
1. The alteration or addition to a
permitted facility may meet one of the
criteria for determining whether a
facility is a new source as determined in
40 CFR 122.29(b):
2, The altüation or addition could
significantly change the nature or
increase the quantity of pollutants
discharged. This notification applies co
pollutants which are subject neither to
effluent limitations in the permit. nor to
notification requirements under part
IV.A.1.: or,
3. There are any planned substantial
changes to the existing sewage sludge
facilities. the manner of its operation. or
to current sewage sludge management -
practices of storage and disposaL The
permittee shall give the Director notice
of any planned changes at least 30 days
prior to their implementation.
B. Anticipated Noncompliance
The permittee shall give advance
notice of any planned changes in the
permitted facility or activity which may
result in noncompliance with permit
requirements.
C Permit Actions
This permit may be modified, revoked
and reissued, or terminated for cause..
The filing of a request by the pernuttee
for a permit modification, revocation
and reipsuance. or termination, or a
notification of planned changes or
anticipated noncompliance. does not
stay any permit condition.
D. Duty to Reapply
If the perucittee wishes to continue an
activity regulated by this permit after
the expiration date of this permit. the
permitee must apply for and obtain a
new permit The application should be
submitted at least 180 days before the
expiration date of this permit.
£ Duty to Provide Information
The perinitee shall furnish to the
Director, within a reasonable time. any
information which the Director may
request to determine whether cause
exists for modifying, revoking and
reissuing. or terminating this permit. or
-------
40738
Federal Register I Vol. 54. No. 190 / Tuesday. October 3, 1989 I Notices
to determine compliacrie with this
permit. The permittee shall also furnish
to the Director, upon request, copies of
records required to be kept by this
permit.
F Other tnforniolion
When the permittee becomes aware
that it failed to submit any relevant facts
in a permit application, or submitted
incorrect information in a permit
application or any report to the Director.
it shall promptly submit such facts or
information.
G. Signotor’, Requirements
All applications, reports or
Information submitted to the Director
shall be signed and certified.
1. All permit applications shall be
signed as followsi
a. For a corporation: By a responsible
corporate officeri
b. For a partnership or sole
proprietorship: By a general partner or
the proprietor, respectively;
c. For a municipality. Stale. Federal.
or other public agency: By either a
principal executive officer or ranking
elected official.
2. All reports required by the permit
and other information requested by the
Director shall be signed by a person
described above or by a duly authorized
representative of that person.
A person is a duly authorized
representative only th
a. The authorization Is made in
writing by a person described above
and submitted to the Director, and.
b. The authorization specified either
an individual or a position having
responsibility (or the overall operation
of the. regulated facility or activity, such
as the position of plant manager.
operator of a well or a wail field.
superintendent, position of equivalent
responsibility, or an individual or
position having overall responsibility for
environmental matters for the company.
(A duly authorized representative may
thus be either a named Individual or any
Individual occupying a named position.)
3. Changes to authorization. If an
authorization under paragraph IV.G.2. is
no longer accurate because a different
individual or position has responsibility
for the overall operation of the facility, a
new authorization satisfying the
requirements of paragraph IV.G.2. must
be submitted to the Director prior to or
together with any reports, information.
or applications to be signed by an
authorized representative.
4. Certification. Any person signing a
document under this section shall make
the following certification: attachments
were prepared under my direction or
supervision in accordance with a syltem
designed to assure that qualified
personnel properly gather and evaluate
the information submitted. Based on my
inquiry of the person or person . who
manage the system, or those persons
directly responsible for gathering the
information, the information submitted
Is. to the best of my knowledge and
belief. true, accurate, and complete. I am
aware that there are significant
penalties for submitting false
information, including the possibility of
fine and imprisonment for knowing
violations.”
F !. Penalties for Falsification of Reports
The Act provides that any person who
knowingly makes any false statement.
representation, or certification in any
record or other document submitted or
required to be maintained under this
permit, including monitoring reports or
reports of compliance or noncompliance
shall. upon conviction be punished by a
fine of not more than $10,000 per
violation, or by imprisonment for not
more than two years per violation, or by
both.
1. A vailabthty of Reports
Except for data determined to be
confidential under 40 CFR part 2. all
reports prepared in accordance with the
terms of this permit shall be available
for public inspection at the offices of the
State water pollution control agency and
the Director. As required by the Act.
permit application.., permits and effluent
data shall not be considered
confidential.
I. Oil and Hazardous Substa.’ice
Liabihty
Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the permittee
from any responsibilities. liabilities, or
penalties to which the permittee as or
may be subject under Section 311 of the
Act.
K. Property Rights
The issuance of this permit does not
convey any property rights of any sort,
or any exclusive privileges, nor does it
authorize any Injury to private property
or any invasion of personal rights. nor
any infringement of federal, state or
local laws or regulations.
L Severability
The provisions of this permit are
severable, and if any provision of this
permit, or the application of any
provision of this permit to any
circumstance, is held invalid, the
application of such provision to other
circumstances, and the remainder of this
permit, shall not be affected thereby.
M. Trc nsfez,
This permit may be automatically
transferred to a new permittee if:
1. The current permittee notifies the
Director at least 30 days in advance of
the proposed transfer date:
2. The notice includes a written
agreement between the existing and
new permittees containing a specific
date for transfer of permit responsibiIi
coverage. and liability between them:
and,
3. The Director does not notify the
existing permittee and the proposed new
permittee of his or her inte nt to modify,
or revoke and reissue the permit. If this
notice is not received, the transfer is
effective on the date specified in the
agreement mentioned in paragraph.
above.
N. State Laws
Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the perrnittee
from any responsibilities, liabilities. or
penalties established pursuant to any
applicable state law or regulauon umler
authority preserved by section 510 of the
Act.
0. Reopener Provision
This permit may be reopened and
modified include the appropriate
effluent limitations or other appropriate
requirements if one or more of the
following events occurs;
1. Water Quality Standards
The water quality standards of tin’
receiving water(s) to which the
permittee discharges are modified in
suc a manner as to require different
,efffuent limits than contained in this
permit.
2. Wasteload Allocation
A wasteload allocation is developed
and approved by the State and/or EP.-
for incorporation in this permit.
3. Water Quality Management Plan
A revision to the current water quality
management plan is approved and
adopted which calls for different
effluent limitations than contained in
this permit.
P. Requiring an Individual NPDE.S
Permit
The Director may require any owner
or operator covered under this permit to
apply for and obtain an individual
NPDES permit if:
1. The discharger is not in compliance
with the conditions of thus General
Permit: or,
-------
Federal Register / Vol. 54, No. 190 / Tuesday, October 3. 1989 / Notices
40737
2. Conditions or standards have
changed so that the discharge no longer
qualifies for a General Permit.
The owner or operator must be
notified in writing that an application
for an individual NPDES permit is
required. When an individual NPDES
permit is issued to an owner or operator
otherwise covered under this General
Permit, the applicability of the general
permit to that owner or operator is
automatically terminated upon the
effective date of the individual NPDES
Permit
Q. Requestixig an Individual NPDES
Permit
Any owner or operator covered by
this general permit may request to be
excluded from the coverage by applying
for an individual NPDES Permit.
R. Requesting Covemge Under the
Genemi Permit
The owner or operator of a facility
excluded from coverage by this General
Permit, solely because that facility
already has an individual permit may
request that the individual permit be
revoked and that the facility be covered
by this General Permit Upon revocation
of the individual permit, this General
Permit shall apply to that facility.
Slgaed thIs 20th day of September 1989.
Kemigos Clough,
ActingRegiortoi Administ rotor. Region VIIL
(FR Doe. 89-23298 Filed 10-2-89 845 amj
_coos
FEDERAL MARITIME COMMISSION
Item Submitted for 0MB RevIew
The Federal Maritime Commission
hereby gives notice that the following
item has been submitted to 0MB for
review pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3601. et
seq.). Requests for information,
Including copies of the collection of
information and supporting
documentation. may be obtained from
John Robert Ewars. Director. Bureau of
Administration, Federal Maritime
Commission. 11001. Street, NW.. Room
12211. Washington, DC 20573. telephone
number (202) 523-5866. Comment. may
be submitted to the agency and to the
Office of Information and Regulatory
Affairs. Office of Management and
Budget. Washington. DC 20503.
Attention: Desk Officer for the Federal
Maritime Commission, within 15 days
after the date of the Federal Register in
which this notice appears.
Su n i.ry of Item Submitted for 0MB RevIew
48 CPR past 550 (Definition of a Shipper and
Availability of Mixed riammndity Rates-.
Doub 59-20)
FMC requests clearance of an
amendment to 46 CFR part 580 which
would (1) amend the definition of
“shipper’ to clarify the scope of the
term, and (2) requIre that mixed
commodity rates be made available only
to a shippper.” as proposed, and to
“shipp rs’ associations” as prmently
defined in the Commission rules. A
shipper using a mixed commodity rate
would be required to furnish the ocean
common carrier a listing of commodities.
If the shipper Is a non-vessel-operating
common carrier (NVOCC), It would also
have to indicate its FMC tariff number
on the ocean carrier’s bill of lading and
on any service contracts to which it is a
party. The Commission estimates a filing
burden of 30,000 hours for 2105 carriers
to implement the proposed rule’s
provisions. There will be no additional
cost to the Federal Government for this
amendment. Estimated cost to
respondents for this amendment is
$150,000.
Joseph C. Policing.
Secretar
(FR Doe. 89-23230 Filed 10-2-aR 8:45 amI
891tP S COOS 5730-01-5
Salt Francisco Port CommIssion
Terminal Agreement
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may Inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 L Street.
NW.. Room 10220. Interested parties
may , ubmit comments on each
agreement to the Secretary. Federal
Maritime Commission, Washington. DC
20573. within 10 days after the date of
the Federal Register in which this notice
appears. The requirements for
comments are found in 572.803 of title
46 of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
Commission regarding a pending
agreement.
Agreement No. 4- 200289
Tide: San Francisco Port Commission
Terminal Agreement
Parties: San Francisco Port
Commission (Port) American Niuginl
Shipping (ANSI
Synopsis: The Agreement provides
that ANS will make San Francisco its
Northern California port of call and will
pay the Port 60% of the Port’s tariff
charges for all revenue derived from
dockage and wharfage at the Port’s
facilities. The terms of the Agreement is
for five years and may be extended for a 4
similar term.
By Order of the Federal Maritime
Commission.
Datedi September V. 1989.
Joseph C. PolicIng,
Secretary.
(FR Doe. 89-23231 Filed 10-2—89. s:45 amj
ime coos .n
FEDERAL RESERVE SYSTEM
A.aN.—Suchtlng, at aL—Forniuiadon s
of, Acquisitions by, and Mergers of
Bank Holding Companies and
Acquisitions of Nonbanklng
CompanIes
The companies listed in this notice
have applied under 225.14 of the
Board’s Regulation Y (12 CFR 225.14) for
the Board’s approval under section 3 of
the Bank Holding Company Act (12
U.S.C. 1842) to become a bank holding
company or to acquire voting securities
of a bank or bank holding company. The
listed companies have also applied
under 225.23(a)(2) of Regulation Y (12
R 225.23(a)(2)) for the Board’s
approval under section 4(c)(8) of the
Bank Holding Company Act (12 U.S.C.
1843(c)(8)) and 225.21(a) of Regulation
Y (12 CFR 225.21(a)) to acquire or
control voting securities or assets of a
company engaged in a nonbanking
activity that is listed In I 225.25 of
Regulation Y as dosely related to
banking and permissible for bank
holding companies. or to engage in such
an activity. Unless otherwise noted,
these activities will be conducted
throughout the United States.
The applications are available for
Immediate inspection at the Federal
Reserve Bank indicated. Once the
application has been accepted for
processing, it will also be available for
inspection at the offices of the Board of
Governors. Interested persons may
express their views In writing on the
question whether consummation of the
proposal can “reasonably be expected
to produce benefits to the public, such
as greater convenience, increased
competition. or gains in efficiency, that
outweigh possible adverse effects. such
as undue concentration of resources,
decreased or unfair competition.
conflicts of interests, or unsound
banking practices.” Any request for a
hearing on this question must be
accompanied by a statement of the
reasons a written presentation would
-------
40684 Federal Register I Vol. 54. No. 190 I Tuesday. October 3. 1989 I Rules and Regulations
A Notice announcing this delegation will
be published in the Federal Register in the
near future. The Notice will state, among
other things, that effective immediately, all
report. required pursuant to the above-
enumerated Federal NSPS arid NESHAP
regulations by sources located in the State of
Delaware should be submitted to the
Delaware Department of Natural Resource,
and Envirrinmental Control. 09 Kings
Highway Dover. Delaware 101.101 In addition
to EPA Region lii. any original reports which
are received by EPA region Ill will be
promptly transmitted to ONREC.
Since this delegation is effectwe
immediately, there is no requirement that
DNREC notify EPA of its acceptance. Unless
EPA receives from DNREC written notice of
objection, within ten (tO) days of receipt of
this letter DNREC will be deemed to have
accepted all of the terms of the delegation.
Sincerely,
Edwin B. Erickson.
Regional .‘Idm,n,strator.
The Office of Management and Budget
has exempted this delegation of
authority from the requirements of
section 3 of the Executive Order 12291.
Authonty’ Secs 11(c) and 1121d ). the Clean
Air Act. 42 11 SC. 4U(d).
Edww B. Erickson,
Regional Adn7znistrctor.
Title 40. chapter! of the Code of
Federal Regulations is amended as
follows:
PART 60-4AMENDEDI
1. The authority citation for part 60
continues to read as follows:
Authonty 52 U.S.C. 7401. 7411.7414. 7415.
and 7601.
§60.4 (Amended)
2. Section 60.4(bjm is amended by
removing the parenthetical statement.
PART 61—(AMENDEDI
3. The authority citation for part 81
continues to read as follows:
Autherity Sacs. 101. 112. 114. 116. and 301
of the Clean Air Act, as amended (42 U.S C.
7401, 7412. 7414, 7436. and 7603).
§61.04 (Amended)
4. Section 6l.04(b)(I) I. amended by
removing the parenthetical statement.
(FR Doc. 09-22894 FlIed l0-Z-8& &45 aml
elwNa COOS ssie-io-a
40 CFR Parts 123 and 403
(FRI. 3652-2)
Approval of California’s Revisions to
the State National Pollution Discharge
Elimination System Program
AGENCYl Environmental Protection
Agency.
AC’T1OW Notice of approval of the
National Pollutant Discharge
Elimination System (NPDES)
Pretreatment Program. approval to issue
NPDES genera) permits and approval of
revisions to the existing NPDES permit
regulations of the State of California .
SUMMARy On September 22. 1989, the
En ironmental Protection Agency.
Region IX approved the State of
California NPDES Pretreatment Program
which authorizes the State of California
to administer the National Pretreatment
Program as it applies to municipalities
and industries within the State. EPA.
Region IX also approved authority of the
State of California to issue NPDES
general permits and approved revisions
to the State’s existing NPDES permit
regulations.
EFFECTiVE DATE September 22. 1969.
FOR FURTHER INFORMATION CONTAC1
William H. Pierce. Chief, Permits
Branch. Water Management Division.
215 Fremont Street. San Francisco. CA
94105 (415—974—8110).
SUPPW ENTARY iNFORMATiON: Section
402 of the Clean Water Act (CWA) (33
U.S.C. 1251 etseq.) requires EPA to
administer the NPDES permit program
under which the Agency may issue
permits for the discharge of pollutants
into waters of the United States in
accordance with conditions required by
the Act. Section 402(b) of the CWA
provides for States to assume NPDES
permitting responsibilities upon
approval by EPA. States also may
request authority to issue general
permits for similar dischargers with the
same effluent limitations. (See 40 CFR
122.28.) In addition, under section 54 of
the 1977 amendments to the CWA.
States requesting NPDES permitting
authority, as well as States already
approved to administer the NPDES
permit program, must also request
permitting authority over dischargers
from federal facilities located within the
State and authority to administer the
federal pretreatment program governing
the introduction of non-domestic
pollutants into publicly owned treatment
works (POTWs). (Cf. CWA section
402(n) 33 U.S.C. 1342(n).) After EPA
approves a State’, request for NPDES
permit and or pretreatment authority,
the State must thereafter submit any
proposed program revisions to EPA for
reapproval pursuant to 40 CFR 123.82(b).
On May 14. 1973. Cdlifornia became
the first State to be approved by EPA to
administer the NPDES permit program.
On May 5. 1978, it also became the first
State to receive EPA approval to
regulate discharges from federal
facilities.
On June 8. 1989, California submitted
an application to EPA for approval of
revisions to its approved NPDES
program in accordance with 40 CFR
123 52 and 403.10. This application
included a request to add pretreatment
and general permit authority to its
approved program. It also included a
request for EPA approval of revisions to
the State’s existing NPDES permit
regulations. (California does not have,
and has not requested, EPA approval to
administer the NPDES and pretreatment
programs on Indian lands.) Pursuant to
40 CFR 123.82(b) and 403.10(g).
California submitted in support of its
application an Attorney General’s
Statement (including copies of all
applicable State statutes and
regulations) certifying that the State has
adequate authority to administer the
NPDES program being sought. a program
description describing how the State
intends to carry out its responsibiiities.
and a proposed EPA/California
Memorandum of Agreement These
documents were revisions of the original
copies submitted to EPA when
California sought approval of its existing
NPDES permit program.
With respect to California’s request
for approval of revisions to the States
existing NPDES permit regulations. EPA
has approved the State’s request to
implement the State permit program
under State law, which, according to the
California Attorney General,
incorporates by reference all existing
and future federal NPDES law and
regulations. Specifically, the Attorney
General has certified that the Portec.
Cologne Water Quality Control Act
(Porter .Cologne Act), which implements
the California NPDES program.
Incorporate, federal NPDES and
pretreatment law and regulations
prospectively, meaning that future
amendments to federal law and
regulations are automatically
incorporated into State law without the
need for amendment of State statutes
and regulations. (In support of this
authority for prospective incorporation
by reference. the California Attorney
General has cited the Porter-Cologne
Act. Water Code sections 13160. 13170.
13177, 13385, 13388. and 13387 ) The
California Attorney General also has
certified that regulations adopted by the
California State Water Resources
Control Board, the Statewide NPDES
permitting agency. prospectively
-------
UI II
I 1 1111 I I - lI•i 5t
Federal Register I Vol. 54. No. 190 I Tuesday . October 3. 1989 I Rules and Regulations
40665
incorporate EPA regulations applicable
to the processing of NPDES applications
and issuance of NPDES permits. (The
cited State regulations in the Attorney
General’s Statement are 23 Cal. Admin.
Code sections 2235.1(c), 2235.2, and
2235.4J Such prospective Incorporation
of federal law and regulations is.
according to the California Attorney
General, authorized under California
law and the State’s Constitution.
As discussed above. California also
has requested authority to issue NPDES
general permits and administer the
pretreatment program. With respect to
general permit authority, EPA
regulations at 40 CFR 122.28 provide for
the issuance of general permits to
regulate discharges of waste water
which result from similar operations. are
of the same type of wastes, require the
same effluent lirr.itations. require similar
monitoring, and are more appropriately
controlled under a general permit rather
than by individual permits. EPA is
approving California’s request for
general permit authority. Each general
permit proposed by the State will be
subject to EPA review and approval as
provided by 40 CFR 123.44(a)(2). Public
notice and opportunity to request a
hearing also must be provided for each
general permit.
EPA is also approving California’s
request for pretreatment authority.
California has demonstrated that there
is appropriate legal authority.
procedures, available funding, and
qualified personnel to implement the
program as specified in 40 CFR 403.10.
The State will implement its
pretreatment program under the Pqrter.
Cologne Act provisions which
prospectively incorporate federal law
and regulations. Under the CWA and
EPA regulations at 40 CFR part 403. the
primary objectives of the pretreatment
program are to: (1) Prevent the
introduction of pollutants into POTWe
which will interfere with plant
operations and/or disposal or use of
municipal sludge: (2) prevent the
introduction of pollutants Into POTWs
which will pass through treatment
works iii unacceptable amounts to
receiving waters: and (3) improve the
feasibility of recycling and reclaiming
municipal and industrial wastewater
and sludge. Local pretreatment
programs will be the primary vehicle for
administering, applying, and enforcing
California’s pretreatment requirements.
Currently. 102 such programs have been
approved by EPA. Where local programs
have not yet been required or developed
in California. the State must apply and
enforce the pretreatment requirements
directly against industries that discharge
to POTWs (e.g.. 40 CFR 403.10(fl(2fli)).l
The Regional Administrator’s decision
to approve California’s proposed
program revisions, including its request
for pretreatment and general permit
authority, is based on a determination
chat the program meets the requirements
of the Clean Water Act and 40 CFR
parts 122. 123. 124. and 403. The public
was notified in the July 20. 1989 Federal
Register (54 FR 30405) of the submittal,
public comment period and opportunity
to request a public hearing, and EPA’s
proposal to approve all requested
program revisions. In addition, notice
was provided in four major newspapers
in the State on July 20. 1989 and notice
was provided to all POTWs with
approved pretreatment programs. No
comments were received by EPA during
the public comment period which ended
September 5. 1989.
California’s pretreatment program, as
well as i s revised NPDES permit
program, is adnunistered by the
California State Water Resources
Control Board and nine Regional Water
Quality Control Boards.
Review Under Executive Order 12291
and the Regulatory Flexibility Act
The Office of Management and Budget
has exempted this rule from the review
reqwrements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities.
Approval of California’s NPDES
program revisions, including the
addition of pretreatment and general
permit authority, does not alter the
regulatory control over any municipal or
Industrial category. No new substantive
requirements are established by this
action. Therefore, since this notice does
not have a significant Impact on a
substantial number of small entities, a
Regulatory Flexibility Analysis is not
necessary.
Dated: September 22, 1989.
(olin Wig.,
Acting Reg,ono!Adm,n,s:roto,’ for Region IX.
(FR Doc. 89-23163 Filed 10—2-89: 8.45 am)
SIWNU COOE 1 5 1040. 15
‘According to tie Cii ,forn,a Attorney General.
the requirements of th. CWA and implementing
reguiattona incorporated by relerenc. by the Porter.
Cologne Act, include but are not limited to the
pretreatment atandarda and reporting requirement.
for It). of P01W. (for example 40 CFR 4033, 4030
and 403 1 I
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 531
(Docket No. LVM 89-01; NotIce 13
Passenger Automobile Average Fuel
Economy Standards; Denial of
Petitions for Exemption by Low
Volume Petitioner,
AGENCY! National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTIwc Denial of petitions for
exemption from average fuel economy
standards and for establishment of
alternative standards.
SUMMARY! This consolidated notice
responds to individual petitions filed by
four low volume manufacturers. Bitter,
Ferrari, Lotus, and Maserati. each
requesting exemption from the generally
applicable passenger automobile
average fuel economy standards. ar.d
that lower alternative standards be
established for each model year (MY)
from which they seek exemption. This
notice denies each petition as follows:
Bitter Automobile of America. Inc.
(Bitter) petitioned to be exempted for
MYs 1983 through 1987. This notice
denies Bitter’s request because the 6itter
petition and its amendment were not
timely filed for those years and good
cause was not shown for the late filing.
Ferrari S.p.A. (Ferrari) petitioned to be
exempted for MYs 1988 through 1988. A
separate notice published on December
10, 1988 (51 FR 44492) proposed to grant
Ferrari’s petition for MY 1988.,
establishing an alternative stanthrd of
16.0 miles per gallon (mpg) and for MY
1988. establishing an alternative
standard of 18.6 mpg. For MY 1987, this
notice denies Ferrari’s request because
Ferrari was not eligible for an
exemption as a low volume
manufacturer for that model year.
Lotus Cars Ltd. (Lotus) petitioned to
be exempted for MYs 1983 through 1987.
This notice denies Lotus’ request
because the Lotus petition was not
timely filed for MYs 1983 through 1985
and good cause was not shown for the
late filing. This notice also denies Lotus’
request for MYs 1988 and 1987. The
agency concludes that Lotus was
ineligible in those years for exemption
as a low volume manufacturer.
Officine Alfieri Maserati S.p.A.
(Maserati) petitioned to be exempted for
MYs 1982 through 1985. This notice
denies Maserati’s request for MYs 1982
through 1983 because the Maserati
petition was not timely filed for those
-------
.c .; , , ,
7. -- —
-,;
p.•., -• - -•-
— —
upom Wa.Mi s program desaiption
and upomtbeS sompenoncs in.
administering an approved NPDES
—- ‘- -‘--- -- -‘ -- -
rnugru. — - - UI-
ladonaI Pollutant DIscWg&i
Elimination System (NPD permit No
KS-4J04V22.
Persons wishing to v 4 of
EPA’s Consolidated Rules. jerfew the
Complaint or other docum filed us
ihis proceeding, comment i the
oroposed pe’ .i i qrcqment. or
otherwise part:’: p ie in the proceeding
should contact the Regional Heanrig
clerk identified above.
The administrative record for the
proceeding is located in the EPA
Regional Office at the address stated
above, and the file will be opess fOr
public inspection during narmel
business hours. All information
submitted by the City of Topáa. Kansas
is available as part of the administrative
record, subject to provisions of law -
restricting public disdosur, of
confidential information. In oeder m-
provide opportunity for public C L . .. ut
EPA will issue no final order issesslftg A
penalty in this proceeding For thiTty days.
froni the date of tins Notler. --
Stale has the necessary reucoross and
procedures to admizuter the general
permits program.
The following are responses to major
comments.
- - - WD-34 . Envhmimaetel Prat lIon ___
Agency. 1200 SIxth Avenue. Seattle.
Washington 98101.
5UP UMEMTARY ,NpoaMAno EPA
regulations at 40 CFR 122.28 provide for
the issuance of general permits to
regulate discharges of wastewater
which result from substantidily similar
operations, are of the same type wastes.
require the same effluent limitations. R.e se
require similar monitoring. and are more
appropriately conirollad under a general 1. Comirsenr The Meniorendmn of
permfl rather than by individual permits. Agreement (MOA) should clarify that
State authority to Issue general permits any general permit. issued by Ecology
will reduce the back1o duwuued in the Puget Sound Basin will comply
NPD permits and.r.ducs lb. - with req -ierersenta of the 1989 Puget
. ati’ .’nittretlv. binviesi and cost of Sound Water Quality Management Plan
linEig indfvldeal permits. (PSWQMP) a d the ggg State/EPA
Ends general Delvift will be sub)ecl to Agreement (SEA)..
EPA re,iáw and approval at provided. Responesr The MOA is a binding.
by 40 ( R 123.44. Puhlicnotic. and lon 4erm agreement between EPA
oppoatwuty to reqi.ast a bearing Is also R’egton 10 and (ha Was1ungtcu
provided for each general permiL Deparonant of legy. The MOA is
On November 14. 1973, Washington’ intended to outline breed, long-term
reizived authority to . .I rnnuItar the cmini ts between these two
-. NPD program under ssctloa 402 of the geri related te Ecology’.
FOR uman iacoom*iso,rc,acv’ Clean Water AgL Then’ program, as implementation of the NPDES Genemi
Jean Crank at (p 13)8-2800. - previously approved, did not include p , ‘ - L
Daied. S pieinoer 13. iseo ‘ — . — is2uiInr’ Iof gsnemL -. program. EcoLo will be required t
- - __. permits. The slats’s final application for
carry out hderal Jaw as it parIaIna
MornaK.y. , - permits was
Reg,oo.rI Ad,nw uwr. . ‘- ‘y flosj ’m be, 30, 198& ‘The ft lbs scop. of tht.
‘R Dec. -z3i Filed 9 48 . ‘4’ . jp Juded a letter from the stale.. - state
ULLme COOS U -* - ..i1,gJoz.approvaL a copy of lb.— ‘. ——- ____________ -
Ms arandum of Agreement (MO4J a ______
(FRL-3855-1 I smentary NpD p m_ - - ‘
CO QLJ lsvsuL stat s 1
statiftee tao regulations. The sti m ttgr
aIio’1ná1’ud d a statement bi the . ,
_____ Attorney General certifying. witfi
appinpriata citations to the statutes and
reguladans. that the state has adequate
l pl utbostty to administer the general’
permits program.
A determined that the $taté”s’ ,,
app [ f atlon was complete and, as’
under 40 CTR 123.8!, fssuedb...
30 -d jMIllIu notice of the State’s I
requesflot ’ authority to Issue general
p . . . ts Three comment letters were _____
r fved d tsg the comment period.’ ____ ____
r1!ftm expressed support for
___ ____ del etlo. of the General Permits
Progress to Washington.
fT0! w mcluded. upon review of the
irtue 8*tViapplhentton and .11 public prvgrsm 111 IlBowte tabwprovtdes
W àItL thet the State has legal “ mthlMwtth ’ 1t1 .d*te list of the
aulIL.lty to sdimnieter the general
permits program. In addition, based
Approval of Wastslngton’$ Natlona4
Pollutant Dlscflarge Elimination” ,
System (NPDES) General ii IW ”
Program
AGENCY: Environmental Protection.. -
A2ency - -
acrto.c Notice of approval of • —1
Washingtons National Pollutant ‘-‘ ‘- I
Discharge Elimination System Gesrnt’,n
Permit. Program. -
sute a r. On September 20. 1989. tbs.. .
RegionaIAdnurustratoro1th ... , .. , 1
Environmental Protection
Region 10. approved the
Washingtona I’PDES G.- -
Program. This action a
issuance of general pe
individual NPDES peril • j J
FOR FURThER INFORMATSOIICO89’MW
Ms. Andi Marizo. Waler Permits Sectiema
Aw0 og rew aX 1 Z4(cJ the
MOA’Ih ’th198W ,i1sUent with the
SE haweeet, the $ A may not
bv?1€WThè A, T%ge 2 ’oIt e ”MDA
s. ...s.. .s lhlaiuue by stating that “all
upec c slate commi’il’ ”i
the Issuance and enforcement of general
penile uilll datàm1ned through the
aminal 100 wui*plaa/SEA process.’
L’ComthihE Effecfivq Tsd* 1.1989.
WAC 1YS- QIermlt fee ,) will be
chnii to WAC 123-224.
ffe.pdie. The reference has been
changed accordingly
F.d.1 Rs PIsthi d..A eov.I of
Stats NPDES PJ- .-- - twMe 4 iR . boss
A wi uvIlte Federal eglster
notice of any action by the Agency
appres4ngor odtf ’thgt State NPC
AIaO.m.
Afl .an 1’
aIutorv ..
CoIciaOo ’
.
*g xavag.
I i ’.o€s
I —
,o ,r
5avvod
‘t: =
--
Stat.
‘ “
mv
progism
;;t s of u ’u3pwtttIzg authority’
througbout thi cu
loi’v79
11 /01 ,86
O5I14fl J
1nJ27175
t 1 01f88
oa o6/7e
i0/19 79
ITP OI /66
09/22 189
-------
Federal Register! Vol. 54, No. 189 / Monday, October 2, 1289./ Notices
State
‘lMcat Stat. lPIiW (l to mu. General Pinmt..
NPOES
—
, , . .,.m
Approved to
regulate
Federal
tanhOes
Review Under Executive Order 1 31
and the Regulatory FL icibiIity Act.
The Office of Management and Budget
has exempted this rule from the review
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities.
Approval of the Washington State
General Permits Program established no
new substantive requirements, nor does
it alter the regulatory control over any
municipal or industrial category.
Program approval merely provides a
simplified administrative process.
Because this notice does not have a
significant impact on a substantial
number of small entities, a Regulatory
flexibility Analysis is not necessary.
Dated: September 28. 1989.
Robie C. Ruesell.
RegIonaIAdmn7Is4rawr. Region /0.
(FR Doc. 89-23300 Filed 9-29-89:8:45 am
coot ease
FEDERAL MAR ME COMMISSION
Agreement Filed
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement pursuant to section
5 qf the Shipping Act of 1984.
Interested parties may Inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 11001, Street
NW., Room 10220. Interested parties
may submit comments on each
agreement to the Secretary, Federal
Maritime Commission. Washington. CC
20573, within 10 days after the date of
the Federal Register in which this notice
appears. The requirements for
comments are found in § 572.803 of title
48 of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
Commission regarding a pending
agreement.
Agreement No.: 224-200078-004
Title: Maryland Port Administration
Lease Agreement.
Parties:
Maryland Port Administration (MPA).
Clark Maryland Terminals. Inc.
(CM .
Synopsis: The Agreement modifies
Agreement No. 224-200078 for the use of
portions of the Dundalk Marine
Tç m ial to reflect the division of the
verall leased premises into two
Parcels. A and B. Parcel “A” shall
be used For cargo for all of CM1Ts
customers, except for customers to
which Parcel “B” shall be specially
dedicated. Parcel ‘U ” shall be used
exclusively for cargo of Orient Overseas
Container Line (UK) Ltd. ‘OOCL UK”)
and by Orient Overseas Container Line.
Inc. ( ‘OOCLI”J and any other carriers
that are party to any cooperative
working. sailing, or space charter
agreements with OOCL-UX or OOCLI
providing for use of the same terminals
facilities and associated stevedoring
services. The Agreement also replaces
Agreement No. 224—200253 between
MPA and CMTI.
By Order of the Federal Maritime
Commission,
Dateth September 27. 1989.
Joeepb C. Polking.
Secretary.
(FR Doc. 89-23158 Filed 9-29-89: 9:15 am(
16.UNS 8901 57304 1-al
Approve
Stair’
pretret
mont
m
Connec 5cut .__._.-..._________..________ .. ._..... ._.. .._......_..
-.—...--.-—...--.—.--—.--—. -.. -..-..-
09126/73
04101114
06/28/74
11/28/74
10/23/fl
01/0I/75
08/10/78
06/20/74
09/30/83
09/05174
10/17/73
06/30/74
05/01/74
90/30/74
06/10/74
06/12/74
09/19/15
04/13/82
10/23/75
10/19/75
06/13/75
03111/74
09/28/73
06/30/73
09/11/04
06/10/75
12/28/77
07/07/87
03/11/74
06/30/76
03/31/75
11/14113
05/10/82
03 /04 /74
01/30/75
01109189 06103/81
12/08/80 03 1 12/81
08/01/79 08 1T2 183
09/20/79 1 .. -. -
12/09/78
08/10/78 06 .03/81
08/28/85 L_............
09/30/83 09/30/83
11110187 09/30/85
12/09/76 06/07/83
l2/09/78 07/16/79
01/28 /83 05113182
06/28/79 06 103/81
06/23/81
11/02178 09107/84
08131/78
04/13(82 04113/82
08/13180
09/28/84 , 06/14/82
Geor a .. _.. . .....__._......._.... ..... ... ._.__.._ .. ....
.._.
IIlIno,s’ .._._ . ._....__. — —..——..—- ———.—..—..———.—..———..—.—.—.——-.——-..—.—..—— ._...__.
Ind ia na ... —. ...._............. .. ...._
...............
Kasisas........_......_........ — .._.
ICeniucky’ . .__...._...
Masy land..__ —— . ‘.______________ ........._._
Michigan..... .._....__. ._.___. . ..................._........... ._..._.._._
Mitvieeota I - ...___._..._
Mi mtc . .... ...... ._..
Moroigi’ . ....._.......
Netraska’..................
Nevada... .. .._....._
NewJersey’ ..._...
New Yoik
._ . ....__ ,._._...._ —
No Cao lina..._......... ,_.. . .. ,_..........._.. ,. . .... ,._............._.___....___
Noitti Oakota......._.._____ —.—--—-————.——--.-——__________________________________
Ohio.......... ._.__.. . .......... .. ,._...__
01/20/83 07/27/63
03/02/79 03/12/81
08/30178 .. .._..
09/17 04 09/t7’04
09/26/80’ 04.09/82
........_..._.....J 08/10/83
07/07/87 07/07/87
.... — 03/16/82
.___ . . _.:_...__....
02/09/82 04114189
.... 09(30/88
05/10/82’ 05/10/02
11128/79 l2/24”
05/18/81
Oregon’.. ..... .... _. _.... . ...... . . . ...__..
Penns 4vanis.. — .. . ...... . .._ — .. .. ...._.......
Rhode Isl a nd’ .._._____________
South
Tennessee.._... — ..—..—..——.....—..-.-...--———-—————
Utah ‘ ,........_._....... . — .. .............._...
Vermom.. .. ...__. .. ..........__..._.._.. . ...
Wgrn Islands....._..... ... . .... .
Virgims.........__............ —_________________
WajIwl4un’
Weal Vv 9m’ —
Wtsewmi’ — —_________________________
-------
40178
Federal Register I VoL 54. No. 188 / Friday. September . 1989 / Notices
purchased from EPA at the dose of the
comment period. Copies will be
available for public inspection at the
EPA Region VII I office. 999 18th Street,
Denver. CO. after the close of the
comment period. The cost of a copy will
correspond directly to the costs of
photocopying the number of pages
enclosed within the transcript.
All written comments as well as
Information offered at the hearing will
constitute a part of the hearing file
which will become part of the
administrative record upon which the
Regional Decision Officer s
determination will be based.
GAllS: Written comments should be
submitted to the Hearing Officer at the
lime of the hearing, or to the person
listed under “ADDRESS’, below, no later
than November 17. 1989.
ADDRESS: Comments should be sent to
Mary Alice Reedy, Records Clerk. U.S.
EPA. Region VIII. 8WM-SP, 999 lath
Street. Denver. CO. 80202-2405.
FOR FURTHER INFORMATION CONTACT:
Dr. Gene Reetz, EPA. Region VIII. 8WM—
SP. 999 lath Street, Denver. CO. 80202—
2405. (303) 293—1570. If you wish to
receive a copy of the public notice
entitled “Proposed Determination to
Prohibit. Restrict or Deny the
Specification, or the Lisa for
Specification, of an Area as a Disposal
Sitm South Platte River. Jefferson and
Douglas Counties. Colorado’ publish on
September 5, 1989. please contact Ms.
Reedy and a copy will be mailed to you.
$UPFUMENTARY INFORMATIOfC The
September public notice entitled
“Proposed Determination to Prohibit.
Restrict or Deny the Specification, or the
Use for Specification, of an Area as a
Disposal Sitm South Platte River.
Jefferson and Douglas Counties.
Colorado” reviewed the 404(c) process,
provided a description of the subject
action, discussed the basis for the
proposed determination and solicited
comments.
During the scheduled hearing. EPA
would like to obtain comments on the
Proposed Determination. In particular.
comments on the likely adverse Impacts
to fish, wildlife and recreational values
of the rivers, streams, and wetlands In
all areas which would be affected by the
construction and operation of Two
Fork. dam and reservoir are requested.
All relevant data, studies, knowledge of
studies, or informal observations are
appropriate. Where comments or
materials have been previously
submitted to EPA. they will be included
in the administrative record. If desired.
participants may reference them by title
and date of submission rather than re.
submitting them.
While the significant loss of aquatic
and recreational values and the
availability of less damaging practicable
alternatives serve as EPA’s main bases
for this proposed 404(c) determinatIon.
EPA Region VII I has additional concerns
with the proposed project. including
water quality impacts, threatened and
endangered species, alternatives and
project need. Therefore, EPA also
solicits comments on the following
aspects of the project
(1) The potential for the Two Forks
dam and reservoir project to violate
State water quality standards,
especially as related to potential
channel stability alterations;
(2) Whether, based on information
collected since preparation of the
biological opinions, the threatened and
endangered species consultation should
be reinitiated for any of the species
potentially affected by the Two Forks
dam and reservoir project
(3) Information on the wildlife species
which would be affected by changes in
the aquatic ecosystem:
(4) Information on the recreational
uses which would be affected:
(5) Information on the availability of
less environmentally damaging
practicable alternatives to satisfy the
basic project purpose of municipal and
industrial water supply, taking into
account cost. technology, end logistics.
and including other alternatives which
do not require the discharge of dredge
material into the waters of the United
States;
(6) Whether the discharge should be
prohibited forever, allowed as proposed
by the COE. or restricted in time, size or
other mannen and
(7) Information on recent population
projections by DRCOG. information on
what criteria Denver should utilize to
supply water under its charter
obligation, and the affect of planning
uncertainties on water supply planning.
Dated. September 21. 1989.
I.e. A. DeHthns. DL
Re g:ono! Decision Officer.
(FR Doc. 89-230W Filed 9-26-59. 845 dm1
— . ccc i MIO-8S -
(FRL-3853-2 1
Relsauance of General NPDES Permit
for Seafood Processors In the State of
AGENCY Envrionmental Protection
Agency.
ACTIOIC Notice of the reissued general
NPDES permit for Alaskan seafood
processors (No. AK-&-52-4]000) .
SUMMARY: The Regional Administrator
of Region lois today reissuing the
general National Pollutant DIscharge
Elimination System (NPDES) permit for
seafood processors in Alaska. The
general permit establishes effluent
limitations, monitoring requirements.
and reporting requirements for
discharges from Alaskan seafood
processors. This permit will cover
mobile and shore.based seafood
processing facilities in all waters under
U.S. jurisdiction off the coast of Alaska.
other than those waters listed as
excluded areas.
On May 18. 1989. Region 10 of the
Environmental Protection Agency (EPA)
published in the FEDERAL REGISTER (54
FR 21470) a notice of the draft general
permit (proposed reissuance) which is
being reissued as a final permit today.
Todaye notice includes a copy of the
final permit and the Agency’s response
to comments.
DATES: The reissued permit is effective
October 30, 1989. En order to be covered
tinder this reissued permit. facilities
must submit to EPA a “Notice of Intent
to be Covered” no later than 30 days
after today’s reissuance date, unless this
information has aLready been submitted
for the 1989 processing year. New
facilities are required to submit the
Notice of Intent at least 30 days prior to
commencement of operations. The
required information in the Notice of
Intent Is described In part ll.C. of the
permit.
ADDRESS: Submittala related to this
permit should be sent to the following
address: Environmental Protection
Agency. Water Permits and Compliance
rai1 h. WD- 134, 1200 Sixth Avenue.
Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT:
Ben Cope. Region 10, at the Seattle
address above or by telephone at (208)
442-1442 or F l’S 399-1442.
Dated. September 22. 1989.
Robert S. Burd,
Acting RegjanalAdmin,sirotor. Riig,on JO.
SUP EMEPITARY INFORMATIOIE
A. State Certification and Coastal Zone
Management Act
In accordance with Section 401 of the
CWA. the Alaska Department of
Environmental Conservation (ADEC)
has conditionally certified that this
reissued general permit will comply with
the Alaska Water Quality standards. All
of ADEC’s conditions have been
incorporated into the final permit.
The Alaska Division of Environmental
Coordination has determined that the
general permit is consistent with the
-------
Federal Register / VoL 54, No. 188 / Friday, September 29, 1989 / Notices
40179
Aiaska Coastal Management Program
provided that the ADEC conditions are
included in the permit.
B. Response to Cn .mveant 5
The public comment period for the
General Permit for Alaskan Seafood
Processors began May 18. 1989. and
expired on June 16. 1989. Comment
letters were received from the following
parties: East Point Seafood Company.
Bering Sea Fishermen’s Association.
Bogle and Gates. Alaska Trollers
Association. State of Alaska.
Department of Environmental
Conservation. Douglas and Janice Latta.
Clark Eaton. Donald E. Power. Walkers
Alaskan Seafood. Stan Wood. Eyak
Packing Company, U.S. Fish and
Wildlife Service.
Significant comments received during
the public comment period were
reviewed by EPA and considered during
finalization of the general permit As a
result, several changes have been made
to the final permit. The responses to
these comments are as follows:
1. Comment: It was requested that the
permit exclude discharges to lakes.
Response: The permit has been
revised in this manner, based on the
extremely poor flushing characteristics
of lakes.
2. Comment One cominenter
recommended that the terms ‘vicinity”
and “poor flushing” be defined in the
permit
Response: The term “vicinity” has
been defined as one mile in the permit
‘Poor flushing? is defined as “lacking
currents, flows, and/or tidal forces to
adequately disperse pollutants.”
3. Comment It was requested that the
permit language regarding foam be
revised to prohibit the discharge of foam
in accordance with the state water
quality standards.
Response: In accordance with state
standards, foam is now prohibited from
discharge.
4. Comment It was requested that
dive surveys be required for processors
using fine sereena. based on past water
quality impacts from sereened
discharges.
Response: The state certification
stipulates that dive surveys shall be
required for processors using smeens.
The final permit has been changed
accordingly.
5. Comment It was recommended that
chlorine samples be obtained during
plant washdown, when chlorine-based
solutions are often used to sanitize
equipment. In addition, it was
recommended that the permit authorize
EPA and ADEC to modify the permit if
chlorine samples indicate violations of
state water quality standards.
Response: EPA agrees with both
comments. Chlorine sampling is now
required during washdown. and a permit
reopener clause for chlorine has been
added to the permit
8. Comment.’ It was requested that
water used to transfer seafood to the
facility be routed through the
wastehandling system (i.e.. the outfall)
in enclosed harbors, based on concerns
over foam generation.
Response: The permit already requires
the discharge of fish transfer water
through the wastehandling system if
discharges through separate
conveyances are not in compliance with
state standards.
7. Comment It was recommended that
weekly rather than monthly sampling for
chlorine be required in the permit
Response: Based on the state
certification, weekly sampling (for one
year) is required in the permit.
8. Comment One commenter
requested clarification of the sampLing
requirements presented in attachment 3.
It was asked whether all freshwater
streams are included under these
scenarios. In addition, the commenter
asked if additional samples would be
required if waste accumulations are
discovered, in order to delineate the
extent of accumulation. Finally, it was
rioted that a diagram under part II was
absent from the draft permit
Response: Freshwater dischargers are
required to conduct bottom sampling.
unless a waiver is obtained based on
site-specific information (most likely
high flow velocities and/or sample
collection problems). The permit has
been revised to require freshwater
facilities tsi ,,follow the second sampling
scenario. This will Insure that the
discharge point and at least one
downstream location are sampled (the
diagrain’ih now included). If bottom
samples reveal accumulated seafood
wastes, the permit authorizes EPA and
ADEC to require additional sampling
(part ILB.5).
9. Comment It was recommended that
the permit be clarified with regard to the
discharge of graywater. The commenter
noted that the discharge of graywater
from shore based facilities must receive
the same treatment as sewage.
Response: “Graywater” is defined in
the permit as a wastewater generated on
a vessel. The permit therefore authorizes
the discharge of graywater without
treatment only from a vessel. Similar
wastewaters generated in a shore-based
operation are considered sanitary
wastes and must meet the permit
requirement for those wastes. The
phrase “vessels only” has been added to
the section authorizing the discharge of
graywater for clarification. In addition. a
definition for “sanitary wastes” has
been added to the permit
10. Comment Several comments were
received which pertain to EPA’s
proposal to extend coverage under this
permit to all processors in Alaska. The
expiring permit excepted from coverage
processors who met the following
criteria:
A. Discharge less than four tons per
day of processing waste:
B. Discharge at least ½ mile off-shore
from the outer coast at a depth of at
least 42 feet
C, Discharge at least 300 yards away
from any other vessels so as not to
cause a nuisance in general
D. Do not discharge in bays. harbors.
inlets. ccves, lagoons or other protected
areas a the Alaska coast; and
E. D i i cause any floating solids,
visible un in other than trace amounts
or oily . . astes which produce a sheen on
the surface of the receiving waters.
Several coinmenters stated that small
processors will be significantly
impacted by this change to the permit.
They commented that an unreasonable
financial and operational burden is
placed on small processors and catcher-
processor vessels to meet the 0.5 inch
discharge limitation. In particular. it was
noted that trolling vessels may not have
the physical space and generator
capacity needed to operate a grinder.
These vessels are highly mobile and
generate less than 1000 pounds of
seafood waste per day. It was also
noted that the discharge of small
amounts of seafood waste at sea is not
causing environmental degradation.
Response: The expiring general permit
for Alaskan seafood processors
excluded from coverage facilities that
discharged less than four tons per day of
seafood waste at sea. However, the
exclusion of processors from the general
permit did not exempt them from the
requirement to have a NPDES permit or
the requirement to meet a 0.5 inch
discharge limitation. The Clean Water
Act requires anyone discharging
pollutants to waters of the United States
to obtain an NPDES permit For remote
Alaskan seafood processors, EPA
regulations have required compliance
with a 0,5 inch discharge limitation since
their final promulgation In 1975.
EPA and the state of Alaska are
concerned about the large number of
medium to small discharges which have
been lett largely unregulated in Alaska.
In addition, some environmental groups
are concerned about environmental
problems resulting from unregulated
minor discharges. Rather than requiring
Individual permits for small seafood
processors. EPA proposed to cover all
-------
40180
Federal Register I VoL 54. No. 188 I Friday, September . 1989 / Notices
processors under the reissued general
permit. This change would enable small
processors to obtain NPD permits
without submitting lengthy application
materials and completing the
administrative process for reissuanee of
individual permits. Currently, the state
uniform application for seafood
processing is accepted as the “Notice of
Intent to be Covered” under the general
NPOES permit, and no other submittals
are needed to obtain coverage. This
greatly reduces the paperwork burden
and time reqwrements for the permittee.
After reviewing the comments
described above, we are now proposing
changes to the permit with regard to
coverage of small processors at sea.
These sources are not expected to cause
environmental problems. In addition,
EPA acknowledges that trolling vessels
may face unique problems complying
with the general permit. Therefore.
based on these comments, the proposed
permit now excludes from coverage
vessels discharging less than 1000
pounds of seafood waste per day at sea.
11. Comment: On comxnenter noted
that the expiring permit contained a
clause prohibiting the discharge of
floating solids ‘in other than trace
amounts.” The proposed permit
prohibits any discharge of floating
solids. The comI ’t.f ter requested that
the phrase “In other than trace
amounts” be restored in the permit.
Response: The Alaska state standards
prohibit the discharge of floating solids.
There is no reference to “trace amounts”
in the standard. Therefore, the permit
remning unchanged.
12. Comment: One co,r ,mn ,Iter stated
that the requirement for additional
bottom sampling in the Kenai River.
Kasilof River and all freshwaters was
not supported in the fact sheet La
addition. it was suggested that the
language under this part be clarified to
read “and all freshwaters not tidally
Influenced.”
Response: The Kenai and Kasilof
Rivers are now ex thub d from coverage,
based on the state certification (see
comment *17). WIth regard to
clarification of the definition of
“freshwa:er.’ the term is already
defined in the permit as ‘water not
subject to tidal influences” (part ILF).
13. Comment: Two commenters
objected to the provision prohibiting
discharges from vessels docked at or
otherwise tied up to the permittee’s
facility. It was stated that permittees do
not have control over the activities of
vessels docked at a facility, since the
vessels are not usually owned by the
permittee. The ccnnmenters stated that
EPA must regulate vessels docked at
processing facilities under a sepaate
permit or action. They recommend that
this provision be deleted from this
permit.
Response. EPA acknowledges that
discharges from vessels may be more
appropriately controlled by direct
regulations of the vessels rather than
stipulations in the processing facility’s
permit. Therefore, this condition has
been deleted from the permit However,
itis important to note that untreated
seafood accumulations near a seafood
processing facility constitute a violation
of the Clean Water Act, and their
proximity to the processor lands strong
weight to the culpability of the
processor. In addition. any vessel
discharging seafood water without a
permit (such as dumping of “dead loss”
near a processor) is subject to an
enforcement action. Processors should
monitor the actions of vessels docked at
seafood processing facilities to insure
that unlawful discharges do not occur
(and are reported if they do occur).
14. Comment It was stated that trade
secrets will be revealed if permittees are
required to submit information an
processing locations and raw production
of seafood. It was also commented that
this information is not necessary and
that daily records are not required under
individual permits.
Response: In accordance with 40 CFR
Part 2 (Public Information), any
monitoring information submitted to
EPA may be claimed as confidential by
the perinittee. The claim must be made
at the time of submission. If a third party
requests this information. EPA will
require the permittee to submit an
explanation of the casual relationship
between disclosure of the information
and any resulting harmful effect on the
business competitive position. EPA will
then make a determination as to
whether the business information ii
entitled to confidentiality treatment
Regarding the necessity of these
submittals. permittees are required
under the NPDES program to submit to
EPA the locatioa of each outfall (40 CFR
122.21). SInce mobile facilities are
covered by the permit each discharge
location must be reported. This
information is also needed to determine
compliance with excluded areas in the
permit. Monatormg of raw product
processed is necessary to determine
compliance with the limitation on
quality of waste discharged. Finally,
individual permits do require submittal
of daily production data in most cases.
15. Comment One commenter stated
that submittal of daily processing
records will create a paperwork burden
on the processor.
Response: Processing records can be
summarized into a concise format that
will not create an undo burden.
16. Comment It was commented that
the daily maximum limit on the amount
of waste discharged is a limit on the
production potential of a facility.
Response. The maximum production
capacity of the facility is not limited to a
fix level by the permit. The permit does.
however, require the applicant to
discharge in accordance with the
application (Notice of intent to be
Covered). Any increase in production
capacity anticipated by the permittee is
automatically authorized, if the
permittee updates the Notice of Intent
with the new production information
and EPA determines that the increase
will not necessitate issuance of’ an
individual permit.
17. Comment: The state of Alaska
requested that the Kenai River. Kaailof
River and Alsek River be excluded from
coverage under the general peruut. Both
the Kenai and Kasilof Rivers are
considered priority streams based on
their multiple uses, including sport ar.d
subsistence fishing. The state
commented that it needs to select
discharge and monitoring conditions on
a site-specific basis. On the Alsek River,
the state has required a processor to
landfill seafood wastes in order to
protect a set net fishery downstream of
the processor. Since grinding of seafood
wastes is unacceptable in this area, the
state requests that this river be excluded
from coverage.
Response: Based on the state
certification, the rinal permit excludes
these rivers from coverage. lndivulual
will be required for these
receiving waters.
18. Comment: It was commented that
separate general permits should be
issued for shore-based and mobile
processors. based on the differences in
the nature of the operations and the
discharge locations.
Response: EPA has determined that
above mobile and shore-based facilities
can be adequately covered under a
single general permit The permit
conditions are designed to account for
different processing scenarios, and these
conditions would not change if the
permit was to be divided In the manner
discussed, For simplicity, both are
covered in the final permit.
16. Comment: It was requested that
the minimum depth for discharges in
areas with poor flushing be iiicreased
from 42 feet to 60 feet to protect bottom-
dwelling marine resources. It was also
recommended that discharges be
located a minimum distance of one-ha U
mile from special concern areas.
-------
Federal Register I VoL 54, No. 188 / Friday, September 29, 1989 / Notices
40181
Response: No evidence has been
supplied to EPA Indicating that an
additional 18 feet of depth at the
discharge point will measurably reduce
the impacts of seafood waste
discharges. Therefore. this condition
remains unchanged. With regard to
discharge in the vicinity of special
concern areas. EPA agrees to exclude
discharges within one-half mile from
special concern areas. The permit has
been changed accordingly.
20. Comment.’ One coinmenter stated
that wastes from herring roe stripping
operations should not be authorized for
discharge: instead. EPA should require
reduction of the waste to produce fish
meal. Discharging of the fish carcasses
was stated to be a waste of the resource.
Response: EPA cannot require any
limitation more stringent than the
guideline limitation (0.5 inch size
limitation), unless discharges are
causing a violation of state water
quality standards. EPA has no authority
to control the use of fishery resources.
By-product recovery can only be
required if reductions in the amount of
waste discharged are necessary to meet
state water quality standards.
21. Comment. One commenter
suggested that suriml processors be
required to obtain individual permits
until adé4uateinformatlon regarding the
characteristics of surimi wastewaters is
acquired. -
Response: Although detailed
information on the characteristics of
surimi wastewater Is not available. it Is
expected thurthe contribution of
nutrients from these operations is not a
malor component of the discharge in
comparison to the ground (In most
cases) seafood wastes from the filleting
process. Therefore. EPA has determined
that surimi operations will be covered
under the general permit. It Is Important
to note that EPA can require an
individual permit for surimi plants if
these discharges are causing an adverse
environmental Impact.
22. Comm en t,• It was recommended
that periodic inspection of outfalls be
conducted during dive surveys to Insure
that breakage points are repaired.
Response: The permit already requires
that the dive survey report submitted to
EPA Include a description of the outfall
condition. Since most permittees will
only perform one dive survey over the
five-year term of the permit, an annual
dye test of the outfall is required in
order to determine if there are any
breaks in the outfall in the four
remaining years of the permit.
23. Comment. One commenter stated
that violations of permit conditions have
been documented by dive surveys. In
which large accumulations of seafood
waste in excess of 0.5 Inch In size were
observed. It was stated that these.
violations have not resulted In penalties
to the responsible parties. It was
recommended that these parties be fined
for violations.
Response: In the past two years. EPA
has fined .13 companies for violations of
seafood processing permits. Moat of
these penalties were levied as a result of
Information collected during dive
surveys at the facilities by EPA
personneL EPA will continue to levy
administrative penalties on facilities
that violate permit conditions. and the
Agency encourages outside parties with
documented evidence of violations to
submit that information to EPA.
C. Final Permit
General Permit No.: AX-G-52-0000. United
States Env ronmentaI Protection Agency.
Region 10. 1200 Sixth Avenue. Seattle,
Washington 98101.
Authorization To Discharge Under the
National Pollutant Discharge
Elimination System for Alaskan
Seafood Processon
In coinpllance.with the provisions of
thb Clean Water Act. 33 U.S.C. 1251 et
seq.. as amended by the Water Quality
Act of 1987. Public Law 100-4. the “Act”.
Owners and operators of facilities
engaged in the processing of seafood.
both mobile vessels and shore-based
facilities, except facilities identified In
part! hereof, are authorized to discharge
to waters of the State of Alaska and
waters of the United States adjacent to
State waters. In accordance with
effluent’flmitations. monitoring
requirements. and other conditions set
forth herein.
The existing (or continued under the
A.Iniuiiiitrativa Procedures Act) general
permit is Invalid as of the effective date
of this reissued general permit.
A copy of this general permit must be
kept at the plant or vessel where the
discharges occur.
This permit shall become effective
October 30. 1989.
This permit and the authorization to
discharge shall expire at midnight. on
October 31. 1994.
Signed this 28th day of September 1989.
Robert S. Burd.
Director. Water Division. Region 10 u.s.
Environmental Protection Agency.
Table of Contents
Cover Sheet—Issuance and Expiration
Dates
L Exclusions from this General Permit
A. Excluded Areas.
B. Discharges in Areas of Concern.
C. Discharges to Fresh Water In the Vicini-
ty of Drinking Water Sources.
0. Discharges to Lakes.
E. Minor Discharges at Sea.
F. Waivers.
IL Effluent Limitation.. Monitoring and Re-
porting Requirements. and General Permit
Conditions
A. Effluent Limits.
B. Monitoring Requirements.
C. Reporting Requirements.
0. General Permit Conditions.
3. Reopener Clause.
F. Definition..
IlL Standard Monitoring end Reporting Re-
quirements
A. Representative Sampling.
3. Monitoring Procedures.
C. Reporting of Monitoring Results.
0. Additional Monitoring by the Permittee.
E. Records Contents.
F. Retention of Rermds.
C. Notice of Noncompliance Reporting.
H. Other Noncompliance Reporting.
I. Inspection and Entry.
IV. Compliance Responsibilities
A. Duty to Comply.
B. Penalties for Violations of Permit Condi-
tions.
C. Need to Halt or Reduce Activity not a
Defense. -
D. Duty to Mitigate.
3. Proper Operation and Maintenance.
F. Removed Substances.
C. Bypass of Treatment Facilities.
H. Upset Conditions.
L Toxic Pollutant..
V. General Requirements.
A. Changes in Discharge of Toxic Sub-
stance..
B. Planned Changes.
C. Anticipated Noncompliance.
D. Permit Actions.
3. Duty to Provide Information.
P. Other Information.
C. Signatory Requirements.
H. Availability of Reports.
L Oil and Hazardous Substance Liabilily.
J. Property Rights.
K. Severability.
I. Transfers.
M. State Laws.
Attachment I
Attachment 2
Attachment 3
I. Exclusions From This General Permit
A. ExciudedAreas.
This permit does not authorize
dlecharges in the following areas:
Akutan: Akutan Harbor. if the amount of
waste exceeds 310.000 pounds per
month
-------
4O1
Federal Register I Vol. 54, No. 188 I Friday, September 29. 1989 I Notices
Kodlaic Gibson Cove. Near island
Channel. St. Paul Harbor. and
Women’s Bay
Unalaska/Dutch Harbos illuliuk Bay.
Iliuliuk Harbor Dutch Harbor, and
Captains Bay Unalaska Bay. south of
the northermoat point of Hog Island
Kenai Peninsula: Kenal River and
Kasilof River
Yakutat: Alsek River
B. Discharges in Areas of Concern.
This permit does not authorize
discharges in the following areas:
1. Areas with water depth less than 42
feet that are likely to have poor flushing
(including, but not limited to protected
areas such as bays, harbors, inlets,
coves, and lagoons). EPA and the
Alaska Department of Environmental
Conservation (ADEC) shall determine
the adequacy of flushing on a case-by-
case basis. or
2. Within one-half mile of areas of
special concern (La,, spawning areas.
State Critical Habitat Areas and Game
Refuges. National Wildlife Refuges. and
the seaward boundaries of Wilderness
Refuges. National Parks and
Monuments, and wilderness classified
lands).
C. Discharges to Fresh Water in the
Vicinity of Drinking Water Sources.
This permit does not authorize
discharges to fresh waters within one
mile (upstream) of drinking water
sources.
D. Discharges to Lokes. This permit
does not authorize discharges to lakes.
E. Minor Discharges at Sea. Vessels
discharging less than 1000 pounds of
seafood waste per day at sea are
excluded from coverage under this
general permit.
F. Waivers. A facility may request a
waiver to be covered under the general
permit in Unalaska Bay or Akutan
Harbor. Before such a request can be
considered, the permittee must, at a
minimum, submit the following
Information to EPA and ADEC:
l.A Notice of Intent to be Covered
2. A detailed bathymetric map
showing the facility location, outfall
location, receiving water, and
surrounding topography.
3. A detailed description of the
circumstances requiring discharges to
the excluded area (e.g.. short.tertn
processing) and the dates when the
facility will operate in this area.
4. A demonstration that the discharges
will not cause water quality
degradation, includ ing but not limited to
waste pile accumulations, aesthetic
Impacts. and shoreline impacts. Site-
specific water quality studies may be
required to make this demonstration.
A waiver cannot be granted unt,l after
consultation between EPA and ADEC to
determine that the discharge will meet
state water quality standards.
IL Effluent Limitations, Monitoring and
Reporting Requirements, and General
Permit Conditions
A. Effluent Limits.
1. Amount of Waste Dischaiyed The
amount of waste discharged per day
shall not exceed that which results from
processing the maximum quantity of
product reported in the Notice of Intent
to be Covered.
2. Treatment of Wastes.
a. Process Wastes: All process wastes
(as defined In II.?.) except as provided
for in e. below must be routed through
the wastehandling system.
b. Sanitary Wastes: AU sanitary
wastes must be routed Into the sanitary
waste treatment system. Nonfunctioning
and undersized systems are prohibited.
Sanitary wastes must be:
i. Discharged to a shore-based septic
system or a municipal treatment works.
or
ii. Treated prior to discharge by an
approved marine sanitation device that
complies with pollution control
standards and regulations under section
312 of the Act, or
iii. Treated to meet the secondary
treatment effluent limitations below’
WeeIiI
--
I5o,uN
-.-.
Oailp
manman
B oc?ienit.
45 mg/I.._
30 mg/i —
60mg/i
Cal
Oxygen
Dema
(BOO’).
To l
s
45 mg/i ....
30 mg/I
CO mg/I
pended
Sohdi
(TSS
c. Other Wastewaterm The foUowing
wastewaters need not be discharged
through the wastehandling system
provided these discharges have had no
contact with the process wastes, do not
contain pollutants in excess of 0.5 inch
In any dimension, and comply with part
ILA.4. of this permit: Cooling water,
boiler water, gray water (vessels only),
freshwater pressure relief water.
refrigeration condensate, water used to
transfer seafood to the facility, and live
tank water.
d. Garbage: Discharge of garbage.
especially plastics. is prohibited.
e. Scuppers and Floor Drains:
Incidental discharges from scuppers or
floor drains must be routed to the
wastehandling system or screened to 0.5
inch.
3. Effluent Limitation: Process
Wastes.
Process wastes may be discharged
only if they do not exceed 1.27 cm (0.5
inchj in any dimension.
4. LImitations on all Wostewater
Discharges: All wastewater discharges
shall meet the following limitations:
a. Environmental Effects:
i. There shall be no discharge oft (a)
0 iiy water or oily wastes that produce a
sheen on the water surface. (b) grease.
(c) foam or (d) floating solids.
ii. No wastes shall accumulate on the
shoreline nor float on the receiving
water surface.
b. Alaska State Water Quality
Standards: Discharges must not violate
any Alaska State Water Quality
Standards (18 AAC 70).
5. Discharge Location.
a. Process wastes must be discharged
into a receiving water with a minimum
depth of 20 feet at Mean Lower Low
Water (MLLW). Within this total water
depth, the point of discharge must be
located as specified below:
i. For facilities at sea, process was:es
must be discharged below the water
surface.
ii. For facilities near shore. process
wastes must be discharged at least 10
feet below the water surface at ? [ LLW.
b. A facility may request a waiver to
discharge at shallower depths than
specified in (a) above. The waiver
request must be submitted. with
adequate justification, with the Notice of
Intent to be Covered (part ILC.1.).
Waivers and waiver requgsts shall be
kept onsite and be available to
inspectors.
Adequate justification must include:
(i) ft demonstration of the need to
,di iarge at a shallower depth (such as
physical constraints at the discharge
location). (ii) bathymetric map showing
the discharge location, (Iii) any history
of impacts fro seafood wastes. (lv)
maximum and average current strength
(if no measurements have been made.
estimates may be used) in the vicinity of
the discharge. and (v) a proposed
alteniate discharge location to be used if
the existing location results in any
documented environmental effects.
c. Caae-by-case adjustments of the
discharge location may be required by
the Director, following consultation with
ADEC. to prevent benthic and shoreline
accumulation of pollutants and to
promote their dilution and dispersion.
d. There shall be no discharge if the
outfall line is severed or fails.
B. Monitoring Requirements.
L Daily Records. The following sha!!
be monitored and recorded DAILY for
each process waste discharge location.
These records form the basis for the
Annual Report. They shall be kept at the
-------
Federal Register! VoL 54 No. 188 / Friday. September 29, 1989 / Notices
facility and be made available to any
authorized uispecton
a. For each finished product
L Type of product (e.g.. canned
salmon. 0 p 111 o crab sections, siarimi. cod
fillets. fish meaL oil. etc.)
ii. Pounds of aw produci (including
any spoiled product subsequently
discharged)
iii. Pounds of finished product
b. Visual inspection of the water
surface and shoreline for the presence or
absence of floating solids. garbage.
grease. foam, or oiiy wastes that
produce a sheen on the water surface.
a. None of the receiving waters and
specific location of the discharge on the
rirst day at each new location.
2. Dive Surveys: The objective of the
dive surveys is to document the extent
of any seafood waste accumulation, the
dispersion of the waste, and any
impacts on the benthic comnimuty and
water column.
a. Two dive surveys ate requited
during the term of this permit to assess
the environmental effects of any wastes
and their persistence between
successive processing seasons.
I. The first dive must be conducted at
each discharge location in the first year
the facility operates under this permit.
within 15 day. after the end of
processing at each location, but no later
than December 30 of that first year.
ii. The second dive must be conducted
prior to processing in the second year
the facility operates under this permit.
iii. For facilities that operate
continuou 11ese than a two month
break in processing), the second dive
must be conducted in the month of
December in the second year the facility
operates under this permit.
b. Two dives per year are required in
the following areas (on the dates
prescribed in a. above ): Ijnalaska Say.
Akutan Harbor. Wrangell Narrows, and
Orca Inlet
c. Dive Survey Reports. Each survey
shall result in a report to EPA and
ADEC which includes, at a ,! inI!lIum.
the information in attachment 1.
di Dive surveys are NOT required for
any of the followin;
I. Low volume discharges (less than
500 pounds per day of seafood waste).
ii. Deep discharges (depths greater
than 90 feet).
iii. Hazardous diving conditions (low
visibility. freacherous currents, or other
conditions that unduly compromise
diver safety). A detailed explanation of
local conditions must be provided with
the Notice of Intent to be Covered (part
II.c.14.
‘recalls. thai operate continuously in the..
eve .. eti.lt cenduct dives in October end April.
iv. Low frequency discharges (less
than 30 days cumulative per location per
year), unless the facility operates wider
a waiver in an excluded area (part LA.).
N.tm When d lv . surveys ate waived under
1. ii or ill, above, bottom sampling is required
(part 1 1 5.3 1.
3. Bottom Sampling: When dive
surveys are waived under parts 11. 5.24,
(i), (ii) or (iii) above, bottom samples
shall be obtained and a report submitted
to EPA and ADEC
a. Two bottom samples are required
during the term of this permit to assess
the environmental effects of any wastes
and their persistence between
successive processing seasons.
I. The first sample must be collected at
each discharge location in the first year
the facility operates under this permit.
within 15 days after the end of
processing at each location. but no later
than December30 of that first year.
IL The second sample must be
collected prior to processing in the
second year the facility operates under
this permit
iii. For facilities that operate
continuously (less than a two month
break in processing), the second sample
must be collected in the month of
December in the second year the facility
operates under this permit.
b. T*o bottom samples per year are
required for all facilities discharging to
fresh waters (on the dates prescribed in
a. above).
c. Samples shall be collected from the
bottom of the receiving water at the
locations shown in attachment 3.
di A grab sampler (dredge), core
sampler. ap underwater device that
takes video or still photographs, or any
similar device (provided it can meet the
sampling objective and is approved by
the Director) may be used.
e. A report shall be submitted to EPA
and ADEC that includes the information
In attachment 2.
f. A facility may request a waiver of
the bottom sampling requirement. The
waiver request must be submitted, with
adequate jutificatfon. with the Notice of
Intent to be Covered (part II.C1J.
Waivers and waiver requests shall be
kept onsite and be available to
inspectors.
4. Waste Pile Accuradatio,w If dive
surveys or bottom samples uidtcate the
presence of a persistent (year.rounil)
waste pile on the bottom of the receiving
water, the facility shall submit a written
request for a state-designated zone of
deposit to EPA and Alaska Department
of Environmental Conservation (ADEC).
The request shall idude the dive survey
or bottom sampling report. A detailed
rationale shall support the request.
including a discussion of alternative
disposal and treatment options along
with associated coat and operational
considerations. Requests shall be
submitted within 30 days of the second
dive survey or bottom sample.
Within six months of any ADEC
decision on the above request. the
facility shall be in compliance with the
stipulations of that decision.
5. Additiono) Dives and Boitoin
Samples: Additional dives or bottom
sampling may be required when any of
the following occur
a. Wastes on the bottom appear to be
accumulating.
b. The facility Increases the amount of
waste discharged beyond the amount
estimated from the information in the
Notice of Intent to be Covered.
c. The facility moves to a new
location.
6. Totoi Re.siduoi Chlorine Monitoring
(shore-based and near-shore facilities
only): Effluent samples shall be
collected and analyzed for total residual
chlorine once per week for one year.
Samples shall be taken during
wasbdown. This requirement may be
waived if process water is not
chlorinated and disinfection solutions
used during washdowu do not contain
chlorine. Adequate justilictioc for a
waiver shall be submitted with the
Notice of latent to be Covered.
If discharges of chlorine from facilities
covered by this permit exceed Alaska
water quality atand ds. this permit may
be reopened to include chlorine
limitations, dechlorination. use of
alternative sanitation chemicals.
additonal monitoring and/or a mixing
zone.
7.Dye Test Adye test of the
wastehandling system shall be conductd
once per year. Test results shall be
rcarded and retained on site.
If the dye test reveals leaks or
bypasses In the wastehandling system.
EPA and ADEC shall be notifled in
accordance with part flI.C. of the permit.
Repairs of the system shall be
completed within 30 days of the test. A
second test shall be conducted after
repairs are completed to confirm that
the system operates properly.
Facilities conducting annual dive
surveys are exempted from this
requirement.
8. Sqnztary WasSewater Facilities
subject to secondary treatment
limitations for sanitary wastes (part
Il.A2b.ill.) shall collect and analyze
grab samples for BOD and TSS once per
month to determine compliance with
limitations.
-------
40184
Federal ReEleter I VoL 54, No. 188 I Friday, September 29, 1989 I Notices
C. Reporting Requirements.
Penmttees shall submit the following
reports to EPA and ADEC:
1. Notice of intent to be Covered.
a. For existing dlscbargers, the Notice
of Intent must be submitted no later
than 30 days after the effective date of
this general permit. For new dischargers.
the Notice of Intent must be submitted
30 days prior to commencement of
operations.
b. The following information must be
lncluded
(1) NPDES permit number previously
assigned (if any) State seafood
processing permit number
(2) Owner name, address, phone
number
(3) Operator name, address, phone
number
(4) Facillty name, address, location.
vessel registration number, previous
facility and/or vessel name date of
purchase/transfer. number of employees
(5) Treatment Method: method of
treating seafood and samtary wastes.
method of garbage/plastics disposal.
depth of discharge below the water
surface, total water column depth at the
discharge location, water use diagram
(estimates of flows used In seafood,
processing, sanitary system, freezing.
etc.)
(6) ReceivIng Water(S): name of
receiving water(s), bathymetric map of
receiving water showing the, outfall -
location (near-shore facilities only), the
velocity, depth and width of the
receiving water at the outfall icoati on of
the nearest spawning areas, and the
distance of those areas from the outfall
location (freshwater facilities only).
(7) ProductIon Data: (for each type of
raw product processed), name of raw
product, type of finished product.
maximum quntity processed per day,
projected dates of each operating
season. and projected number of
processing days per season
c. Submittal (to EPA) of the State of
Alaska Department of Environmental
Conservation Annual Uniform Permit
Application for Seafood Processors, If It
Includes all of the Information in b..
above, will also satisfy this requirement.
d. Requests for waivers of
requirements for outfall depth, dive
surveys, bottom sampling, and/or
residual chlorine monitoring must be
submitted with the Notice of Intent.
Justification for these waivers Must
accompany the request.
Note The permits. may discharge to the
requested depth 00 days after submittal of
their request, unless ‘A or ADEC
disapproves this request.
2. Annual Repost An Annual Report
shall be submitted by the end of the
processing season or by January 31 of
each year. whichever is sooner, and
shall include the following:
a. Dive or Bottom Sampling Reports.
The ADEC Dive Survey Report Form
may be submitted jilt Includes all of the
information required in attachment 1.
b. Monitoring Results required under
part ll.B.6. and tl.B.8.
c. Dye Test Results required under
part II.B.7.
d. Production Data for the previous
year (a copy of the daily records will
suffice) including, for EACH location:
Dates of operations at each location.
production data (raw and finished
product for each type of product), and a
map showing the bathymetry at each
location (when locations are within ½
mile of shore or in less than 90 feet of
total water depth).
e. Summary of Periods of
Noncompliance. A summary of periods
of noncompliance during the year (e.g..
bypasses or breakdowns of grinders).
f. Updated Notice of Intent to be
Covered. A statement of any changes to
the information in the Notice of Intent to
by Covered (part ll.C.1.b.) for the
facility.
Please note signatory requirements
under part V.G. of this permit
3. Special Reporting Requirements in
Areas of Concern. Facilities discharging
to Unalaska Bay, Akutan Harbor,
Wrangell Narrows, and Orca Inlet shall
submit monthly Discharge Monitoring
Reports (DMRa) that include the
information in 2(b) and (d) above. The
remainder of the information above (a.
c. and e) may be submitted in an Annual
Report.
U. General Permit Conditions.
1. The Director may require any
permittee discharging under the
authority of this permit to apply for and
obtain an individual NPDES permit
wheni
a. The discharge Is a significant
contributor of pollution:
b. The permittee is not in compliance
with the conditions of this permit
c. A change has occurred In the
availability of the demonstrated
technology or practices for the control or
abatement of pollutants applicable to
the point source;
d. New effluent limitation guidelines
are promulgated for point source
covered by this permit
e. A Water Quality Management Plan
containing requirements applicable to a
such point sources is approved: or
f. An Individual Control Strategy (ICS)
is required under section 304(L) of the
Clean Water Act or
g, The point source(s) covered by this
permit no longer
(1) Involve the same or substantially
similar types of operationn:
(2) DIscharge the same type of wastes:
(3) Require the same effluent
limitations or operating conditions;
(4) Require the same or similar
monitoring: and
(5) In the opinion of the Director, are
more appropriately controlled under a
general permit than under individual
NPDES permits.
2. The Director may require any
permittee authorized by this permit to
apply for an individual NPDES permit
by notifying the permittee in writing that
a permit application is required. After
review of a Notice of Intent. ADEC may
request that an individual permit be
processed for that facility.
3. Any permittee covered by this
permit may request to be excluded from
the coverage of this general permit by
applying for an individual permit. The
owner or operator shall submit an
application together with the reasons
supporting the request to the Director rc
later than 90 days after the effecu e
date of the reissued permit
4. When an individual NPDES permit
Is issued to a permittee otherwise
subject to this general permit. the
applicability of this permit to that owne
or operator is automatically terminated
on the effective date of the individual
permit
5. A source excluded from a general
permit solely because it aleady has an
individual permit may request that the
Individual permit be revoked, and that i:
be covered by the general permit. Upon
revocation of the individual permit. the
,eraI permit shall apply to the source
E. Reopener Clause.
Upon promulgation of effluent
limitation guidelines applicable to the
facilities covered by this permit, the
permit shall be modlfle if the
guidelines contain limits different from
those contained in the permit
F. Definitions.
1. “Accumulation” refers to the
presence of any measurable amount of
seafood waste present on the bottom
substrate. For purposes of this permit,
measureable Is defined as a thickness ot
one centimeter or more.
2. “At sea’ means outside of protectec
areas such as bays, harbors, inlets.
coves, and lagoons. and t/s mile or more
from shore anywhere in the contiguous
zone, territorial seas, or open ocean out
to the 200 mile limit
3. “Bypass” means the intentional
diversion of waste streams from any
portion of a treatment facility.
4. “Contiguous zone” means the entire
zone established or to be established by
the United States under article 24 of the
-------
Federal Register I VoL 54. No. 188 / Friday. September , 1989 I Notices
40185
Convention of the Territorial Sea and
the Contiguous Zone.
5. “Daily Maxim muaeasa the
maximum value recorded during a
calendar month.
6. “Fresh Water” means water that Is
not subject to tidal influences.
7. “Grey Water” means wastewater
gcneraled from such sources as
showers. suiks, laundry areas. and food
preparation areas on a vesseL
8. “Monthly Avervge” Is the
arithmetic mean of samples collected
during a calendar month.
9. “Near shore” means at the
shoreline, less than ‘/i mile from shore.
or inside protected areas such as bays.
harbors. inlets, coves, and lagoons.
16. ‘Ocean” means any portion of the
high seas beyond the contiguous zone.
11. “Outfallsite”refern to the location
of the discharge into a particular bay.
habor. embaynient or other defined area
which is considered the receiving water
12. “Poor flushing” means lacking
currents, flows and/or tidal forces to
adequately disperse pollutants.
13. “Process wastes” refers to wastes
and waters resulting from processing
seafood Including, but not limited to.
cleaai g cutting, chopping. heading.
sliming. evisceration, mincing. transfer
within the facility. etc.
14. “Relocation” means moving the
vessel or mooring or anchoring at least
five (5) miles from the previous
dischazge.aile.
15. ‘ aniiaiy wastes” means
wastewatere and human body wastes
generated from such sources as toilets.
showers. sinks and food preparation
areas.
10. ‘ Shore-bosed ” means the facility
does not move up and down with the
tide.
17. ‘Tezritorial sees” means the belt
of the seas measured from the line of
ordinary Low water along that portion of
the coast which Is In direct contact with
the open sea and the lin, marking the
seaward limit of inhind waters and
extending seaward a distance of three
miles.
18. “Wastehandling system” refers to
that system used to collect, transfer.
treat (e.g.. grind, chop, remove .vta
screens. etc.). and dispose of process
wastes. The includes, but Is not limited
to. flumes. pipes, screens. grinders.
evaporators, centrifuges. outfalls. etc.
19. “Waters of the State of Alaska”
means the inland waters and the
territorial seas.
20. “Weekly Average” means the
anthmedc means of samples collected
during, calendar week.
II!. Standard Monitoring and Reporting
Requirements
A. Representative Sampiln.g. S mples
taken In compIinn !n with the monitoring
reqwrements established under part U
shall be collected from the effluent
stream prior to discharge into the
receiving waters. Samples and
measurements shall be representative of
the volume and nature of the monitored
discharge.
B. Monitoring Procedures. Monitoring
must be conducted according to test
procedures approved under 40 CFR part
136. unless other test procedures have
been specified in this permit.
C. Reporting of Monitoring Result.,.
Monitoring results shall be summarized
in the Annual Certification of
Compliance. Legible copies of these, and
all other reports. shall be signed and
certified in accordance with the
requirements of part VG.. S/gnat or,’
Requirements. and submitted to the
Director. Water Division and the State
agency at the following addresses:
onginal to: tJrnted States Environmental
Protection Agency (EPA). Region 10.-
1200 Sixth Avenue. WD- .135, Seattle.
Washington 98101.
If you process in Southcentral Alaska
(west of Icy Bay). send copy to: Alaska
Department of Environmental
Conservation (ADEC). Southcentral
Regional Office (SCRO), 3601 ‘C” Street.
Suite 1334. Anchorage, Alaska 99503.
If you process in Southp nAf Alaska
(east of Icy Bay), send copy tm Alaska
Department of Environmental
Conservation (ADEC . Southeastern
Regional ,Dfflce (SERO). P.O. Box 32420,
Juneau. Abujiki . 99903,
If you process in Northern Alaska
(north 2 f a line drawn between Cantwell
and Kodik), send copy tm Alaska
Department of Environmental
Conservation (ADEC), Northern
Regional Office, 1001 Noble Street, Suite
350. Fairbanks, Alaska 99701.
D. Additional Monitoring by the
Pennittee. If the persuittee monitors any
pollutant more frequently than required
by this permit. using test procedures
approved under 40 CFR part 138 or as
specified in this permit. the results of
this monitoring shall be included In the
calculation and reporting of the data
submitted in the DMR. Such increased
frequency shall also be indicated.
B. Records Contents. Record of
monitoring information shall Includsi
1. The date, exact place, and time of
sampling or measurements:
2. The individual(s) who performed
the sampling or measurements:
3. The date(s) analyses were
perfohned
4. The Individual(s) who performed
the analyses; -
3. The analytical techniques or
methods used; and
0. The results of such analyses.
F. Retention of Records. The peimittee
shall retain records of all monitoring
information. indudi.ng all calibration
and maintenance records and all
original strip chart recordings for
continuous monitoring instrumentation.
copies of all reports required by this
permit, correspondence concerning
waivers of dive or depth requirements.
and records of all data used to complete
the application for this permit. for a
period of at least five years from the
date of the sample, measurement, report
or application. This period may be
extended by request of the Director or
ADEC at any time. Data collected on’
site, copies of Discharge Monitoring
Reports, and a copy of this NPDES
permit must be maintained on-site
during the duration of activity at the
permitted location.
C. Notice of Noncompliance
Reporting
1. Any noncompliance which may
endanger health or the environment
shall be reported within 24 hours from
the time the permittea becomes aware of
the circumstances.
2. The following occurrences of
noncompIiAn !n shall be reported in
writing to EPA and ADEC within 5 days
from the time the permittee becomes
aware of the circumstances:
a. Any unanticipated bypass which
exceeds any effluent limitation in the
permit (See part P/C.. Bypass of
Treatment Facilities.); or
is. Any upset which exceeds any
effluent Limitation in the permiL (See
part IVJL. Upset Conditions.)
3. The written submission above shall
contain:
a. A description of the noncompliance
and Its causm
b. The period of noncompliance.
Including exact dates and times:
c. The estimated time nonccmpliance
Is expected to continue if It has not been
corrected; and
d. Steps taken or planned to reduce.
eliminate, and prevent reoccurrence of
the noncompliance.
4. The Director may waive the written
report on a case.by.case basis LI an oral
report has been received within 24 hours
by the Water Compliance Section in
Seattle. Washington. by phone. (206)
442—1213 or the Alaska Operations
Office In Anchorage at (907) 271—5083.
5. Reports shall be submitted to the
addresses In part IL’.C.. Reporting of
Monitoring Results,
-------
40188
Federal Register I VoL 54, No. 188 / Friday, September 29. 19 9 I Notices
H. Other Noncompliance Reporting.
instances of noncompliances not
required to be reported withIn 5 days
shall be reported at the time that
monitoring reports for part III.C. are
submit d. The reiiorts shall contain the
information us ted in part LILC.3.
• 1. Inspection and Entry. The perinittee
shall allow the Director. ADEC. or an
• authorized representative (including an
authorized contractor acting as a
representative of the Administrator).
upon the presentation of credentials and
other documents as may be required by
law, to:
1. Enter upon the permittee’s premises
where a regulated facility or activity is
located or conducted, or where records
must be kept under the conditions of this
permit:
2. Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit;
3. Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under this permit; and
4. Sample or monitor at reasonable
times, for the purpose of assuring permit
compliance or as otherwise authorized
by the Act, any substances or
parameters at any location.
IV. Compliance Responsibilities
A. Duty to Comply. The permittee
must comply with all conditions of this
permit. Any permit noncompliance
constitutes a violation of the Act and is
grounds for enforcement action; for
permit termination, revocation and
reissuance, or modification: or for denial
of a permit renewal application. The
permittee shall give advance notice to
the Director and ADEC of any planned
changes in the permitted facility or
acthnty which may result in
noncompliance with permit
requirements.
B. Penalties for Violations of Permit
Conditions.
1. Civil Penalty. The Act provides that
any person who violate, a permit
condition implementing section 301. 302,
306. 307.308. 318. or 405 of the Act shall
be subject to a civil penalty, not to
exceed $25,000 per day for each
violation.
2. Criminal Penalties:
a. Negligent Violations. The Act
provides that any person who
negligently violates a permit condition
implementing section 301. 302, 308, 307,
308, 318. or 405 of the Act: or negligently
introduces into a sewer system or into a
publicly owned treatment works any
pollutant or hazardous substance which
such person knew or reasonably should
have known could cause personal injury
or property damage or. other than in
compliance with all applicable federal.
state, or local requirements or permits.
which causes such treatment works to
violate any effluent limitation or
condition in a permit issued to the
treatment works under Section 402 of
this Act: shall be punished by a fine of
not less than $Z500 nor more than
$25,000 per day of violation, or by
imprisonment for not more than 1 year.
orby both.
b. Knowing Violations. The Act
provides that any person who
knowingly violates a permit condition
iznnplementing section 301, 302. 300, 307.
308, 318, or 405 of the Act or knowingly
introduces into a sewer system or into a
publicly owned treatment works any
pollutant or hazardous substance which
such person knew or reasonably should
have known could cause personal injury
or property damage or, other than in
compliance with all applicable federal.
state, or local requirements or permits.
which causes such treatment works to
violate any effluent Liziutation or
condition in a permit issued to the
treatment works under section 402 of
this Act: shall be punished by a fine of
not less than $5,000 nor more than
550.000 per day of violation, or by
imprisonment for not more than 3 years.
or by both.
C. Knowingly Endangerment The Act
provides that any person who
knowingly violates a permit condition
Implementing sectIon 301. 302, 306. 307.
308, 318, or 405 of the Act, and who
knows at that time that he thereby
places another person in imminent
danger of death or serious bodily injury,
shall, upon conviction, be subject to a
fine of not more than 5250.000 or
imprisonment of not more than 15 years.
or both. A person which is an
organization shall, upon conviction of
violating this subparagraph, be subject
to a fine of not more than 51.000.000.
d. False Statements. The Act provides
that any perosn who knowingly makes
any false material statement,
representation. or certification in any
application, record, report, plan, or other
document filed or required to be
maintained under this Act or who
knowingly falsifies, tampers with or
renders inaccurate any monitoring
device or method required to be
maintained under this Act, shall upon
conviction, be punished by a fine of not
more than $10,000. or by imprisonment
for not more than 2 years. or by both.
Except as provided in permit
conditions in partlV.G.. flyposs of
Treatment FaciI,t.es and part IV H..
Upset Conditions, nothing in this permit
shall be construed to relieve the
permittee of the civil or criminal
penalties for noncompliance,
C. Need to Halt or Reduce Activity
not a Defense. It shall not be a defense
for permittee In an enforcement action
that It would have been necessary to
halt or reduce the permitted 3CtiTh
order to maintain compliance with the
conditions of this permit.
D. Duty to Mitigate. The permit!ee
shall take all reasonable steps to
minimize or prevent any discharge in
violation of this permit which has a
reasonable likelthood of adversely
affecting human health or the
environment
E. Proper Operation and
Maintenance. The permittee shall at all
times properly operate and maintain all
facilities and systems of treatment and
control (and related appurtenances)
which are installed or used by the
perrnittee to achieve compliance with
the conditions of this permiL Proper
operation and maintenance also
includes adequate laboratory controls
and appropriate quality assurance
procedures. This provision requires thu
operation of back-up or auxiiiary
facilities or similar systems which are
installed by a permittee only when the
operation is necessary to achieve
compliance with the conditions of the
permit.
F. Removed Substances. Collected
screenings, solids. sludges. or other
pollutants removed in the course of
treatment or control of wastewaters
shall be disposed of in a manner such as
to prevent any pollutant from such
materials from entering waters of the
Uniteçl States.
.€iJypass of Treatment Facilities:
1. Notice:
a. AnticIpated bypass. If the permittee
knows in advance of the need for a
bypass. it shall submit prior notice, if
possible at least 10 days before the date
of the bypass.
b. Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass as required under
part IIJ.G., Notice of Noncompliance
Reporting.
2. Prohibition of bypass.
a. Bypass Is prohibited and the
Director or ADEC may take enforcement
action against a perinittee for a bypass,
unless:
(1) The bypass was unavoidable to
prevent loss of life, personal injury, or
severe property damagm
(2) There were no feasible alternatives
to the bypass, such as the use of
auxiliary treatment facilities, retention
of untreated wastes, or maintenance
during normal periods of equipment
downtime. This condition is not satisfied
-------
Federal Register I Vol. 54, No. 188 / Friday, September 29. 1989 I Notices
40187
if adequate back-up equipment should
have been installed in the exercise of
reasonable engineering judgment to
prevent a bypass which occurred during
normal periods of equipment downtime
or preventive maintenance: and
(3) The permittee submitted notices as
required under paragraph 2 of this
section.
b. The Director and ADEC may
approve an anticipated bypass. after
considering its adverse effects. if the
Director and ADEC determine that it
will meet the three conditions listed
above in paragraph 2.a. of this section.
H. Upset Conditions.
1. Effect of an upset. An upset
constitutes an affirmative defense to an
action brought for noncompliance with
such technology based permit effluent
limitations if the requirements of
paragraph 2 of this section are met. No
determination made during
administrative review of claims that
noncompliance was caused by upset.
and before an action for noncompliance.
is final adinuustrative action subject to
judicial review.
2. Conditions necessary for a
demonstration of upset. A perrnittee
who wishes to establish the affirmative
defense of upset shall demonstrate.
through properly signed.
contemporaneous operating logs. or
other relevant evidence thati
a. An upset occurred and that the
permittee can identify the cause(s) of
the upset
b. The permitted facility was at the
time being properly operated:
c. The pei€fttee submitted notice of
the upset as required underpart III.G..
Notice of Noncompliance Reporting:
and
d. The permittee complied with any
remedial measures required under part
(V.D.. Duty to Mitigate.
3. Burden of proof. In any enforcement
proceeding, the perinittee seeking to
establish the occurrence of an upset has
the burden of proof.
L Toxic Pollutants. The pemiittee
shall comply with effluent standards of
prohibitions established under section
307(a) of the Act for toxic pollutants
within the time provided In the
regulations that establish those
standards of prohibitions. even if the
permit has not yet been modified to
incorporate the requirement.
V. General Requirements
A. Changes in Discharge of Toxic
Substances. Notification shall be
provided to the Director and ADEC as
soon as the permittee knows of. or has
reason to believe:
1. That any activity has occurred or
will occur which would result in the
discharge. on a routine or frequent basis.
of any toxic pollutant which is not
limited in the permit, if that discharge
will exeed the highest of the following
“notification levels”:
a. One hundred micrograms per liter
(100 g g/l):
b. Two hundred micrograms per liter
(200 g/l) for acrolein and acrylonitrile;
five hundred micrograms per liter (500
ig/l) for 2,4-dinitrophenol and for 2-
methyl-4. 6.dinitrophenol: and one
milligram per liter (1 mg/I) for antimony;
c. Five times the maxim concentration
value reported for that pollutant in the
permit application in accordance with 40
FR 122.Z1(g)(7); or
d. The level established by the
Director in accordance with 40 CFR
1 22.44(fl.
2. That any activity has occurred or
will occur which would result in any
discharge. on a non-routine or infrequent
basis, of a toxic pollutant which is not
limited in the permit, if that discharge
will exceed the highest of the following
“notification levels”:
a. Five hundred micrograms per liter
(500 g/l):
b. One milligram per liter (1 mg/I) for
antimony
c. Ten (10) times the maximum
concentration value reported for that
pollutant In the permit application in
accordance with 40 CFR 122.21(g)(7); or
d. The level established by the
Director in accordance with 40 CFR
122.44(1).
B. Planned Changes. The permittee
shall give notice to the Director arid
ADEC as soon as possible of any
planned physical alterations or
additions to the permitted facility.
Notice is req ired only wheiu
1.The alteration or addition to a
permitted facility may meet one of the
criteria for determining whether a
facility is new source as determined In
40 CFR 122.29(b): or
2. The alteration or addition could
significantly change the nature or
Increase the quantity of pollutants
discharged. This notification applies to
pollutants which are subject neither to
effluent limitations in the permit, nor to
notification requirements under part
V.A.1.
C Anticipated Noncompliance. The
permittee shall also give advance notice
to the Director and ADEC of any
planned changes in the permitted
facility or activity which may result in
noncompliance with permit
requirements.
D. Permit Actions. This permit may be
modified, revoked and reissued, or
terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissuance.
or termination, or a notification of
planned changes or anticipated
noncompliance, does not stay any
permit condition.
E. Duty to Provide Information. The
permittee shall furnish to the Director
and ADEC. within a reasonable time,
any information which the Director or
ADEC may request to determine
whether cause exists for modifying.
revoking and reissuing. or terminating
this permit. or to determine compliance
with this permit The permittee shall
also furnish to the Director or ADEC.
upon request copLes of records required
to be kept by this permit.
F. Other Information. When the
permittee becomes aware that it failed
to submit any relevant facts in a permit
application, or submitted incorrect
information in a permit application or
any report to the Director or ADEC. it
shall promptly submit such facts or
information.
C. Signotoiy Requirements. All
applications, reports or information
submitted to the Director and ADEC
shall be signed and certified.
1. All permit applications shall be
signed by either a principal executive
officer or ranking elected officiaL
2. All reports required by the permit
and other Information requested by the
Director or ADEC shall be signed by a
person described above or by a duly
authorized representative of that person.
A person is a duly authorized
representative only ifi
a. The authorization is made ui
writing by a person described above
and submitted to the Director and
ADEC. and
b. The authorization specified either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager.
operator of a well or a well field.
superintendent, position of equivalent
responsibility, or an individual or
position having overall responsibility for
environmental matters for the company.
(A duly authorized representative may
thus be either a named individual or any
individual occupying a named position.)
3. Changes to authorization. If an
authorization under paragraph V.G.2. Is
no longer accurate because a different
individual or position has responsibility
for the overall operation of the facility, a
new auti onzation satisfyuig the
requirements of paragraph V.G.2. must
be submitted to the Director and ADEC
prior to or together with any reports.
information, or applications to be signed
by an authorized representative.
-------
40188
Federal Register I Vol. 54, No. 188 I Friday, September 29.. 1989 / Notices
4. Certification. Any person signing a
document under this section shall make
the following certification:
I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision in
accorcance with a system designed to assure
that qualified personnel propeily gather end
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted ie. to the best of my
knowledge and belief. true. accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
H. Availability of Reports. Except for
data determined to be confidential
under 40 CFR part 2, elI reports prepared
in accordance with the terms of this
permit shall be available for public
inspection at the offices of the Director
and ADEC. As required by the Act.
permit applications, permits and effluent
data shall not be considered
confidential.
I. 0 ,1 and Hazardous Substance
Liability. Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the perznittee
from any responsibilities, liabilities, or
penalties to which the permittee is or
may be subject under section 311 of the
Act
J. Property Right& The issuance of
this permit does not convey any
property rights of arty sort, or any
exclusive privileges, nor does it
authorize any injury to private property
or any invasion of personal rights, nor
any infringement of federal, state or
local laws or regulations.
L .Sevembility. The provisions of this
permit are severable. and Il any
provision of this permit. or the
application of any provision of this
permit to any circumstance, is held
invalid, the application of such provision
to other circumstances, and the
remainder of this permit, shall not be
affected thereby.
M. Transfers. Coverage under this
permit may be automatically transferred
to a new permittee th
1. The current permittee notifies the
Director at least 30 days in advance of
the proposed transfer datm
2. The notice includes a written
agreement between the existing and
new pernuttees containing a specific
date for transfer of permit responsibility.
coverage, and liability between thenc
and
3, The Director does not notify the
existing permittee and the proposed new
permittee of his or her intent to modify.
or revoke and reissue the permit. If this
notice is not received, the transfer is
effective on the date specified in the
agreement mentioned in paragraph 2
above.
N. Stale Laws. Nothing in this permit
shall be construed to preclude the
institution of any legal action or relieve
the permittee from any responsibilities,
liabilities, or penalties established
pursuant to any applicable state law or
regulation under authority preserved by
section 510 of the Act.
Attachment 1—Dive Survey Report
Background information
—Length of period of discharge at this
location prior to the dive (day3.
months, years).
—Production data for this location for
the month prior to the dive (a copy of
the daily records(part U.B.1 I for the
previous month will suffice).
Dive Identificotion
—FacilIty location at the time of the
dive (receiving v ater. longitude.
latitude).
—Date of the survey.
—Name arid signature of the diver.
—Recent local weather, current, and
wave singe conditions which may
influence the extent of long term
impacts from discharged wastes.
Dive Diagram
—A scale diagram (suggested 1” = 10’)
showing (1) the areal extent of
accumulated (1 cm or more) waste. (2)
the thicknese of the waste pile at
sufficient locations to draw thickness
contours. (3) depth of the pile (In feet)
below Mean Lower Low Water
(MLLW). and (4) the type of waste
(e.g.. fish bones, ground crab shells.
etc.).
Dive Description
—A list of any observed environmental
effects that could be attributed to the
discharge of processing wastes.
Including: (a) Dead or stressed sealife
such as clams, tube worms, oysters. or
sea anemones, (2) scavenger fish. (3)
hydrogen sulfide gas. or (4) any other
effects.
—A list of the types of waste particles
and an estimate of the percentage of
the wastes greater tham 1 millimeter
(processors using screening
technology), or 0.5 inches (processors
not using screening technology).
—Condition and estimated depth of the
outfall line.
Attachment 2—Bottom Sampling Report
Background information
—Length of period of discharge at this
location prior to the sampling (days.
months. years).
—Production data for this location for
the month prior to the sampling (a
copy of the daily records (part 11.8.1.)
for the previous month will suffice).
Sampling Identification
—Facility location at the time of the
sampling. (receiving water. lori iiude.
latitude)
—Sampling date.
—Name and signature of the person(s)
collecting the samples.
—Recent local weather, current, arid
wave surge conditions which may
Influence the extent of long term
impacts from discharged wastes.
Description of Sample Contents
—A list of any observed environmental
effects that could be attributed to the
discharge of processing wastes.
including: (1) Dead or stressed seahfe
such as clams, tube worms, oysters. or
sea anemones. (2) scavenger fish. (3)
hydrogen sulfide gas. or (4) any other
, ,_affects.
—A description oft the types and
amounts of wastes in the samples, the
size of the waste particles, and an
estimate of the percentage of the
wastes greater thani 1 millimeter
(processors using screening
technology), or 0.5 inches (processors
using grinding or equivalent
technology).
Atti .rI n.nt 3—Bottom Sampling
Locations
L Outfalls located near the bottom
Facilities that discharge at a point less
than 10 feet from the bottom shall
collect bottom samples at the locations
shown below:
-------
Federal. Register /• Vol Mt No. 188 I Friday. September . 29,. 1989 / Notices
40189
• Sampling location
PLAN VIEW
outfall
/ IF I
15 ft
25 ft
*
*
8 ft
8 ft
II. Outfalls greater than 10 feet from the
bottom (and all freshwater outfolls)
Facilities that discharge more than 10
feet above the bottom shall collect
bottom samples at the locations
described below
A. Directly beneath the discharge
point: and
PLAN VIEW
B. At a radius equal to the depth of
the receiving water at the discharge
point. in each compass dIrection (4
samples).
-a
R • radius from discharge point • depth of water at discharge point
— sampling location
*
R
a a *
1111 Doc. 89- W7 Filed 9-29-* &45 ami
“ ‘ c c c l u-w-u
FEDERAL MARItiME COMMISSION
Ocean Freight F a . 0 . , Lkena .
ApplIcants
Notice Is hereby given that the
following applicants have filed with the
Federal Maritime Commission
applications for licenses as ocean freight
forwarders pursuant to section 19 of the
Shipping Act of 1984 (48 U.S.C. app. 1718
and 48 CFR 510).
Persona knowing of any reason why
any of the following applicants should
not receive a license are requested to
contact the Office of Freight Forwarder
and Passenger Vessel Operations.
Federal Maritime Commission.
Washington. DC 20573.
Wlsco International Forwarders Inc..
211-37 99th Ave., Jamaica. New York
11429. Officer Angel Ithier. President.
Peter A. Holzer. One Harding Road. Red
Bank. New Jersey 07701. Officee Peter
Alexander Hoizer. Sole Proprietor.
Sumitrans Corporation. 1981 Marcus
Ave.. Lake Success. New York 11042.
Officers: Yoshihiro Hatanaka.
President/Director. Toahiaki Ooka,
Director, Tomojiro Anta. Director.
Sumitomo Corp. of America.
Stockholder.
Atrade Forwarding Corp.. 145—18156th
St.. Jamaica. New York 11434. Officer
Raul Barbosa. President.
By the Federal Mantlme Commission.
LF.S. of IndIana. 390 Nottlnghili Court
In 1enepolia. IndIana 48234. Officer
Virginia A. Smith. President.
By the Federal Maritime Commission.
Dated: September23. 1885.
Jcsep C. pnIkIn
(FR Dcc. 89-23053 FIled 9-2I-8P. 8.45 amj
— a coca mo .oi.u
(Petition No. P 5-891
Sea-Land Service. Inc., Application for
SecIlon 35 Exemptton Filing
Notfce is hereby given that Sen.Land
Service. Inc. (‘ Sea.Land”) has applied
for an exemption pursuant to section 35
of the Shipping Act 1916. 48 U.S.C. app.
833a. and Rule 69 of the Commissions
Rules of Practice and Procedure. 48 CFR
-------
39574
Federal Register / Vol. 54, No. 188 I Wednesday. September 27 1989 I Notices
and
Tim Hunt. Office of Management and
Budget. Office of Information and
Regulatory Affairs. 728 jackson Place.
NW.. Washington. D.C. 20503.
(TeIe hone (202) 395—3084).
0MB Respotisea of Agency PRA
Clearance Request
EPA ICR —1390.01: State Revolving
Fund Report to Congress Questionnaire:
was approved 09/01/89; 0MB 2040—
0131: expires 10/31/90.
Dated; September 15. 1989.
Paul Lapeley.
Director. Information widRegulctoiy Systems
Division.
(FR Doc. 89-22791 Filed 9-25-1% 9.45 am)
SILIJNG coat 555040-0
LFRL-365t-41
Agency information Collection
Activities Under 0MB RevIew
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: In compliance with the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.). this notice announces that
the Information Collection Request (ICR)
abstracted below has been forwarded to
the Office of Management and Budget
(0MB) for review and comment. The
ICR describes the nature of the
information collection and its expected
cost and burden.
DATE: Continents must be submitted on
or before October 27. 1989.
FOR FURTNER INFORMATION CONTACY:
Sandy Farmer of EPA, (202) 382—2740.
SUPPLEMENTARYINFnAIlATi
Office of Pesticides and Toxic
Substances
Title: Date Call-In/Registration
Standards Program (EPA ICR #0922.03;
0MB #2070-0057). ThIs ICR requests
renewal of the existing clearance.
Abstrcct. Under section 3(c)(2)(B) of
FIFRA. EPA may require pesticide
registrants to generate and submit data
on the risks and benefits of pesticide
use. The Agency uses this information to
assess whether the subject pesticide
causes an unreasonable adverse effect
on human health or the environment and
to determine whether to maintain the
registration. With the inception of the
reregistration program under FIFRA ‘88.
EPA will rely on this ICR primarily to
conduct special chemical reviews and to
complete collections of generic data
begun prior to reregistration.
Burden StatemenL The public
reporting burden for this collection of
information is estimated to average
9.458 hours per response for registrants
with special review chemicals. 3 hours
per response for registrants with generic
data exemptions, and 35 mInutes per
response for registrants under other
generic data call-ins. These estimates
include the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Respondents: Pesticide registrants
Estimated No. of Respondents: 25.408
Estimated Total Annual Burden on
Respondents: 177.500 hours
Frequency of Collection: On occasion
Send comments regarding the burden
estimates, or any other aspect of this
collection of information. including
suggestions for reducing the burden, to:
Sandy Farmer. U.S. Environmental
Protection Agency Information Policy
Branch (PM—223) 401 M Street. SW.,
Washington. DC 20460
and
Tim Hunt. Office of Management and
Budget. Paperwork Reduction Project
(2070-0057). Washington. D.C. 20503.
(Telephone (202) 395—3084)
0MB Response. To Agency PRA
Clearance Requests
EPA ICR #0270.25: Public Water
System Program Information was
approved 08/03/89: 0MB #2340-0090:
expires 09/30/90.
EPA ICR #0270.1 Public Water
System Program lnformatiorc wee
approved 08/02/8% 0MB *2040-0090:
expires 09/02/89/
EPA ICR #1230.0* New Source
Review and Prevention of Significant
Deterioration Permitting Programs: was
approved 07/31/89: 0MB *2060-0003;
expires 07/31/90.
EPA ICR *0167.03: Latter of
Verification of Test Parameters and
Parts Lists—Light Duty Vehicles and
Light Duty Trucks: was approved 07/31/
8% 0MB 2060-0094: expires 07/31/92.
EPA iCR 1416.01; Survey of Private
Sector Randon Reduction Act was
approved 08/03/89; 0MB #2000-017%
expires 03/31/90.
Dated. September 15. i989.
Paul Lapsley,
Director. lnforrnauon and Regulatoiy Systems
Division.
(FR Doc. 89-2 732 Filed 9—26-19; 845 aml
utujse coca oeso—so—o
[ FRL-3851-6l
Final Modification, of NPDES General
Permit for OU nd Gas Operations on
the Outer Continental Shelf (OCS) and
In State Water. of Alaska: Beaufort
Sea ii
AGENCY: Environmental Protection
Agency.
ACTION: Notice of Final Modification of
NPDES General Permit.
SUMMARY: The Regional Administrator.
Region 10 (the Region or EPA). is
modifying the National Pollutant
Discharge Elimination System (NPDES)
general permit for the Beaufort Sea (No.
AXC284100, hereafter referred to as the
Beaulort Sea U general permit) which
appeared in the Federal Register on
September 28. 1988 (53 FR 37846). The
Beaufort Sea U general permit
authorizes discharges from offshore
operations in all areas offered for lease
by the U.S. Department of Interior’s
Minerals Management Service (M tS)
during Federal Lease Sale 97.
The Region is modifying the Beaufort
Sea El general permit by extending it
coverage to include all areas now
covered by the initial Beaufort Sea
general permit (No. AKG2B4000. 49 FR
23734. june 7. 1984). which expired on
May 30. 1989. The expired general
permit authorized discharges from
offshore facilities in areas offered and
leased by (1) MMS during Federal Lease
Sales 71 and 87, (2) the state of Alaska
in State Lease Sales 36. 39. 43, and 43A.
and (3) MMS or the state of Alaska in
Federal/State Lease Sale BY and
contiguous inshore state lease sales.
ini ithe recently expired general
permits covers nearshore areas. EPA
also is modifying the permit to include a
prohibition on discharge within 1000
meters of river mouths or deltas during
unstable or broken ice or open water
conditions (“the 1000 meter discharge
prohibition”). The Region is also
modifying the permit to include the Land
Management Administrator of the North
Slope Borough among the parties to be
consulted by the Director during the
development of environmental
monitoring programs required in areas
added under this permit modification,
These modifications do not affect
facilities that are now covered by the
Beaufort Sea II permit
The area covered by the expired
Beaufort Sea permit overlaps with, is
adjacent to. or is nearly adjacent to the
area covered by the Beaufort Sea LI
general permit. The expired Beaufort
Sea permit addresses the same types of
operations. discharges. and operating
conditions as the Beaufort Sea II general
-------
Federal Register / VoL 54. No. 183 I Wednesday, September 27, 1989./ Notices
permit. Therefore, the Agency believes
that the areas covered by the expired
general permit (No.AKC2&400O would
be more appropriately controlled under
the Beaufort Sea 11 general permit (No.
AKG284100j than under individual
perr ii s or a separate NPDES general
permit.
A new adznixustrative record has been
developed to support the modifications.
The notice of the Beaufor’t Sea II
general permit (53 FR 37845, September
28. 1988) set forth the principal facts and
the significant factoal. legal, and policy
q4estions considered in the
development of the terms and conditions
of the original permit. Region 10
published a notice of proposed
modification and a fact sheet on May 1,
1989 (54 FR 18587). The basis for the
final modifications is given in the fact
sheet for the proposed modifications (54
FR 13587. May 1. 1989) and in the
supplementary Lnfcrmation published
below.
DATES: These modifications to the
Beaufort Sea U general permit shall
become effective October 27, 1989. The
permit shall expire at midnight on
September 27, 1993.
ADDRESS: The arh,iinigfrative record for
the final modifications to the Beaufort
Sea II permit is available for public
review at EPA. Region 10, Ocean
Programs Section. WD—137. 1200 Sixth
Avenue. Seattle. Washington 98101.
FO FURThER INPORIIAtIOII CONTAC’T
Anne Dailey. Region 10. at the above
address or telephone (200) 442—2110.
Copies of today’s notice, the final
modifications, response to comments.
today’s final notice, and the permit may
be obtained by writing to the above
address or by calling Kris Flint at (208)
442-8155.
SUPPLEM TARY INFORMATION AND
FACT SH T
Oi iuzizatlun of Thi. Notim
I. Introduction
II. Final Modifications to the General Permit
IlL Other Legal Requiremee
A. Oil Spill Requirements
B. Endangered Specie. Act
C. Coastal Zone Mane 5 c ,m.zit Act
0. Marine Protection. Research end
Sanctuaries Act
E. State Water QualIty Standards and State
Certification
F. Executive Order 12 i
C. Paperwork Reduction Act
H. Regulatory flexibility Ai.t
Appendix A—List of Changes Made in the
Final Modifications
L Introduction
The Regional Administrator of Region
tO is today issuing final modifications to
the Beaufort Sea LI r 1 ’PDES general
per:nit. The original Beaulort Sea II
general NPDES permit (No. A1CG284100.
53 FR 37853, September 28, 1988)
authorized discharge. from offihore oil
and gas facilities operating In areas
leased by Minerals Management Service
(MMS) in Federal Lease Sale 97. Region
10 is making three modifications to the
Beaufurt Sea 11 general permit. The
Regton is modifying the permit to
include the geographical area covered
by the recently expired general permit
for the Beaufort Sea (No. AKG2S4000. 49
FR 23734. June 7, 1984). The area
covered by the expired permit
overlapped with, was adjacent to. or
was nearly adjacent to the area covered
by the Beaufort Sea U general permit.
Since the expired general permit
covered nearshore areas, EPA Is also
including a prohibition on discharge
within 1000 meters of river mouths or
deltas during unstable or broken ice or
open water conditions. In response to
the Alaska Coastal Management
Program’s Conclusive Consistency
Finding, the Region has also modified
the permit to include the Land
Management Administrator of the North
Slope Borough among the list of parties
to be consulted by the EPA Region 10
Water Division Director during the
development of the specifics of each
monitoring program .required hi areas
added under this permit mor Ri ation.
Appendix A includes the language of the
rinal modifications to the general permit.
On May 1. 1989 (54 FR 18587), the
Agency published a notice of the
proposed modifications to the Beaufor.t
Sea)] general permit, which are being
issued in final form today. The public
commê lt period closed on May 31. 1989.
Comments and supporting documents on
the proposed modifications were
reversed from four parties. No public
bearing was held since no request to
hold a hearing was received.
Region 10 published a document
containing supplementary information
and a fact sheet for the proposed
modifications (54 FR 18587, May 1, 1989).
Part U of the fact sheet (Proposed
Modifications to the General Permit) has
been included by reference with further
detail added below. The material In the
above referenced document should be
consulted in reviewing the applicability
and scope of the final modifications.
A detailed listing of and response to
public comments received on the
proposed modifications is presented in
the document entitled “Response to
Comments Received on the Proposed
Modifications to the Beaufort Sea II
General Permit.” The document and the
original comment letters have been
included in the administrative record for
the permit modifications. The document
is being sent to all coinnientere and is
also available upon request for EPA
Region ID at the address listed above.
IL final Modifications to the General
Permit
The Director of a NPDES permit
program may modify a NPDES permit
upon receipt of new information not
available at the time of permit issuance.
if the new information would have
justified the application of different
conditions at the time of issuance (40
CFR 122J2(aJ [ Zfl. Region 10 recently
was informed by the Alaska Oil and
Gas Association about upcoming
exploration activities planned for 1963
in the lease sale areas covered by the
expiring Beaufort Sea general permit
Had the Region been aware of this
information at the time of issuance of
the Beaufort Sea II general permit, the
area of coverage would have been
expanded to include these areas.
The Beaulorl Sea II general NPDES
permit (No. AXG284100) authorizes
discharges from offshore oil and gas
facilities in the area offered for lease in
the Beaufcrt Sea under the Federal
Lease Sale 97. EPA is modifying the
geographic area covered by this general
permit to Include authorization to
discharge on the tracts covered by the
expired Beaufort Sea permit, No.
AKGZ&4000 (54 FR 18591. May 1. 1959). ’
This modification continues
authorization to discharge from oil and
gas operations in areas which overlap.
are adjacent to. or are nearly adjacent to
those areas already covered by the
Beaufort Sea fl general permit.
The fact sheet accompanying the
i suance of the Beaufort Sea 11 general
permit (53 FR 37848, September 28, 1983)
set forth the principal facts and the
significant factuaL legal, and policy
questions considered in the
development of the terms and conditions
of the permit. EPA believes that these
terms and conditions are also
appropriate, with the exception of the
provisions described In the following
paragraph. for the areas covered by the
expired Beaufoit Sea permit.
Since the expired Beaufort Sea
general permit covered nearshore areas
withIn 1000 meters of river mouths or
deltas, a provision prohibiting discharge
within 1000 meters of river mouths or
deltas dining unstable or broken ice or
open water conditions (part ILB.3.e.) has
bet.n included in the modified Beaufort
Sea II general permit Part U of the fact
sheet (Proposed Modifications to
General Permit) for the proposed notice
describes the basis for this permit
modification and Is herein included by
reference (54 FR 18580-89. May 1. 19891.
-------
3957G
Federal Register / Vol. 54. No. 186 / Wednesday. September 21, 1989 I Notices
In response to the Alaska Coastal
Management Program’s Condusive
Consistency Finding, the EPA Region 10
Water Division Director will consult
with the Land Management
Administrator of the North Slope
Borough during the development of the
specifics of each environmental
monitoring program required in areas
added by this permit modification. This
provision was necessary for the permit
modification to be consistent with the
Alaskan Coastal Management Program.
The Region also believes that it is
reasonable and appropriate to consult
the Borough concerning development of
the monitoring plans.
This provision applies only to areas
offered and leased by (1) MMS during
Federal Lease Sales 71 and 87, (2) the
State of Alaska In State Lease Sales 38.
39. 43. and 43A, and (3) MMS or the
State of Alaska in Federal/State Lease
Sale SF and contiguous inshore state
lease sales. This provision does not
apply to tracts leased under Federal
Lease Sale 97 since the Region did not
reopen or propose to modi!y any permit
conditions which are applicable to
facilities covered by the existing
Beaufort Sea II general permit (i.e.. areas
offered for sale under Lease Sale 97).
IlL Other Legal Requirements
A. Oil Spill Requirements
Section 311 of the Clean Water Act
(“the Act”) prohibits the discharge of oil
and hazardous materials in harmful
quantities. Routine discharges
specifically controlled by the permits
are excluded from the provisions of
section 311. However, these permit
modifications do not preclude the
institution of legal action or relieve
perauttees from any responsibilities.
liabilities, or penalties for other
unauthorized discharges of oil and
hazardous materials which are covered
by section 311 of the Act.
B. Lndan ered Spa cisc Act
Based on information in the Final
Ocean Discharge Criteria Evaluations
and in the Final Environmental Impact
Statements prepared for the lease sales
covered by the expiring Beaufort Sea
and Beaufort Sea 11 general permits.
Region 10 has concluded that this final
permit modification is not likely to
adversely affect any endangered or
threatened species nor adversely affect
its critical habitat. Region 10 requested
comments from the U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service. Both agencies
concurred with EPA’s determination.
C. Coastal Zone Management Act
The proposed modifications and
consistency determinations were
submitted to the State of Alaska for
state interagency review at the time of
public notice. The State of Alaska has
concurred that the activities allowed by
this permit are consistent with local and
state Coastal Management Plans.
D. Marine Protection. Research and
Sanctuaries Act
No marine sanctuaries as designated
by this Act exist in the vicuuty of the
permit areas.
H. State Water Quality Standards and
Stale Certification
The State of Alaska has certified
pursuant to section 401 of the Act that
the discharges authorized in state
waters by this permit comply with state
water quality standards and regulations.
F Executive Order 12291
The Office of Management and Budget
has exempted this action from the
review requirements of Executive Order
12291 pursuant to section 8(b) of that
order.
C. Paperwork Reduction Act
The information collection required by
these permit modifications has been
approved by the Office of Management
and Budget (0MB) under the provisions
of the Paperwork Reduction Act. 44
U.S.C. 3501 et seq.. in submissions made
for the NPDES permit program and
assigned 0MB control numbers 2040—
0088 (NPDES permit application) and
2040-004 (discharge monitoring reports).
All facilities affected by these
modifications will need to submit a
requeèt for coverage under the Beaufort
Sea U general permit. EPA estimates
that it will take an affected facility three
hours to prepare the request for
coverage. All affected facilities will be
required to submit discharge monitoring
reports (DMR’s). EPA estimates the
DMR burden to be 30 hour, per facility
per year. Facilities requesting coverage
in areas of biological concern will be
required to develop ocean discharge
Information (I.e.. conduct an
environmental monitoring program, see
part ll.B.4. of the Beaufort Sea II general
permit) and submit a report. EPA
estimates that each of these facilities
will spend an average of 778 hours
preparing these reports. All facilities
affected by these modifications were
subject to similar information collection
burdens under the expired Beaufort Sea
I permit that this modified permit
replaces.
The public is invited to send
comments regarding this burden
estimate or any other aspect of this
collection of Information, including
suggestions for reducing this burden. to
Chief. Information Policy Branch. PM—
223, U.S. Environmental Protection
Agency. 401 M St. SW.. Washington. DC
2046th and to the Office of Managerner.i
and Budget. Paperwork Reduction
Protect (2040-0088 and 2040-0004),
Washington. DC 20503. marked
“Attention: Desk Officer for EPA.”
Ii. Regulatory Flexibility Act
Alter review of the facts presented in
the notice of intent printed above. I
hereby certify. pursuant to the provision
of 5 U.S.C. § 805(b), that these permit
modification will not have a significant
impact on a substantial number of small
entities. This certification is based on
the fact that the regulated parties have
greater than 500 employees and are not
classified as small businesses under he
Small Business Administration
regulations established at 49 FR 5024 e:
seq. (February 9. 1984). These facilities
are classified as Major Group 13—.OiI
and Gas Extraction SIC 1311 Crude
Petroleum and Natural Gas.
Dateth September 12. 1989.
Robert S. Burd.
Acting RegionalAdministrator. Region 10.
Appendix A—Beoufort Sea II General
Permit List of Changes Made in Final
Permit Modifications
Preamble, third paragraph:
The existing permit reads (53 FR 3’853.
Sep ber 28. 1988J: “The authonzed
dti 1iarge sites include all blocic , offered for
lease from the U.S. Department of the
Interior’s Minerals Management Service
(MMS) in Federal Lease Sale 97 (Beafort and
Chukchi seas). Some of the lease blocks
offered but not leased in prior lea:e sales (BF.
71. and 87) may be reoffered in Lease Sale 97
In this case. EPA will giant coverage under
this general permit rather than under the
previous general permit (AlCG284000. 49 FR
23734. June?. 1984).”
The modified permit reads: “The
authonzed discharge sites include all blocks
offered for lease from (1) the U.S. Department
of the Interior’, Minerals Management
Service (MMS) in Federal Lease Sales 71. 87.
and 97. (2) the Stale of Alaska in State Lease
Sales 36. 39. 43. and 43A. and (3) MMS or the
State of Alaska in Federal/State Lease Sale
SF and contiguou, inshore state lease sales.’
Parf !L8.3.e.:
The modified permit reads: “For areas
offered end leased by (1) MMS during
Federal Lease Sales 71 and 87. (2) the State of
Alaska in State Lease Sales 36. 39. 43. and
43A. and (3) MMS or the State of Alaska in
Federal/State Lease Sales BF and contiguous
state lease sale ,. discharge is prohibited
-------
Federal Register I Vol. 54. No. 186 / Wednesday. September 27, 1989 I Notices
39377
within 1000 ‘ri of river mouths or delta.
during unstdble or broken Ice or open’ water
conditions.”
inus provision was not part of the final
Beaufort See II general permit. but was
included in the draft general permit at Part
ll.B.3.b. and did read: “Discharge is
prohibited within 1000 in of river mouths or
deltas during unstable or broken ice or open
water condnions. )
Part II.B.4.
This provision was added as a result of the
Alaska Coastal Management Program’s
Conclusive Consistency Finding.
The modified permit reads: “ and for
the permittee. For environmental monitoring
programs in areas offered and leased by (1)
vlMS during Federal Lease Sales 71 and 87.
(2) the State of Alaska In State Lease Sales
30. 39. 43, and 43A, and (3) MMS or the State
of Alaska in Federal/State Lease Sale BF and
contiguous inshore state lease sales, the Land
Management Adminastrstor of the North
Slope Borough shall be consulted by the
Director in addition to the parties listed
above. Such monitoring
(FR Doc. 89-22793 Filed 9—26-09: 8’45 am)
BILLiNG coca ssso-so-e
FEDERAL COMMUNICATIONS
COMMISSION
PublIc Inlormatlon Collection
Requirement. Submitted to the Office
of Management and Budget for Review
September18. 1989.
The Federal Communications
Commission has submitted the following
infor ’hilon collection requirements of
0MB for review and clearance under
the Paperwork Reduction Act of 1980 (44
U.S.C. 3507).
Copies of these submissions may be
purchased from the Commission’s copy
contractor. International Transcription
Service. (202) 857—3800, 2100 M Street
NW., Suit 140. Washington. DC 20037.
For further Information on these
submissions contact Judy Soley. Federal
Communications Comm1i,lo (3)2)632-.
7513. Persons wishing to comment on
these information collections should
contact Eyvette Flynn. Office of
Management and Budget. Room 3225
NE0B Washington. DC 3)503 . (202) 393-.
3785.
0MB Number: 3060-0089.
Title: Application for Land Radio
Station License in the Maritime
Services.
Fonn No.: FCC 503.
Action: Extension.
Respondents.’ Individuals or
households, state or local governments.
non-profit Institutions, businesses
(including small businesses).
Frequency of Response: On occasion.
Estimated Annual Burden: 2.923
Responses: 2.923 Hours.
Needs and Uses.’ FCC Rules require
that applicants submit the necessary
data on an FCC 303 for evaluation for a
new or modified station authorization in
the Maritime Mobile Service or an
Alaska Public Fixed Station. The
technical data will be used by FCC staff
to evaluate a request for station
authorization.
0MB Number: 3060-0004.
Title: Application for Station
Authorization in the Private Operational
Fixed Microwave Radio Service.
Form No.: FCC 402.
Action: Extension.
Respondent.s: Individuals or
households, state or local governments.
non.profit inatitutions, businesses
(including small businesses).
F requency of Response: On occasion.
Estimated Annual Burden: 7,619
Responses: 45.714 Hours.
Needs and Uses: FCC 402 is used to
apply for a new, modified or renewed
station authorization for private
operational fixed microwave stations.
The technical data is necessary to
evaluate a request for Microwave
station authorizations, to coordinate
that request. and to provide interference
protection if the request is granted.
Federal Communications Commission.
Diiuia R. Seamy.
Secretazy.
(FR Doe, 89-227 39 Filed 9-28-89: 9:45 am)
1IPli COOS IT12-OI-d
FEDERAL MARITIME COMMISSION
Agreement(s) Filed
The Federal Maritime Commission
hereby gives notice of the filing of the
f.ollbwing agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission, 1100 L Street,
NW.. Room 10325. Interested parties
may submit comments on each
agreement to the Secretary. Federal
Maritime Commission. Washington. DC
20573. within 10 days after the date of
the Federal Register in which this notice
appear,. The requirements for
comments are found In * 572.603 of title
46 of the Code of Federal Regulations.
Interested persona should consult this
section before communicating with the
Commission regarding a pending
agreement.
Agreement No.: 217-011250.
Tide: Companhia de Navegacao Lloyd
Brasileiro and Empresa Lineas
Maritimas Argentinas S.A. Slot Charter
Agreement.
Parties: Companhia de Navegacao
Lloyd Brasileiro Empresa Lineas
Mantlmas Argentinas Sit.
Synopsis: The proposed Agreement
would permit the parties to charter
space to one another aboard their
respective vessels in the trade between
U.S. Atlantic and Gulf ports and ports In
Brazil, Paraguay and Argentina.
By Order of the Federal Maritime
Conimission,
Datedi September 21. 1989.
Ronald a Murphy,
Assistant Secreiaiy.
(FR Doc. 89-22751 Filed 9-z&-am 8:45 a.m.I
BlUiNG 0005 673o.ei-e
Agreement(s) Flied
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
se .tion 5 of the Shipping Act of 1984.
Interested parties may inspect and
obtain a copy of each agreement at the
Wasington. DC Office of the Federal
Maritime Commission. 1100 L Street
NW.. Room 10220. Interested parties
may submit comments on each
agreement to the Secretary, Federal
Mantime Commission, Washington. DC
20573, wIthin 10 days after the date of
the Federal Register in which this notice
appears. The requirements for
comments are found in section 572.603
of title 48 of the Code of Federal
Regulations. Interested persons should
consult this section before
communicating with the Commission
regarding a pending agreement.
Agreement No: 224-200207-001.
Title: Tampa Port Authority Terminal
Agreement.’
Parties: Tampa Port Authority.
Harborside Refrigerated Services. Inc..
(Harborside).
Synopsis: The Agreement provides
that the basic wharfage rate incentive
agreement (Agreement No. 2Z4— 207)
Is restricted to apply only to imported
Chilean fruit and that other frwts
moving through Harborside’s leased
cold storage terminal facility will be
charged according to the Port’s Terminal
Tariff FMC No. 10.
Agreement No: 224-200288.
Title: Port of Seattle Terminal
Agreement.
Parties: Port of Seattle (Port),
International Terminal Company (ITC).
Synopsis: The Agreement provides for
ITC’s lease and operation of a 27.5 acre
break’bulk/neo’bulk facility at the
Port’s Terminal 115. FTC will also have
non.exdusive use of berth at Terminal
28. and use of terminal 115 for loading
and unloading of railcars. ITC agrees to
-------
35930
Federal Register I Vol. 54. No. 167 I Wednesday. August 30. 1989 / Notices
adverse impacts from occurring at the
Leonard Pond site. The types of
activities proposed for restriction,
nonwater dependent fill projects, as a
class ccinprise the moat
environmentally destructive and the
most frequently avoidable types of
discharge. The 404(b)(1) guidelines
contain a strong presumption against
permitting such discharges. Moreover, in
light of the outstanding value of the site
for wildlife, nonwater dependent
projects would likely violate the
guidelines by causing or contributing to
significant degradation. Therefore, by
this proposal we intend to enforce the
requirements of the section 404(b)(1)
guidelines, a function envisioned by the
section 404(c) regulatIons.
V. Solicitation of Comments
EPA solicits comments on all issues
raised by this proposed determination.
In particular, we are interested in
receiving information pertaining to the
environmental values of (he Leonard
Pond area and any current or proposed
threats to these aquatic resources. We
also are in’ereated in receiving
comments on the boundary of the 404(c)
action and the activities affected (and
not affected) by the proposal.
Specifically, (1) whether placing dredged
or fill material into Leonard Pond and its
wetlands would have an unacceptable
adverse effect on fish and wildlife
habitat: (2) existence of any endangered
or threatened species at the site: (3)
cumulative impacts that may result from
filling these wetlands: (4) whether the
geographic limit of this action Is
reasonable and appropriate: (5) what, if
any, type of filling activity could occur
without individually or cumulatively
causing unacceptable adverse impacts.
and (6) whether the relocated Route 57,
which would fill wetlands at the site.
would cause si Ifb nnt loss or damage
to wildlife.
Comments should be sent withIn 45
days from the date of publication of this
Federal Register notice to the person
listed above under *DG U!5. If the
Regional Adiainl.frator finds a
significant degree of public interest Lu
this announcement or that It would be
otherwise in the public interest to hold a
hearing, a hearing will be held. All
comments received, as well as any
hearing record will be fully considered
by the Regional Administrator in making
the decision to prepare a recommended
determination to prohibit or restrict
filling Leonard Pond and its wetlands or
to withdraw this proposed
determination.
PaulO. Keough,
Acting Re gionoiAdminisirator, Region!.
(FR Doc. 89-2041 Filed 6- -89 0.45 am)
BILLING coos 55IO-6o-d
IFRL-3837-4 1
Proposed NPOES General Permits for
the Oil and Gas Extraction Point
Source Category, Onshore
Subcategory—Statss of Louisiana,
New Mexico, Oklahoma, and Texas
AGENCY Environmental Protection
Agency.
ACTIWC Notice of Four Proposed NPDES
General Permits.
SUMMARy The Regional Administrator
of Region O(the “Region”) is today
proposing to issue four National
Pollutant Discharge Piimination System
(NPDES) general permits for facilities in
the Onshore Subcategory of the Oil and
Gas Extraction Point Source Category
(40 CFR Part 435, Subpart C). These
proposed general permits implement the
no discharge requirement of the
Onshore Subcategory regulations for oil
and gas facilities conducting exploration
drilling, development drilling, well
completion. production and weil
treatment operations. These proposed
permits are being issued as a Best
Professional Judgement (BPD
determination of Best Available
Technology Economically Achievable
(BAT) and Best Conventional Pollutant
Contt’ol Technology (BCI’) levels of
pollution controL These permits, when
issued, will prohibit discharges from oil
and gas facilities in the Onshore
Subcategory located Lu the States of
Louisiana, New Mexico, Oklahoma. and
Texas.
All four permits are proposed In one
notice to take advantage of permit
language that Is common to all four
permits.
DA1 Comments must be received by
October 16, 1989.
ADORESS Comments should be sent to
the Regional Administrator Region 6.
U.S. Environmental Protection Agency.
1445 Ross Avenue, Dallas, Texas 75202—
2733.
FOR FURThER INFORMATION CONTACT
Ms. Ellen Caldwell. Region 0. U.s.
Environmental Protection Agency. 1445
Ross Avenue. Dallas. Texas 75202—2733.
Telephone: (214) 655—7190.
SUP,LiM!NTARY INFORMATION:
Legal and Regulatory Authority
These general onshore permits have
been prepared pursuant to sections
301(b) and 304(b) of the Clean Water
Act. Section 301(b)(1) recuires
attainment of effluent limitations based
on the application of “best practicable
control technology currently available’
(BPT) by July 1, 1977. Section 305(b)
provides for the promulgation of
regulations defining a technology as
“best, practicable control technology
currently available” and specifies the
factors to be considered in defining BPT.
This effluent limitation has been
promulgated for the oil and gas industry
as the Oil and Gas Extraction Point
Source Category, final and interim final
Rules at 44 FR 22069 (April 13, 1979) and
amended at 47 FR 31554 (July 21. 1982).
The Federal Regulations governing the
Onshore Subcategory are codified at 40
CFR Part 435, Subpart C.
The Environmental Protection Ager.c.’
has issued a report entitled
“Development Document for Inter.m
Final Effluent Limitations Guidelines
and Proposed New Source Peiformance
Standards for the Oil and Gas
Extraction Point Source Category” (41
FR 44942, October 13. 1976) which was
prepared in support of the initial Interim
final BP’I’ limitations promulgated In the
Federal regulations cited above. ‘l ’his
document discussed the oil and gas
industry, available waste treatment
technology and the results of the
technical study which resulted in the
limitations contained in the regulations
(40 CFR Part 435). Additionally, a
,..au PlementarY report on the possible
economic impacts of the regulations was
issued at that time.
Since publication of the interim final
regulations, interested parties have
submitted comments and new data for
the consideration by the Agency. The
promulgated regulations are based on
the analyses of these comments and
data. For the most part, the analysis
merely clarified the interim final
regulations. In applying the BF
limitations of these permits, the Region
cannot estabish limitations less
stringent than those already defined In
the Federal regulations.
Many owners and operators of oil and
gas facilities located in the Onshore
Subcategory have applied for a NPDES
permit however, no such individual
permits have been issued because
priorities for NPDES permit issuance did
not include these facilities. The permits
proposed here will apply to all Onshore
Subcategoi’y oil and gas facilities
-------
Federal Regtster I Vol. 54. No. 187 / Wednesday 1 August 30. 1989 I Notices
35931
located in Louisiana. New Mexico.
Oklahoma, and Texas whether or not an
application has been previously fllad
with EPA. In effect these permits
Implement the effluent guidelines for the
Onshore Subcategory at 40 ‘R 435.30.
and thereby prohibit the discharge of
any pollutants from these facilities into
waters of the United States.
A permittee may request to be
excluded from coverage of these permits
by applying for an individual permit
within 90 days after publication of these
permits in the Federal Register (40 CFR
122.28(bJ(2)(ili). In this case however the
Region cannot foresee any case where
the reasons cited by the owner or
operator will be adequate to support a
discharge since the Onshore
Subcategory regulation has required no
discharge for over 10 years. Applying for
an individual permit does not authorize
the discharge. and no discharges will be
allowed after the effective date of this
permit.
General Applicability
These proposed general permits apply
to facilities in the Onshore Subcategory
of the Oil and Gas Extraction Point
Source Category within the States of
Louisiana. New Mexico. Oklahoma, and
Texas (as defined at 40 CFR Part 435.40
SubpartC and as amended at 47 FR.
31554 (July 21. 1982).
These permits do not apply to those
facilities which are located Inland from
the inner boundary of the territorial seas
in areas classified as Coastal ae defined
at 40 CFR 135:40 Subpart D and as
amended at 47 FR. 31554. Likewise.
these permits do not apply to “stripper”
wells as defined at 40 CFR 435.80 and
which are so dassified before the
effective date of these permits; nor do
they apply to some exploration or
producing facilities located west of the
98th meridian as defined at 40 CPR Part
435. Subpart E (Agricultural Wildlife
Water Use Subcategory) which
discharge potentially ben.6i I
produced waters.
Facility location determl the
applicable subcategory in 40 R Part
435. and pollutant discharges which are
prohibited at the location of the facility
may not be discharged at other
locations.
Applicability Specified
Geogrcphic Limits: These permits.
based on Federal regulations, apply to
the Onshore Subcategory as defined at
40 CFR 435.30. The Onshore
Subcategory geographically also applies
to an area that In part Is also covered by
the Coastal Subcategury as defined at 40
CFR 435.40. except as amended at 47 FR
31554 (July 21. 1982). The seaward
boundaries of both subcategories are
defined as the inner margin of the
territorial seas and both extend inland
with the inner or landwerd boundary of
the Coastal Subcategory Including any
body of water landward of the territorial
seas or any wetlands adjacent to such
waters. The Coastal Subcategory is not
geographically defined and, as
promulgated. it applies to facilities
operating in lakes, rivers, and streams.
Oil and gas operations in the Coastal
Subcategory are, on this basis, excluded
from these permits; they will be
regulated under separate general
permits.
Onshore oil and gas operations
located west of the 98th meridian in the
states of New Mexico, Oklahoma or
Texas and which qualify for coverage
under 40 CFR 435.50 (Agricultural and
Wildlife Water Use Subcategory) are
likewise not included in these general
onshore permits because the allowed
use of produced waters for purposes
defined in the subcategory requires
evaluation of applicable water quality
standards and criteria. Facilities in the
Agricultural and Wildlife Water Use
Subcategory will therefore be covered
under separate general permits.
Location: Location of the oil and gas
facility is determinate and discharges at
other locations Is prohibited. In h.ki g
this pchition, it Is the Agency’s intent
that the location of the well head shall
be the determining factor in defining
within which subcategory a permittee is
operating. It Is also the Agency’s intent
that geographic location is also to
determine the conditions under which
discharges may or may not occur. Since
discharges. are meant to refer to the
surface release of pollutants to waters of
the United States, disposal by other
methods approved by State Agencies.
such as subsurface injection. is not
prohibited by these permits.
Other Exemption&’ ‘Stripper” wells as
defined at 40 CFR 435.60. Subpart F. and
which are classified as “stripper” prior
to the date of this permit are not
Included In these general onshore
permits. This subcategory, which applies
to wells which produce 10 barrels of oil
per day or a well with greater than
15,000 cubIc feet of gas per barrel of oil
per day, applies to single wells or fields
wherein, as Is the Agency’s intention,
production limits shall apply to an
average expressed on a per well basis.
Sea 44 FR 22073 (April 13. 1979).
Wells which become classified as
“stripper” after the effective date of this
permit are covered by this permit.
Although no specific limitations have
otherwise been promulgated for the
Stripper Subcategory at this time, the
proper classification of this source as a
separate subcategory is regarded
significant since It does exclude the
source from other subcategories.
allowing the establishment of more
directly applicable limitations under
section 402(a)(1) of the Clean Water Act.
Effluent limitations regarding the
Stripper Subcategory will be considered
as separate general permits.
Consideration of Technology
These permits are based on the
Agency’s promulgated interim final
effluent limitations which are based on
the application of “best practicable
cbntrol technology currently available”
(BF ) for the Onshore Subcategory of
the Oil and Gas Extraction point source
Category. See 44 FR 22069 (April 13.
1979); 40 CFR Part 435, Subpart C. The
Federal r gulations applying to this
subcategory incorporate terms based on
comments received alter publication of
the interim final regulations and the
Agency’s stipulated agreements in
litigation. In the absence of other
guidelines for the onshore area, the
Agency has taken the position that since
the Federal regulations prohibit the
discharge of pollutants from any source
in the subcategory. that on the basis of
best professional judgment (BPfl. the
best conventional pollutant control
technology (BC ) equals best available
technology economically achievable
(BAT) and that this equals the best
practicable control technology (BFI’)
applied in the Onshove Subcategory.
The no discharge limitation on onshore
activities associated with the
exploration and production of oil and
gas is therefore in accord with the
Federal regulations at 40 CFR Part 435,
Subpart C, wherein the discharge of
waste pollutants from any source
related to oil and gas exploration and
production activities in the Onshore
Subcategory Is prohibited. In applying
the no discharge limitation in this
permit, the Agency cannot establish
limitations that are lees stringent than
those limitations defined in the Federal
regulations.
Ulthnate thspn. tI of Waste.
These proposed permits prohibit the
direct discharge of pollutants to waters
of the United States from oil and gas
wells in the Onshore Subcategory and
their appurtenant facilities, e.g.. mud
pits, reserve pits, oil/water separators.
They do not, however, apply to the
ultiinat,e disposal of wastes derived from
oil and gas activities. If such disposal
involves a discharge a pollutants to
waters of the United States, the disposal
facility must obtain an individual
NPIDES permit prior to commencing the
discharge. Generally. State permits are
also required for such discharges.
-------
- -
Pe lii il Register I Vol 54. No. 167/ Wednesday, August 30. 1989 / Notices
Moreover, disposal of wastes from oil
and gas operatloni through methods
whi cli do not involve discharge. to
waters of the United States, eg, land
farming baal ’ffiHi .g , eubeerface
injection, is also regulated by state
agencies. Although other state agencies
may also have jurisdiction, EPA
suggests that parties desiring approval
for such disposal methods contact the
Louisiana Department of Environmental
Quality (surface disposal), the Louisiana
Department of Natural Resources
(Subsurface disposal), the New Mexico
Conservation Division. the Oklahoma
Corporation Commission, or the
Railroad Comnusaion of the State of
Texas. as appropriate,
Other Legal Requirements
State Certification: Section
301(b)(1)(C) of the Clean Water Act
requires that NPDES permits contain
conditions which ensure compliance
with applicable State water quality
standards or Itnutatlons. Under section
401 (aJ(1) of the Act. EPA may not Issue a
permit until the State grants or waives
certification to ensure compliance with
appropriate requirements of the Act and
State law. The proposed permits, in not
allowing discharges into waters of the
United States, Is in conformity with
existing Federal regulations.
The Ladangered Species Act: The
Endangered Species Act (ESA) and its
implementing regulations (50 FR CFR
Part 402) requires that each Federal
Agency ensure that Its actions, such as
permit issuance, do not Jeopardize the
continued eidatence of any endangered
or threatened species or result In the
destruction or adverse modification of
their critical habitats. In view of the fact
that these permit. will not allow
discharges Into the waters of the United
States and are therefore unlikely to
effect changes In the environment, EPA
has concluded that their Issuance I.
unlikely to adversely affect any of the
listed species or their afttcal habitats. It
is seeking concmnsnce In this
determination from the U.S. Fish and
Wildlife Service.
Economic hepact (Execudve Order
12 Zi The O cs of Management and
Budget has exempted this action from
the review requirements of Executive
Order 12251 pursuant to sectIon 8(b) of
that order. The economic and
inflationary effects of the regulations (40
CFR Part 435) upon which this permit is
based have been evaluated in
accordance with Executive Orders 11821
and 1 )44.
The Paperwork Reduction Act.’ EPA
has reviewed the requirements imposed
on regulated facilitie, in these general
permits under the Paperwork Reduction
Act of 1980,44 U.S.C 3501 at. seq. The
information collection requirements of
thes, permits hav, been approved by
the Offic, of Management arid Budget In
submissions med. for the NPDES permit
program under provision of the Clean
Water Act.
The Regu!atoay Flexibility Aca EPA
does not anticipate that these general
permits will have a sigmflcant impact on
the majority of the parties, Induding
those with greater than and those with
less than 500 employees, due to the fact
that the no discharge limitations
proposed are In effect In the farm of
existing State and Federal regulations.
After review of the facts presented In
the notice printed above, I hereby certify
pursuant to the provisions of 5 U.S.C.
605(b) that these general NPDES permits
will not have a siguificant Impact on a
substantial number of small entities.
Moreover the permits reduce a
significant administratIve burden of
applying for individual permits, on
regulated sources.
Date: Augu3t 22. i9ar.
Robert E. Laytna Jr.,
RegionalAdmznistrowr. Region &
General NPDES Permit for the Oil and
Gas Extraction Point Source Category.
Onshore Subcategory
Permit No. LAG32i)000—State of
Louisiana
Permit No. NMG320000—State of New
Mexico
Permit No. OKG3W000—State of
Oklahoma
Permit No. TXG320000—State of Texas
This permit, Issued under the
provisions of the Federal Water
Pollution Control Act, as amended (33
U.S.C. 1251 et seq: The ‘Act”), prohibits
the discharge of pollutants from .any
onshore oil and gas wells and facilities
as defined in 40 CFR Part 43a. Subpart C
(Onshore Subcategory) and modified at
47 FR. 31554. July 21. 1982. It does not
apply to wells or facilitie, in the
Agricultural and Wildlife Use
Subcategory (as defined at 40 Q R 435.
Subpart E). Likewise, It does not apply
to existing wells which, at the time of
permit Issuance, fall within the Stripper
Subcategory as defined at 40 CFR 435.
Subpart F, but later wells in which
production falls below 10 barrels per
day shall remain subject to this permit.
This permit also does not apply to those
wells or appurtenant facilities whose
well heads are located in any body of
water or adjacent wetlands (as defined
at 40 CFR 435, Subpart D).
To the extent that applicability of this
permit Is based on the geographical
location of wells or facilities, the
location of the wellhead shall be
determinative, I.e., pollutant discharges
which are prohibited at the location of
the well head may not be discharged at
other locations.
This permit prohibits the discharge of
any pollutant from wells or facilities
subject to Its terms. Said pollutants
include (but are not limited to):
Drilling Fluids
Drill Cuttings
Produced water
Produced sand
Deck and Rig Floor Drainage
Blowout Preventer fluid
Well Treatment Fluids
Further description of said pollutants.
as well as monitoring, reporting, and
other requirements are set forth in Parts
I. II. and LU of this permit.
This permit shall become effective
when issued, and expire at midnight on
(five years after final permit effective
date).
Myron 0. Knudson.
Director. Water Management Division F -I
Region 8
Part I
(Applicable to LAG320000. NMG 30000.
0KG320000 . TXG320000)
Section A. General Permit Coverage
General Permit Limits
(Applicable to LAG320000)
This permit prohibits discharges into
waters of the United States as defined in
40 CFR Part 435. The disposal of waters
and waste resulting from oil and gas
exploration and producing activities in
manners other than by discharges into
waters of the United States are limited
Department of Natural Resources.
Office of Conservation of the State of
Louisiana according to Amendment to
Statewide Order No. 29—B and the water
quality standards of the Louisiana
Department of Environmental Quality
(Louisiana Revised Statute. L.R.S.
3a1091—1 096).
(Applicable to NMG3Z0000)
This permit prohibits discharges into
waters of the United States as defined in
40 CPR Part 435. The disposal of waters
and waste resulting from oil and gas
exploration and producing activities in
manners other than b discharges into
waters of the United States are
otherwise limited by the New Mexico
Oil Conservation Division (NMOCD)
Rules 01 through 1304 and regulations of
the State Oil and Gas Act (Sections 70-.
2—i— through 70—2—38 NMSA. 1978) and
as may be amended, and the water
quality standards of the New Mexico
Health and Environment Department.
Environmental Improvement Division.
-------
r
Federal Register I Vol. 54. No. 167 / Wednesday. August 30. 1989 I Notice.
35 33
Sections 1—100 to 3101 and as explained
In Water Quality and Water Pollution
Control in New Mexico (1988), and as
may be amended.
(Applicable to 0KG320000)
This permit prohibits discharges into
waters of the United States as defined In
40 CFR Part 435. The disposal of waters
and waste resulting from oil and gas
exploration and producing activities in
manners other than by discharges into
waters of the United States are
otherwise limited by the Oklahoma
Corporation Commission according to
Rules of Practice I through 26(1988) and
the water quality standards of the
Oklahoma Water Resources Board,
Water Quality Division. Sections 1
through 8 and as appended (1985) and as
may be amended.
(Applicable to TXG320000)
This permit prohibits discharges into
waters of the United States as defined In
40 CFR Part 433. The disposal of waters
and waste resulting from oil and gas
exploration and producing activities in
manners other than by discharges into
waters of the United States are
otherwise limited by the Railroad
Commission of the State of Texas
according to Rules 79 through 85 (1987)
and the water quality standards of the
Texas Water Commission (12 TexReg
3642,13 TexReg 1.776).
Section B NPDES lndMduoi veinus
General Peanut Applicability
The Regiii il A Imln’ frator may
require any person authorized by this
permit to apply for and obtain an
Individual NPDES permit wham
1. The discharge(s) Is a significant
conthbutor of polludon
2. The discharger is not in compliance
with the conditions of this permit
3. A ehnnge has occurred In the
availability of the demonstrated
technology or practices for the control or
abatement of pollutants applicable to
paint sources; -
4. A Water Management Plan
coni h lng requirements applicable to
such a point source Is appruved
5. The point source(s) covered by this
permit no longeri
(a) involves the same or substantially
similar types of operations.
(b) is no longer limited to the same
typee of wastes,
(c) requires the same effluent
limitations or operating conditions, or
(d) In the opinion of the Regional
Administrator, is more appropriately
controlled under an individual permit
than under a general permit.
Operator. required to apply for an
Individual permit shall be notified In
writing by the Regional Administrator.
A source excluded from coverage
under this general permit solely because
It already has an individual permit may
request that its individual permit be
revoked. Upon revocation of the
individual permit, this general permit
shall appl r to the source.
Part I I
(Applicable to LAC320000. NMG320000.
0KG320000. TXG320000)
Section A. Effluent limitations and
Monitoring Requirements, Onshore
Subcategorj
(Applicable to LAC320000)
The oil and gas exploration and
production activities covered by this
permit apply to the onshore area of the
State of Louisiana as defined in Part L
(Applicable to NMG320000)
The oil and gas exploration and
production activities covered by this
permit apply to the onshore area of the
State of New Mexico as defined in Part
L
(Applicable to 0 1CG321J000)
The oil and gas exploration and
production activities covered by this
permit apply to the onshore area of the
State of Oklahoma as defined in Part L
(Applicable to TXG320000)
The oil and gas exploration and
production activities covered by this
permit apply to the onshore area of the
State of Tn cas as defined In Part L
1. Drilling Fluids
(a) Applicability
Permit conditions apply to all drilling
fluids (muds), whether oil, mineral oil or
water based. and include fluids adhering
to drill cuttings, used as the result of
activities auoaatad with the
exploration and the production of oil
and gas,
(b) Prohibitions
The discharge of drilling fluids Into
waters of the United States is
prohibited.
(Applicable to LAG320000)
Best management practices (BMP)
shall be used In accordance with the
treatment and disposal criteria of the
State of Lowsiana, Department of
Natural Resources. Office of
Conservation (Statewide Order 29—B) to
ensure that receiving pits will not allow
discharge or seepage of drilling fluids
into waters of the United States.
(Applicable to NMC320000)
Best management practices (B! W)
shall be used In accor 1 ce with the
rules and regulation. of the New Mexico
Oil Conservation Division (Rule. and
Regulations) to ensure that receiving
pits will not allow discharge or seepage
of drilling fluids into waters of the
United States.
(Applicable to OKC320000)
Best management practices (EMP)
shall be used in accordance with the
rules and regulations of the Oklahoma
Corporation Commission. Oil and Gas
Conservation Division (General Rules
and Regulations. 1988) to ensure that
receiving pits will not allow discharge or
seepage of drilling fluids into waters of
the United States,
(Applicable to TXG320000)
Best management practices (BMP)
shall be used En accordance with the
treatment and disposal criteria of the
Railroad Commission of Texas
(Statewide rules for Oil, Gas and
Geothermal Operations. RRCT. 1987) to
ensure that receiving pits will not allow
discharge or seepage of drilling fluids
into waters of the United States.
2. DrIll Cuttings
Special cots; The permit prohibitions
and limitations that apply to drilling
fluids also apply to cuttings as well as to
the fluids that adhere to them. Any
permit condition that applies to the
drilling fluid system therefore also
applies to cuttings.
3. Produced water
(a) Applicability
This permit applies to all formation
waters recovered during activities
associated with the exploration and
production of oil and gas. including
those recovered during production tests.
(b) Prohibition.
The discharge of produced water or
produced water associated with oil is
prohibited.
(Applicable to LAG320000)
Produced water, whether from well
drillIng, production or workover
operations, as well as waste waters
from storage tanks. separators.
saltwater or brine pits are prohibited
from being discharged into waters of the
Iiruted States. Best management
practices (BMP) shall be used in
accordance with the treatment and
disposal criteria of the Louisiana
Department of Natural Resources, Office
of Conservation (Statewide Order 29-B)
to ensure that receiving pits will not
-------
35934
Fedesni Register / Vol. 54. No. 167 / Wednesday, August 30, 1989 I Notices
allow discharge or seepage of drilling
fluids into waters of the United States.
(Applicable to NMG3 4X*)OJ
Produced water, whether from well
drilling, production or workover
operations, as well as waste waters
from storage tanks, separators.
saltwater or brine pits are prohibited
from being discharged into waters of the
United States. Best management
practices (BMP) shall be used in
accordance with the treatment and
disposal criteria of the New mexico Oil
Conservation Division (Rules and
Regulations) to ensure that receiv ing
pits will not allow discharge or seepage
of drilling fluids into waters of the
United States.
(Applicable to 0KG320000)
Produced water, whether from well
drilling. production or workover
operations, as well as waste waters
from storage tanks, separators.
saltwater or brine pita are prohibited
from being discharged Into waters of the
United States. Best management
practices (BTc W) shall be used in
accordance with the treatment and
disposal criteria of the Oklahoma
Corporation Commission, Oil and Gas
Conservation Division (General Rules
and Regulations. 1988) to ensure that
receiving pits will not allow discharge or
seepage of drilling fluids into waters of
the United States.
(Applicable to TXG320000)
Produced water, whether from well
dnlling. production or workover
operations, as well as waste waters
from storage tanks, separators,
saltwater or brine pita are prohibited
from being discharged into waters of the
United States. Beet management
practices (UMP ) shall be used In
accordance with the treatment and
disposal criteria of the Railroad
Commission of Texas (Statewide Rules
for Oil. Gas and Goethermal Operations.
RRCT. 1987) to that receiving pita
will not allow discharge or seepage of
drilling fluids Into waters of the United
States.
4. Produced Sand
Special noim The prohibitions and
llimtattws that apply to drill cuttings,
drilling fluids, well completion flmds
and fluids that adhere to cuttings also
apply to produced sand.
5. Deck or Rig Floor Drainage
(a) Applicability
This permit applies to material or flwd
spillage. including drilling muds (oil,
mineral oil or water based), wash-down
water, grease, waste oil. lubricants. or
hydraulic fluids resulting from activities
associated with the exploration and
production of oil and gas.
(b) Prohibitions
The discharge of rig floor or deck
drainage into waters of the United
States is prohibited.
(Applicable to LAG320000)
Best management practices (B! W)
shall be used In accordance with the
treatment and disposal criteria of the
State of Louisiana. Department of
Natural Resources, Office of
Conservation (Statewide Order 29—B) to
ensure that rig floor or deck drainage
will not discharge. seep or otherwise be
released Into waters of the United
States.
(Applicable to NMG320000)
Best management practices (BMP)
shall be used in accordance with the
treatment and disposal criteria of the
New Mexico Oil Conservation Division
(Rules and Regulations) to ensure that
rig floor or deck drainage will not
discharge, seep or otherwise be released
into waters of the United States.
(Applicable to 0XG320000)
(Applicable to TXG320000)
Best management practices (BMP)
shall be used in accordance with the
treatment and disposal criteria of the
Railroad Commission of Texas
(Statewide rules for 011, Gas and
Geothermal Operations. RRCT. 1987) to
ensure that rig floor or deck drainage
will not discharge, seep or otherwise be
released into waters of the United
States.
6. Blowout Preventer Fluid
(a) Applicability
This permit applies to all oil or
hydraulic fluids used In blowout
preventer mechanisms used in activities
associated with the exploration and
production of oil and gas.
(b) Prohibition
The discharge of blowout prcventer
fluids are prohibited.
7. Well Treatment Fluids. Completion
Fluids. Workover Fluids
(a) Applicability
This permit applies to well treamient
fluids, including well completion fluids.
workover fluids well stunulation fluids
or fluids resulting from well tests used’
activities related to the exploration and
production of oil and gas.
(b) Prohibition
The discharge of well treatment.
completion, well testing and woricover
fluids, as well as discharges from
production test, flare, completion or
otherwise designated temporary storag’
pits, into waters of the United States is
prohibited.
(Applicable to LAG320000)
Seat management practices (BMP)
shall be used in the disposal of these
wastes shall be in accordance with t.e
treatment and disposal criteria of the
State of Louisiana, Department of
Natural Resources. Office of
Conservation (Statewide Order 29-B) tc
ensure that there will be no discharges
into waters of the United States.
(Applicable to NMG320000)
(Applicable to 01CG320000J
Best management practices (BMP)
shall be used in the disposal of these
wastes shall be in accordance with the
treatment and disposal criteria of the
Oklahoma Corporation Cniiiint mon, Oi
and Gas Conservation Division (Gerierc
Rules and Regulations, 1988) to ensure
that there will be no discharges into
waters of the United States.
(Applicable to TXC320000)
Best management practices (BMP)
shall be used in the disposal of these
wastes shall be in accordance with the
treatment and disposal criteria of the
Railroad Commission of texas
(Statewide Rules for Oil. Gas and
Geothermal Operations. RACY. 1987) to
ensure that there will be no discharges
into waters of the United States.
Best management practices (BMP) nest management practices (BMPJ
shall be used In accordance with the shall be used in the disposal of these
treatment and disposal criteria of the wastes shall be in accordance with the
Oklahoma Corporation Commission, Oil treatment and disposal criteria of the
and Gas Conservation Division (General New Mexico Oil Conservation Division
Rules and Regulations, 1988) to ensure es and Regulations) to ensure that
that rig floor or deck drainage will not era will be no discharges into waters
discharge. seep or otherwise be release . of the United States.
into waters of the United States.
-------
Federal Register / VoL 54. No. 187 / Wednesday, August 30, 19 I Noticea
35935
Part ilL
(Applicable to LAG320000. NMC320000,
0KG320000. TXC320000J
Section A. General Conditions
I. Introduction. In accordance with
the provisions 01 40 CFR P3rt .41 et
seq.. this permit tacorpora tee by
reference ALL conditions and
requirements applicable to NPDES
permits set forth In the Clean Water Act.
as amended (hereinafter known as the
“Act”) as well as ALI. applicable CFR
regulations.
Z Duly to Comply. The permittee must
comply with all conditions of this
permit. Any permit non-compliance
constitutes a violation of the Clean
Water Act and Is grounds for
enforcement action and/or for requiring
a permittee to apply for and obtain an
individual NPD permit
3. Permit Flexibility. This permit may
be modified, revoked and reissued. or
terminated for cause, In accordance
with 40 CFR 122.82-84. The filing for a
permit modification, revocation and
reissuance. or termination, or a
notification of planned changes or
anticipated noncompliance, does not
stay any permit condition.
4. Property Rights. This permit does
not convey any property rights of any
sort, or any exclusive privileges nor
does it authoriss any injury to private
property or any Invasion of personal
rights, nor any Infringement of Federal,
Slate or local Laws or regulations.
£ Duty to Provide Information. The
permittee s ll furnish to the Regional
Administrator, within a reasonable time,
any information which the Regional
Administrator may request to determine
whether cause exists for modifying.
revoking and reissuing, or terminating
this permit, or to determine compliance
with this permit The permittee shall
also furnish the Regional Mmrnistrator.
upon request, copie. of records required
to be kept by this permit.
& Criminal and Civil Liability. Except
as provided in permit conditions on
“Bypassing” and “Upsets”, nothing In
this permit shall be consti’ued to relieve
the perezittee from civil or i ,i,iui I
penalties for noncompli we Any false
or materially misleading representation
or concealment of information required
to be reported by the provisions of the
permit the Act or applicable CFR
regulations which avoids or effectively
defeats the regulatory purpose of the
Permit may subject the pernuttee to
crwimal enforcement pursuant to 18
Section ICO1.
7.011 and Hazw’doizs Substance
Liability. Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the permittee
from any responsibilities, liabilities, or
penalties to which the pernuttee may be
subject under Section 311 of the Act.
& StateLaws . Nothingin this permit
shaU be construed to preclude the
Institution of any legal action or relieve
the permiltee from any responsibilities,
liabilities, or penalties established
pursuant th any applicable State law or
regulatioh under authority preserved by
Section 510 of the Clean Water Act
9. Severability. The provisions of this
permit are severable, and if any
provision of this permit or the
application of any prevision of this
permit to any circumstances Is held
invalid, the application of such provision
to other circumstances, and the
remainder of this permit, shall not be
affected thereby.
Section B. Proper Operation and
Maintenance
1. Need to Halt or Reduce Not a
Defense. It shall not be a defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the conditions
of this permit.
Z Duty to Mitigate. The permittee
shall take all reasonable step. to
minimi p or prevent any dlschaiBe in
violation of this permit which has a
reasonable likelihood of adversely
affecting human health or the
environment
3. Proper Operation and Maintenance.
The permittee shall at all times properly
operate and maintain all facilities and
systems ‘of treatment and control (and
related apportenances) which are
Installed and used by the permittee to
achieve compliance with the conditions’
of this pemilt. This provision requires
the operation of backup or auxiliary
facilities of similar systems which are
Installed by a permittee only when the
operation Is necessary to achieve
compliance with the conditions of the
permit
4. Bypass of Facilities.
(a) Definitions
(1) “Bypass” means the intentional
diversion of waste streams from any
portion of a facility.
(2) “Severe property damage” means
substantial physical damage to property.
damage to the treatment facilities that
causes them to be inoperable, or
substantial and permanent loss of
natural resources than can reasonably
be expected to occur in the absence of
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
(b) Notice
(1) Anticipated bypass. if the
permittee knows iii advance of the need
for a bypass, it shall submit prior notice,
if possible at least ten days before the
date of the bypass.
(2) UnantIcipated bypass. The
permittee shall. within 24 hours, submit
notice of an unanticipated bypass as
required in Part 1ILD.2.
(c) Prohibition of Bypass
(1) Bypass is prohibited, and the
Regional Administrator may take
enforcement action against a permillee
for bypass, unless:
(a) Bypass was unavoidable to
prevent loss of life, personal injury or
severe property damage:
(b) There were no feasible
alternatives to the bypass, such as the
use of auxiliary treatment facilities,
retention of untreated wastes, or
maintenance during normal periods of
equipment downtime. This condition is
not satisfied if adequate back-up
equipment should have been installed in
the exercise of reasonable engineering
Judgement to prevent a bypass which
occurred during normal periods of
equipment downtime or preventive
maintenance, and
(c) The permittee submitted notices as
required by Part lll.B.4.(b).
(2) The Regional Administrator may
approve an anticipated bypass, after
considering its adverse effects, if the
Regional Administrator determine, that
It will meet three conditions listed at
Part UI.B.4.(c)(1).
5. Upset Conditions. (a) Definition
“Upset” means an exceptional
Incident in which there is unintentional
and temporary noncompliance with
technology-based effluent limitations
because of factors beyond the
reasonable control of the permittee. An
upset does not Include noncompliance to
the extent caused by operational error,
Improperly designed facilities,
Inadequate facilities, lack of preventive
maintenance, or careless or improper
operation.
(b) Effects of an Upset An upset
constitutes an affirmative defense of an
action brought for noncomplianca with
such technology-based permit effluent
limitations if the requirements of Part
IILB,5.b. are met No determination
made during administrative review of
claims that noncompliance was caused
by upset, and before an action for
noncompliance. is final administrative
action sul, ect to judicial review.
(c) Conditions necessary for a
demonstration of upset. The perinittee
who wishes to establish the affirmative
defense of upset shall demonstrate,
through properly signed.
-------
35838
Federal Register I Vol. 54, No. 167 / Wednesday, August 30, -1989 / Notices
contemporaneous logs, or other relevant
evidence that:
(1) An upset occurred and that the
permittee can identify the cause(s) of
the upset:
(2) The permitted facility was at the
tune being properly operatedi
(3) The perinittee submitted notice of
the upset as required by Part IU.D.2 and
(4) The permittee complied with Part
m.B.2.
(d) Burden of Proof. In any
enforcement proceeding the perniittee
seeking to establish the occurrence of an
upset has the burden of proof.
8. Removed Substances. Solids.
sludges. filler backwash, or other
pollutants removed In the course of
treatment or control of wastewaters
shall be disposed of In a manner such as
to prevent any pollution from such
materials from entering waters of the
Liruted States.
Section C. Monitoring and Records
The permittee shall allow the Regional
Administrator, or an authorized
representative, upon the presentation of
credentials and other documents as may
be required by law to:
1. Enter upon the permittee premises
where a regulated facility or activity Is
located or conducted, or where records
must be kept under the conditions of this
permit
2. Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit
3. Inspect at reasonable dines any
facilities, equipment (including
monitoring and control equipment).
practices or operations regulated or
required under this permit and
4. Sample or monitor at reasonable
times, for the purposes of assuring
permit compliance or as otherwise
authorized by the Act, any substances
or parameters at any location.
Section D. Reporting Requirements
1. Anticipated Noncompliance. The
permittee shall give advance notice to
the Regional Adininbitrator of any
planned changes in the permitted
facility or activity which may result In
noncompliance with permit
requirements.
2. Twenty-Four Flour Reporting. The
permittee shall report any
noncompliance with this permit, bypass
or upset. Any information shall be
provided orally within 24 hours from the
time the permittea becomes aware of the
circumstances. A written submission
shall also be provided within 5 days of
the time the permittee becomes aware of
the circwnstances, The written
submission shall contain a description
of the noncompliance and its cause: the
period of noncompliance. including
exact dates and times, and If the
noncompliance baa not been corrected.
the anticipated time it is expected to
continue: and steps taken or plans to
reduce, eliminate, and prevent
reoccurrence of the noncompliance. The
Regional Administrator may waive the
written report on a case-by-case basis if
the oral report has been received within
24 hours.
3. Other Information. Where the
permittee becomes aware that it failed
to submit any relevant facts in any
report to the Regional Administrator, it
shall promptly submit such facts or
information.
4. Changes in Discharges of Toxic
Substances. The permittee shall notify
the Regional Administrator as soon as it
knows or has reason to believe:
(a) That any activity has occurred or
will occur which would result in the
discharge. on a routine or frequent basis.
or any toxic pollutant which is not
limited in the permit if that discharge
will exceed the highest of the
“notification levels” described in 40 CFR
122.42(a)(1).
(b) That any activity has occurred or
will occur which would result in any
discharge, on a non-routine or infrequent
basis, of a toxic pollutant which Is not
limited in the permit if that discharge
will exceed the highest of the
“notification levels” described in 40 ‘R
122.42(a)(2).
5. Sign atory Requirements. All
applications, reports. or information
submitted to the Regional Administrator
shall be signed and certified as follows:
(a) All permit applications shall be
signed as follows:
(1) For a corporation. By a responsible
corporate officer. For the purpose of this
section. a responsible corporate officer
means:
(a) A president. secretary, treasurer,
or vice-president of the corporation in
charge of a principle business function,
or decision making functions for the
corporation, or
(b) The manager of one or more
manufacturing, production, or operating
facilities employing more than 250
persons or having gross annual sales or
expenditures exceeding $25 million (in
second-quarter 1980 doLlar .), if authority
to sign documents has been assigned or
delegated to the manager in accordance
with corporate procedures.
(c) For a partnership or sole
proprietorship. By a general partner or
the proprietor, respectively.
(d) For a municipality, State. Federal
or other public agency. Either a principle
executive office or ranking elected
official. For purposes of this section. a
principle executive officer of a Federal
agency includes:
(1) The chief executive officer of the
agency. or
(2) A senior executive officer having
responsibility for the overall operations
of a principle geographic unit of the
agency.
(3) Alternatively, all reports required
by the permit and other information
requested by the Regional Administrator
may be signed by a person described
above or by a duly authorized
representative only th
(a) The authorization is made in
writing by a person described above:
(b) The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager.
operator of a well or oil field.
superintendent, or position of equivalent
responsibility, or an individual or
position having overall responsibility for
environmental matters for the company.
A duly authorized representative may
thus be either an individual or an
individual occupying a named positlorn
and
(3) The written authorization is
submitted to the Regional
AtIn inuitrator.
(c) Certification. Any person signing a
document under this section shall make
the following certificatiolL’
I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision in
acconlance with a system designed to assure
that qualified personnel properly gather and
evqluate the information submitted. Based on
..eiy1nquiry of the person or persons who
manage the system, or those persons directly
responsible for the gathering of the
Information, the information submitted is. to
the beet of my knowledge and belief. uue,
accurate and complete. I am aware that there
are sIgnificant penaltie, for submitting false
Information, including the possibility of fine
and lmprlsonmsnt for knowing violations.
0. Availability of Reports. Except for
applications, effluent data, and other
data specified In 40 CFR 12.2.7. any
Information submitted pursuant to this
permit may be claimed confidential by
the submitter. If no claim is made at the
time of submission, information may be
made available to the public without
further notice.
Section L Penalties for Violations of
Permit Conditions
1. C nal
(a) Negligent Violations. The Act
provides that any person who
negligently violates permit conditions
Implementing Section 301, 302. 308. 307,
or 308 of the Act is subject to a fine of
-------
Federal Re2jster I Vol. 54. No. 167 / Wednesday , August 30. 1989 I Notices
35937
not less than $2,500 nor more than
$25,000 per day of violation, or by
imprisonment for not more than 1 year.
or both.
(b) Knowing Violations. The Act
provides that any person who
knowingly violate, permit conditions
implementing Section 301. 302. 306. or
308 of the Act is subject to a fine of not
less than $5000 per day of violation nor
more than $50000 per day of violation.
or by imprisonment for not more than 3
years. or both.
(cJ Knowing Endangerment. The Act
provides that any person who
knowingly violates permit conditions
implementing Section 301. 302. 306. 307.
or 308 of the Act and who knows at the
time that he is placing another person in
imminent danger of death or serious
bodily injury is subject to a fine of not
more than $250,000. or by imprisonment
for not more than 15 years. or both.
(d) False Statements. The Act
provides that any person who
knowlingly makes any false material
statement. representation, or
certification in any application. record.
report, plan. or other document filed or
required to be maintained under the Act
or who knowingly falsifies, tampers
with, or renders inaccurate, any
monitoring devise or method required to
be maintained under the Act, shall upon
conviction, be punished by a fine of not
more than 310.000 per day, or by
imprisonment for not more than 2 years.
or by both. [ ía conviction of a person is
for a violation committed after a first
conviction of such a person under this
paragraph. punishment shall be by a fine
of not more than $30,000 per day of
violation. or by imprisonment of not
more than 4 years. or by both (See
Section 309.c,4. of the Clean Water Act),
2. Ci vil Penoities. The Act provides
that any person who violates a permit
condition implementing Sections 301.
302. 306. 307 or 308 of the Act I. subject
to a civil penalty not to exceed 325.000
per day for each violation.
3. Adm rdstrntive Penalties. The Act
provides that any person who violates a
permit condition implementing Sections
301.302.306.307.308.316. or 405 of the
Act Is subject to a civil penalty not to
exceed $25,000 per day for each
violation.
(a) Class I Penalty
Not to exceed $10,000 per violation
nor shall the maximum amount exceed
$25,000.
(b) Class II Penalty
Not to exceed $10,000 per day for each
day during which the violations
continues nor shall the maximum
amount exceed $125,000.
Section F. Definitions
All definitions in Section 502 of the
Act shall apply to this permit and are
incorporated herein by reference. Unless
otherwise specified In this permit,
additional definitions words or phrases
used in this permit are as followsi
1. “Act” means the Clean Water Act
(33 U.S.C. 1251 et. seq.) as amendej.
2. “Applicable effluent standards and
limitations” means all state an Federal
effluent standards and limitations to
which a discharge is subject under the
Act, including, but not limited to,
effluent limitations, standards of
performance, toxic effluent standards
and prohibitions, and pretreatment
standards.
3. “Applicable water quality
standards” means all water quality
standards to which a discharge is
subject under the Act and which have
been (a) approved or permitted to
remain in effect by the Administrator
following submission to him/her.
pursuant to Section 303(a) of the Act, or
(b) promulgated by the Administrator
pursuant to section 303(b) or 303(c) of
the Act.
4. ‘Blowout preventer fluid” means a
fluid used to actuate the hydraulic blow
out preventer at the weil sits.
5. “Bypass” means the intentional
diversiop of waste streams from any
portion of a treatment facility.
6. “Coastal” means any body of water
landward from the inner mat h of the
territorial seas: the term Includes marine
waters located landward from the inner
margin of the territorial seas as well as
inland rivers, streams and lakes and any
wetlands adjacent to such bodies of
waters.
7. “Deck drainage” means all waste
resulting form platform washings, runoff.
from curbs, gutters. and drains including
spillage of drilling muds, waste from
drip pans and rig floor wash dawn and
fluids derived from wash areas.
8. “Drill cuttings” means particles
generated by drilling into subsurface
geologic formations and which ass
carried to the surface with the drilling
fluids.
9. “DrillIng fluid” means any fluid sent
dawn-hole, including muds and any
specialty products, from the time the
well is begun until the final cessation of
drilling.
10. “Environmental Protection
Agency” means the U.S. Environmental
Protection Agency.
11. “Formulation test fluids’ means
fluids brought up from wells as the
result of testing the productivity of
potentially economic oil or gas from
geologic formations encountered during
drilling.
12. “National Pollutant Discharge
Elimination System” means the national
program for issuing, revoking and
reissuing, f . ..iin t1ng, monitoring and
enforcing permits, and imposing and
enforcing pretreatment requirements.
under sections 307, 318, 402 and 405 of
the Act.
13. “Produced sand” means
particulate matter, sands, produced
along with oil, gas and water during the
production of oil and gas.
14. “Regional Administrator” means
the Administrator of the U.S.
Environmental Protection Agency,
Region 6.
15. “Severe property damage” means
substantial physical damage to property,
damage to treatment facilities which
causes them to become inoperable, or
substantial and permanent loss of
natural resources which can reasonably
be expected to occur in the absence of
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
16. “Territorial Seas” means the seas
falling seaward of a line of ordinary low
water along that portion of the coast
which is in direct contact with the open
ocean and the line marking the seaward
Limit of the inland waters, extending
seaward a distance of 3 miles (CWA
Section 502).
17. “Upset” means an exceptional
incident in which there is unintentional
and temporary noncompliance with
technology-based permit effluent
limitations because of factors beyond
the reasonable control of the permittee.
An upset does not include
noncompliance to the extent caused by
operational error, improperly designed
treatment facilities, inadequate
treatment facilities, lack of preventive
maintenance, or careless or improper
operation.
(FR Doe, ss-nMa7 Filed &- - &45 am
, ‘ cess
FEDERAL EMERGENCY
MANAGEMENT AGENCY
Loulaicna Amendment t Notice of a
Major Olu.tor Declaration
IFEM 1
AGENCY Federal Emergency
Management Agency.
ACT1ON Notice,
SUMMARy This notice amends the notice
of a major disaster for the State of
Louisiana (FEMA-835—DRJ, dated July
18, 1989. and related determinations.
o*vm August 23. 19SU.
-------
33288
Federal Register / Vol. 54. No. 155 I Monday, August 14, 1989 I Notices
Executive Order 12392
The purpose of Executive Order 12291.
dated February 17. 1981. is to reduce the
burdens of existing and future
regulations. increase agency
accountability for regulatory actions.
provide for presidential oversight of the
regulatory process, minimize duplication
and conflict of reguiatioris. and insure
well-reasoned regulations.
The DOE has determined that this is
not a major rule pursuant to the criteria
of section 1(b) of the order. Furthermore,
Western has received an exemption
from sections 3, 4. and 7 of Executive
Order 12291. and therefore has not
prepared a regulatory impact statement.
Availability of Information
All brochures, studies. comments,
letters, memorandums, and other
documents made or kept by Western for
the purpose of developing the proposed
alternative rates are and will be
available for inspection and copying at
the Sacramento Area Office. Western
Area Power Administration. 1825 Bell
Street. Suite 105. Sacramento. California
9582.5. (916) 649—4418.
Issued at Golden. Colorado. July 21. 1989.
William H. Clagett.
Adm:nsstrotor.
[ FR. l)oc. 89-18980 Filed 8-il-89 &45 ami
WWNS COOS . i-e
ENVIRONMENTAL PROTECTiON
AGENCY
(FRL-3627-9J
Revision of Nebraska National
Pollutant Discharge Elimination
System (NPDES) Program to Issue
General Permits
AGENCY: Environmental Protection
Agency.
ACflOlC Notice of Approval of the
National Pollutant Discharge
Elimination System General Permits
Program of the Slate of Nebraska .
SUMMARVI On u1y 20,1989. the Regional
Administrator for the Environmental
Protection Agency (EPA ). Region VU
approved the State of Nebraska’s
National Pollutant Discharge
Elimination System General Permits
Program. This action authorizes the
Slate of Nebraska to issue general
permits in lieu of individual NPDES
permits.
FOR FURrIER INFORMATION CONTACvi
Donald Toensing. Chief. Permits Section.
U.S. EPA. Region VII. 728 Minnesota
A enue. Kansas City. Kansas 68101.
913(236—2817.
SUPPLEMENTARY INFORMATION:
I. Background
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate discharges of
wastewater which result from
substantially similar operations, are of
the same type wastes, require the same
effluent limitations or operating
conditions, require similar monitoring,
and are more appropriately controlled
under a general permit rather than by
individual permits.
Nebraska was authorized to
administer the NPDES program in June.
1974. Their program, as previously
approved, did not include provisions for
the issuance of general permits. There
are several categories which could
appropriately be regulated by general
permits. For these reasons the Nebraska
Department of Environmental Control
(NDEC) requested a revision of their
NPDES program to provide lot issuance
of general permits. The categories which
have been proposed for coverage under
the general permits program include:
non-contact cooling water, heat pump
discharges. storm water discharges and
backwash water discharges from
potable water treatment plants.
Each general permit will be subject to
EPA review and approval as provided
by 40 CFR 123.44. Public notice and
opportunity to request a hearing is also
provided for each general permit.
-: IL Discussion
The Slate of Nebraska submitted in
support of its request. copies of the
relevant statutes and regulations. The
State has also submitted a statement by
the Attorney General certifying, with
appropriate citations to the statutes and
regulations. that the State has adequate
legal authority to administer the general
permits program as required by 40 CFR
123.23(c). In addition, the State
submitted a program description
supplementing the original application
for the NPDES program authority to
administer the general permits program,
including the authority to perform each
of the activities set forth us 40 CFR
123.44. Based upon Nebraska’s program
description and upon its experience in
administering an approved NPDES
program. EPA has concluded that the
State will have the necessary
procedures and resources to administer
the 8eneral permits program.
III. Federal Register Notice of Approval
of State NPDES Programs or
Modifications
EPA will provide Federal Register
notice of any action by the Agency
approving or modifying a State NPDES
program. The Following table will
provfde the public with an up-to-date
list of the status of NPDES permitting
authority throughout the country.
Today’s Federal Register notice is to
announce the approval of Nebraska’s
authority to issue general permits.
Appcoved
Stat.
NPOES
peimd
pro m
‘°‘°
to e
Acprovea
Slate
preeeal-
mont
p ro
Alabanis —
10119171
10/19/79
10/19/79
A,tiatuaa’
11101/86
11/01/86
11/01/86
Calilomia.....
05/14/73
05/05/78
Co lorado’ .,,
05/27/75
.... -
-. - -
Connectinit.
09/26/73
01/09/69
06/03/81
Oelaw .._._
04101/74
Georgia.,..._
06/28/74
I21C8/90
03112181
Hawa . ._,_.
11125174
06/01/79
06/12/83
litin tg’ .,._..
10/20/77
09/20/71
-
Ind ,ana..........
01/01/75
12/09/78
Iowa............
08110/78
08/10/78
06/03/81
Kansis.. ._
06/28/74
08/28/05
. - .
Kentuckp’_
09/30/eS
09/30/03
09/30/53
Mar 1and —-
09/05/74
1 1/ 10/el
09/30/85
Mictugan
10/17/73
12109/70
08 107.’83
Minnesota’
06/30/74
12/09/78
07116/12
Missiao.p a
05/01/74
01/28/03
05/13/92
Miiso iai’
10 ,30174
06/26/79
06/03/81
Montana’_
08110/74
06/23/81
—
-
06/12/74
11/02/79
09/07(54
Nevade. —.
09/19/75
08/31/76
. . - .
New
.lavsey’ —.
04/13/82
04/ 13/82
04/13/82
NewYc*. .
10/28/75
08/13/80
Nonh
Carolina....
10/19175
00/26/84
06/14/82
Nc
Daliota..._
06/13/73
Ohio .___..._.
05/11/74
01/26/83
07/27/83
Oregon’
09/26/73
03/02/19
03/12/81
p-
ma.__._..
06/30/78
06/30/78
Rhode
Island 1 ,
09/17/64
09/17/84
09/17/84
Snm
Caroiute__.
06/10(75
09/2.6/00
04/09182
T -
12/28/77
08110/83
07/07/81
07/07/87
07/07/87
Ve,mort_._
03/11/74
03/161a2
Virgin
Islanda......
06/30176
.. .
Wgite.
WasalIngtaIe..
wec
03131/75
11/14(73
02/09/82 I 04/14/83
09/30/86
Vegu li.’ -
06110/92
05110/82
05/10/82
Wis tisn’.
02104174
11/26/71
i2J24/80
Wyonvng.......
01/30/13
03/16/81
.
‘0 nat .. Appoved Stat. Genarat Pemi,t Pro-
V 1 8L
IV. Review Under Executive Order
12391 and the Regvlates c Flexibility Act
The Office of Management and Budget
has exempted this rule from the review
requirements of Executive Order 12291
pursuant to Section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules whicn
may have a significant impact on a
substantial number of small entities.
Pursuant to Section 805(d) of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). I certify that this SLIe General
-------
Federal Register / Vol. 54. No. 155 / Monday. August 14. 1939 / Notices
33289
Federal Communic.itiona Commission.
Donna R. Seamy.
Sectetory.
(FR Doc. 89-18883 Filed 8-l1-89 3:45 am
Ofl.IJNG CODE S7i2.Oi—
IDA 89-9471
Advisor y Commi flee on Advanced
Television Service Planning.
Subcommittee Meeting
AGENCY: Federal Communications
Commission.
*cnore Publishing of Quarterly Report
on Travel Reimbursement Program .
SUUMARY in Public Law 100-594. the
Congress authorized the Federal
Communications Coir.rnission to accept
reimbursement from non government
organizations for travel of employees of
FEDERAL COMMUNICATIONS
COMMISSION,
TRAVEL REIMBURSEMENT PROGRAM.
Apr Il 1, 1989-Jun. 3Q 1989
Summary Report
Total Number of Sponsored
Total Number of Sponsoring Ot•
_
Total Number of Commission.
on/Employees Attending......
Total Amount of Reimburse-
ment Expecte&
Transportation
Permits Program will not have a
significant impact on a substantial
number of. small entities. Approval of
the Nebraska NPDES State General
Permits Program establishes no new
substantive requirements, nor does it
alter the regulatory control over any
industrial category. Approval of the
Nebraska NPDES State General Permits
Program merely provides a simphfied
administrative process.
Date± July 25. 1989.
Moms Kay,
Regionoi Administrator.
(FR Doe. 89-18940 Filed 8-.11-8 8:45 am
aIwN cOO! UIO-Ee- U
the Commission. The Federal
Communications Commiesion must keep
records of such travel by each event and
prepare a report each quartet of all
reimbursements allowed and provide
copies of each quarterly report to the
Senate Committee on Appropriations.
House Committee of Appropriations.
Senate Committee on Commerce.
Science and Transportation, and the
House Ccnuxuttee on Energy and
Commerce. In addition the Federal
Register must publish each quarterly
report in the Federal Register.
DATE This report is for the period from
April 1. 1989 through June 30. 1989.
AcoRES3: Federal Communications
Commission. Washington. C 20534.
FOR PURT)4!R INFORMATION CONTACT:
Joseph T. Hall. Office of the Managing
Director, (202) 832—7194.
SUPPLEMENTARY INFORMATION The
repcrt for the quarter ending June 30.
1989 is as follows:
32
______ 30
58
August 9. 1989.
A meeting of the Planning
Subcommittee of the Advisory
Committee on Advanced Television
Service will be held cn: September19.
1989. 10.00 a.m.. Commission Meeting
Room (Room 858). 1919 M Street NW..
Washington. DC
The purpose of this meeting to receive
the reports of the Subcommittees
working parties and to review the work
statement for the third period of
Planning Subcommittee activities.
The agenda for the meetings is as
follows:
1. Call to Order by the Chairman
2. Adoption of the Minutes of the Fifth
Meeting
3. Introductory Remarks
4. Review of the Work Statement
5. Statas Reports by the Working Party
and Advisory Group Chairmen
8. Other Business
7. Date and Location of the Next
Subcommittee Meeting
8. Adicurnment
This meeting is open to the public.
Parijes may submit written statements
prior to or at the time of the meeting.
Oral statebients and discussion will be
permitted under the direction of the
Subcommittee Chairman.
Any-questions regarding this meeting
should be directed to Joseph A. Flaherty
at (212)975—2213 or William Haseinger
at (202) 832—8480.
Federal Communciations Conumaston.
Donna ft. Seamy,
Secavtoiy.
(FR Doe. 89-18908 Filed 8-l1-89 3:45 am
SOD! ST1a .O1— d
FEDERAL COMMUNICATIONS
COMMISSION
Public Information Collection
Requirement Submitted to Office of
Management and Budget for Review.
August a. igag.
The Federal Communications
Commission has submitted the following
information collection requirement to
0MB for review and clearance under
the Paperwork Reduction Act of 1980(44
U.S.C 3507).
Copies of thi, submission may be
purchased from the Commission’s copy
contractor. International Transcription
Service. (202)857-3000. 2100 M Sireet
NW.. Suite 140. Washington. DC 20tX37.
For further-information on this
submission contact Judy Boley. Federal
Communications Commission. (202)632—
7513. Persons wishing to comment on
this information collection should
contact Eyvette Flynn. Office of
Management and Budget. Room 3235
NEOB, Washington. DC 20503. (202)395-
3785.
0MB Numben 3060-4 )072.
Tide: Airborne Mobile Radio
Telephone License Application.
Form No.: FCC 409.
Action: Extension.
Respondents: Business or other for-
profit. and small businesses or
organizations.
Frequency of Response: On occasion.
Estimated Annual Burden: 3.000
Responses: 252 Hours. -
Needs and Uses: The FCC 409 is used
in applying for authority to operate an
airborne mobile radio telephone by
individual users who intend to become
subscribers to a common carrier service.
The form is also used for the
modification and renewal of such
licenses. The information je used by the
Commission’s staff to determine the
qualifications of an applicant.
S17.12 0.16
l3.714.
Other Expenses ._....._ . .. Z.834.38
Total 33,668.81
Quarterly Report on the Travel
Renburasenant Pr,..... m
Individual Event Reports Attached
Amount of Reimbursement Shown May be
Estimated.
Individual Event Repast
Sponsoring OrganizoLice: National Cable
Television Association. 1724 Massachusetts
Avenue. NW.. Washington. DC 89886.
Date of £venft May 21-44. 1959.
Description of the £i’ant 38th Annual
Convention and Exposition.
Commiss:oners Attending: Commissioner
James H. Quello.
Other Employees attending See
Attachment A.
Amount of Reimbassement
Transportation
$4,386.00
buosistence.. _.,... 2,953.65
- Other Expenses . . ......_.... ..._ 673.59
Total.................... —- & 013.24
-------
r!!dral Register I’ Vol. 54, No . 1477 Wednesday, July 26, 1989 / Notices
31081
having such agencies prepare reports on
the taxpayer for use by Federal
agencies. Accordingly. EPA will disclose
this information to consumer reporting
agencies only to obtain credit reports to
help collect debts owed the EPA.
c. To provide debtor information to
consumer reporting agencies in order to
obtain credit reports for use by EPA for
debt collection purposes.
d. To provide debtor information to
other Federal agencies to effect salary
and administrative offsets.
e. To provide debtor information to
debt collection agencies under contract
to EPA to help collect debt owed EPA,
Such agencie. will be required to
comply with the Privacy Act and their
agents will be made subject to the
criminal penalty provisions of that Act.
f. To provide debtor Information to the
Justice Department for litigation or
further administrative action in
connection with debt collection.
g. To provide debtor information to
the Internal Revenue Service for the
purpose of reporting discharged debts
declared uncollectable as a result of
defaulted obligations.
h. To provide information as
necessary to other Federal agencies
conducting computer matching programs
to help eliminate fraud and abuse and to
detect unauthorized overpayments made
to individuals. (In that event EPA wili
comply with the Computer Matching
and Privacy Protection Act of 1988 and
appropriaj Qffice of Management and
Budget guidelines.)
Note: The term “debtor information” as
used in the routine uses above is limited to
the individual’s name. address, social
security number, and other information
necessary to identify the individual; the
amount status and history of the claim: and
the agency or program under which the claim
arose.
Disclosure to Consumer Reporting
Agendas
Disclosure to consumer reporting
agencies: Pursuant to 5 U.S.C.
552a(b)(12). disclosure may be made to a
consumer reporting agency as defined in
the Fair Credit Reporting Act (15 U.S.C.
1681a(f)) or the Federal Claims
Collection Act of 1966(31 U.S.C.
37 01(a)(3)).
Policies and Procedures for Storing.
Retrieving, Retaining, and Disposing of
Records in the System
Storage
Tapes. disks. printouts, and other hard
copies. Paper records maintained by
each Servicing Finance Office (located
in 14 offices nationwide). Computer
tapes and disks maintained in Research
.Triangle Park—National Computer
Center, N.C.
Retrievability
Records are indexed by an account
receivable control number (a number
assigned to each “incoming” account
receivable). Individual records can be
accesset by using a cross-reference
table which links accounts receivable
‘control numbers with debtor names and
associated debtor information.
Safeguards
Records are accessible only to
authorized EPA personnel. For
automated records, only authorized EPA
personnel with proper passwords may
access records. Other records and
computer terminals are maintained in
offices which are locked during non-
duty hours.
Retention and Disposal
Manual records are maintained until
the indebtedness is paid. at which time
they are disposed of in a manner which
ensures confidentiality of the
Information. Automated records are
purged annually for paid debts.
System Manager(s) an’d Address
Dir ctor. Financial Management
Division (PM-ZZOF), EPA. 401 M Street
SW., Washington, DC 20480.
Notification Procedure
To obtain information on whether this
system contains information on you.
contact the System Manager. in writing.
at the address listed above. The request
should brnotarized to verify your
identify. You should include your full
name, current address, telephone
numbes and Social Security Number
(SSN). Your SSN will be used only to
verify your identity. Providing your SSN
Is voluntary, but your failure to do so
will not effect your rights, although it
may delay the verification process. The
System Manager may require other
information from you.
Record Access Procedure.
To obtain a copy of a record
pertaining to you. follow the Notification
Procedure described above. In addition,
specify the records being sought.
Contesting Record Procedures
To request a correction or amendment
of a record pertaining to you. follow the
Notification Procedure described above.
In addition. you should identify the
record which you wish corrected and
the corrective action sought and
provide supporting justification for the
correction.
Record Source Categories
Systems Exempted From Certain
Provisions of the Act
None.
[ FR Doc. 17488 Filed 7—25-aR 8:45 amj
• - cost use-so-u
IFRL-3620-7J
National Pollutant Discharge
Elimination System (NPDES) General
Permit for Construction Related
Activities in South Dakota
A0V1CY U.S. Environmental Protection
Agency (EPA), Region VIII
ACTION Notice of intent to reissue
genera.l permit.
5UMMARY Region VIII of the U.S.
Environmental Protection Agency (EPA)
Is hereby giving notice of its tentative
determination to reissue the National
Pollutant Discharge Elimination System
(NPDES) general permit for the
Construction Related Activities of
Excavation Dewatering and Hydrostatic
Testing conducted within the State of
South Dakota. NPDES permit Number
SDG-070000. The general permit
provides a more efficient means of
granting discharge authorization for
these facilities. ‘flus general permit was
originally issued on August 10. 1984. and
notice of the permits’ issuance published
in the Federal Register on October 19.
1984 (See 49 FR 41104). The proposed
reissued permit will continue the
established effluent requirements and
standards of the previous permit These
requirements and standards are based
on technology and water quality
considerations, prohibitions, Best
Management Practices, and other
conditions applicable to the types of
waste waters generated by construction
facilities. Persons seeking discharge
authorization under the general permit
are required to submit a request for
discharge approval prior to their
commencement of such discharge.
DA’TEni Public comment on this proposal
must be on or before August 25. 1989.
anonusi Public comments should be
sent to: Ms. Carol L Campbell (8WM-.
C), Acting Chief. Compliance Branch.
Water Management Division. US.
Environmental Protection Agency. 999
18th Street Suite 500, Denver. Colorado
80202-2405.
Individuals covered by the system.
supervisors, consumer reporting
agencies. debt collection agencies, the
Department of the Treasury and other
Federal agencies.
C
-------
3U
Federal Reginder / VoL 54. No 1iZ Wednesday, July 2$. l 9 I Noticas
FOR FURThER INFORM*11OII UTAC7
Mr. Marshall Fischer. Region VU! at the
above-listed address or telephone (303)
203—1592 or F l ’S 564—1592. Copies of the
proposed permit and Statement of Basis
and Fact Sheet will be provided upon
request.
SUPPLEMEWTARY RIFV, *TIOIC
A. Background
Section 301(a) of the Clean Water Act
(CWA) provides that the discharge of
pollutants is unlawful except in
accordance with an NPDES permit.
South Dakota is a non-NPDES state in
which EPA retains NPDES permit
Issuance and primary enforr.pmpnt
authority. Under EPA s regulations at 40
CFR 222.2$, EPA may issue a single
general permit to point sources within
the same geographic area if the
regulated sources.
(1) Are involved in the same or
substantially similar operations;
(2) Generate and discharge the same
types of waste;
(3) Require the same permit effluent
Linutations and/or operating conditions:
(4) Require similar monitoring
requirements: and,
(5) In the opinion of the NPDES
Program Director, are moie
appropriately controlled under a general
permit than an individual permit.
As in the case of any individual
permit issued under the NPI)ES
program. violation of any condition of a
general permit constitutes a violation of
the Clean Water Act and is fully
enforceable under section 300 of the Act.
Any owner or operator authorized by
the general permit may be excluded
from the general permit by applying for
an individual permit as provided for by
40 CFR 12 2R(b).
B. Construction Related Discharges
The proposed permit covers two (2)
principal types of construction related
discharges. excavation dewatarin8 and
hydrostatic testing of pipelines or
vessels. The discharge a tviftee may be
done in conjunction or performed
separately. Excavation dewataring is
often necessary because of groundwater
or runoff intrusion at a construction sits.
Such waters potentially contain
elevated suspended solids and oil and
grease. Improper pumping or draining of
these waters would further aggravate
the pollutant impacts.
Hydrostatic testing of pipelines and/
or vessels is normally conducted to
determine the structural integrity of the
material and installation. Relatively
clean water i.e.. raw river water.
groundwater. potable water. etc.) is
typically used as the test fluid. The
pollutant potential for such related
discharges resalts mainly from improper
discharge practices (e.g.. those causing
stream channel scouring). Depending on
the source of the test fluid, other
pollutants such as suspended solids may
also be of concern.
C. Economic Impact
EPA ha, reviewed the effect of
Execative Order 12231 on this proposed
general permit and has determined the
proposal not to be major wider that
Order. This proposal was submitted to
the Office of Management and Budget
for review as required by the Executive
Order. Any cnmments front 0MB to EPA
and any EPA responses to these
comments will be made available for
public inspection at the U.S
Environmental Protection Agency.
Compliance Branch. Water Management
Division. Denver Place. Suite 500,900
18th Street. Denver, Colorado 80202—
2405.
0. Paperwork Reduction Act
EPA has reviewed the requirements
imposed on regulated faiilitiaa in these
draft general NPDE permits under the
Paperwork Reduction Act of 1980,44
USC. 3501 et seq. The information
collection requirements of these permits
have already been approved by the
Office of Management and Budget under
submissions made for the Clean Water
Act’s NPDES permit program.
E. The Regulatory Flexibility Act
After review of the facts presented In
the notice of intent printed above. I
hereby certify. pursuant to the
provisions of 5 (1 S.C. 605(b). that these
general permits will not have a
significant impact on a substantial
number of small entities. Moreover, they
reduce a significant administrative
burden on regulated sources.
Jack W. McGraw,
ActugftegionlAdminiatrutor. Region VW.
(FR Dcc. 80-17487 Filed 7-2S-8L 45 amj
- . ‘ — . cass s.e-ss-
FEDERAL EMERGENCY
MANAGEMEJ4T AGENCY
Agency fnformatlon Collection
Submitted to the Office of
Management and Budget for
Clearance
The Federal Emergency Management
Agency (FEMA) has submitted to the
Office of Management and Budget the
following information collection
package for clearance in accordance
with the Paperwork Reduction Act (44
U.&C Chapter 35).
Type: New.
Titls.’ Hazard Mitigation Planning.
AbstrocL’ The Disaster Relief Act of
197% as amended by the Disaster Relief
and emergency Assistance
Amendments of 1988 require State end
local governments receiving Federal
disaster assistance to evaluate the
natural hazards in the disaster ares, and
to take steps to mitigate these hazards.
In order to fulfill these requirements.
State and local governments must
prepare and implement a hazard
mitigation plan or plan update. Plans
will Identify measures that will reduce
potential future losees to natural
disasters. and the subsequent need for
Federal disaster asaislance. Plans or
updates must be submitted to the
appropriate F A Regional Director
within 180 days of a disaster
dedaratins.
Type of Respondents.’ State and local
governments.
Estimate of Total Annual Reporting
and Recorvikeeping Buivien: 1.
Number of Respondent&’ 1.
EstimatedAverrzge Thzrvien Hourr per
Responser 2.
Frequency of Responsa’ Annually or
after a disaster declaration.
Copies of the above information
collection request and supporting
documentation can be obtained by
calling or writing the FEMA Clearance
Officer, Linda Shiley. (202) -282% 500
C Street. SW., Washington. DC 20472.
Direct co nts regarding the burden
estimate or any aspect of thin
information collection. including
suggestions for reducing this burden, to
the FEMA Clearance Officer at the
above addres& and to Pamela Barr, ( 02)
395-7 2rdffice of Management and
Budget. 3235 NEOB. Washington. DC
20503 within two weeks of thin notice.
Date: July 19.1989.
Wesley C Moe.. ,
Director. Office of Admm:strotj ye Suppora
(FR Dcc. 80 -17 )8 5 Filed 7-25-89.9.45 aw
— “ 0 case
(FEMA- 837- DRI
Malor Olsontur and Related
Detemthialfons Connecticut
aoancv Federal Emergency
Mans’g ini nt Agency.
ACT1ON Notice.
SUMMARY This is a notice of the
Presidential declaratioa of a major
disaster for the State of Connecticut
(FEMA-837-DR). dated July 10, 1999.
and related determinations.
ociuze July 18 1989.
-------
r
Federal Register / Vol. 54, No. 140 / Monday. July 24. 1989 I Proposed Rules
30765
‘ncluded in the Administrative
rd.
Last of Subjects in 30 CFR Part 914
Coal Mining. Intergovernmental
.ations. Surface mining. Underground
‘:ning
CjrI C Close.
. cisrcnt Director Eastern Field Op rcuons
oie IuIy 13. 1989.
•r Doc. 89—17237 Filed 7—21-8g. 845 aml
SIWNO COOS 1310-054 5
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 130
( RL-362O—1J
Water Quality Planning and
Management; Reopening of Comment
Period
AGENCY: Environmental Protection
\2ency.
ACTION: Request for comment and
r .\tension of public comment period for
orooosed rule.
SUMMARY: EPA is announcing the
reopening of the public comment period
oposed amendments to 40 CFR Part
he Water Quality Planning and
Mdnagement Regulation. On January 12.
989. EPA published a proposed rule to
drnend Part 130 together with 40 CFR
Parts 122 and 123. and invited public
c nment (54 FR 1300. January 12. 1989)
The public comment period closed
c bruary 13, 1989. On June 2. 1989. EPA
:iL .lished a fInal rule (54 FR 23868) to
..mend Parts 122. 123 and § 13010 to
r,cdress. among other things. the listing
of %aters and development of individual
control strategies under section 304(1) of
:he CWA. However. EPA did not
n . lize amendments to H 130.7 and
1308. which were also included in the
Iar.uary 12 proposal, because EPA has
cec:ded to reopen and extend the public
comment period on these proposed
arner.dments.
DATE: Written comments must be
bubrnitted on or before September 22.
ag
ADDRESSES: Submit three copies of
co’nments to Judith Leckrone.
‘ssessment and Watershed Protection
Di ision. Office of Water Regulations
• “d Standards (WH—553). U.S.
ironmental Protection Agency. 401 M
Street SW.. Washington. DC. 20460. The
- ‘c record for this proposed
dment is available at the EPA
L..... ary. U.S. Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460.
FOR FURTHER INFORMAT iON CONTACT:
Judith Leckrone. Assessment and
Watershed Protection Division. Office of
Water Regulations and Standards (WH—
553). U.S. Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460. (202) 382—7056.
SUPPLEMENTARY INFORMATION: The
Clean Water Act (CWA) contains a
number of provisions for developing
pollutant discharge controls as needed
to meet water quality standards. Today
EPA is reopening the public comment
period on proposed amendments to
EPA’s regulations that implement
sections 303(d) and 305(b) of the Act.
Under section 303(d) of the Clean Water
Act, the States are required to identify
water quality limited segments.
establish a priority ranking for these
waters, and develop total maximum
daily loads (TMDLs). States must submit
the identified waters and the ThIDLa to
EPA for approval “from time to time.”
Under section 305(b) of the Act, states
are required to submit reports to EPA
every two years which describe the
water quality of all navigable waters
and then compare this quality with the
water quality goals of the Clean Water
Act.
On January 12, 1989. EPA proposed to
require that States submit to EPA the
lists of water quality limited segments
under section 303(d) of the CWA as part
of the biennial water quality reports
required by section 305(b) of the CWA
(54 FR 1300. January 12. 1989) EPA also
proposed certain data requirements. and
review and approval criteria to be used
by the States and EPA for development
and review of the lists of waters
developed under section 303(d)
As explained in the preamble in the
Federal Register on January 12. EPA
proposed these amendments for several
reasons. Most importantly, the changes
would provide an on.going national
inventory of waters with water qualtiy
problems and provide a basis for setting
priorities for assessment and control
actions, enhance EPXs ana the State’s
abilities to track specific water quality
problems over t.me. nelp ensure that the
States develop lists of waters on a
consistent national basis. dPO ensure
that the lists are periodicaily updated
with the most recent data a ai able.
Improved lists cf waters would also
strengthen the implementation of other
section 303(d) requirements such as
establishing a priority ranking for
developing total maximum daily loads
(TMDLs),
In the past, the quality of the State’s
section 303(d) lists and TMDLs has been
highly variable. A recent report by the
General Accounting Office. .‘ifore EP.4
Action Needed To Improve the Quality
of Heavily Polluted Waters (January
1989, GAO/RCED—89—38), criticized EPA
and the States for their lack of activity
and consistency in identifying needs for
and developing TMDLs Because of this
report. and past and recent litigation.
and because permitting and nonpoint
source control programs need to be
based on reasonable, up-to-date
evaluations of water quality problems.
EPA believes that it should emphasize
the listing of waters under section
303(d). and thus strengthen the national
program for identifying and developing
controls for water quality problems.
EPA is extending the comment period
for these proposed amendments because
many reviewers were confused about
how these proposed amendments relate
to the lists and individual control
strategies required under section 304(1)
of the CWA. EPA did not propose to
repeat the one-time listing of waters and
developing of individual control
strategies under section 304(l). Instead.
the proposed amendments address the
on-going listing requirements of section
303(d) and the reporting requirements
under section 305(b) of the Clean Water
Act, Sections 303(d) and 305(b) are
longstanding and ongoing requirements
established by Congress in 1972.
Specifically, the proposed amendments
would require the States to include their
section 303(d) lists of waters in their
biennial section 305(b) reports.
EPA is also extending the comment
period on the proposed amendments in
order to solicit additional comments on
the implications of adding new
emphasis to the section 303(d) program
The Agency is also respdnding tO’
requests for a longer public comment
period on these amendments in order to
evaluate how they might affect related
State and EPA programs.
In addition to all comments received
in response to this notice, EPA will
consider all the comments on the
proposed amendments to Part 130.7 and
130.8. and Part IIl.B.4 of the preamble
which wre received by EPA during the
previous public comment period that
began January 12.
In particular, EPA is interested in
receiving responses to the following
questions’
(1) I-low would improved
identification and regular reporting of
water quality limited segments and the
subsequent development of TMDLs
affect the permitting process for point
sources of pollution? For example.
would it expedite or hinder the issuance
of NPDES permits?
(2) How would improved
identification and regular reporting of
-------
.,I1
, I
Federal Register / Vol. 54. No. 140 I Monddy. July Z4. 1989 I Proposed Rules
w. iter quality limited segments and the
subsequent development of TMDLS
affect exist.ing nonpoint source control
programs? How should States consider
rtonpount source contributions iq the
development of TMDLs.
i ) Should EPA require States to rely
on and interpret the narrative water
quality criteria in the absence of
numerit.. water quality criteria. for the
pirposes of section 303(d).
(4) Should EPA require States to
provide public participa: on in the
development of the lists of water quality
limited segments?
IS) r re EP s proposed
Ii r rnentadon requtz ments at
prer isvd -uraphs 130.7(b)(6 1
adett:e. Are they ou burdensome?
Shuuid the r.gu!ations be more or less
specific abotu the documer.ta Lion
req uii emeotl’
(6) Section 303(d) rcqwres the Steles
.i esrabli h ‘ nnor:ty rankm( or the
d” elnpment of TMDLs for the water
i;u .: icy limited segments that they
i. mtifv. How should Stutes set these
priorities for the water qu .ility limited
c,iments? For example. should States
et Driorities based on human health or
. uaiic life concerns, or public interest
r.c.ncerns? Should EPA be more or ess
specific about how Statas set these
pnorities?
(7) When should these requiren ents
go .r to effect? Should the lists of water
quality limited segments be reqiured to
ic a part of the 1990 section 305(14
pors. or should the requirements start
ri .992 or even 1994?
18) Should EPA require the States to
—port these tists in a standard format?
) Besides the changes proposed on
J.inuary 12. 1989. should EPA propose
.,ddittonal changes to Part 1?0?
i).i’... July 12. t2 9.
Rebecca Hanmer.
‘I, r:, .4ss,ssoni.4dn::nsac ’at.,r for IVawr
iR Dcc. 59—17264 Filed 7—i—.’L% 8:45 .iml
SILUNG COSE ssie .eo .a
DEPARTMENT OF ThE INTERIOR
Office of Hearings and Appeals
43 CFR Part 4
PIN 1094-AA37
Special Rules Appilcabie to Surface
Coal Mining Hearings and Appeals
AGENCY: Office of Hearings and
Appeals. Interior.
ACTIO Proposed rule: reopening dod
extension of comment period. —
submission of comments on the
proposed rules providing procedures for
.idininistrative review of decisions of the
Office of Surface Mining Reclamation
and Enforcement under the permanent
regulatory program established by the
Surface Mining Control and Recldrnatton
Act of 1977.
DATES: The comment period on toe
proposed rules is exti nded until August
23. 1909.
AODRESSES Comments may be mailed
or delivered in person to: Director.
Office of Hearings and Appeals. U.S.
Department of the lnterwr. Room 1111.
4015 Wilson Boulevard. Ariira oti.
Virginia 22203.
FOR FURThER INFORP.tA1TON CONTACri
Will A. Irwin. Administrative Judge.
ln er.or Board of Land Appeals. Office
of Hearings and Appeals. U.S.
Dcpar’ment of the Interior. 4015 Wilson
Boulevard. Arlington V rgima 22203.
Telephone 703—235—3750.
SUPPLEMENTARY INFORMAT1OW On
March 8. 1989. the Office of Hearings
and Appeals published proposerl rules
amending the procedures for
administrative review of decisions of the
Office of Surface Mining Reclamation
and Enforcement under the permanent
regulatory program (54 FR 9852—55 (Mat.
8. 1989l; 54 FR 10784—10794 (Mar. iS.
19891). The National Wildlife Federation
and the Environmental Policy Institute
have requested that the period for
comment be reopened. based in part on
their interest in commenting on the
unpublished decision .i Peabody Goal
Co. v United Slates of .4merzca. CIV 86-
502 PCT CL I I (D. Ariz.. Mar. 11. 1988).
and on the settlement agreement &n
Peabody Cool Co. v. Luj..a. Civil No. 87—
3462 (RCL) (D.D.C.. (fled Dec. 21. 1987),
stating that the Department would
initiate rulemaking proceedings 10
amend 43 CFR 4.1,166-4 1388 and that
the proposed rules published on March
8. 1989. address some of the pIaintiffs
concerns n the latter case.
We are reopening the comment period
until August 23. 1989.
List of Subjects La 43 CFR Part 4
Administrative practice and
procedure. Mines. Public lands. Surface
mining.
D.ite: July 14. jq q
James L. Byme.s.
O:r , ctor.
IFR Doc. 89—i 724 Iited ——1 -i4th 1145 .iiiiI
SIWNO CODE 43 O-71-O
Bureau of Land Management
43 CFR Part 3180
(AA-630-09-421 1—021
PIN 1004-AAS?
Onuhore Oil and Gas Operatfon
Federal and Indian Oil and Gas Leases:
Onshore Oil and Gas Order No. 6—
Hydrogen Sulfide OperatIons;
Extenston of Comment Period
AGENCY: Bureau of Land Management.
Interior.
ACTION Notice of exiensi n of comment
period.
SUMMARY: The proposed rule that would
issue Onshore Oil and Gas Order No. 6
under 43 CFR Part 3160 was published in
the Federal Register on May 18. 1989 (54
FR 21075), with a 60-day comment
period. The comment period is being
e’uended to July 31. 1989. in response to
public requests.
DAT8. The pcr:od fur the submiss on of
commen:s in hereby extended to )u!y 31
1989. Comments rece;’.cd or posunur!ced
after this date may not be considered 35
part of the decusionmalong process on
issuance of the final rule.
A0ORESS. Comments shou d be sent to.
Director (140). Bureau of Land
Management. Room 5555. Main mien.
Building. 1800 C Street NW..
Washington. DC 20240.
FOR FURThER INFORMATION CONTACT
Chris Hanson. (414) 91 —4421 or Sie Ling
Chiang. (W2) 65.1—2127
Juli. 16. 19119.
James M. hughes.
Depuly .‘ss:stanl Se .reznry of the m l er:ur
(FR Doc. 89—17193 Filed ?—21—89 8:45 ,aml
O 1WNG 0C1 131014-M
FEDERAL COMMUNICATiONS
COMMISSION
47 CFR Part 73
(MM Docket No.89-301, RU-4672 ard RM-
61261
Radio Broadcasting Servlces
Carthage and Webb CIty, Missouri
AGENCY: Federal Communications
Commission.
*CTio,e Proposed rule. —
SUMMARY: This document requests
comments on two separate conflictini
petitions. The first petition. filed by
Carthage Broadcasting Company.
proposes the substitution of FM Chun:iI!l
236C2 for Channel 285A at Carthage.
Missouri. and modificatior. of the lr.e.i’e
SUMMARY: The Office of Hearings end
. ppenls is reopening the period for the
-------
Fiid J Re ster / VoL 54, No. 138 I Thursday. July 20, 1989 I Notices
Manufacturers A s, i Iinn pwsuant to
a test rule at 40 CFR 299.1250. Theze
were received by EPA on July 8. 19 .
The submission, describm (1) A
mutagencity test on ortho.aesol in the
vitro transformation of BALU/C—3T3
cells assay in the presence of a rat liver
cell activation system. (2) dominant
lethal assay in mice with ortho-aesol
and (3) dominant lethal assay in mice
with para-ci’esoL Mutagewcity testing is
reqwred by this test rule.
EPA has initiated its review and
evaluation process far these data
submissions. Al this time, the Agency is
unable to provide any detetminatson as
to the completeness of the submissions.
II. Public Record
EPA has established a public record
for these TSCA section 4(d) receipt i
data notices (docket number OPTS—
44533). This record includes copies of all
studies reported in this notice. The
record is available for inspection from 8
am. to 4 p.m.. Monday through Friday.
except legal holidays. in the TSCA
Public Docket Office. Rm. NE-COOL 401
M St.. SW.. Washington. DC 31440.
Authonty 15 U.S.C. 2503
Dated july 11. 1989.
Gary E. Tinuzi.
.4cZ,n Djrector. £xistiztgC ’hemicoi
Assessment Thv,sion. Office of Toxic
Substances.
IFR Doc. 89—17032 FIled 7—19-89.5.45 am)
BIWIIG COOS .5SO- .5
I FRL -3 51$ ?I -
Proposed General NPDES Permit for
Private Domestic Discharges In the
State of Louisiana; Fact Sheet
AGENCY: U.S. Environmental Protection
Agency.
acnorc Notice of Proposed General
NPDES Permit.
SUMMARY: The Regional Adminiavalor
of Region 6 has teniath,ely decided to
prepare a draft general NPDES permit
for certain dischargers who treat
sanitary wastes. When issued, this
general NPDES permit will establish
effluent limitations, standards.
prohibitions, and other conditions on
these discharges. The facilities covered
by this permit include single family
residences. rmiltl.fatruly residences.
small trafler pnnlcs. restaurants.
hospitals. shopping centers, motels and
office buildings located within the State
of Louisiana.
This draft general permit Is based on
he administrative record available for
public review in Region 6 of the
F.nvrronmental Protection Agency (EPA).
The fact sheet sets forth the pninapal
facts and the significant factual, legal
and policy questions considered in the
development of the draft parmiLA copy
of the draft permit I, attached.
DATE: Interested persons may submit
comments of the draft general permit
and adznlnietraflve record to the address
below no later than August 21. 1989.
ADOnESS: Ms. Ellen Caidwell (6W-PS).
U.S. Environmental Protection Agency.
Region 8,1445 Ross Avenue. Dallas.
Texas 75202- .V33.
FOR FURThER MATION MTACTi
Ellen Caldwell 16W—PS), Permits Branch
(6W—P). U.S. Environmental Protection
Agency. Region 6. 1445 Ross Avenue.
Dallas, Texas 75202—2733. Telephone:
(214) 055—7 190.
SUPPt!MDITASY lkrviuuAl iON:
1. Background
A. GenerolPenrnts
Section 301(a) of the Clean Water Act
(the Act) provides that the discharge of
pollutants is uulawful except in
accordance with a National Pollutant
Discharge Eliminating System (NPDES)
Permit. In the past, such permits have
generally been issued to individual
dischargers. However. EPA’s regulations
authorize the issuance of general
permit$ to categories of thsdiargers (40
CFR 122.28). EPA may issue a emglP .
general permit to a category of point
sources located in the same geographic
area whose discharges wwrant similar
pollution control measwes. The
Regional Administrator (with delegation
to the Water Management Division
Director) is authorized to issue a general
permit if there are anuinber of point
sources operating in a geographic area
that:
1. Invalve the same or substantially
similar types of operations:
2. Discharge the same types of wastes:
3. Re uc the same effluent
limitations or operating conthtiocs.
4. Require the same or similar
monitoring requireiaenta and
5. In the opinion of the Director, are
more appropriately controlled under a
general permit than under individual
permits.
As is the case of individual permits.
violations of any condition of a general
permit constitutes a violation of the Act
and subjects the discharger to the
penalties specified in section 309 of the
Act. Any owner or operator authorized
by a final general permit may be
excluded from coverage by applying for
an individual permit. This request may
be made by submitting a NPOES permit
application, together with reasons
supporting the request. no later than
October 18.1990. New famlitles. which
qualify, are under this general
permit unless they apply for an
individual perinti using the appropriate
application.
The Regional Administrator may
require any privately owned facility
authorized to discharge by a rrnal
general permit to apply for and obtain
an individual permit. In addition, any
interested person may petition the
Regional Administrator to take this
action. However. an individual permit
will not be issued for any point source
covered by a general permit unless it
can be demonstrated that inclusion
wider a general permit is clearly
inappropriate.
The Regional Administrator may
consider the issuance of individual
permits according to the criteria in 40
CFR 122.28(bfl2). These criteria include:
1. The discharge(s) is a stgnificmnl
contributor of pollution;
2. The discharger is not in compliance
with the terms and conditions of the
general permit
3. A change ha, occurred in the
availability of demonstrated technology
or practice. for the control or abatement
of pollutanl.s applicable to the point
source:
4. Effluent limitation guidelines are
subsequently promulgated for the point
sources ww d by the general permit
5. A Water Quality Management Plan
containing requirements applicable to
such point sources is appravedt or
6. The requirements lIsted in 40 CFR
122.28(a) and identified in the previous
paragraphs are not met.
B. Expiration Date
This NPDES general permit shall
expire five (5) years from the effective
date of the permit or for coverage of a
facility under the general permit upon
termination of discharge and closure of
the facility.
C. Water Quality Based Effluent
Liniioiio.rw
The Louisiana Department of
Environmental Quality. Office of Water
Resources, ha. promulgated area wide
policies which update the Water Quality
Management Plan for all sanitary waste
treatment facilities which discharge to
U.S. waters in the State of Louisiana.
Minimum levels of effluent quality
attainable by secondary treatment are
establi hed by 40 CFR 133.102. The State
of Louisiana has established a more
stringent requirement for all privately
owned facilities with a design flow of
less than 2,500 gpd (0.0025 MCD). 45 mg/
1 for daily maxunuzn for BOD 1 and ‘l’SS.
Disinfection is required by the State of
-------
30462.
Federal Register I Vol. 54. No. 138 I Thursday, July 20, 1989 / Notices
Louisiana. The pH lImits within the
range of 8.0 and 9.0 standard units are
based on 40 CFR 1331021c).
D. Technology Based Effluent
limitations
This permit applies only to facilities
with design capacities (flows) of less
than 2500 gpd (0.0025 MCD).
E. Monitoring Requirements
All facilities operating under
conditions of this general permit are
required to monitor each parameter
twice per year. However. if the daily
maximum limit in any sample is
exceeded then the monitoring frequency
increases to once per month. This
Increased frequency shall continue until
a sample demonstrates a value less than
or equal to the daily maximum.
U. The Nature of Discharge From
Privately Owned Sources
The source pf wastewater discharges
from privately owned treatment plants
is sanitary sewage which is amenable to
biological treatmenb There are no toxic
or priority pollutants present.
III. Conditions In the General Permit
A. Geographic Areas and Covered
Facilities
The draft permit, when Issued, will
authorize discharges from facilities at
various locations within the State of
Louisiana, to various storm sewers,
tributaries, stream segments and rivers
basins. The permit will be applicable
orjy to privately owned facilities which
have direct discharges to ‘waters of the
United States” as defined in 40 CER
122.2 and are therefore sub )ect to the
requirements of sections 301 and 402 of
the Act.
B. Privately Owned Discharges
The facilities covered by this permit
are discharges of sanitary wastes. These
facilities are not publicly owned
treatement works (POTW) as defined
under 40 CFR Part 122.2. WIthin the
State of Louisiana there Is a significant
number of privately owned dlachargers
which are covered by the Secondary
Treatment Regulations. The nature of
effluents from these facilities involves
the same types of operations, discharge
of the same type of wastewater. and the
same effluent limitations and monitoring
requirements. Therefore, these facilities
are more appropriately controlled by a
general permit. In addition, the general
permit will eliminate or reduce, for the
Agency. the time consuming process of
drafting and issuing individual permits
and similarly eliminate, for the
dischargers. the regulatory burden of
applying for and obtaining individual
permits.
IV. Other Legal Requirements
A. State Certification
Under section 401(a)(1) of the Act.
EPA may not issue a NPDES permit until
the State in which the discharge will
originate, grants or waives certification
to ensure compliance with appropriate
requirements of the Act and State law.
including water quality standards.
Region VI has requested the State of
Louisiana to certify this draft general
permit.
B. Water Quality Standards
Section 301(b)(1)(C) of the Act
requires that NPDES permits contain
limitations necessary to meet water
quality standards established pursuant
to State law or regulation or any other
Federal law or regulation, or required to
implement any applicable water quality
standard established pursuant to the
Act. The maximum 30-day average load
allowed by this general permit for either
SOD or TSS is 0.8 lb/day. Therefore, no
water quality standard violations are
expected due to the de minimus nature
of discharges.
C Duty to Provide Information
The permittee shall furnish to the
Director, within a reasonable time. any
information which the Director may
request to determine whether cause
exists for modifying, revoking and
reissuing. or terminating this permit, or
to determine compliance with this
permit. The permittee shall also furnish
to the Director, upon request, copies of
records required to be kept by this
permit.
0. Planned Changes
The permittee shall give notice to the
Director as soon as possible of any
planned physical alterations or
additions to the permitted facility.
£ Economic Impact (Executive Order
22291)
The Office of Management and Budget
(0MB) has exempted this action from
the review requirements of Executive
Order 12291 pursuant to Section 8(b) of
that order.
F. Paperwork Reduction Act
EPA has reviewed the requirements
imposed on regulated facilities in this
draft general permit under the
Paperwork Reduction Act of 1 )8O. 44
U.S.C. 3501 et seq. The information
collection requirements of this permit
have already been approved by the
Office of Management and Budget in
submissions made for the NPDES perrr
program under the provisions of the
Clean Water Act. -
C. The Regulator,’ Flexibility Act
After reivew of the facts presented in
the notice printed above. I hereby
certify, pursuant to the provisions of 5
USC 605(b), that this general NPDES
permit will have a positive benefit on a
substantial number of small entities.
Moreover, the permits reduce a
significant udministrative burden on
regulated sources.
Dateth July 5. 1989.
Joseph 0. WInida,
Acting RegionolAdministmtnr. Region VI.
Wastewater Discharge Permit
General Permit Number LAG550200
Pursuant to the provisions of the
Federal Water Pollution Control Act, as
amended. (33 U.S.C. 1251, et. seq; the
“Act”), and Federal Regulations
promulgated under the authority of the
Act, a National Pollutant Discharge
Elimination System (NPDES) General
Permit is issued authorizing privately
owned facilities, in the State of
Louisiana. that meet the requirements of
Part IL B herein and who discharge to
waters of the United States, sanitary
wastewatar totaling less than 2.500
gallons per day, in accordance with
effluent limitations, monitoring
requirements, and other conditions set
forth in Parts I and II herein. Privately
owned facilities covered include, but are
not limited to single family residences.
multi-family residences, small trailer
pa s,.Sestaurants. hospitals. shopping
celiters. motels and office buildings.
This permit shall become effective on
This permit and the authorization to
discharge shall expire at midnight on
Signedihis dày of
Myroe 0. Ka” 1 ”n.
Dhector. WaterManagernene Division (6W).
Part I
Section A. Effluent Limitations
During the period beginning on the
effective date of this general permit and
lasting through the date of expiration, all
privately owned sanitary wastewater
dlschargers with facilities having a
design flow of less than 2.500 gallons per
day are covered under this general
permit and are authorized to discharge
sanitary wastewater from their
treatment plant in accordance with the
following limitations and monitoring
requirements.
-------
Federal Re zter / Vol. 54. No. 133 I Thursday. July 20. 1980 I Notices
3 63
Section & Monitom,g Reqauemen&c
All sampling and testing shafl be done
in accordance with 40 CFR Part 136.
“Guidelines Establishing Teat
Procedures for the Analysis of
Pollutants Under the Clean Water Act.”
Samples shall be taken at the
discharge from the final treatment unit
and prior to mixing with the t iving
waters. Provisions must be made during
the installation of the fleatment unit for
the taking of a proper sample. This
permit has a minimum reqmzoment that
samples must be taken and analyzed
only twice a year. However, the
permittee shall at all times operate and
maintain the facilities used to achieve
compliance with the conditions of this
permit. indudleg addithmal sampling
and testng as necessasy to assure that
the permit limitations are not exceeded
at any time.
Records of monitoring and testing
information shall include:
a. The date, exact place and time for
sampling and measuring
b. The in’a vidual who performed the
sampling and measurements;
c. The dates and times analyses were
begun;
d. The individuals who p rfuriued the
analyses:
e. The analytical techniques or
methods useth
I. The results of such sisslysem
g. The results of all quality control
procedures: and
h. The instantaneous flow estimates.
All monitoring records must be
retained Iota period ofatlaaatthre.e (3)
years from the date of the sample
measurement, Monitoring results must
be recorded on a iii hA g 5 moi4 g
report (DMR) form (EPA No. 3320-1 or
an approved substitute). The perma ee
shall make available to this office and
the Louisiana Depsalmeut of
Environmental Quality, upon request.
copies of all momlonug data required by
this permit. Upon request. the p iUee
shall submit signed and certified DMEs
and any other reports required by this
office to the Regional M,nmi.trazor of
the Enyironmenlal Protecihur Agency
and the Louisiana Office of Waxer
Resources at the following addresses:
Chief, Enforcement Brandi (8W-E),
Environrriental Protection Agency,
Region 6,1445 Ross Avenue. Dallas,
Texas 75202.
Office of Water Resources. Depar ent
olEnviroiimental Quality. P.O . Box
44091, Ca iLd Station. Baton Ilouge.
Louisiana 70804-4ceL.
Section C. Other Discharge limitations
There shall be no discharge of floating
solids or visible loam, other than trace
amounts.
Part U
Other Requirements
The penxuuee must comply with .11
apph’ nhl. ’ provisions of the Act and the
Reguia ons. The following definition,
and additional requirmuents are in
accordance with the Act and the
Regulations.
Section A. Def,n1tions
“Acr means the Clean Water Act (33
U.S.C. 1251 et. seq.), as
‘Biochemical Oxygen Demand
(BOD5)” means the amount of oxygen
required by bacteria during the decay of
organic Qj nitrogenous material hi
sanitary sewnge.
“Total Suspended Solids (TSS)”
means the amount of solid material
suspended In water, commonly
expressed as a concentration, in terms
of mg/L
“Fecal Coliform” means a gram
negative, non-spore fnrming , rod ebap.ui
bacteria found in the intestinal tract of
warm-blooded animals.
“Facility” mw nt a pollution seurce. or
any p.tlthr ! or private property or sate
and all centr ioua land and ‘u ei.
other appurtenances and improvamerits.
where any activity is conducted whith
discharge, or may result in the
discharge of pollutants isto watem of
the U.S.
“mg/I” means milligrams per liter; it Is
essentially equivalent to part. per
million in dilute aqueous solutions.
“Sanitary sewage” means treated or
untreated wastewaler which contains
human metabolic and domestic wastes.
“Standard Methods’ means Standard
Methods for the F miieatien of Water
and Wastewater, American Public
Health Aucciation. Washington. DC.
“30-day average” other than fecal
coliform bactena, is the arithmetic mean
of the daily values for all effluent
samples collected during a calendar
mouth. calculated., the sum of all the
daily dlstharegea measured during a
calendar month divided by the number
of daily discharges measured during that
month. The 30.day overage for fecal
coliform bacteria ii the geometric mean
of the value, for’ all effluent samples
collected during a calendar month.
“Daily Maximum” means the highest
allowable daily discharge during the
calendar month.
“Grab Sample” means an individual
sample collected in less than 15 minutes.
“National Pollutant Discharge
Eliminazioc System” (NPDES) the
national program for issuing, modifying.
revoking and reissuing, terminating.
monitoring and enforcing permits, and
imposing and enforcing pretreatment
under sections 307. 318. 402, and 405 of
the Act.
Section B. Applicability
All privately owned facilities
operating a scarce or conducting an
activity that results in a sanitary sewage
discharge as desedbed below are
covered under this general permit and
will become permittees authorized to
discharge upon the effective date of this
permit. Any discharger covered by an
indIvidual permit may request that the
individual permit be r inr I .1 lithe
permitted aowne or activity is eligible
for coverage by this general penciL As
long as the sours or activity is covered
by anlndlvldual permit as well as this
general,permit. the i,i iitInn of the
individual permit will govern, until such
time as it Isc a n c e ledo rexp lre s ,
covered by this general
permit are those discharging only
sanitary sewage as defined herein and
se anbm
Dactwge s
Monitcnng -
3O
p —
I .. ,.A tuquency Sunple type
F iow-gpd ..__ . ._ ‘ Monny
6005. ..... 30 mg/I
TSS’ - — 30mg/i
Oil and Grease’ .......__........ 10mg/I
Fecaj Cousin,’ Co esF1 0 ml .. .. - .. ... , 200fl00 ad
2459
45mg/i
45 mg/I
15mg/I
40O/1 ad
Tuu/yew’ EsSatete
Ton/year’ s
Two/year’
Two/year’ G,afl
Two/year’ - Gtab
The pH aliaS viol De us ,. Sian 6.0 uan wma nor giseur eian 9.0 canaard uaga arid Null monitored twice/year’ by eanipto.
‘It the value Of ma alsuent dwacteeaac exceeds the daily numnimm mid ii any sanels. Sian lie mUrnA. .Ig tegtsiiøy aliaS morel.. to ane/meiidt The
IncTeased frequency C M I cmtimar eni a ea ,vfle demo.usarea a lese elan or ed 10 dNIp onwwuii lwiiasi,cn.
‘Re ureO of V p for coilmeroal load .ar s operations,
‘Facilities usmg siab il ,zaton povida as lie pnmwy veameraproceas are limited to 90 mg/I !or lie 30’day sag. aid 13$ mg/I I cr the da ly mu,ongn TSS.
-------
30464
Federal Register / Vol. 54 . No. 138 I Thursday , fuly 20. 1989 / Notices
discharge less than 2500 gallons of
wastewater per day. Facilities covered
include, but are not limited to single
family residences. multi-family
residences, small trailer parks.
restaurants, hospitals. shopping centers
and office buildings.
This General Permit shall not apply to:
1. Facilitiel having multiple
discharges. not all of which are sanitary
sewage. even though the total sanitary
discharge Is less than 2500 gallons per
day. Contaminated or possibly
contaminated stormwater runoff is one
such non-sanitary discharge: or
2. Facilities built in conflict with the
State of Louisiana Sanitary Code.
The Director reserves the right to
require any discharger to apply for an
individual permit and to operate the
facility in accordance with that indiviual
permit.
Section C Facility Changes
The authorization to discharge in
accordance with this general permit is
terminated upon the increase in the
average discharge rate to 2500 gallons
per day or greater. Prior to such an
increase in the discharge rate from a
treatment unit covered by this general
permit. the permittee must submit a
modified wastewater discharge permit
application (Form I General Information
and Form 2E—Facillties Which Do Not
Discharge Process Wastewater) to this
office and receive from this office an
individual permit with authorization to
discharge at that Increased rate.
Section D. Termination of Authorization
to Oischar e
This office reserves the right to revoke
the authorization to discharge in
accordance with this general permit as it
applies and/or require such person o
apply for and obtain an individual
permit ifi
1. The covered source or activity Is a
significant contributor to pollution or
creates other environmental problems:
2. The permittee is not In compliance
with the terms or conditions of this
general permit or
3. CondItions or standards have
changed so that the source or activity no
longer qualifies for this general permit.
Section £ Schedule of Compliance
Compliance by the permittee with the
effluent limitations and monitoring
requirements specified for discharges
shall be achieved upon the effective
date of this general permit.
Section F. Prohibition of Bypass
Bypass is prohibited and the director
may take enforcement actIon against a
permittee for bypass.
Section 0. Inspection and &itsy
The permittee shall allow the Director
or an authorized representative upon the
presentation of credentials and other
documents as may be required by the
law to:
1. Enter upon the permittees premises
where a regulated facility or activity is
located or conducted or where records
must be kept under the conditions of this
permit:
2. Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit
3. Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment).
practices or operations regulated or
required under this permit: and
4. Sample or monitor at reasonable
times for the purpose or assuring permit
compliance, or as otherwise authorized
by the Act any substances, or
parameters at ax y location.
Section H. Property Rights
This permit does not convey any
property rights of any sort, or any
exclusive privilege.
Section 1. State Laws
Nothing in this permit ahail be
construed to preclude the institution
from any responsibilities, liabilities, or
penalties established pursuant to any
applicable State law or regulation under
authority preserved by section 510 of the
Act.
Sectionj Signatory Requirements
All records, reports and other
Information required by this permit. or
requested by the Director shall be
signed by the owner or his/her duly
authorized representative.
[ FR Dos. 89-18953 Filed 7-19-68:8:45 aml
coos sses.ss.u
FEDERAL COMMUNICATIONS
COMMISSION
Information Collection RequIrement.
July 13, 1989.
The following Information collection
requirements have been approved by
the Office of Management and Budget as
required by the Paperwork Reduction
Act of 1980. (44 U.S.C. 3507). For further
Information contact Judy Boley. Federal
Communications Commission. (202) 032—
7513.
0MB No.: 3060-0010
Title: Ownership Report
Form No: FCC 323
The approval on FCC 323 has been
extended through 6/30/92. The Marci’
1988 edition with the previous expi’
date of 4/30/89 will remain in use Ia
updated forms are availble.
0MB No: 3060-022
Title: Application of Alien Amateur
Radio Licensee for Permit to Operate
in the United States -
Form No.: FCC 610-A
The approval on FCC 610—A has been
extended through 6/30/92. The August
1986 edition with the previous expiration
date of 8/30/89 will remain in use until
updated forms are avilable.
0MB No.: 3O60-0027
Title: Application for Construction
Permit for Commercial Broadcast
Station
Form No.: FCC 301
A revised application form FCC 301
has been approved for use through 2/25/
92. The current edition of the form is
dated June 1989. The previous edition
dated August 1987 with the previous
0MB expiration date of 2/28/89 will
continue to be accepted until August 31.
1989.
0MB No.: 3060-0034
Title: Application for Construction
Permit for Noncommercial
Educational Broadcast Station
Form No.: FCC 340
A revised application for FCC 34C
been approved for use through 4/30/t, .
The current edition of the form is dated
May1989. The previous edition dated
May 1985 with the previous expiration
date of 9/30/87 will continue to be
accepted until August 31, 1989.
‘OMBN 0 :3080-0355
Title: Rate of Return Report
No..’ FCC 492
The approval on FCC 492 has been
extended through 4/30/92. The January
1987 edItion with the previous expiration
•date of 4/30/89 will remain in use until
updated forms are available.
Federal Communications Commission.
flmum R. Seamy,
[ FR Doc. 89-17013 FlIed 7-19-88:8:45 am)
USLJII CON S7I24I.
FEDERAL MARITIME COMMISSION
Notice of Agreement(s) Flied
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
sectIon 5 of the Shipping Act of 1984.
Interested parties may inspect aw
obtain a copy of each agreement at.
Washington. DC Office of the Federat
-------
Federal Register / Vol. 54. No. 138 I Thursday, July 20. 1989 / Proposed Rules
30405
NW.. Washington. DC 20210. The
elephone number of the Docket Office
is 202—523—7894. and its hours qf
operation are 8:15 am to 4:45 pm
Monday through Fnday except Federal
holidays. Comments of up to 10 pages
may also be transmitted by facsimile to
202—523—5046 or (for P1’S) 8—523—5040
provided the original and three copies
are sent to the Docket Office thereafter.
Additionally. OSHA requests (but does
not require) that comitents prepared
with word.processing equipment be
accompanied by an MS—DOS—formatted.
5.25-inch floppy disc containing the
comments in a Wordperfect or ASCII
flie. Written submissions must clearly
identify the provisions of the proposal
which are addressed and the position
taken on each issue.
All materials submitted will be
available for inspection and copying at
this address. All tamely submissions will
be part of the record of the proceeding.
Certification of Record and Final
Determination After Hearing. Following
the close of the hearing, the presiding
Administrative Law Judge will certify
the record of the hearing to the
Assistant Secretary of Labor for
Occupational Safety and Health. The
Administrative Law Judge does not
make or recommend any decisions as to
the content of a final standard.
The proposed standard will be
reviewed in light of all testimony and
written submissions received as part of
the record. and a standard will be
issued, or a determination will be made
not to issue a rule, based on the entire
record of the proceeding. including the
written comments and data received
from the public.
Authority
This document was prepared under
the direction of Alan C. McMillan ,
Acting Assistant Secretary of Labor for
Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution
Avenue. NW.. Washington. DC 20210.
Itis issued pursuant to Sec. 8(b) of the
Occupational Safety and Health Act of
1970 (84 Stat. 1593. 29 U.S.C. 655):
Secretary of Labors Order No. 9—83 (48
FR 35736). and 29 CFR Part 1911.
Signed at Washington. DC. this 14th ddy of
July 1989.
Mae C. McMillan.
.4 cling .4ss,staral Secretory of Labor
(FR Doc. 89-17054 Filed 7—19-89 &45 am)
B1LUNG COOS 451 5-Se-U
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 123 and 403
(FRL—3617—51
California Application for EPA
Approval of Revisions to the State
National Pollution Discharge
ElimInation System Program
AGENCY. Environmental Protection
Agency.
ACTION: Proposed rule.
SUNMARr. California has requested
Environmental Protection Agency (EPA)
approval of revisions to the State’s
approved National Pollutant Discharge
Elimination System (NPDES) program.
These revisions, if approved by CPA,
will allow California to adnunister the
pretreatment program and also to issue
NPDES general permits. In addition.
California has repealed its previously
approved NPDES regulations. wh ch
contained requirements for its existing
NPDES permit program. and now
implements the permit program by
incorporating federal NPDES
requirements and regulations into State
law. The State also has requested
approval of this revision. Today’s notice
provides for a 45 day comment period
on California’s revisions and an
opportunity for interested persons to
request a public hearing. EPA’s Regional
Administrator for Region I X will
approve or disapprove the State’s
application after taking into
consideration all comments received.
OATE Comments must be received on or
before September 5.1989. Interested
persons may also request a public
hearing on California’s application. If
significant public interest is expressed.
EPA will schedule a hearing. In the
event a hearing is held. EPA will provide
prior notice of the date, time, and
location. All requests for a hearing must
be submitted on or before expiration of
the public comment period.
ADDRESS: Comments should be
addressed to William H. Pierce. Chief.
Permits Branch. Water Management
Division. U.S. Environmental Protection
Agency. 215 Fremont Street. San
Francisco, CA 94105.
FOR FURThER INFORMATION CONTACT
William H. Pierce. Chief, Permits
Branch. Water Management Division.
(415) 974—8110. 215 Fremont Street. San
Francisco, CA 94105.
SUPPLEMENTARY iNFORMATION: Section
402 of the Clean Water Act (CWA) (133
U.S.C. 1251 et seq.) requires EPA to
administer the NPDES permit program
under which the Agency may issue
permits for the discharge of pollutants
into waters of the United Slates in
accordance with conditions required by
the Act. Section 402(b) of the CWA
provides for States to assume NPDES
pernuttmg responsibilities upon
approval by EPA. States also may
request authority to issue general
permits for similar dischargers with the
same effluent limitations. (See 40 CFR
122.28.) In addition. under section 54 of
the 1977 amendments to the CWA.
States requesting NPDES permittuig
authonty. as well as States already
approved to administer the NPDES
permit program, must also reqw’st
permitting authority over discharges
from federal facilities located within the
State and authority to administer the
federal pretreatment program governing
the introduction of industrial pollutants
into publicly owned treatment works
(POTWa). (Cf. CWA section 402(n))
After EPA approves a State’s request for
NPDES permit and/or pretreatment
authority, the State must thereafter
submit any proposed program re isions
to EPA for reapproval pursuant to 40
CFR 123.62(b).
On May 14. 1973. California became
the first State to be approved by EPA to
administer the NPDES permit program.
On May 5. 1978. it also became the first
State to receive EPA approval to
regulate discharges from federal
facilities. California has not yet been
approved to administer the pretreatment
program or issue NPDES general
permits.
On March 10. 1988. California
submitted an application to EPA for
approval of revisions to its approved
NPDES program in accordance with 40
CFR 123.62 and 403.10. This application
includes a request to add pretreatment
and general permit authority to its
approved program. It also includes a
request for EPA approval of revisions to
the State’s existing NPDES permit
regulations. (California does not have.
and has not requested. EPA approval to
administer the NPDES and pretreatment
programs on Indian lands.) Pursuant to
40 CFR 123.82(b) and 403.10(g).
California has submitted in support of
its application an Attorney General’s
Statement (including copies of all
applicable State statutes and
regulations) certifying that the State has
adequate authority to administer the
NPDES program being sought. a program
description describing how the State
intends to carry out its responsibilities.
and a proposed EPA/ California
Memorandum of Agreement These
documents are revisions of the origindi
copies submitted to EPA when
-------
30406
Federal Register / Vol. 54. No. 138 I Thursday. July 20. 1989 / Proposed Rules
California sought approval of its existing
NPDES permit program.
With respect to C.ilifornia’s request
for approval of revisions to the States
existing NPDES permit regulations.
California has repealed its approved
NPDES permit regulations and now
proposes to implement the State permit
program under State law, which.
according to the Attorney General.
incorporates by reference all existing
and future federal NPDES law and
regulations. Specifically, the Attorney
General has certified that the Porter.
Cologne Water Quality Control Act
(Porter.Cologne Act), which implements
the California NPDES program,
incorporates federal NPDES and
pretreatment law and regulations
prospectively. meanixig.that future
amendments to federal law and
regulations are automatically
incorporated into State law without the
need for amendment of State statutes
and regulations. [ In support of this
authority for prospective incorporation
by reference, the Attorney General has
cited the Porter.Cologne Act, sections
13160. 13170. 13177. 13385. 13388, and
13387.1 The Attorney General also has
certified that regulations adopted by the
California State Water Resources
Control Board, the Statewide NPIDES
permitting agency, prospectively
incorporate EPA regulations applicable
to the processing of NPDES applications
and issuance of NPDES permltL [ The
cited State regulations in the Attorney
General’s Statement are 23 Cal. Admin.
Code Sections 2235.1(c), 2235.2, and
2235.41 Such prospective incorporation
of federal law and regulations is.
according to the Attorney General,
authorized under California law and the
State’s Constitution.
As discussed above. California also
has requested authority to issue NPDES
general permits and administer the
pretreatment program. With respect to
general permit authority. EPA
regulations at 40 CFR 122.28 provide for
the issuance of general permits to
regulate discharges of waste water
which result from similar operations, are
of the same type wastes, require the
same effluent limitations. require similar
monitoring, and are more appropriately
controlled under a general permit rather
than by individual permits. If EPA
approves California’s request for general
permit authority, each general permit
proposed by the State would be sub)ect
to EPA revIew and approval as provided
by 40 CFR 123.44(a)(2). Public notice and
opportunity to request a hearing also
must be provided for each general
permit.
With respect to California’s request
for pr treatinent authority, the State
also proposes to implement its
pretreatment program under the Porter-
Cologne Act provisions which
prospectively incorporate federal law
and regulations. Under the CWA and
EPA regulations at 40 CFR Part 403, the
primary objectives of the pretreatment
program are to: (1) Prevent the
introduction of pollutants into POTWs
which will interfere with plant
operations and/or disposal or use of
municipal sludge; (2) prevent the
introduction of pollutants into PO’fl,Vs
which will pass through treatment
works in unacceptable amounts to
receiving waters; and (3) improve the
feasibility of recycling and reclaiming
municipal and industrial waste water
and sludge. in order to be approved,
California’s request for pretreatment
program approval must demonstrate
that there is appropriate legal authority,
procedures, available funding, and
qualified personnel to implement the
program as specified in 40 CFR 403.10.
Generally, local pretreatment programs
will be the primary vehicle for
administering, applying, and enforcing
California’s pretreatment requirements.
Currently, 102 such programs have been
approved by EPA. Where local programs
have not yet been required or developed
in California. the State must apply and
enforce the pretreatment requirements
directly against industries that discharge
to POTWs [ e.g.. 40 CFR 403.10(f)(2)(i)J. i
If approved by the Regional
Administrator, California’s pretreatment
program, as well as its revised NPDES
permit program, will be administered by
the California State Water Resources
Control Board and rune Regional Water
Quality Control Boards. The Regional
Administrator’s decision to approve Or
disapprove California’s proposed
program revisions, including its request
for pretreatment and general permit
authority, will be based on a
determination of whether the proposed
program theets the requirements of the
Clean Water Act and 40 CFR Parts 122,
123. 124. and 403,
The California submission may be
reviewed by the public at the State
Water Resources Control Board, 901 “F’
Street, 2nd Floor, Sacramento, CA 95814
and U.S. Environmental Protection
Agency. Library, 6th Floor, 215 Fremont
Street. San Francisco, CA 94105. Copies
‘According to the CaIiIornt3 Attorney Cenerel.
the requiremenhi of the GVA md implementing
reguiuttone incorporated by reference by the Porter’
Cologne Act. include but ire not untied to the
pretreatment ataitdardi and reporting requirementi
ror lUm of POTWs (10, e ampie 40 CFR 4035.4036
and 403 1.il
of the submittal may also be obtained
for $75.00 from these offices.
Review Under Executive Order 12291
and the Regulatory Flexibility Act
The Office of Management and Budget
has exempted this rule from the rev ew
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities. The
proposed approval of California’s
NPDES program revisions, including the
addition of pretreatment and general
permit authority, does not alter the
regulatory control over any municipal or
industrial category. No new substantive
requirements are established by this
action. Therefore, since this notice does
not have a significant impact on a
substantial number of small entities, a
Regulatory Flexibility Analysis is not
necessary.
Dated: lune 28. 1989.
John C. Wise,
Acting Regional Administ rotor for Region IX.
(FR Doc. 88—16880 Filed 7—19—8 8.45 antI
un a sect
40 CFR Part 261
(SW-fffi . ,-3819-2 1
Hazardous Waste Management
System Identification and Listing of
Hazardous Waste; Proposed Exclusion
Aamicv Environmental Protection
Agency.
ACTIOSC Proposed rule and request for
comment
suuua v The Environmental Protection
Agency (EPA or Agency) today is
proposing to grant a petition submitted
by USX Corporation. Chicago, Illinois. to
conditionally exdude certain solid
wastes generated at its Southworks
Plant. Gary Works facility from the lists
of hazardous wastes contained in 40
CFR 251.31 and 281.32. This action
responds to a delisting petition
submitted under 40 R 280.20, which
allows any person to petition the
Administrator to modify or revoke any
provision of Parts 260 through 268, 124.
270, and 271 of Title 40 of the Code of
Federal Regulations. and under 40 CFR
260.22, which specifically provides
generators the opportwuty to petition
the Administrator to exclude a waste on
a “generator-specific” basis from the
hazardous waste lists. Today’s proposed
decision is based on an evaluation of
-------
29988
Federal Register I Vol. 54, No. 135 / Monday. July 17. 1989 / Notit è
ENVIRONMENTAL PROTECTiON
AGENCY
(FRL-381 5-1 NPOES Ns. FLGG4000II
Final NPDES General Permit for
Petroleum Fuel Contaminated Ground!
Storm Waters in the State of florida
AGENCy Environmental Protection
Agency.
ACT1OPC Notice of Final National
Pollutant Discharge Elimination System
(NPDES) General Permit.
siu *n The Regional Administrator
of Region IV is today issuing a final
National Pollutant Discharge
PJimination System (NPDES) General
Permit No. FLCO4000I to facilities within
the political boundary of the State of
florida. This NPDES general permit
establishes effluent limitations.
prohibitions . reporting requirements and
other conditions on facilities which
discharge treated groundwater and/or
stormwater incidental to the
groundwater cleanup operation which
have been contaminated by automotive
gasoline, aviation and/or diesel fuels.
This final general permit authorizes
discharges from facilities currently
located in and discharging to surface
waters, or to tributaries/conveyances
thereof within the political boundary of
the State of florida. and any new
treaiment facility placed In operation
during the term of the permit. Issuance
of this final permit will allow cleanup
actions at contRmifl2ted sites to begin
without the delays of individual NPDES
permit issuance procedures. This
general permit will potentially cover
more than 2000 sites.
nai ’a This permit shall be effective on
July 17. 1989 at L00p.m. Eastern
Daylight Savings Time. Notification of
coverage by the general permit will be
by certified mail from the Dlrectoz
Water Management Division. EPA,
Region IV. This method of notification
will be applicable to both new
dlschargeze and existing discharger,
that submit notices of intent for general
permit coverage. Existing discharger,
must also request that current Individual
permits be revoked upon notification of
coverag, by the general permit The
date for coverage under the general
permit will be the date the applicant
receives the assigned NPDES number
under the general permit.
In accordance with 40 R 23.2, the
Region hereby specifies that this permit
shall be considered the final agency
action for purposes of judicial review at
1.00 pin. Eastern Daylight Savings Time
on the date of this notice. In order to
assist Region IV to correct any
typographical errors, incorrect cross
references, and similar administrative
errors, comments of a noasubstantive
nature on the final permit be submitted
on or before August 28, 1989.
The edminisLr tive record, including
application, final permit, fact sheet,
public notice, comments received. and
additional Information are available by
writing the EPA. Region IV. or for
review and copying at 345 Courtland
Street NE., 3rd floor. Atlanta. Georgia
30365, between the hours of 8:15 a.m.
and 4:30 p.m., Monday through Friday.
Copies will be provided at a minimal
charge per page. Additional information
concerning the permit may be obtained
at the address and during the hours
noted above from Ms. Dianne Brown.
Public Notice Coordinator. (404) 347—
3004.
ADORES Notifications required under
this permit should be sent to: Director.
Water Management Division. US.
Environmental Protection Agency.
Region IV, 345 Courtland Street NE..
Atlanta. George 30385.
Request For Coverage: Written
notification of intent to be covered by
the general permit shall be provided as
described in the permit, Part ILF.
Request for coverage must contain
evidence that the operation has been
approved for Initial Remedial Actions
(IRA), or has obtained a Site
Rehabilitation Initiation Order and an
approved Remedial Action Plan (RAP)
from the State of florida Department of
Environmental Regulation.
FOfi PURThER INFORMATION CONTACT
Roosevelt Childress, Chief. South Areas
NPDES Permits Unit, or Larry Cole.
Environmental Engineer. Facilities
Performance Branch. Water
Management Division. U.S
Environmental Protection Agency. 345
Courtland Street NE., Atlanta. Georgia
30365, (40 5) 347-3012.
SUPPLEM(NTAaY INFCflMATI C
L Introduction
On August 25, 1988. EPA Region IV
published a notice of the draft general
permit (53 FR 32442) that Is being issued
in final form today. The Region received
materials from fourteen (14) commenters
on the proposed permit. plus a request
for an extension of the public comment
period. On October 25, 1988 (53 FR
43035). the public comment period was
extended until November 15. 1988. All
the public comments received during
this period are included in the
administrative record and were
considered by Region IV in the
formulation of a final determination of
the conditions of today’s final permit.
The Region published a detailed fact
sheet with the draft permit in 53 FR
32442. The Region is incorporating by
reference that fact sheet and
supplementary information as part of
the final fact sheet for today’s final
permit. The discussions presented in
these sections should be consulted in
reviewing the applicability and scope of
the final permit conditions.
LI. Other Legal Requirements
A. Executive Order 12291
The Office of Management and Budget
has exempted this action from the
requirements of Executive Order 12Z91
pursuant to Section 8(b) of that order.
B. Paperwork Reduction Act
EPA has reviewed the requirements
imposed on the regulated faci.litius in
this final general permit under the
Paperwork Reduction Act of 1980. 44
U.S.C. 3501 et seq. The information
collection requirements of this perirnt
have already been approved by the
Office of Management and Budget in
submissions made for the NPDES permit
program under the provisions of the
Clean Water Act (hereafter, ‘ the Act”).
C. State Certification Requirements
Section 301(b)(lUc) of the Act requirer
that NPDES permits contain conditions
which ensure compliance with
applicable state water quality standards
or limitations. Under Section 401(aj(i) of
the Act, EPA may not issue a NPDES
until the state in which the
discharge will originate grants or waive
certification to ensure compliance with
appropriate requirements of the Act and
state law. EPA requested certification oi
the permit on August 11. 1988. On June
14. 1989. the Florida Department of
Environmental Regulation waived
certification of the general permit.
D. Effective Dote
The final NPDES general permit
issued today Is effective on July 17. 1989
and upon written notification of
coverage from the Permit Issuing
Authority.
S. Regulatory Flexibility Act
After review of the facts presented in
this document, I hereby certify. pursuan
to the provisions of 5 U.S.C. 805(b). that
this general NPDES penni will not havi
a significant impact on a substantial
number of small entities. Moreover, the
-------
Federal Register / VoL 54. No. 135 I Monday, July 17. 1989 / Notices
29987
permit reduce. a signifirant burden on
regulated sources.
Lee A. DeHthrj s U I,
Actfr RjonaIA znj,g, p. Region I V.
Summary of Comments
.Appendix A—Public Comments
Public notice of the draft permit was
published at 53 FR 32442 (August 25.
1988). The comment period was
scheduled to close on September 25.
1988. Region N received a request from
the Florida Petroleum Council for an
extension of public comment period.
since the proposed draft raised Issues of
potentially significant concern to the
petroleum industry. The comment period
was noticed at 53 FR 43035 (October 25.
1988) and extended until the dose of
business on November 15, 1988.
Significant comments presented during
the public comment periods were
considered In the formulation of a final
decision regarding the proposed permit.
The following parties responded with
written comments on the general permit
Total Petroleum Inc.. Kerr.McCee
Corporation. Hopping Boyd Green &
Sams. Florida Petroleum Council.
Chevron U.S.A. Inc.. Shell Oil Company
Professor Richard I .. Williamson. Jr.,
Florida Petroleum Marketers
Association. Hunton & Williams. Florida
Department of Environmental
Regulation (FDER). Kaiser Engineers.
Conoco Inc.. and the American
Petroleum Institute.
(1) Comment Several industry
comnientera stated that the Region has
failed to consider adequately the factors
necessary to establish technology—
based effluent limitations for benzene.
lead, and napthalene. They mentioned
that there are no promulgated effluent
guidelines applicable for these point
sources. therefore, this permit must
necessarily establish technology based
effluent limitations on a site-by-site
basis (40 R 125.3(c)(2)J. Consequently.
the Region must consider. inter aIls. the
“engineering aspects of the application
of various types of control techniques
and the cost of achieving such effluent
reductions.” They stated that treating
benzene coutiu.ii u ted groundwater to
1.0 &g/1 on a consistent basis would
require optimal conditions to be met.
and also mentioned that long term
treatment could amount to $1.000.000 or
more per site. In some cases it may be a
technical impossibility to treat
hydrocarbon contaminated groundwater
to trace levels in the aquifer, even if the
moat advanced technology currently
available is used.
Response The Region agree. that
optimal conditions for complying with
the proposed benzene Ilaut may not be
available at every site. Each operator
tmist consider which factors may
prevent compliance with the proposed
limits before applying for coverage
under the general permit. Other factors.
such as Iron and mengnne.e levels
above 5.0 mg/i in the influent require
polishing steps before using carbon
absorption as a cleanup alternative.
Howevert on individual permit requests.
previous facilities were designed to
meet a benzene limit of 1.0 ghg/l by
applying engineering techniques to keep
the Influent to the airstripper at low
concentrations before treatment
occurred. Some facilities were using
Infiltration galleries and were in
operation before applying for an NPDES
permit and were consistently meeting
the 1.0 pg/i effluent limitation for
benzene from their treatment facilities
prior to requesting a discharge permit to
surface waters. If enormous costs could
be verified after hydrogeologic
consideration due to a long term cleanup
project, an Individual permit might seem
wore appropriate however. Chapter 17—
70 of the State Underground Petroleum
Environmental Response Program does
provide flexibility with regard to costs
and time frame after a minimum of one
year or less if data exist to verify that
the cleanup remedial action Is complete.
The State of Florida would have the
responsibility to make a determination
as to whether the remedial action
operations would be deemed complete
based on concentrations found In the
groundwater and consider the technical
feasibility of other proven groundwater
techniquee to further reduce
contaminant levels at the site.
Therefore, compliance with the
proposed limits of the general permit
does not infer high cleanup costs, since
FDER would verify whether a
remedlatlon plan is complete based on
individual site data received from the
operator. Even though airstripping
Independently does very little for
removal of leaded compounds in
gasoline. alrstripplng plus other
treatment processes combined do
reduce the lead levels enough to meet
the permit limit. Considering the amount
of hydrocarbons recovered in the mobile
free floating phase and the high
adsorption potential of organic leading
compounds onto the soils, treatment to
comply with the lead limit has not
raised concern at other facilities with
individual permits. The technology being
used, even though not a lead removal
technology, is able to reduce the levels
of leaded compounds.
(2) Commeng Several commenters
mentioned that the proposed limitations
for benzene. lead and naphthalene are
more stringent than necessary to meet
applicable water quality standards. The
commenters mentioned that outside of
the mixing zone. Florida has established
a general water quality eriteri a for lead
of 50.0 pg/I (FAC 17—3.0O1(2)(l)J, yet the
Region proposed to establish end-of-
pipe effluent limitations at the point of
discharge of 30.0 pg/I. apparently
assuming that all discharges will be to
Class I Waters-Potable Water Supplies
(MC 17-3.091(18)1 and that the drinking
water intake pipe will be adjacent to the
effluent discharge, a specifically
prohibited practice (FAC 17-4.244(1)(d)j.
It was stated that the Florida Petroleum
Council 1988 report entitled “Beazene in
Florida Groundwater” demonstrated
that drinking water containing less than
25 Mg/I of benzene would not contribute
to leukemia. Commenters also
mentioned that 5.0 pg/I is the U.S. EPA
drinking water standard and that the
Florida Department of Environmental
Regulation is proposing to set the
beozene limit equal to EPA’s standard.
Response The effluent limitations are
technology.based and applied at the
end.of.pipe therefore, a mixing zone is
not granted under this general permit.
On previous individual permit requests
for cleanups of this type. the limits were
applied at the end-of-pipe. Zones of
mixing are granted on a case-by-case
basis by FDER and will be considered in
individual permit issuances. The State of
Florida had considered raising their
standard to 5.0 Mg/I (MCL) for benzene
In the drinking water, but these
proposed limits have not been finalized.
The 1.0 pg/I limit for benzene has been
proven to be technologically achievable.
and Is coincidentally between the io
and 10 risk levels of 6.8 pg/i and 0.68
pg/i for increase in cancer over a
lifetime (EPA 440/5-80-018): therefore, a
revision upward is not justified. Alan. as
discussed in response to Comment (1),
the level of Influent concentrations by
petroleum contamination to the
treatment system should be controlled
by the operator. i.e.. segregating the
more concentrated coniRminated
groundwater, for product reclamation or
off.site disposal.
(3) Comment Several commenters
stated that the Region’s proposed
toxicity limitations are both
procedurally and substantively infirm
and should be used for information
screening purposes only. They
mentioned the proposed toxicity
limitation is more stringent than
reqwrêd under applicable Florida water
quality standards and that the subject
State regulation provides that the
maximum concentration of wastes in the
mixing zone shall not exceed the
amount lethal to 50% of the test
-------
29988
Federal Regis*ar I VoL 54, No. 135 / Monday, July 17, 1989 I Notices
organisms in 96 hours (96 hr LCe) for a
species significant to the Indigenous
aquatic c. .’...n’unfty (FAC 17-4.244(4J(a)j.
They mentioned tha Region purports to
equate the “effluent with the ‘mixing
zone’ and three appropriate test species
with a species significant to the
Indigenous aquatic community”, an
approach at odds with the florida
Department of Environmental
Regulation. It was also mentioned that
while this may be Agency policy, no
substitute can exist for the exercise of
informed decision maldng. C i ’ NRDC v.
EPA. No. 80-1607 (DC. CIr. 1988) slip op.
at 64—85.
Response: The “Whole Effluent
Toxicity Testing Policy for Florida”,
dated May 5. 1988. was developed by
EPA. Region IV. for use In writing
NPDES permits in Florida. Our
requirements. procedures and methods
do not have to correspond with those
required by the FT)ER.
After consideration of comments
received regarding the toxicity
requirement. the language in this permit
has been revised to allow additional
confirmatory testing if the toxicity tests
fail. These additional toxicity tests will
be used to determine if coverage by the
general permit should continue or If an
individual permit will be required.
Failure of the tests does not constitute a
permit violation. The use of non-
indigenous species for standard
laboratory toxicity Is consistent with
EPA’s Technical Support Document and
the final report of the Bioassay Task
Force Report of August 1985, by the
FDER. This report recommended that
“standard stock monoculturea of known
health and sensitivity must be used in
testing.” In interpreting the meaning of
the use of organisms significant to the
indigenous aquatic commonlty. this has
been interpreted by FDER as meaning
“any recognized org ” 4 u” ' can be used
for bioassay testing as long as that
organism Is known to be sensitive to
toxic substances that can be expected to
Impact the Indigenous . .....mUmty”,
(page 6. final Report—Bioassay Task
Force). With regard to allowance of a
mixing zone under Florida’s standards.
these discharges do not have approved
mixing zones. In the absence of a mixing
zone, the least stringent rule [ 17-.
4244(4)1, which prohibits wastes at the
point of discharge from exceeding the 96
hour LC. 0 (LC 1 . 100%), applies at the
end..of-pipe (page 5, FInal Report of the
Bioassay Task Force).
(4) Conunent: Some commenters
stated that EPA lacks the authority to
require development of a Best
Management Practices (BMPJ Plan. The
Clean Water Act (CWA) empowers EPA
to Include such requirements in an pollutants which are also discharged. It
NPDES permit only If it ha. published is the Region’s view that If the treawient
Industry-epecific BMP regulations and, efficiency Is adequate in the Initial
even then. only after vi king certain cleanup operations, the effluent quality
specified regulatory determinations, In the later stages of cleanup opera tion.s
Since EPA has yet to promulgate should not deteriorate as the cleanup
requirements applicable to these operations progress and the
discharges. it Is without the statutory groundwater quality is restored.
authority to Impose them in the general (7) Comment.’ One commenter stated
permit. In NRDC v. EPA. Industry that since these are technology based
petitioners, including API challenged limits, if an “upset” occurs, it
EPA’s authority under sections 125.100 necessarily follows that it should be
and 125.103 to include BMPs in NPDES possible to raise that defense to any
permits on a case.by.case basis under permit violation. They reco” nnded
section 402(a)(1). In a Settlement deleting the water-quality qualifier
Agreement dated fune 7,1982. the which appears to limit unnecessarily th
parties agreed that the BMP Issue was availability of the upset defense in this
not ripe for adjudication because EPA setting.
had suspended the effectiveness of its Response: The Region agrees that thi
BMP regulations pending further review, statement should not be included and it
and the BMP Issue was dismissed on the has been deleted in the final issuance a
ripeness ground on August 8. 19g. the general permit.
Pursuant to the Settlement Agreement. (8) Comment: One commenter stated
the industry petitioners reserve the right that it was unnecessary for general
to challenge any new BMP regulations perinittees to receive permission from
which may be promulgated. Many of the EPA to deactivate coverage under the
same concerns would be addressed in general permit.
the applicable Site Remedial Action Response: The language in the perrni
Plan, has been clarified to state that EPA wu
Response: Section 402(a)(2) of the Act Inactivate coverage by the general
and the Implementing regulations at 40 permit after review of site closure
CFR 122.43(a) authorize EPA to require documentation.
Best Management Practices Plans in (9) Comment: One commenter sta tea
NPDES permits. Decision of the Cene,vJ that the 30 pg/I effluent limit Imposed
Counsel. No. 72. Issue VL The permit for lead would not necessarily in all
requires that the BMP plan be prepared circumstances protect human health.
in conjunction with the Site Remedial The EPA 440/5-10-057 Ambient Water
Action Plan. Criteria document for lead Is obsolete.
(5) Comment.’ An industry commenter since EPA Headquarters has proposed
stated that the separate authorization to new drinking water standard for lead
combine contaminated groundwater which contains an impressive array of
pumped to above-ground storage tanks health Information of 5.0 pg/I (53 FR
with contaminated groundwater from , .. ..41565. August18. 1988). Past practice f
the sites recovery, well should be Florida Is to keep the water quality
deleted. criteria for lead well below the federa’
Response: The Region did not Intend standard therefore, anticipation can b
to construe this as a separate permit made that the Slate will lower their
requirement but could be Included In standards, If the State of Florida
the notification stages when the facility Imposes this 5.0 pg/i for lead, this wot
will be combining discharges. This be measured outside the mixing zone
would give the Region an accurate after dilution has been taken Into
account of facilities that would actually account. Par example, with a dilution
be using these treatment processes to 5.1. the effluent could have a
treat the storage tank bottom waters, cnnrnntration of 30 jig /I and still not
This can be handled In the Notice of exceed the new water quality standar
Intent (NO!) which is required by EPA The general permit should be more
for the permittee to be covered under stringent than Individual permits base
the general permit. on reasonable worst case, yet nowhe
(8) Comment: Several commanteze Is the general permit discharge limilec
mentioned that as long as the permittee those with substantial low flow or to
Is meeting the effluent Limits, the one. conditions where there are ambient
time analysis of the effluent for priority background levels of lead. This woath
pollutants appears to be unnecessary. result in the Instream concentration a
Response: This one-time scan was 5.0 Mg/I to be exceeded. The lead mu
Incorporated Into the general permit to of 30.0 pg/I will not protect freshwati
check the treatment facilities’ organisms. The current documents
performance near the start of operation include values that would protect
for the reduction of other priority organisms themselves. For some
-------
Federal Raejstar / VoL 54. No. 1351 Miwlay. July 17,1989 / NotIces
989
substances. ISCIUdiU 8 lead, the value for
the protection of aquatic organisms
could be more stringent than human
health. particularly In streams with very
low hardness (72 sg/l at a hardness of
200 sg/fl. The effluent limit will not be
protective of aquatic organisms in
streams with low flows and/or high
background levels. IL was recommended
that a one-time priority pollutant scan
be used to ensure the treated water did
not contain any toxic pollutants. Also,
that a more frequent sampling be
imposed in the permit if a failure does
occm during toxicity testing to
determine if the limit is being
maintained using a larger data base and
this permit violation would trigger
applying for an individual NPDES
permit
Respansa This general permit was
Dot Written to consider existing or
proposed drinking water standards by
any regulatory agency. The testing
requirement for lead is currently being
required by the State of Florida for the
groundwater at sites which do not
satisfy the ‘no further action” or
“monitoring only” alternative. With
regard to toxicity testing, the Region has
revised the toxicity testing requirement
based on significant comments received
on the draft general permit. The
Regional toxicity testing requirements
still supports the use of organisms
significant to the Indigenous aquatic
comimmity as mentioned in the
response to Comment (3) however,
additional tests will be required to
support-continuance or revocation of
coverage under the general permit Part
U, Section C. doe. provide exclusion of
coverage under the general permit. If a
permittee proposes a discharge to
receiving waters that are classified as
‘Special Protection. Outstanding Florida
Waters.” A priority pollutant scan is
Included Into Part 18. of the general
permit
(10) Comment One .nantar
rev’ ”ended a red . ’ 4 from th. three
to two species for use In toxicity tests.
Also. language should be included in the
permit to darify that these operation.
must also meet the approval of Florida
prior to receipt of NPU general permit
coverage.
Response: The recouimend tion for a
reduction from the proposed three (3)
species for toxicity testing to the two (2)
species was incorporated into the
condition., of the final permit Language
was included into the notification stages
of theilnal permit to indicate that these
facilities must also obtain approval from
- the State of Florida prior to attaining
coverage under the NPI)ES general
—t
(11) ComarenL’ One commenter
recommended that the proposed limits
for a pH range of 6.0-8.5 should be
dropped since the limits are unrealistic
for Florida and natural groundwater
often measures in the 4.0-8.0 range for
pH.
Responsa On previous individual
permits issued the pH range of 6.0-8.5
was required and actual operating data
indicate that some facilities are
operating within this range: therefore.
deletion of this pH range is not justified.
III. Other Changes to Final Permit
After review of the proposed permit
Region IV incorporated other changes
Into the final permit that are part of
today’s final issued permit
(i)lnPartLSectionD,the.cheduleof
coñipllance was changed to reflect
operational level attainment dates for
permittees with revoked individual
permits and new discharger..
(2) In Part U. Section A.2. revised
language was Incorporated Into the
permit for penalties for violations of
permit conditions, in accordance with
the W 1er Quality Act of 1987.
(3) In Part II. Section F. language was
Included to allow coverage wide, the
general permit for permittees during
initi cleanup operations when Initial
Remedial Actions (IRA) have been
approved by Florida Department of
Environmental Regulation, or ifs Site
Rehabilitation Initiation Order has been
approved.
(4) In Part N of the Sect Management
Practices (EMP) plan, language was
added to insure that the plan Is
maintained at the facility and made
available upon request from the Permit
Issuing Authority.
Appendix B—General Permit To
Discharge (Jude, the National Pollutant
Discharge ibcin itien Syatma
In compliance with the provisions of
the Clean Water Act, as amended (33
U.S.C. 1251 at seq4 the “Act”),
Discharges of treated groundwater
and stormwater incidental to
gro ..dwater Cleanup operations which
are contaminated with gasoline or
aviation fuel are authorized to dischar9e
to waters of the United States within the
State of Florida in tI nrp with
effluent Limitations, monitoring
requirements and other conditions set
forth herein. The permit consists of Part
I. Part II, Part Ill, Part IV. end Part V.
This permit shall become effeciwe at
l:00.p.m , Eastern Daylight Savings Time.
on Monday. July 17. 1989.
This permit and the authorization to
discharge shall expire at midnight.
Eastern Daylight Savings Time, on July
16. 1994.
Jchn T. Maziar.
Chief, Facilities P ormwunBiuac!z for
Bruce B. Banrtt Daiector. Water
Management Division Bryan/V.
Part I
A. Effluent Limitations and Monitoring
Requiiement& Existing Sources and
New Dischargein
1. During the period beginning on the
effective date of the permit and lasting
through the term of this permit the
permittee is authorized to discharge
treated groundwater and storinwater
that has been cont nntn, ted by
Automotive Gasoline. It is anticipated
that these cont ’ .’ .’ ted waters will be
treetad by air stripping, followed by
activated carbon adsorption, if
necessary, or equivalent treatment to
meet the following effluent limilatlona.
Such diz ’ges shall be limited and
monitored by the pennittee as specified
belowi
The effluent (100%) shall not be lethal
to more than 50% of appropriate fish and
invertebrate test organisms In 48 hour
static toxicity tests (48-hr. LC..). Failure
to demonstrate compliance with the
acute toxicity requirement may result In
coverage under this pennit being
revoked. (see Part V—2).
oms
0 Jci li
r.owomn.
,
avemaQ.
-
-y
,_
u__
s_
F1o . .—- -_._________ .
epovt__
R OOL._
t nuamsi
1#I, IltL......
1lms _ .._
F etem
Gv .
Gi
Bemnens.i .aJ1. .—- --.__. —
‘Totil Led. M 11 ——— ————____________________
10
ann______
-------
29990
Federal Register / Vol. 54. No. 135 / Monday. July 17. 1989 / Notices
The pH shall not be less than 8.0
standard units nor greater than 8.5
standard units and shall be monitored
once every month by grab sample, or
continuously with a recorder, at the
discretion of the perrnittee (See item
1.3.4).
There shall be no discharge of floating
solids or visible foam in other than trace
amounts.
Samples taken In compliance with the
monitoring requirements specified
above shall be taken at the following
locatioa(s) nearest accessible point
after final treatment but prior to actual
discharge or mixing with the receiving
waters.
Monitoring for this parameter is
required only when contamination
resul:s from leaded fuel.
A. Effluent Limitations and Monitoring
Requirements.’ xzstJng Souroes and
New Dlschar8ers
2. During the period beginning on the
effective date of the permit and lasting
through the term of this permit, the
pernuttee is authorized to discharge
treated groundwater and stormwater
that has been contaminated by Aviation
Gasoline. Jet Fuel or Diesel. It is
anticipated that these contaminated
waters will be treated by air stripping.
followed by activated carbon adsorption
if necessary or equivalent treatment to
meet the foregoing effluent limitations.
Such discharges shall be limited and
monitored by the permittee as specified
below:
The effluent (100%) shall not be lethal
to more than 50% of appropriate fish and
invertebrate test organisms in 48 hour
static toxicity tests (48-hr. LC. 0 ). Failure
to demonstrate compliance with the
acute toxicity requirement may result in
coverage under this permit being
revoked, (see Part V-2)
The pH shall not be less than 6.0
standard units nor greater than 8.5
standard units and shall be monitored
once every month by grab sample, or
continuously with a recorder, at the
discretion of the permittee (See item
1.3.4).
There shall be no discharge of floating
solids or visible foam in other than trace
amounts.
Samples taken in compliance with the
monitoring requirements specified
above shall be taken at the following
location(s): nearest accessible point
after final treatment but prior to actual
discharge or mixing with the receiving
waters.
Monltoring fee this parameter Ii
required only when cont*m4n tton
results from leaded fuel.
B. Other Requirements
l.Any more frequent effluent
discharge monitoring required by the
Florida Department of Environmental
Regulation (PD ) for the parameters
limited in this permit, or different
parameters, shall be reported to the
Permit Issuing Authority in accordance
with the requirements of Part 111-A of
this permit.
2. Effluent limitations for combining
contsu’ in tted groundwater pumped to
above-ground storage tanks, with
contaminated groundwater from the
sites recovery wells.
a. The perrnhttee shall notify FDER of
any Intent to combine contaminated
groundwater pumped to above-ground
storage tanks with contaminated
groundwater from the recovery well.
Approval of this combined effluent
discharge by FDER will constitute
approval for coverage by this general
permit.
3. WIthin 60 days of the effective date
of this permit or startup of discharge the
permittee shall also submit the results of
the following analyses, These analyses
shall be performed on a representative
sample of the groundwater effluent
discharge, taken after final treatment.
Required analyses (one time only):
a. EPA Method 625—Acid and base/
neutral extractable organics.
b. EPA Method 624—Purgeable
Organics.
If the analyse. required in the above
Part B—3 reveal other toxic pollutants or
subsequent biomonitoring test shows
Lethality (less t han 50% survIval of test
organisms in 100% effluent), this General
Permit may be terminated and an
Individual permit Issued.
4. If the pH is monitored continuously,
the pH values shall not deviate outside
the required range more than 7 hours
and 28 mInutes In any calendar month
and no individual excursion shell
exceed 60 minutes. An “excursion” Is an
unintentional and temporary incident In
which th. pH value of discharge
wastewatar exceeds the range set forth
In the permit.
C. Test Procedures
In performing the analysis for the
dissolved constituents in the surface
water and groundwater, the perlnattee
shall use the guidelines recommended
and described in SectIons 17-
70.008(9) [ a—e) of the petroleum
conI .mnntton site cleanup criteria rule
for the State of florida.
a. If the petroleum contRmIn tion is
from a petroleum fuel in which the
source of contn ,iinntIon has not been
identified, the groundwater shall be
analyzed (using the recommended
methods) for the following parameters
as described in Section 17.70.008(9)(dl of
the State Underground Petroleum
En imenta1 Response Programi
(lILead (EPA Method 239.2 or Standard
Method 304)
(2) Priority Pollutant Volatile Organics
(EPA Method 624)
(3) Priority Pollutant Extractable
Organic. (EPA Method 625)
(4) Non-Priority Pollutant Organics (with
CC/MS Peaks greater than 10 ppb)
(EPA Methods 674 & 625)
D. Schedule of the Compliance
1. The permattee shall achieve
compliance with the effluent limitations
specified for discharges In accordance
with the following scheduim
Permittees with Revoked Individual
Permits Operational Level Attained,
Upon Receipt of Notification of
Coverage
New DIs 4 lArgers: Operational Level
Attained. Upon Commencement of
Discharge
2. No later than 14 calendar day . after
any date identified In the above
Effluart cllaractenstic
0 wq.
M emen
m&arum
Maaaa*-
Flow, MGO..... - ..._ - . ... .___....
Semen.. ..._.......... .... - ... .. ...
NaD 5%el.ns, 4I 1_._ ..._. .. - - -
‘Total Lead, I I . ..
Re o.1_. ....
. - ....
- .....
.
RSpC.1._...._.
10 ... .. .
100 0_ —.
300
Contnucua...
IlmOr4tiL.._
I /month........
1 imonth... .....
FOwThOIOV
Grab.
Grab.
Grab
-------
Federal Register I VoL 54, No. 135 / Monday, July 17. 1989/ Mo lces
29991
schedule of compliance the permittee
shall submit either a report of progress
or, in the case of specific actions being
required by identified dates, a written
notice of compliance or noncompliance.
In thq latter case, the notice shall
include the cause of noncompliance, any
remedial actions taken, and the
probability of meeting the next
scheduled requirement.
Part Il—Standard Conditions for NPDES
Permits
Section A. General Conditions
1. Duty to Comply
The permittee must comply with all
conditions of this permit Any permit
noncompliance constitutes a violation of
the Clean Water Act and is grounds for
enforcement action; for permit
termination, revocation and reissuance,
or modification; or for denial of a permit
renewal application.
2. Penalties for Violations of Permit
Conditions
Any person who violates a permit
condition is subject to a civil penalty not
to exceed $25,000 per day of such
violation. Any person who willfully
violates permit conditions is subject to a
fine of not less than $5000 nor more
than $50,000 per day of violation, or by
Imprisonment for not more than 3 years,
or both. Any person who negligently
violates permit conditions is subject to a
fine of not less than $2500 nor more
than $“ , 0 per day of violation. or by
imprisonment for not more than 1 year.
or both.
3. Duty to Mitigate
• The permittee shall take a11
reasonable steps to minrn .iYe or prevent
any discharge in violation of this permit
which has a reasonable likelihood of
adversely affecting human health or the
environment.
4. Permit Modification
After notice and opportunity for a
hearing, this permit may be modified.
terminated or revoked for cause
Including. but not Limited to. the
following:
a. Violation of any terms or conditions
of this permit
b. Obtaining this permit by
misrepresentation or failure to disclose
fully all relevant facts;
c. A change in any conditions that
requires either temporary interruption or
elimination of the permitted discharge:
or
d. Information newly acquired by the
Agency indicating the discharge poses a
threat to human health or welfare.
It the permittee believes that any past
or planned activity would because for
modification or revocation and
reiuuance under 40 CFR 122.02 the
permittee must report such information
to the Permit Issuing Authority. The
submittal of a new application may be
required of the permittee. The riling of a
request by the permittee for a pepuit
modification, revocation and reissuance,
or termination, or a notification of
planned changes or anticipated
noncompliance, does not stay any
permit condition.
5. Toxic Pollutants
Notwithstanding Paragraph A-4.
above. If a toxic effluent standard or
prohibition (including any schedule of
compliance specified in such effluent
standard or prohibition) is established
under Section 307(a) of the Act for a
toxic pollutant which is present in the
discharge and such standard or
prohibition is more stringent than any
limitation for such pollutant in this
permit, this permit shall be modified or
revoked and reissued to conform to the
toxic effluent standard or prohibition
and the permittee so notified.
The permittee shall comply with
effluent standards or prohibitions
established under Section 307(a) of the
Cleat Water Act for toxic pollutants
within the time provided in the
regulations that establish those
standards or prohibitions, even if the
permit has not yet been modified ta
incorporate the requirement
8. Civjl and Criminal Liability
Excepl.as provided in permit
conditions on “Bypassing” Section B,
Paragraph 8—3, nothing in this permit
shall hg construed to relieve the
permiftee from civil or criminal
penalties for noncompliance.
7. Oil and Hazardous Substance
Liability
Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the permittee
from any responsibilities, liabilities, or
penalties to which the permittee Is or
may be subject under Section 311 of the
Mt
8. State Laws
Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the permiuee
from any responsibilities, liabilities, or
penalties established pursuant to any
applicable State law or regulation under
authority preserved by Section 510 of
the Act.
9. Property Rights
The issuance of this permit does not
convey any property rights of any sort.
or any exclusive privileges, nor does it
authorize any injury to private property
or any invasion of personal rights, nor
any infringement of Federal. State or
local laws or regulations.
10. Severability
The provisions of this permit are
severable, and If any provision of this
permit, or the application of any
provision of this permit to any
circumstance, is held invalid, the
application of such provision to other
circumstances, and the remainder of this
permit, shall not be affected thereby.
11. Duty to Provide Information
The perinittee shall furnish to the
Permit Issuing Authority, Within a
reasonable time, any information which
the Permit Issuing Authority may
request to determine whether cause
exists for modifying, revoking and
reissuing, or terminating this permit or
to determine compliance with this
permit. The permittee shall also furnish
to the Permit Issuing Authority upon
request, copies of records required to be
kept by this permit.
Section B. Operation and MainlenUnce
of Pollution Controls
1. Proper Operation and Maintenance
The permittee shall at all times
properly operate and maintain all
facilities and systems of treatment and
control (and related appurtenances)
which are installed or used by the
permittee to achieve compliance with
the conditions of this permit Proper
operation and maintenance also
Includes adequate laboratory controls
and appropriate quality assurance
procedures. This provision requires the
operation of back.up or auxiliary
facilities or Imft . systems which are
Installed by a permiftee only when the
operation Is necessary to achieve
compliance with the conditions of the
permit
2. Need to Halt or Reduce not a Defense
It shall not bee defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the condition
of the permit.
3. Bypass of Treatment Facilities
a. Definitions:
(1) “Bypass” means the intentional
diversion of waste streams from any
portion of a treatment facility, which is
-------
29992
Federal Register I Vol. 54. No. 135 / Monday. July 17, 1989 / Notices
not a designed or established operating
mode for the facility.
(2) “Severe property damage ” means
substantial physical damage to property,
damage to the treatment facilitie, which
causes them to Decorne inoperaule. or
substantial and permanent loss of
natural resources which canreasonably
be expected to occur in the aence of a
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
b. Bypass not exceeding limitations.
The permittea may allow any bypass
to occur which does not cause effluent
limitations to be exceeded. but only if it
also is for essential maintenance to
assure efficient operation. These
bypasses are not subject to the
provisions of Paragraphs c. and d. of this
section.
c. Notice.
(1) Anticipated bypass. lithe
permittee knows in advance of the need
for a bypass. it shall submit prior notice.
if possible at least ten days before the
date of the bypass: including an
evaluation of the anticipated quality and
effect of the bypass.
(2) Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass as required In
Section 0. Paragraph 0-4 (24-hour
notice).
d. Prohibition of bypass.
(1) Bypass is prohibited and the
Permit Issuing Authority may take
enforcement action against a permittee
for bypass, unless:
(a) Bypass was unavoidable to
prevent lose of life, personal Injury, or
severe and extensive property damage:
(b) There were no feasible
alternatives to the bypass. such as
maintenance of sufficient reserve
holding capacity, the use of auxiliary
treatment facilities, retention of
untreated wastes, waste hauling, or
maintenance during normal periods of
equipment downtime. This condition is
not satisfied If adequate back-up
equipment should have been Installed in
the exercise of reasonable engineering
juligmAnt to prevent a bypass which
occurred during normal periods of
equipment downtime or preventive
maintenancs: and
(c) The perinittee submitted notices as
required under Paragraph b. of this
section.
(2) The Permit Issuing Authority may.
within its authority, approve an
anticipated bypass, after considering it3
adverse effects, if the Permit Issuing
Authority determines that It will meet
the three conditions listed above in
Paragraph d.(1) of this section.
4. Upsets
“Upset” means an exceptional
incident in which there is unintentional
and temporary noncompliance with
technology based permit effluent
limitations because of factors beyond
the control of the permittee. An upset
does not include noncompliance to the
extent caused by operational error.
improperly designed treatment facilities,
inadequate treatment facilities, lack of
preventive maintenance, or careless or
improper operation. An upset
constitutes an affirmative defense to an
action brought for non-compliance with
such technology based permit limitation
if the requirements of 40 CFR
122.41(n)(3) are met.
5. Removed Substances
This permit does not authorize
discharge of solids, sludge, filter
backwash, or other pollutants removed
in the course of treatment or control of
wastewatere to waters of the tlidted
States unless specifically limited in Part
1.
Section C. Monitoring and Records
1. Representative Sampling
Samples and measurements taken as
required herein shall be representative
of the volume and nature of the
monitored discharge. All samples shall
be taken at the monitoring points
specified in this permit and, unless
otherwise specified. before the effluent
joins or is diluted by any other
wastestream, body of water, or
substance. Monitoring points shall not
be changed without notification to and
the approval of the Permit Issuing
Authority.
2. Flow Measurements
Appropriate flow measurement
devices and methods consistent with
accepted scientific practices shall be
selected and used to insure the accuracy
and reliability of measurements of the
volume of monitored discharges. The
devices shall be installed. calibrated
and maintained to insure that the
accuracy of the measurements are
consistent with the accepted capability
of that type of device. Devices selected
shall be capable of measuring flows
with a maximum deviation of less than
±10% from the true discharge rates
throughout the range of expected
discharge volumes. Guidance in
selection. installation, calibration and
operation of acceptable flow
measurement devices can be obtained
from the following references:
a. “A Guide of Methods and
Standards for the Measurement of
Water Flow”. U S. Department of
Commerce. National Bureau of
Standards, NBS Special Publication 421.
May 1975, 97 pp. (Available from the
U.S. Government Printing Office.
Washington. DC 20402, Order by SI)
catalog No. C13.10’.iZl.)
b. ‘Water Measurement Manual’. U.S.
Department of Interior. Bureau of
Redamatioc. Second Edition. Revised
Reprint. 1974. 327 pp. (Available from
the U.S. Government Printing Office.
Washington. DC 20402. Order by catalog
No. 127.19/2.W29/2, Stock No. S/N
24003—0027.)
c. “Flow Measurement In Open
Channels and Closed Conduits’, U.S.
Department of Commerce. National
Bureau of Standards, NBS Special
Publication 484. October 1977, 982 pp.
(Available in paper copy or microfiche
from National Technical Information
Service (NTIS). Springfield, VA 22151.
Order by NTIS No, P3-273 535/5ST.)
d. “NPDES Compliance Flow
Measurement Manual”. U.S.
Environmental Protection Agency.
Office of Water Enforcement.
Publication MCD—77. September 1981.
135 pp. (Available from the General
Services Administration (8BRC).
Centralized Mailing Lists Services.
Building 41, Denver Federal Center.
Denver, CO 80225.)
3. Monitoring Procedures
Monitoring must be conducted
according to test procedures approved
under 40 CFR Part 130, unless other test
procedures have been specified in this
permit.
4i alties for Tampering
The Clean Water Act provides that
any person who falsifies. tampers with.
or knowingly renders inaccurate, any
monitoring device or method required to
be maintained under this permit shall.
upon conviction, be punished by a fine
of not more than $10,000 per violation, or
by imprisonment for not more than 2
years per violation, or by both.
5, Retention of Records
The permittee shall retain records of
all monitoring information, including all
calibration and maintenance records
and all original strip chart recordings for
continuous monitoring instrumentation.
copies of all reports required by this
permit. and records of all data used to
complete the application for this permit.
for a period of at least 3 years from the
date of the sample. measurement, report
or application. This period may be
extended by the Permit Issuing
Authority at any time.
-------
Federal Register / Vol 54, No. 135 LMonday, July iT, 1939 I Notices
29903
6. Record Contents
Records of monitoring information
shall Includm
a. The date, exact place, and Urns of
sampling or measurements;
b. The individual(s) who performed
the sampling ‘ r me.isuremeats;
c. The date(s) analyses were
performed
d. The individual(s) who performed
the analyses;
e. The analytical techniques or
methods used: and
£ The results of such analyses.
7. Inspection and Entry
The permittee shall allow the Permit
Issuing Authority, or an authorized
representative, upon the presentation of
credentials and other documents as may
be required by law, to:
a. Enter upon the permittee’s premises
where a regulated facility or activity is
located or conducted, or where records
must be kept under the conditions of this
permit
b. Have access to and copy, at
reasonable times, any records that must
be kept under the conditions of this
permit
c. Inspect at reasonable time any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under this permit and
d. Sample or monitor at reasonable
times. for the purposes of assuring
permit compliance or as otherwise
authorizjd by the Clean Water Act, any
substances or parameters at any
location.
Section D. Reporting Requirements
1. Change in Discharge
The permittee shall give notice to the
Permit Issuing Authority as soon as
possible of any planned physical
alterations or additions to the permitted
facility. Notice is required only wham
a. The alteration or addition to a
permitted facility may meet one of the
criteria for deter i1nIng whether a
facility lea new source: or
b. The alteration or addition could
significantly dmnge the nature or
increase the quantity of pollutants
discharged. This notification applies to
pollutants which are subject neither to
effluent limitations in the permit. nor to
notification requirements under Section
D. Paragraph D—lO(a).
2. Anticipated Noncompliance
The perruittee shall give advance
notice to the Permit Issuing Authority of
any planned change in the permitted
facility or activity which may result in
noncompliance with permit
requirements. Any maintenance of
facilities, which might necessitate
unavoidable interruption of operation
and degradation of effluent quality, shall
be scheduled during noncritical water
quality periods and carried out in a
manner approved by the Permit lsswng
Authority.
3. Transfer of Ownership or Control
A permit may be automatically
transferred to another party ifi
a. The permittee notifies the Permit
Issuing Authority of the proposed
transfer at least 30 days in advance of
the proposed transfer date:
b. The notice includes a written
agreement between the existing and
new perniittees containing a specific
date for transfer of permit responsibility,
coverage, and liability between them
and
c. The Permit Issuing Authority does
not notify the existing permittee of his or
her intent to modify or revoke and
reissue the permit. If this notice is not
received, the transfer is effective on the
date specified in the agreement
mentioned in paragraph b.
4. Monitoring Reports
See Part Ill of this permit.
5. A ditlonal Monitoring by the
Permittee
If the permittee nui utors any pollutant
more frequently than required by this
permit using test procedures approved
under 40 CFR 136 or as specified in this
permit, the results of this monitoring
shall be.included In the calculation and
reporting of the data submitted in the
Discharge Monitoring Report (DMR).
Such pcreaaed frequency shall also be
Indicated.
6. Averaging of Measurements
Calculations for limitations which
require averaging of measurements shall
utilize an arithmetic mean unless
otherwise specified by the Permit
Issuing Authority in the permit
7. Compliance Schedules
Reports of compliance or
noncompliance with, or any progress
reports on. Interim and final
requirements contained in any
compliance schedule of this permit shall
be submitted no later than 14 days
following each schedule date. Any
reports of noncompliance shall include
the cause of noncompliance, any
remedial actions taken, and the
probability of meeting the next
scheduled requirement.
& Twenty-Four Hour Reporting
The permittee shall orally report any
noncompliance which may endanger
health or the environment within 24
hours from the time the permittee
becomes aware of the circumstances. A
written submission shall also be
provided within 5 days of the time the
permittee becomes aware of the
circumstances. The written submission
shall contain a description of the
noncompliance and its cause, the period
of noncompliance. including exact dates
and times; and if the noncompliance has
not been corrected, the anticipated time
it Is expected to continue, and steps
taken or planned to reduce, eliminate.
and prevent reoccurrence of the
noncompliance. The Permit Issuing
Authority may verbally waive the
written report, on a case-by-case basis.
when the oral report is made.
The following violations shall be
included In the 24 hour report when they
might endanger health or the
environment
a. An unanticipated bypass which
exceeds any effluent limitation in the
permit
b. Any upset which exceeds any
effluent limitation in the permit.
9. Other Noncompliance
The pennittee shall report in narrative
form all Instances of noncompliance not
previously reported under Section D.
Paragraphs D-2, D.-4. D-7, and D-8 at
the time monitoring reports are
submitted. The reports shall contain the
information listed In Paragraph D-.6.
10. Changes in Discharges of Toxic
Substances
The perinittee shall notify the Permit
Issuing Authority as soon as it knows or
has reason to believe:
a. That any activity has occurred or
will occur which would result in the
discharge, on a routine or frequent basis.
of any toxic substance(s) (listed at 40
CFR 122. AppendIx D. Table II and III)
which Is not limited In the permit if that
discharge will exceed the highest of the
following “notification levels”:
(1) One hundred micrograms per liter
(100 Mg/fl; or
(2) Two hundred micrograms per liter
(200 Mg/I) for acrolein and acrylonitrile:
five hundred micrograms per liter (500
Mg/I) for 2, 4-dlnitrophenol and for 2-
methyl-4. 6.dlnitrophenol: and one
milligram per liter (1 mg/I) for antimony.
b. That any activity has occurred or
will occur which would result in any
discharge, on a non.routine or infrequent
basis, of a toxic pollutant (listed at 40
CFR 122, Appendix D. Table II and III)
which is not limited in the permit if that
-------
Federal Register / VoL 54. No. 135 I Monday, July 17. 1989 I Notices
discharge will exceed the highest of the
following “notification levels”:
(1) Five hundred micrograms per liter
(500 Mg/ I); or
(2) One milligram per liter (1 mg/I) for
antimony.
11. Signatory Requirements
All applications. reports. or
information submitted to the Permit
Issuing Authority shall be signed and
certified,
a. All permit applications shall be
signed as follows:
(1) For a corporatiom by a responsible
corporate officer. For the purpose of this
Section. a responsible corporate officer
means: (1) a president. secretary.
treasurer or vice president of the
corporation in charge of a principal
business function, or any other person
who performs similar policy— or
decision.making functions for the
corporation, or (2) the manager of one or
more manufacturing production or
operating facilities employing more than
250 persons or having gross annual sales
or expenditures exceeding $25 million
(in second quarter 1980 dollars), if
authority to sign documents has been
assigned or delegated to the manager in
accordance with corporate procedures.
(2) For a partnership or sole
proprietorship: by a general partner or
the proprietor. respectively or
(3) For a municipality. State, Federal,
or other public agency: by either a
principal executive officer or ranking
elected official.
b. All reports required by the permit
and other information requested by the
Permit issuing Authority shall be signed
by a person described above or by a
daly authorized representative of that
person. A person is a duly authorized
representative only if:
(1) The authorization is made in
writing by a person described above;
(2) The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of plant manager.
operator of a well or a well field,
superintendent, position of equivalent
responsibility, or an Individual or
position having overall responsibility for
environmental matters for the company.
(A duly authorized representative may
thus be either a named individual or any
individual occupying a named position.);
and
(3) The written authorization is
submitted to the Permit Issuing
Authority.
c. Certification. Any person signing a
document under paragraphs (a) or (b) of
this section shall make the following
certification:
“1 certify under penalty of law that
this document and all attachments were
prepared under the direction or
supervision in accordance with a system
designed to assure that qualified
personnel properly gather and evaluate
the information submitted. Based on my
inquiry of the person or persons who
manage the system. or those persons
directly responsible for gathering the
information, the information submitted
is. to the best of my knowledge and
belief, true, accurate, and complete. I am
aware that there are significant
penalties for submitting false
information, including the possibility of
fine and imprisonment for knowing
violations.”
12. Availability of Reports
Except for date determined to be
confidential under 40 CFR Part 2, all
reports prepared in accordance with the
terms of this permit shall be available
for public inspection at the offices of the
Permit Issuing Authority. As required by
the Act, permit applications, permits and
effluent data shall not be considered
confidential.
13. Penalties for Falsification of Reports
The Clean Water Act provides that
any person who knowingly makes any
false statements. representation. or
certification in any record or other.
document submitted or required to be
maintained under this permit, includ ing
monitoring reports or reports of
compliance or noncompliance shall.
upon conviction, be punished by a fine
of not more than $10,000 per violation, or
by imprisonment for not more than 2
year, per violation, or by both.
Section £ Definitions
1. Permit Issuing Authority
The Regional Administrator of EPA
Region IV or his designee, unless at
some time in the future the State
receives the authority to administer the
NPDES program and assumes
jurisdiction over the permit at which
time, the Director of the State program
receiving authorization becomes the
issuing authority.
2. Act
“Act” means the Clean Water Act
(formerly referred to as the Federal
Water Pollution Control Act) Pub. L. 92—
500, as amended by Pub. L. 95-’217. Pub.
1.. 95-576 and Pub. L. 100-4,33 U.S.C.
1251 et seq.
3. Concentration Measurements
a. The “average monthly
concentration”, as the sum of the
concentrations of all daily discharges
sampled and/or measured during a
calendar month on which daily
discharges are sampled and measured.
divided by the number of daily
discharges sampled and/or measured
during such month (arithmetic mean of
the daily concentration values). The
daily concentration value is equal to the
concentration of a composite sample or
in the case of grab samples is the
arithmetic mean (weighted by flow
value) of all the samples collected
during the calendar day.
b. The “maximum daily
concentration” is the concentration of a
pollutant discharge during a calendar
day. It is identified as “Daily Maximum’
under “Other Limits” in Part I of the
permit and the highest such value
recorded during the reporting period as
reported under the “Maximum” column
under “Quality” on the Dl vffi,
4. Other Measurements
a. The effluent flow expressed as
MCD is the 24 hour average flow
averaged monthly. It is the arithmetic
mean of the total daily flows recorded
during the calendar month. Where
monitoring requirements for flow are
specified in Part I of the permit the flow
rate values are reported in the
“Average” column under “Quantity” on
the D ,
b. An “instantaneous flow
measurement” is a measure of flow
taken at the time of sampling, when both
tha sample and flow will be
representative of the total discharge.
c. Where monitoring requirements for
pH or dissolved oxygen are specified in
Part,! of the permit. the values are
,ge1i era1ly reported in the “Quality or
Concentration” column on the DMR.
5. Types of Samples
a. Grab Sample: A “grab sample” is a
single influent or effluent portion which
is not a composite sample. The
sample(s) shall be collected at the
period(s) most representative of the total
discharge.
6. Calendar Day
A calendar day is defined as the
period from midnight of one day until
midnight of the next day. However, for
purposes of this permit any consecutive
24-hour period that reasonably
represents the calendar day may be
used for sampling,
7. Hazardous Substance
A hazardous substance means any
substance designated under 40 CFR Part
116 pursuant to Section 311 of the Clean
Water Act.
-------
Federal Register I Vol. 54, No 135 t hlonday , JuLy 17. lflgg I NotLc
8. Toxic Pollutant
A toxic pollutant Is any pollutant
listed as toxic under Section 307(a)(1 ) of
the Clean Water Act.
Section F. Applki’iinn Requireman s
a. For expired individual NPOES
permits. disithargers desiring coverage
under NPOES General Permit Number
FLGO4000I are required to submit a
notice of intent (NO!) to be covered by
the general permit to the Permit lssuing
Authority. The NOf shall Izichjde: (1)
The name and address of the operation.
(2) the applicable Individual NPDES
number(s), (3) the identification of any
new discharge location not contained in
the expired permit (4) evidence that the
operation has been approved for Initial
Reniediiitioa Actions (1RA) or has
obtained a Site Rehabilitation Initiation
Order and an approved Remedial Action
Plan (RAP) from the FDER, an
accordance with Florida Administrative
Codes (FAC) 17—70.008. 17—70.008 and
17-70.010. respectively. (5) a map
showing the facility and discharge
location (in latitude and longitude), and
(6) the name of the receiving water,
Operators having several individua l
permits are encouraged to consolidate
requests for wv ge into one NO! for
all individual permits. The previous
submission of the proper forms in the
renewal application does not relieve the
permittee desiring coverage under the
general permit of the requirement to file
a NO!.
b. Dischargers having valid individual
NPDES permits that desire coverage
under the general permit are required to
file a NO! to the Permit Issuing
Authority within at least 30 days prior to
expiration of their current permit(s). The
notice shall contain the same
information specified In paragraph (a)
above. Permittees desiring to retain their
individual permit are required to submit
the appropriate application forms at
least 180 days before expiration of their
individual permit
c. Discharger, who have not
previously obtained a valid Individual
NPDES permit will be required to submit
the same information specified in
paragraph (a) above, except items (2)
and (3). The application for coverage
under the general permit must be made
at least forty-five (45) days before the
discharge is to commence.
d. Notification of coverage will be
given by the Permit Issuing Authority by
certified mad to the permittee.
e. Coverage by this general permit
shall become effective on the date of
notification of coverage by the Permit
Issuing Authority.
f. Coverage by this general permit
shall expire on July 18. 1 94.
Section C. Additional General Permit
Candiboas
1. The Permit Issuing Authority may
require any person authorized by this
permit to apply for and obtain an
individual NPDES permit when:
a. The discharge(s) is a significant
contributor of poihitiosi
b. The discharger is no tin compliance
with the conditions of thi, permit
c. A change has occurred In the
availability of the d iinnnsfrated
technology of practices for the ccmtrcd or
abatement of pollutants applicable to
the point sources:
d. Efihieni limitation guidelin.s are
promulgated for point sources coveted
by this permit
e.A Water Quality Management Plan
containing requirements applicable to
such point source is approved: or
L The point source(s) covered by this
permit no longer
(1) Involve the same or substantially
simiLar types of operaaonm
(2) Thscharge the same types of
wastes:
(3) Require the same effluent
Limitations or operating conditione
(4) Require the same or similar
monitoring and
(5) In the opinion of the Regional
A&ninistrator, are more appropriately
controlled under an individual permit
than under a general permit
The Regional Administrator may
require any operator authorized by this
permit to apply for an indiviual NPDES
permit only if the operator has been
notified in writing that a permit
application is required.
2. Any operator authorized by this
permit may request to be excluded from
the coverage of this general permit by
apprying for an individual permit. The
operator shall submit an application
together with the reasons supporting the
request to the Regional Administrator.
3. When an individual NPDES permit
is issued to an operator otherwise
subject to this general permit. the
applicability of this permit to the owner
or operator is automatically terminated
on the effective date of the individual
permit.
4. A source excluded from coverage
under this general permit solely because
it already has an individual permit may
request that its individual permit be
revoked, and that it be covered by this
general permit. Upon revocation of the
individual permit, this general permit
shall apply to the source.
5. A petroleum contamir.ation
recovery operation may be exduded
from this general permit If it propoees
discharges to receiving waters that are
classified as ‘Special Protection,
Outstanding Florid. Waters as set
forth by FAC 17—3.043.
8. The permittee shall notify the
Permit Issuing Authority within 30 days
after the permanent termination of
discharge from their facility. This letter
shall include the necessary Site
Rehabilitation Completion Order
(SRCO) from florida Bureau of Waste
Cleanup which constitutes final action
on the State level for completion of
cleanup activities at the affected cite.
After review of the SRCO. EPA will
inactivate coverage of the general
NPDES permit for the facility.
Part UT—Other Requirements
A. Reporting of Monitoring Results
Momtoring results obtained during the
previous calendar quarter shall be
summarized for each month (each
quarter if monitoring frequency is
quarterly) and must be reported on a
Discharge Monitoring Report Form (EPA
No. 3320—I ). postmarked no later than
the 28th day of the month following the
completed calendar quarter. (For
example data for January-March shall
be submitted by April 28.) Duplicate
signed copies of these. and all other
reports required by Section 0 of Part U.
Reporting Requirements, shall be
submitted to the Permit Issuing
Authority and the State at the followrng
addresses:
Environmental Protection Agency.
Region IV. Facilities Performance
Branch, Water Management Division.
345 Courtland Street NE.. Atlanta. GA
30365
Florida Dept. of Environmental
Regulation. Local District Office
Address
B. Reopener Clause
This permit shall be modified, or
alternatively revoked and reissued, to
comply with any applicable effluent
standard or limitation issued or
approved under Sections 301(b)(z) (C)
and (D), 304(b)(2) and 307(a)(2) of the
Clean Water Act. if the effluent
standard of limitation so issued or
approved:
1. Contains different conditions or is
otherwise more stringent than any
condition in the permit: or
a Controls any pollutant not limited in
the permit.
The permit as modified or reissued
under this paragraph shall also contain
any other requirements of the Act then
applicable.
-------
29996
Federal Register / Vol. 54. No. 135 / Monday, July 17. 1989 / Notices
Part IV— .Best Management Practices
and Conditions
Section A. General Conditions
1. BMP Plan
Preparation of a Beet Management
Practices (UMP) Plan shall be prepared
in conjunction with development of the
Remedial Action Plan required by
Florida Department of Environmental
Ragulauon (See Part U.F.c.). The
permittee shall maintain the liMP plan
at the facility and shall make the plan
available to the permit Issuing authority
upon request. The NPDES Guidance
Document” can be used as a reference
which contains technical information on
liMPs and the elements of the BMP
program. The permittee shall develop
and implement a liMP plan which
prevents, or mir mI es the potential for.
the release of pollutants from ancillary
activities. including material storage
areas: plant site runnoff in-plant
transfer, process and material handling
areas: loading and unloading operations.
and sludge and waste disposal areas, to
the waters of the United States through
plant site n.inoff spillage or leal s
sludge or waste disposak or drainage
from raw material storage. The term
pollutants refers to any substance listed
as toxic under Section 307(a)(1) of the
Clean Water Act oil, as defined in
Section 311(a)(1) of the Act, and
substance listed as hazardous under
SectIon 311 of the Act Copies of the
“NPDES Guidance Document” may be
obtained by submitting written requests
tm Director. Waste Management
Division. Region IV. Atlanta. CA 30385.
Part V—Biomonitoring Program
In accordance with Part I of this
permit, the permittee shall initiate the
series of tests described below wIthin 30
days of coverage or commencement of
discharge from outfall(s) 001.
1. If the effluent is discharged to a
freshwater stream, the pennittee shall
conduct 48-hour static toxicity tests on
two appropriate test species (EPA/800/
4—85/013. Table 1). The test organisms
used shall include one fish and one
invertebrate test species (Recommend:
A Daphnidae species and the fathead
minnow (Pimephoies pramelos). If the
effluent Is discharged to a saltwater
stream, the permittee shall conduct 48.
hour static toxicity tests using the Mysid
shrimp (Mysidopsis bahia) and the
inland silverside (Menidla beryllina) or
any other species approved by EPA.
Tests shall be conducted once every
month for a period of three months
following the initiation of the tests and
once every year thereafter for the
duration of the permit using samples of
100% final effluent Such tests will be
conducted on one grab sample of 100%
final effluent Results of all tests
conducted with any species shall be
reported according to EPA/800/4-85/
013. Section 13. Report Preparation and
Data Utilization. and shall be submitted
to EPA with the quarterly discharge
monitoring report.
2. If lethality (less than 50% survival of
tests organisms in 100% effluent) Is
demonstrated in either of the above
test(s), another 48-hr static test using the
same specie(s) and the same
methodology shall be conducted within
two weeks. If the additional test(s)
indicates toxicity, coverage under the
general permit may be revoked by the
Permit Issuing Authority upon issuance
of an individual permit
3. All teet organisms, procedures and
quality assurance criteria used shall be
In accordance with Methods for
Measuring the Acute Toxicity of
Effluent to Freshwater and Marine
Oiyonisnis. EPA-800/4-85-013. A
standard reference toxf cant quality
assurance test shall be conducted
concurrently with each set of toxicity
tests and Its results submitted with the
quarterly discharge monitoring report.
(PR Dcc. as-teem Stied 7-14-ag; &45 aj
— I — ______
-------
Friday
June 2, 1969
Part VI
Environmental
Protection Agency
40 CFR Parts 122, 123 and 13
National Pollutant Discharge Elimination
System; Surface Water Toxics Control
Program; Final Rule
-------
3868
Federal Register I Vol. 54. No. 105 I Friday. lune 2. 1989 I Rules end Re uIations
ENVIRONMENTAL PROTECTION
AGENCY
(FRL-3S5741
40 CFR Parta 122, 123 and 130
National Pollutant Olecl arge
Elimination System; Surface Water
Toxics Control Program
AGENCY Environmental Protection
Agency.
ACTiON: Final Rule.
SUMMARY: TodaYs action amends Parts
122. 123, and 130 of EPA s regulations.
The regulations clarify CPA s surface
water toxics control program. and
incorporate section 308(a) of the Water
Quality Act of 1987 into EPA’s toxics
control program. Section 308(a) of the
Water Quality Act added section 304(l)
to the Clean Water Act (hereafter
referred to as section 304(l)). Section
304(1) requires the states to identify
those waters that are adverse!y affected
by toxic, conventional, and
noriconventional pollutants, and
requires the states to preparo individual
control strategies that will control point
source discharges of toxic pollutants.
The states must submit lists of waters
and i idividual control strategies to EPA
for review, and if EPA disapproves a
state’s decision w2th respect to a list or
an individual control strategy, then EPA
must implement the requirements of
section 304(l) in cooperation with the
state. EPA and the states must
accomplish the tasks in section 304(1)
according to an ambitious series of
deadlines. Today’s regulations will
strengthen State and Federal controls
over discharges to toxic pollutants. and
will assist EPA and the states in
satisfying the requIrern nts of section
301(l) of the CWA.
EFFECTIVE DATE These reguldtions shall
be effective on May 28. i989 at 1:00 p.m.
Eastern Daylight Savings Time. In
accordance with 40 CFR 23.2. EPA
hereby specifies that these regulations
shall be considered final agency action
for purposes of judiciai review at 1:00
p.m. Eastern Daylight Savings Time on
May 25. 1989.
FOR FURTHER INFCRMAT1O’I CONTACTI
Paul Connor. Program Development
Branch. Office of \Vater Enforcement
and Permits, (EN—336). U.S.
Environmentul Protection Agency. 401 M
Street. SW., WashinFton. DC 20460.
(202) 475—9537. or Judith Leckrorie.
Assessment and Watershed Protection
Division. Office of Waler Regulations
and Standards. (WH—553). U.S.
Environmental Protection Agency. 401 M
Street SW.. Washington. DC 20460. (202)
382—7056. The Public record for this
regulation is available at the EPA
library. M29o4. LLS. Environmental
Protection Agency. 401 M Street SW..
Washington. DC 20460.
SUPPLEMENTARY INFORMATiON:
Preamble Outline
I. Authority
II. Background
A. Biennial Submission of Lists Under sec-
tlon 303(d) and section 305 b) of the
CWA
8. EPAs Surface Water Toxics Control
Program
C. Section 304 ( I) and its Relationship to
F.PA a Suri :e Water Toxics Control
Program
0. Purpose and S.ininiary of Today’s Regis-
lations
Ill. Section.by.Secti ,n Analysis
A. Changes to the National Surface Waier
Toxics Control Program
1. Amendments 1040 CFR 122.44
a. A Detirution for Whole Ef.1uent
Toxu.ity
b. arraL.ve Water Quality Standards
c. De%elo;ing Water Quality-Based Ef-
fluent Lnnzis
ci. Technology-Based Controls for
Toxic Pollutants
2. State NPDES Program Requirements
8. Identification of Waters
1. Description of the Four Lists
2. £xpianatioi3 of Terms Ur ,ed in section
304(I)(1)(B)
a. Applicable Standard
b. Due Entirely or Substantially to Dis-
char es from Point Sources
2. Preparation and Review of the Lists
a. Use of Exi tmg and Readily Avail-
able Data
b. Documentation of Data and Meth-
odologies
c. Review of Lists By EPA
C. Lndiv .idual Control Strategies
1. Description of an Inaividual Control
Strategy
a. Type3 of Controls
b. EPA’. Point Source-Based Approach
c. Approval of Permits that are Not
Yet Effective
d. CERCLA Sites
e Non-Approved States
2. Technical Review Cnteria
0. EPA Rev.c’v of Lists and individual
Control Strategies
3. Parn 1 Approval dnd Disapproval of
State Submittal.
2. ?ub ic Paiticipation
a. Contents of EPA a Notice of p-
proval or Disapproval
b. Public Heurings
c. Petitions for Acldi :ior.aI Listings
ci. Response to Comments and Pea-
tioris
3. Subseauer.t steps in the 304(l) Pt-oces
a. F.PA Implementation of 3 04(l)
b. udic:al Review of Decisions Linde.
I 304(l)
IV. Effective Date
V. Regulatory Analysis
A. Executive Order 12291
B. Paperwork Reduction Act
C. Resu!aiory Flexibili:y Act
1. Authority
These regulations are issued under the
authority of the Clean Water Ac:. 33
U.S.C. 1251 et seq.
U. Background
EPA’s surface sc:er to ’ :cs contrcl
program uses severai key terms. For the
convenience of the reader and for the
purposes of this prea ib1e. these terms
are described as follows:
‘Narrative standara” refers to a
narrative wpter quality criterion
adopted by a state under section 303(c)
of the Clean Water Act. All states have
adapted a narrati ie criterion that
pronibits the discharge of toxic
pollutants in toxic amounts.
“Priority pollutant” refers to the 126
pollutants listed in Appendix A to (40
CFR Part 423.) The 1 6 priority
pollutants are denved from the 65
classes of compounds listed at 40 CFR
I 40L15.
“Toxic pollutant” means any pollutant
listed as toxic under section 307(a)(1J of
the CWA. CPA has listed 65 classes of
compounds under section 307(a)(1) of
the CWA. and these 65 classes are listed
at 40 CFR 1 401.15.
“Toxics” refers to any pollutant or
combination of pollutants which cau es
toxicity to aquatic life or terrestrial life.
or causes adverse human health
impacts.
“Whole effluent toxicity” means the
aggregate toxic effect of an effluent
measured directly with a toxicity test. A
toxicity test measures the degree of
response to an exposed test organism to
a specific chemical or effluent. Like
biochemical oxygen demand (SOD).
which is also a biological measurement.
toxicity can be limited in an NPDES
perm.t.
A. thennici Subnnssion of L,s!s (Ji;der
Section 303(d) err! Section 30,5(b) of the
CW.4
Many cotnmenters objected to the
additional reporting requirements
-------
Federal Register I Vol. 54. No. 105 / Friday, fune 2. 1989 / Rules and Regulations
23869
ggested by EPA’s proposal to require
.iennial submission of lists under
sactions 303(1) and 305(b) of the CWA.
Most expressed confusion about the
ex cnt to which the proposed
requiranienta overiapped with and
related to the section 304(1) listing
r cess. Due to this confusion. EPA has
decided not to amend the Pert 130
rcgulations in today’s rule to include
bese bienn el submissions. Rather, EPA
will extend the comment period on this
part of the proposal in order to take the
r.ecessary time to consider all
i plications that the proposed
a.n . ndments ni ght have for the entire
aect:on 303(d) reporting and ThIDL
oevcIcpiu nt program. In the near future
EPA will extend the comment period in
a separate action in the Federal
Regstcr.
B. EPA ’s Swioce Wat - Tcxrcs Con rol
Prirg::m
E?A has described ts surface water
toucs control program ui several
c curnents. These descriptions are not
re’eated here, but the reader is referred
to the3e documents for more information
cri EPA’s approach for controlling
thacharges of toxic pollutants. On March
0. 1964. EPA published a document
‘led “Development of Water Quality-
•e Permit Limitations for Toxic
rollutants: National Policy” 49 FR 9016
(It 81). The policy emphasi.zes EPA’s
u tegrated approach in the NPDES
p i::nit program for assessing and
ont.rollumg the discharge of toxic
pollutaflt3 to the nation’s surface waters.
Two preambles to EPA’s rulemakings
also di ’scribe EPA’s surface water toxins
control strategy. The preamble to EPA’s
.PDS reguiatior.s (45 FR 33520(1930))
enphasizes that NPDES permits must
ontaui limitations reflecting the most
stringent of technology-based or water
quality-based cantrola for toxic
polhitants. The second preamble
discussion (.t9 FR 37998 (1984))
emphasizes the need to establish
effluent limitations in NPDES permits to
control toxic pollutants. The preamble to
the 1984 regulations also describes
several regulations in Part 122 that
r iquire disc’nargers to identify and
report the presence of toxic pollutants in
discharges.
EPA’s existing regulations also reflect
the Agency’s surface water toxics
control strategy. Part 131 of EPA’s
regulations descr bes the process for
developing, reviewing. revising, and
i noroving state water quality standards.
122 ceacribes the NFDES permit
,Jations. These regulations currently
require NPDES permits to establish
limitations, standards, and conditions
necessary to achieve water quality
standards, or to attain and maintain
specified water quality through effluent
l:muts. Part 125 provides criteria and
e andards for imposing technology-
based treatment requirements, including
the control of toxic pollutants. Part 129
contains effluent standards far certain
toxic pollutants, and Part 131) describes
EPA’s program for identifying waters
affected by toxic pollutants.
EPA has also developed standard
procedures, policies, and guidance
documents necessary to support the
toxics control program. The “Water
Quality Standards Handbook,” (October
1983), describes how to develop water
quality standards and describes the
procedures that a state should follow in
adopting water quality standards. (‘The
l!andbook is available from tl’,e Criteria
and Standards Division (WH—585), U.S.
EPA, 401 M Street SW., Washington. DC
20480.) Two important guidance
documents that support EPA’s toxics
control program are the ‘Technical
Support Document for Water Quality-
Dased Toxics Control.” (TSD). EPA 440/
4—85—032, September. 1985. and the
“Permit Writer’s Guide to Water
Quality-Based Permitting.” EPA 440/4—
87-005. July. 1987. (Both documents are
nvailable from the Permitting Division
(EN—336). U.S. EPA, 401 M Street, SW.,
Washington, DC, 20460.) The Technical
Support Document (TSD) provides a
detailed technical explanation of
biological and chemical techniques to
assess end control toxic pollutants and
toxicity. The TSD explains how to
assess aquatic toxicity and how to
calculate the risk to human health of an
effluent, explains wasteload allocation
modeling. and explains the equations for
deriving water quality-based effluent
limits. The Permit Writer’s Guide gives
state and EPA NPDES permit writers a
step-by-step methodology for deriving
water quality-based effluent limits for
toxic pollutants and toxicity.
C. Section 304(l) and Its Reictionship to
FJ’A ‘ s Surface Water Toxics Control
Section 304(1) of the CWA reinforces
EPA’s on-going program to identify and
control discharges of toxins. Under
section 304 l) the state’s deadline for
submitting the four lists to EPA for
r’view and approval was February 4.
1989. The statutory language of section
304(l) requires the listing of waters for
which water quality standards will not
be achieved due “ to discharges
from point sources of any toxic
pollutants listed pursuant to section
307(a); ‘ .“ The toxic pollutants
identified under section 307(a) of the
CWA are 65 categories and classes of
pollutants that can include thcusar.ds of
compounds. EPA’s water quality crmtcr.a
and effluent guidelines focus on a list of
126 “priority pollutants” which are
common, widely present chemicals for
which toxicological data are available.
Therefore, EPA will address the 126
priority pollutants when describing the
regulatory requirements governing the
control of toxic pollutants under section
304(l) of the CWA.
The four lists required by section
334( I) are described as follows, and are
identif:ed by their corresponding
paragraphs in section 304(l)(1):
1. (AJ(i) —A list of those waters in the
state which, after application of
technology-based effluent limits, cannot
reasonably be anticipated to auain or
maintain water quality standards for
priority pollutants adopted under
section 303(c)(2flB) of the CWA
2. (A)(ii)—A list of all waters which.
cfter application of technology-based
effluent limits, cannot reasonably be
anticipated to attain or maintain that
water quality which shall assure
protection of public health, public water
supplies, agricultural and industrial
uses, and the protection and
propagation of a balanced population of
shellfish, fish and wildlife, and allow
recreational activities in and on the
watez-
3. (8)—A list of those waters which,
after application of technology-based
effluent limits, the state does nct expect
will achieve applicable water quality
standards, due entirely or substaniiai y
to point source discharges of priority
pollutants:
4. (C)—A list of the point sources of
the priority pollutants which are
believed to be preventing or impairing
water quality for waters on the B) 1.st.
and the amount of each priority
pollutant discharged by each point
source.
In addition to the listing requirements
under section 304(l)(l), the states must
prepare an individual control strategy
(ICS) for each point source on the (C)
list, (The definition of an ICS is
discussed in more detail in section IILC
of this preamble.) An ICS must require
reductions in the discharge of priority
pollutants from point sources on the (C)
list, which reductions are sufficient, in
combination with existing controls on
point and nonpoint sources of pollution.
to achieve applicable water quality
standards as soon as possible but not
later than three years after
establishment of the ICS. Where EPA
approves a state submittal, the deadline
for compliance is as soon as possible
but not later than June 4. 1992. Where
EPA disapproves a state submittal and
promulgates an ICS in lieu of the state.
-------
23870
Federal Register / Vol. 54, No. 105 / Friday, June 2. 1989 / Rules and Regulations
the deadline for compliance is as soon
as possible but not later than June 4.
1993.
All ICSs were due to EPA. from states
approved by EPA to administer the
NPDES program, by February 4. 1989.
EPA must approve or disapprove the
lists and ICSs by June 4. 1989. When
EPA disapproves an ICS. EPA must
implement section 304 l)(1) “in
cooperation with such state and after
notice and opportunity for public
comment.’ by June 4, 1990.
An approved state’s obligation to
prepare and submit an ICS to EPA is
siniilar to an approved NPDES state’s
obligation to prepare NPDES permits
and submit the permits to EPA for
review. However. section 304(1)
establishes new deadlines and
procedures for issuing and reviewing
some NPDES permits. (Many NPDES
permits are not subject to section 304(1).
Permits that are not subject to section
304(l) should receive the same prIority
for reissuance or oversight that the
permits would receive regardless of
section 304(t). ]
Todays proposed rulemaking is one
of several EPA actions to implement
section 304(1). In March 1988, EPA
issued guidance entitled
“Implementation of Requirements Under
section 304(1) of the Clean Water Act, as
Amended” (March, 1988). (EPA
published a notice of availability for the
guidance on March 18. 1988. and the
document is available by writing to the
Permits Division, Office of Water (RI—
338). U.S. Environmental Protection..
Agency. 401 M Street SW.. Washington.
DC 20460.)
EPA has promulgated a final
interpretive rule that incorporated into
EPA’s regulations and provisions of the
WQA relating to the NPDES program
and section 304(1), 54 FR 248(1989). The
rule codified the statutory requirements
of paragraphs (A). (B), and (C) of section
304(l) into 40 CFR I 130.10(d). The rule
also codified section 304(l](1)(D) and
§ § 304 (1)(2) and (3) into 40 Q ’R § 123.48.
These new paragraphs describe the
requiretnaiit that states submit lists of
waters and individual control strategies
to EPA for review. Today’s rulemaking
re-promulgates I 123.46(a) of the January
4.1989 Interpretive rule. EPA Is re-
promulgating this paragraph with
changes that reflect more clearly EPA’s
interpretation of section 304(l)(1)(D). See
section IlL C for further discussion of
this paragraph. Today’s fnal regulations
supplement the Janauary 4. 1989
interpretative rule by defining key terms
in section 304(l) and describing Federal
and state responsibilities under section
304(l).
D. Purpose and Sunrniajy of Today’s
Regulations
The purpose of today’s rules is to
reinforce EPA’s surface water toxica
control program, and to specify In more
detail the requirements of section 304(l).
Section 304(l) does not change the
direction cf EPA’s surface water toxics
control program. but rather, establishes
ambitious deadlines by which EPA and
the states must identify and control
priority pollutants. While EPA’s toxics
control policies require control of all
toxic pollutants. including but not
limited to toxicity and the priority
pollutants. the WQA reflects Congress’
intent that priority pollutants be
addressed on a rapid schedule. After the
deadlines of section 304(l) pass. EPA
and the states must continue the toxics
control program by determining the
presence of toxic pollutants in. effluents
and receiving waters, developing the
necessary policies and regulations to
control toxic pollutants and toxicity., and
establishing effluent limits in permits.
EPA received a number of comments
suggesting that the thirty day comment
peirod allowed for this rule was too
short. Although EPA has considered all
comments received, it remains
convinced that thirty days was a
sufficient comment period for the
following reasons. The principal
components of the rule were publicly
available before the proposal. in
particular the majority of the section
304(1) requirements were a part of the
guidance that was made available for
public comment. In addition. EPA
provided speakers to interested groups
regarding the rule several months before
proposaL and solicited comments on the
development of the proposal.
Furthermore, both the proposal and the
administrative record were short and
not overly technicaL The administrative
record supporting the proposal was
made up of documents that have been
not only publicly available, but also in
practical use for some time. In short, the
proposal did not present a great number
of novel, complex or technical issues
requiring a lengthly comment period.
Given that EPA believes that a thirty
day comment period was adequate, EPA
decided not to extend the comment
period because of the short amount of
time In which EPA wished to finalize the
rule.
EPA received a number of comments
that are not addressed in this preamble.
A separate summary of these comments
and the Agencys response to them is
included in the administrative record for
this rulemaking.
Todays regulations amend three parts
of the CFR. Changes to EPA’s surface
water toxics control program are locat’ -‘
in Parts 122 and 123 of the CFR. Part:
incorporates the proposed regulations
for listing waters under section 304(1)(1)
(A).-(C), and the proposed regulations
for individual control strategies
prepared under section 304(1) and
located in Part 123.
1. Changes to 40 CFR Part 122:
Today’s regulations add a definition
for whole effluent toxicity to § 122.2.
EPA is also adding seven paragraphs to
§ 123.44(d)(1). The new language
describes the procedures the perrnittli-ig
authority shall use to determine whether
an NPDES permit must include a water
quality-based effluent limit. The
proposed regulations also address the
procedures for deriving effluent limits
from state narrative or numeric water
quality criteria. EPA is also changing the
title to paragraph (e) of § 122.44 to
clarify that paragraph (e) appliesto
technology-based controls.
2. Changes to 40 CFR Part 130
Todays regulations amend Part 130 to
incorporate the listing requirements of
section 304(l)(1). The regulations also
establish procedures for EPA’s review
and approval or disapproval of the lists
prepared under section 304(1). These
regulations are described in sections
IILB and UI.D of tins preamble.
The proposed regulations included a
requirement for a biennial submission of
lists under sections 303(d) and 305(b) of
the CWA. EPA deleted these
requirements from today’s final
regulations. Many comnienters objected
to the additional reporting requirements
suggested by the proposed regulations.
Other commenters were confused about
the extent to winch the proposed
requirements overlapped with and
related to the section 304(l) listing
process. Due to these comments EPA
has decided to address these biennial
reporting requirements iii a separate
action.
3. Changes to 40 CFR Part 123
The additions to Part 123 establish
procedures for EPA’s approval and
disapproval of the ICSs prepared under
section 304( l). Today’s rules provide for
public participation in reviewing the
ICSs. and also establish the criteria EPA
will use to evaluate the adequacy of
ICSs. These regulations are discussed
more fully in sections IILC and lIl.D of
this preamble. Finally. EPA is placing an
additional criterion for I’IPDES state
program withdrawal in 40 CFR Part 123.
These regulations are described in
section lILA of this preamble.
EPA believes that todays rules and
preamble will assist the states and the
public at large in developing a better
understanding of the national surface
-------
Federal Register_/Vol. 51, No. 1C5 I Friday, June 2. 1909 I Rules and Re uIations
Z3371
sotcr tox cs control rogTam. Today s
ilemaking wiil also ensure that the
activthes carried out under section 304(t)
iil be consistcnt with EPA’s slatutory
obligat ons and n tionat policy for
controlhr. toxic poihutants and whole
c f!ier. toxiity.
U I. Section-By-Section Analy5Ls
This section discuss is todays
regulatior.s in four parts. Part A
describes regulations that amend and
C!arify El’A’a e’t sting surface water
toxins control pro rant. Part B describes
the requrf’menta for id ’ritifying and
Iis’ing waterbodies under pa:agraph I of
I 304(I). Part C discusses the
reeuieinr ’its for preparing and
reviewui; ICEs, and Part D discusses the
proceduri..s for reviewing and approving
or d1sappro LOg t .e lists and ICSs.
.4 Changes to the National Surface
Water Tcxics Ccntrol Program
1. Amendments to 40 CFR I22. 4
Two of the most important
components of EPiV surface water
toxics control program are the
development and implementation of
water qualit’-based permit limits. The
permitting authority (either EPA or a
state approved by EPA to administer the
1’DES program) uses water quality-
jased hr !s when effluent limits more
t.—.gen’ t.ian technology-based limits
are nece:cary to attain or maintain
•.vater quel!’y standards. Although
sectiins 402(s)(l) and 301(b)(I)(C) of the
CWA rrovide the authority to require
PDES permits to achieve the effluent
limits r :cssary to attain and maintain
water quality standards. the existog
r’:S -egulations do nut descr:be the
prccedures for developing water qualit ’-
based e 9uent limits. T:’us sect:on
e’plains today’s regulations which
descr be procedures for developing
water quality-based effluent limits.
F.PA uses an integrated approach to
watcr quality-based permitting. The
intugrated approach includes both
biological and chemical procedures for
characterizing effluents and developing
effluent limits. EPA’s integrated
epproach to water quality-based
permittog is explained more fully in the
Technical Support Documant and in
EPA’S National Policy of March 9. 1984
whrch are dnscribed :n section 1L. of
this preamble.
EPA has issued detailed guidar.ce on
the integrated approach to water
quality-based permitting. Although
‘.PA’s existing NPDES regulations
rovide adequate authority to require
water quality-based effluent limits in
permits when an excursion above a
water quality criterion is either
..ientified or rroiected, the ecistrng
regu!atior.3 do not describe the
precedures for developing such limits.
Today’s rr ulations establrth muumwn
ccr’sistPnt proci’dures for the states,
EPA, and the regulated community, to
use in developing water quality-based
effluent limitations.
a. A Definition for Whole Effluent
Toxzczt; To.’iay’s regulations add a
definition for “whole effluent toxicity”
to the definitions in 40 CFR 122.2. Whole
effluent toxicity is defined as the
aggregate toxic effect of an effluent
measured directly with a toxicity test. A
toxicity test measures the degree of
response of an exposed test orgari sm to
a chemical or effluent. The proposed
definition is the same definition used in
the TSD end in the Permit Writer’s
Guide.
EPA is promulgating a definition for
whole effluent toxicity because cor.trols
for whole effluent toxicity are an
essential component of EPA’s integrated
approach to toxins control. Where
controls on individual pollutants do not
adequateiy protect water quality,
assessing and controlling whole effluent
toxicity is necessary to reduce or
eliminate the toxic impact of the
effluent. A definition for the term wiU
assist the publ c in better understaiiciing
how contrcls on whole effluent toxic:ty
are used in EPA’s surface water toxics
control program.
A limit on whole effluent toxicity
refi ra to a nuzieric effluent limitation
expressed in terms such as toxic units,
no observed effect level ( 4Oa). LCSO.
or percent mortaiity. Effluect limitations
may be expressed as chronic toxicity or
acute toxicity (or both). Regardless of
how the numeric effluent limitations for
whole effluent toxicity are e,- rcssed.
any single violation of the effluent limit
is a violation of the NPDES pera’ t and
is subject to the full range of state and
Federal enforcement actons.
Many commenters suggested that the
definition for whole effluent toxicity is
too vague, that the definition should
describe a “toxicity test.” or that EPA
should publish maximum allowable
water quality criterion for tOxicity. EPA
is maintaining a broad definition of
whole effluent toxicity fur several
reasons. First, there are a variety of
testing procedures that may be used ‘o
determine whole eftiuer.t ioxictt-,.
Although EPA has devclcped protocols
and guidance documents for perfor’mng
to ac1ty tests, it would be inappropriate
to incorporate these documents into the
definition because these protocols are
recom.’nended procedures. not
mandatory procedures. Second, today’s
definition does not include a water
quality criterion for toxicth’ because
publishing a cr.terion for v.hole ef ’jcrt
toxicity is a process ca:ried out under
section 304(a) of the CWA. and is
therefore inappropriate for this
rul,imaking The reader should refer to
the recommended values for w ,ole
effluent toxicity that are described in
the TSD. If EPA chooses to dDvelop
f irnia1 water quality criteria for toxicity.
EPA will publish the criteria pursuant to
section 304(a) fo the CWA.
Several comnienters asked for
clarification of the meaning of “ hole’
in the term “whole eifluent toxicity.”
C nnmer.ters were concer’tcd about
whether dilution of the effluent was
precluded as a part of whole effluent
toxicity testing. The word “whole’ in
definition refers to the aggregate toxIcit: ’
of an effluent—not to 100% effluent.
Percontages cf effluents in permit limits
represent that concentration of the
effluent which achieves state water
quality standards.
Commeriters also asked whether in-
stream dilution would be considered ifl
determining whole effluent toxicit’
These commenters asked if whole
effluent toxicity referred to the toxicity
of an effluent at the “end of the pipe” or
referred to in-stream toxicity of an
effluent after mixing. These commenters
are confusing the definition of whole
etf!uent toxicity with the deve!opmeit
and e pressf on of a permit limit for
whole effluent tocicity. Today’s
definition does refer to ‘end of the pipe’
to city becutise compliance with permit
limits is meas tred at that point. These
enJ.cif-pipe limitations ire developed
usrg the state’s water quality
standards, including mixing zones
(where . l1owed) and wasteload
a!ocations. to determine how muth
efflierit toxicity must be limited to
.a and maintain applicable watcr
c’ ialiiy standards.
b. Narra:zve Water Quality Criteria
Today s regulations amend
lZ .4;(d)(1). Existing paragraph (dl
r n ires t PDES permits to contain
effluer.t Limits more stringent than
technology-based limits, where more
str’r gent limits are necessary to
“a r evc water quality standards
e-’iblished under section 303 of the
C .’vA.” TGday’e regulations amend
pi .ragraph (d)(1) to clarify that effiu nt
liruts established under paragraph (d)
mist achieve any state narrative water
quality criteria as well as numeric watrr
quality criteria.
EPA received no comments opposing
this regulation, and therefore the agency
is promulgating this regulation without
chinge from the proposed regulation.
I lowever. many commenters questioned
EPA’s use of narrative water quahily
-------
23872
Federal Register I Vol. 54. No. 105 / Friday. June 2. 1989 / Rules and Regulations
criteria in the other amendments to
§ 122.44(d)(1), For convenience EPA is
responding to these comment. in the
discussion of paragraph (1)(iv) of
§ 122.44(d).
c. Developing Waler Quality.Based
Effluent Limits. Today’s rulemaking
adds seven new subparagraphs to
§ 122.44(d)(1). The subparagraphs
describe the procedures for determining
whether a discharge is causing or
contributing to an excursion above a
water quality criterion, identify those
permits that must have water quality-
based effluent limits, and describe
several principles for developing water
quality-based effluent (units. The
Agency has determined that additional
clarification of § 122.44(d) will assist in
the itnplemer.tation of the national
water quality-based toxics control
program and the recommendations of
EPA’s national policy, 49 FR 9016 (1984).
The amendments to § 122.44(d)(1) are
intended to describe procedures for
implementing existing state water
quality standards and are not intended
to sug3est that states change exl3tlng
staricards. 3ectian 303(c)(21(B) of the
CWA. as amended, adthesseo state
review and aduption of water quality
sta.’.dards for toxic pollutants listed
pursuant to section 307(a)(1) of the
CWA. EPA has prepared guidance on
section 03(c)(2) 9) which is available
from: Criter.a and Standards Division
(WH—585). Office of Water. U.S.
Environmental Protection Agency. 401 M
Sireet SW.. Washington. DC 20460.
The first of the seven subparagraphs
is paragraph (d)(lKi). EPA originally
preposed this paragraph in
§ 122.44(e)(2). but in placing this
language Li § 122.44(d)(1) in todays final
regulations because the description of
water quality-based controls is more
appropriate for paragraph (c)(1). The
subsequent six paragraphs are re-
numbered (ii) through (vii).
The new paragraph clarifies that an
NPDCS permit must limit any pollutnnt
or pollutant parameter (whether
conventionaL nonconventionaL or
toxic), including whole effluent toxicity,
that is or may be discharged at a level
that causes, has the reasonable potential
to cause, or contributes to an excursion
above any water quality criterion.
including state narrative water quality
criteria. The new language clarifies that
paragraph (d) applies to any pollutant.
whether conventional. nonconventional.
toxic, or whole effluent toxicity, and
applies to excursions above narrative
water quality criteria, not just numeric
criteria in state water quality standards.
Some commenters asked for
clarification of the phrase “excursions
above applicable tvatet quality
standards” and the role of effluent
limitations in preventing such
excursions. Water quality criteria
express water quality objectives for
protecting aquatic life and human health
and for meeting a defined level of water
quality protection. Where a discharge
has a reasonable potential to cause or
contribute to an excursion above a
water quality criterion, effluent
limitations are necessary to ensure that
water quality standards will always be
met. This conziection is inherent in
section 301(b)(1)(C) of the Clean Water
Act which requires that water quality
standards be achieved through effluent
limitations.
As used in today’s regulation.
“excursion above” refers to any
projected or actual concentration qf a
pollutant that is greater than the
applicable water quality criterion. For
most water quality standards, an
excursion occurs if the proiected or
actual in-stream concentrations are
numerically higher than the applicable
crrterion. In some cases, however,
excursions occur if the ambient values
are numerically lower than the criterion
(e.g. dissolved oxygen or pH). The
phrase ‘excursions above” in today s
re’ulation anplies to both cases.
An “excursion” must also be
consistent with the duration and
frequency of the applicable water
quality standard. Duration refers to the
period of time over which the ui-stream
concentration is averaged for
ccmparision with criteria
concentrations, and frequency describcs
how often criteria can be exceeded
without impairing the designated use of
the receiving water. An excursion above
a water quality standard shoula account
for these elements of the standard,
When referring to excursior.a, today’s
regulations uae the term “criteria”
Instead of “standard” because it is more
accurate to refer to excursions above
water quality criteria. Water quality
criteria are the threshold values against
which ambient concentrations are
compared to determine whether a
waterbody exceeds the water quality
standard,
The new language will clarify that
NPDES permits must establish Limits on
any pollutant. where necessary to attain
and maintain applicable water quality
standards. The paragraph also
emphasizes the importance of narrative
water quality standards. Today’s
regulations emphasize that narrative
standards hdve the same force and
effect as other state water quality
standards.
Subparagraph (ii) nf § 122.44(d)(1)
concerns the procedures for determining
whether a discharge must have a water
quality-based effluent limit. EPA is
promulgating this language without
change except for the new paragraph
number. To determine whether a
discharge causes, has a reasonable
potential to cause. or contributes to an
excursion above a water quality
criterion, and thus requires a water
quality-based effluent limit, the
permitting authority must use reliable
and consistent procedures. Although the
procedures can vary considerably from
one state to another, most such
procedures account for any dilution of
the effluent i ii the receiving water, after
considering mixing zones if applicable.
any concr:butions of the pollutant from
upstream point and nonpoint sources.
the variability of the pollutant in the
effluent, and, when evaluating whole
effluent toxicity, the sensitivity of the
test species in a toxicity test. fiome
commenters objected to the reference to
mixing zones and requested that EPA
prohibit mixing zones. EPA believes.
however, that it is tnaopropnate to
prohibit mixing zones in this regulation
Tl’.e use of mixing zones raises issues
that are more appropriately addressed
in the state water quality standards
adoption process. Therefore. EPA is not
deleting the reference to mL ’clr.g zones
paragraph (d)(i)(ii).
Paragraph (d)(1)(ii) requircs the
permitung authority to consider
variability because limited data on the
concentration of a pollatant in an
effluent result in a large uncertainty
when determir.irig whether a discharge
causes or has the reasonable potential
to cause an excursion above a water
quality criterion. Unless effluent
variability is adequately cons:dered, the
permitting authonty may make
erroneous decisions concerning whether
to develop permit limitations for a
pollutant One commenter suggested
that the regulation should astablish a
national applicable maximum variability
factor. EPA has procedures for
accounting for variability in the
Technical Support Document which may
be applied to specific sites. However.
EPA is not setting a national standard
for variability because there is an
element of judgment in making such
determinations that Is best made by
state or regional regulatory authoritieb.
Factors such as the appropriate level of
confidence and the adequacy of
available data enter into these
decisions, and many states have their
own procedures for accounting for
variability. EPA therefore believes it is
more appropriate for each regulatory
authority to evaluate variability when
dote’ mining whether an excursion
-------
Federal Register I Vol . 54. No. 105 I Friday . rune 2,1989 I Rules and Regulations
23873
above a water quality criterion can
occur.
Paragraph (dllh)(ii) requires the
permitting authority to account for
species sensitivity when using toxicity
tests. Toxicity testing must account for
species sensiuvity because different test
apecies exhibit different sensitivities to
the same effluent.
Subparsgraph (ii) addresses
discharges thai have “the reasonable
potential to cause” excursions above
water quality criteria. Because the
concentration of a pollutant in an
effluent and in the receiving water can
vary considerably, it is necessary to
address discharges that have the
reasonable potential to violate water
quality criteria. EPA requires water
quality-based effluent limits for these
dzscllar3es in order to ensure
complaance with section 301(b (1)(C)
which requires NPDES permits to
achieve applicable water quality
s:andards.
Some corzunenters said that the
phase “reasonable potential to cause”
was too vague and could apply to
pernuttaes that are not actually
exceeding a water quality criterion. EPA
does not believe that it is appropriate to
be more specific because a permitting
authority has a significant amount of
flexibility in determining whether a
parucular discharge has a reasonable
potential to cause an xcursion above a
water quality criterion. tak_ag the
factors in subparagraph (iij into account.
The composition and concentration of
tox cants in an effluent can ary widely.
The flow rates of a discharge can a!so
show significant variability. Some
efiiuer.ts may prevent a water quality
standard from being maintained even
though individual measurements do not
show an actual excursion above the
water quality criterion. Without effluent
lunitauons on those discharges. there is
a reasonable potential that the water
quality criteria would be exceeded at
some tUne. Effluent limitations must
attain and maintain water quality
standards in order to be consistent with
the requirements of the Clean Water
Act Some commenters suggested that
all discharges would be required to have
limits under this language. EPA does not
expect that this will be the case.
However. EPA expects that with few
exceptions, all major POTWs end ma;or
industrial discharges will need to be
evaluated to determine whether thcy
have a reasonable potential to cause
excursions. Before requiring a water
ality’baaed effluent limit, the
iermitting authority must have a basia
for finding that discharges have the
reasonable potential to cause excursions
above waer quality criteria. When EPA
is the permitting authority, the Technical
Support Document will normally provide
the basis for such a finding.
Some commenters said the language
“causes or has the reasonable potential
to cauoe” used in the proposed
regulations impl.es that a single point
source discharge must be responsible for
the entire pollutant loading that exceeds
the water quality crit rion. EPA did not
intend this, and is persuaded that this
point needs clarilkation. EPA intended
f& r the propesed regulations to apply to
any porn’ source that is discharging a
pollutant at a level that is exceeding or
may exceed a waste load allocation for
that discharge. This approach is
consistent with EPA’s existing
re;ilation and policies for establishing
water quality-based effluent lim!ts. The
process for .ientifymg water quality.
ILnited segments requiring total
maximum daily loads (TMDLB) and
w isteload allocations (WLAs) is set
forth in EPA’s regulations at 40 CFR
130.7. This regulation establishes
procedures for identifying and
controlling multiple discharges to the
same receiving water in order to attain
and maintain applicable water quality
standards. Under this approach.
discharges which contribute to the
TMDL for a segment are apportioned a
WLA which serves as the basis for
effluent limitations for the pollutant or
pollutant of concern. To clarify this
approach in today’s regulations. EPA is
adding the phrase “or contributes to” to
paragraphs (dJ(1) (i) through (vi). This
clarificauori makes no substantive
change to today’s regulations, but
merely clarifies that today’s
amendments to paragraph (d)(1) are
consistent with EPA’s existing approach
for establishing water quality-based
effluent limits.
Some commenters questioned how
paragraph (ii) relates to the other
paragraphs added to § 122.44(d)(1). The
requirements of paragraphs (iii), (iv), (v)
or (vi) apply after the permitting
authority has determined that water
quality-based effluent limits are
necessary under paragraph (ii ).
Paragraph (ii) provides several
principles that the permitting authority
must follow when determining whether
a pollutant or a pollutant parameter is
exceeding a water quality cr terion. if
the perinittir.g authority, after apply’ng
the principles in paragraph (ii).
deterriunes that a pollutant or a
pollutant parameter is exceeding or is
expected to exceed a watar quality
criterion, then the perm tt1ng authority
uses one or more of pora raphs (iii), (iv).
(v) or (vi) to determir.e the appropriate
controls for the pollutant or pollutant
parameter. Subparagraph (ii) should
assist the permitting authority in
determining whether it is necessary.
under Federal regulations, to establish
limits for a pollutant.
The next two paragraphs that EPA is
adding to 122.44(d) are paragraphs
(d)(1)(iii) end (d)(1)(iv). EPA originally
proposed these two paragraph’s as a
single paragraph in (d)(1)(ii). The single
paragraph addressed both chemical-
specific limits and whole effluent
toxicity limits and many commenters
were confused about the meaning of the
proposed paragraph. Therefore, for the
purposes of clarification. EPA divided
the one paragraph into two paragraphs.
Paragraph (d)(1)(iii) addresses only
chemical-specific limits and paragraph
(d)(1)(iv) addressee only whole effluent
toxicity limits.
Paragraph (d)(1)(iii) requires an
NPDES permit to include an effluent
limit on an ndividual pollutant when
the permitting authority determines that
the discharge of that pollutant is
causing, is expected to cause, or
contribuies to, an excursion above a
numeric water quality criterion for that
pollutant. This paragraph applies where
the state has adopted a numeric water
quality standard for the pollutant of
concern. Some commenters objected to
the language in this paragraph because
they claimed the paragraph could
potentially require effluent hn’,its f3r a
large number of pollutants in an efficent.
EPA believes however that paragraph
(d)(iii) will not result in any unnecessary
effluent limits in NPDES permits
because the permitting authority must
satisfy the procedures in paragraph (!I)
before establishing limits under
paragraph (d)(1) (iii), (iv ). (v). or (vi).
Paragraph (ii) requires the permitting
authority to follow several fundamental
principles when determining the need
for an effluent limit. Furthermore, the
permitting authority must have a basis
for determining that a discharge will
cause or has the reasonable potential to
cause an excursion above the numeric
water quality criterion for that pollutant.
(Where EPA is the permitting authority.
use of the procedures outlined in the
Technical Support Document will
normally provide such a basis.)
Paragi’ap’i (iii) does not require limits for
every pcll’.itant but only for those
pollutants which the permitting
authority determines must be limited
after applying the procedures described
in paragraph (ii).
Paragraph (d)(Il(iv) requircs an
NPDES permit to include a l;mii cn
whole effluent toxicity when die
permitting authority deterir.;nes tha; i ,’
-------
Z3874
Federal Register I Vol. 54. No. 105 I Friday, Tune 2. 1989 I Rules and Regulations
effluent is causing or is expected to
cause an excursion above a state
numeric criterion for whole effluent
toxicity, where the state has
promulgated a numeric water quality
criterion for whole effluent toxicity.
(Note. where a state has not adopted a
numeric water quality criterion for
whole effluent toxicity, paragraph
(d)(l)(vl may require whole effluent
toxicity limits.) The comments on this
language focused on EPA’s legal
authority to regulate whole effluent
toxicity, and on the scientific basis for
toxicity tesing. EPA addresses these
comments in the disiussion of
paragraph (d)(l)(v) later in this section.
EPA is not persuaded by the comments
challenging the language in paragraphs
(dl(1)(iu) and (d)(1)(iv). and is therefore
making no substantive changes to the
proposed regulations.
The next amendment to § 122.44(d)(1)
is subparagraph (v) (originally proposed
as subparagraph (in)). This regulation
requires the permitting authority to
establish permit limits on whole effluent
toxicity when the discharger causes or
has the reasonable potential to cause an
excurs:on above a state’s narrative
water quality criterion.
Subparagraph (v) allows the
permitting authority to choose not to
develop whole effluent toxicity limits
where the permitting authority can
demonstrate that chemical-specific
limits will attain and maintain
applicable water quality criteria,
including narrative water quality
criteria. One method for making this
demonstration would be to use toxicity
testing to show that the effluent has no
acute or chronic toxic effects on aquatic
life in the receiving water. Some
comznenters said the exemption from
wnole effluent toxicity limits provided in
this paragraph is impractical because
the costs of making the demonstration
are prohibitive. EPA is not convinced
that the costs of showing that chemical-
specific limits attain and maintain
appropriate water quality standards
would be excessive. Over the life of the
permit, the costs of the initial
demonstrations could be substantially
less than the costs of compliance
monitoring associated with both types of
limits. The most straightforward method
of making this demonstration will
usually consist of toxicity testing in
conjunction with chemical specific
testing for the chemicals which are
limited in the permit. Costs of toxicity
tests typically range from a few hundred
dollars for simple screening tests to as
much as one or two thousand dollars per
month for monthly chronic toxicity
analyses. While EPA recognizes that
this approach will not always be the
easiest and least expensive way to
ensure that the narrative criteria are
met. EPA believes the option should
remain available for those cases where
the exemption from whole effluent
toxicity limits is a viable and cost.
effective option.
The exception described in paragraph
(d)(1J(v) is not available under
paragraph (d)(i)(lv) because paragraph
(d)(l)(iv) relies on numeric criteria for
limits on whole effluent toxicity.
whereas paragraph (d)(lllv) relies on
narrative criteria. Paragraph (d)(1)(iv)
describes a situation where the state has
adopted a numeric criterion for whole
effluent toxicity which reflects the
maximum degree of toxicity determined
to be acceptable in the state’s surface
waters. Narrative cntprla for whole
effluent toxicity dc not necessarily
reflect an affirmative determination by
the state to establish a numeric criterion
for whole effluent toxicity. The
exception in paragraph (d)(i)(v). if used
under paragraph (d](1)(iv). could
frustrate the state’s efforts to establish
effluent limits on whole effluent toxicity
and implement its surface water toxics
control program.
Many commenters objected to whole
effluent toxicity limits on the ground
that the scientific basis for toxicity
testing is not aufficiendy developed.
These commenters also suggested that
EPA should not use toxicity tests until
EPA has published toxicity testing
procedures pursuant to section 304(h) of
the CWA. EPA disagrees. EPA has
shown, through testing protocols, site-
specific studies, and guidance manuals.
that toxicity testing is reliable and has a
sound scientific basis. In 1984 EPA
concluded tha toxicity testing is
sufficiently refined to be used in setting
effluent limitations • .“ 49 FR 38009
(1984). EPA’s studies since 1984
reinforce this conclusion.
EPA has published a number of
toxicity testing protocols that describe
reliable and reproducible toxicity tests.
See for example: Short Terni Methods
for Estunating the Chronic Toxicity of
Effluents and Receiving Waters to
Freshwater Organisms. EPA/600/4-89/
001. Second EditIon. February 1989;
Methods for Measuring the Acute
Toxicity of Effluents to Freshwater and
Marine Organisms. Third Edition. EPA!
600/4-85/013, March 1985: and Short-
Term Methods for Estimating :he
Chronic Toxicity of Effluents and
Receiving Waters to Marine and
Estuarine Organisms. EPA 600/4—87/
028. May 1988.
EPA’s Technical Support Document
for Water Quality-Based Toxics Control
(TSD) gives detailed technical guidanc-’
for each phase of water quality-base
toxiCs controL The TSD describes the
technical basis for establiahing limits on
whole effluent toxicity, and describes
the methods for using toxicity testing in
the permitting process. The TSID also
cites several studies which show that
toxicity testing methods, where properly
followed, exhibit an acceptable range of
variability.
his not necessary for EPA to publish
toxicity testing guidelines pursuant to
section 304(h) of the CWA before using
biomonitoring and whole effluent
toxicity limits in NPDES permits. EPA
has published toxicity testing protocols
that can be used in NPDES permits. The
absence of guidelines under section
304(h) does not affect EPA’s authority to
use toxicity testing, nor does it affect the
reliability of EPA’s toxicity testing
protocols. EPA’s position on this issue is
stated in the preamble to EPA’s rinal
NPDES regulations. 49 FR 38010 (1984)
and is reiterated here: permitting
authorities must use their judgment in
determining which toxicity testing
methods are appropriate for the NPDES
permit. (Note that there are other
toxicity testing methodologies available.
EPA has determined that EPA’a methods
are protective of aquatic life. If a state
wishes to use other methods, those
methods must be scientifically
defensible and protective of aquatic life.
EPA expects that such methods would
always be comparable to the procedures
in EPA’s methodologies and would use
test species of equivalent sensitivity.)
Until EPA publishes guidelines under
section 304(h). the premitting authority
must specify in the permit winch
analytical methodology must be used.
Some commenters also questioned
whether toxicity testing can be used lo
predict biological impact to receiving
waters. To address this issue EPA has
conducted the “Complex Effluent
Toxicity Testing Program.” The program
has produced eight site-specific studies
which show that where exposure is
adequately assessed, effluent toxicity
correlates directly to in-stream impact.
The studies are: Validity of Effluent and
Ambient Toxicity Tests for Predicting
Biological Impact.’ Scippo Creek.
Circieville, Ohio. EPA/600/3-85/044:
Ottawa River, Urns, Ohio. EPA/600/3-
84/080: Five Mile Creek. Birmingham.
Alabama. EPA/600f8—85/015: Skeleton
Creek, Enad, Oklahoma, EPA/eoof 8-86/
002: Naugatuck River. Waterbury,
Connecticut, EPA/600/8—86/005. Back
River. Baltimore Harbor. Maryland.
EPA/600/8—86/001: Ohio River. Near
Wheeling. West Virginia. EPA/600/3—
85/071. Kanawha River, Charleston.
-------
I
Fedøral Register I Vol . 54. No. 105 I Fudey. June 2. 19 139 I Rules and Requlatior.s
23f 175
West Virginia. EPA/600/3—86/006. These
.idies are available from the Center for
_wironmental Research Information. 28
West St. Clair Street. Cincinnati. Ohio
452e8.
Comzneners also suggested that EPA
does not have the legal authority to
require effluent limits on whole effluent
toxicity. The commenters argue that the
state narrative water quality critc-:on
“no toxics in toxic amounts” car.not be
used as a basis for requiring whole
effluent toxicity limns. EPA disagrees.
State narrative water quality criteria
muct be attained and maintained in the
same way as all water quality criteria.
N. rrative water quality criteria have the
same farce of law as other water quality
cmer.a. and NPCES permits must
contain effluent limits necessary to
attain and maintain all applicable water
quality criteria, including narrative
criterta.
Tha Court of Appeals for the District
of Columbia Circwt recently upheld
EPA’s toxicity limits regulation. 40 CFR
iZ5.3(c)(4). in Na:urol Resources
Defense council v. E,’,viranrnentci
Prolection Agency, 859 F.Zd 156 (D.C.
Cir. 1968). Section 125.3(c)(4) provides
that permit writers may express
technology-based or water quality-
based limits in terms of toxicity as long
the limits reflect the appropriate
inrements of the CWA. The court
concluded that although toxicity
apoears to bean attribute of poilutants
rather than a pollutant tsef. the CWA
author.zes the use of toxicity as a
measure to regulate effluents. The
courts affirmation of the use of whole
efluent to’cicity limits further supports
EPA’s authonty to require whole
cfflur.rit toxicity iirr. tq and to promulgate
t.day’s r giiIations.
Finally, sectici. 3Ol b)(1)(C rec’uires
NPDES permits to contain any effluent
limitations necessary to meet all
applicable water quality standards. A
permit would be inconsistent with
secimon 3O1(b)(1J C) if the permit did not
contain effluent Lnits necessary to
attain and maintain both narrative and
numeric water quality criteria. For these
reasons. EPA believes its authority to
regulate discharges ‘ising whole effluent
to ’ icity limits is well ee’ablished.
Same comrnenters said EPA stiould
use whole effluent toxicity testing only
as a trigger for turther invesLi ition into
t ie cause of the toxicity, and snould not
use whole effluent toxicity as an
enfc’ceable effluent limit, EPA cannot
incorporate these suggestions. EPA
roluires whole effluent toxicity limits
re necessary to meet water quality
iciards. EPA does not believe that a
whote effluent toxicity trigger alone is
fully effective because t does not, by
itself, restrict the quantity. rate. or
concentraion of pollutants in an
effluent. Whole effluent toxicity
limitations are enforceable in the same
way as any other effluent limitation in
an f.PDES permit. Section 309 of the
CWA provides that any single violation
cf an effluent limitation can be subject
to an enforcement action, and section
309 applies to whole effluent toxicity
limits in the same way as any oiher
efll.ient hmitauon.
several cominenters asked if state
narrative water quality criteria, that are
used as the basis for estaolishing
effluent limits under paragraphs (d)(1)(v)
and (vi). apply to all waters regardless
of their designated use. Narrative water
quality criteria apply to all designated
uses at all flows unless specified
otharwise in a state’s water quality
standards. It is EPA’s policy that no
acutely toxic conditions may exist in
any state waters, regardless of
designated use. State narrative water
quality critena and interpretations of
their narrative water quality criteria
may be more protective than levels
necessary to prevent acutely toxic
conditions. For more informatior.. please
refer to the Water Quality Standards
Handbook, December 1983.
State narrative water quality criteria
provide the legal basis for establishing
effluent limits under paragraphs (d)(lj(v)
and (d)(l)(vi) of today’s regulations.
There is flexibility in the state’s
tnterpretaticn of its narrative water
quality criteria. When a state adopts a
narrative water quality criteria, EPA’s
regulauons at 40 CFR 131.11(a)(2)
require the state to ‘provide informauon
identifying the method by which the
state intends to regulate point source
discharges of toxic pollutants on water
quality limited seginer.ts based on suh
narrative criteria.” When mterpre’mg a
state a narrative water quality criteria.
the premitting authority may use a
proposed numeric criterion for the
pollutant of concern, an explicit state
policy, or a proposed or f al state
regulation interpreting i:s narrative
criteria provided the ii terpretation will
fully protect the deu gna ted use. In the
absence of an explicit state poiicy or
regulation that fully protects the
designated use, the pereutting authority
t ill use the procedures summar:zed :n
paragraphs ( (ll(:i) and (d)(1 (vi:) of
today’s regulations for applying a state’s
narrative water quality criter’.a. (Note
that states may evaluate the de5ignated
use of a waterbody by performing a use
attainability analysis pursuant to 40
CFR Part 131. and depending on the
results of the use atta!nabillty analysis
may. after provi iing for puoiic notice
and an opportunity to comment. upgrade
or downgrade the designated use of the
w aterbody.)
Subparagraph (vi), (originally
propo5ed as subparagraph (iv)),
addresses the situation in whtch a state
has not adopted a numeric water quality
criterion for a toxic, conventional, or
nonconventional pollutant that is
preeent in an effluent at a concentration
that causes, has the reasonable potential
to cause, or contributes to an excursion
above an applicable narrative water
qualtty criterion. In this situation the
permitting authority does not have a
nuzr.eric critencn to use for deriving a
water quality-based effluent limit. EPA
emphasizes that paragraph (d)(1J(vi) is
not used to establish effluent limits on a
po.lutant J the state has adopted a
numeric water quality criterion for that
pollutant.
Several cornmenters said the phrase
for a specific chemical pollutant
that is known to adversely affect or
threaten human health or aquatic life
in proposed paragraph (vi) could
have been read to require an effluent
limit for every priority pollutant, even if
the pollutant is not present in the
effluent. Other commenters said this
language should apply to discharges that
are “known or suspected” to adversely
affect aquatic life or human health. EPA
agrees that these points needed
clarification, As a result of these
comments. EPA amended the
introductory language of paragraph (i.i)
to clarify that water qua1iry-base i
effluent limits are required only for
pollutants that are present .n an
effluent at a concentration that causes.
has the reasonable potential to cause, or
contributes to an excursion above a
narrative criterion w thin an appucab!e
state narrative water quality stanaard.’
This language clarifies that water
quality-based effluent limits are
required only for pollutants present in
an effluent at concentrations of concern
to the permitting authority. EPA aLo
added the words “or has reasonable
pctent:al” to the introductory language
in paragraph (vi). This language is
consistent with the language in
paragraphs (i) through (v). This language
is necessary to assure that effluent
limits attain and maintatn water qt ality
standards, ana the language is discussed
more filly under the discussion of
paragraph (ii). The new language also
clarifies that an applicable state
narrative water quality criterion
provides the legal basis for establishzn
effluent limits under this paragraph. This
revised language clarifies the scope and
applicability of paragraph (d)(i)(v l.
Paragraph (dUl)(vij describes thire
options available ic the permittwg
-------
..‘, .,_
_.,%., 0
Federal Register I Vol. 54. No. W5 / Friday. June 2. 1989 I Rules and Regulations
authority for using narrative criteria as
the basis for establishing effluent limits.
Option A allows the permitting authority
tc estabLah water quality-based effluent
limitations using a “calculated numeric
water quality criterion” which the
permitting authority demonstrates will
attain and maintain applicable water
quality standards. When using this
approach. states may derive values
different from the values in the EPA ’s
water quality criteria documents to
reflect site-specific factors. including
predicted local human consumption of
aquatic foods, as well as the state’s
determination of an appropriate risk
lei’el, and any more recent scientific
data that may act be included in EPA’s
criteria documents. Under this option
the permitting authority should use all
available scientific information on the
effect of a pollutant on human’ health
and aquatic life. Available information
includes but is not limited to. risk
assessnients. exposure data, and site-
specific water quality parameters. (The
proposed regulations included only two -
opt:ons ur.der this paragraph. Today’s
final regulation includes a third option—
“cption C.” which Is described later in
this section of the preamble. Today’s
final regulatior.s also raverse the order
of proposed options A and B. Proposed
option A appeetrs in today’s final
regulation as ciptio B. and proposed
option B appears as option A in the final
regulation. The remainder of this
discussion rafers to the options as they
appear in today s final regulation.)
Option A received a mixed reaction
from commenters. Some commenters
objected to option A because it requires
a water quality-based effluent limit for a
pollutant before a state adopts a
numeric water quality criterion for that
pollutant. Other comnienters supported
option A because the option gives the
permitting authority flexibility in
developing water quality-based effluent
limits. Many of the coininenters who
oppose option A suggested that option A
circumvented the state’s role in
developing water quality standards.
EPA responds to this concern in the
discussIon of option 8. It is worth noting.
however, that this should be a minor
concern for option A because option A
does not necessarily rely on EPA’s
water quality criteria. Option A allows
the permitting authority to use any
criteria that protect aquatic life and
human health. Thus option A gives the
states maximum flexibility in developing
water quality-based effluent limits for
pollutants for which the state has not
adoi.ted a water quality criterion.
One cominenter objected to option A
! ‘ica use it appeared to be similar to
state “translator mechanisms” for
developing water quality standards
under section 303(c)(2)(B). Some states
use a procedure or “translator
mechanism” to derive site-specific
numeric water quality criteria and to
develop water quality-based effluent
limits. EPA’s guidance implementing
section 303(cJ(2i(B) of the CWA
provides that the use of a translator
mechanism can be consistent with
section 303(c)(2)(BJ of the CWA. (See
EPA’s Guidance for State
Implementation of Water Quality
Standards for section 303(c)(2)(B).J
Translator mechanisms that are used to
satisfy section 303(cJ(21(B) of the CWA
must be approved by EPA before the
translator mechanism becomes part of
the state’s water quality standards. Such
approved translator mechanisms can be
used to develop effluent limitations
under paragraph (d)(1)(iü) of today’s
regulations. but may not be used to
develop effluent limitations under
paragraph (d)(1)(vi). Paragraph (d)(1)(vi)
is used only in the absence of a state
numeric water quality criterion
(including a criterion derived from an
approved translator mechanism). The
options in paragraph (d)(1)(vi) provide a
regulaicry basis for developir’.g water
quality-based effluent limitations as an
interim measure until a numeric
criterion for the pollutant of concern is
available. State policies or procedures.
even procedures which calculate
derived criteria but are not approved by
EPA. may be used to develop effluent
limits under option A of paragraph
[ d)(iJ(vi). However, if the state has
adopted a policy or procedure iii ;ts
stand3rds that is approved by EPA and
results in a denved or calculated
numeric criteria, the permittIng authority
must develop effluent limits according to
paragraph (d)(1)(iii) and cipy not use
paragraph (d)(l)(vi).
The commenter also claimed that
translator mechanisms do not provide
adequate opportunity for public
participation. When using a translator
mechanism the state must provide an
opportunity for public participation In
the development of derived numeric
criteria. The permit development
process also gives the public an
opportunity to comment on the effluent
limitations developed from the criteria
derived using a translator mechanism.
Several coinmenters stated that option
A should describe scientifically sound
procedures that must be followed when
deriving numeric criteria. EPA believes
it is inappropriate for this regulation to
provide detailed technical procedures
for developing numeric criteria because
option A is intended to provide
flexibility to the states when developing
water quality-based effluent limitationr
EPA emphasizes however, that
scientifically valid procedures must be
used to develop criteria that protect
aquatic life and human health. The
regulation suggests the use of EPA’s
Water Quality Standards Handbook. but
other procedures may be used provided
the resulting numeric water quality
criteria attain and maintain all
applicable water quality standards.
Because there is more than one
procedure that can be used to develop
water quality-based effluent limitations
under option A, EPA is making no
changes to this language in option A.
EPA believes that option A offeis a
reasonable epproach to developing
water quality-based effluent Limits in the
absence of state numeric water quality
standards, and EPA is not persuaded by
the objections to option A. Therefore.
EPA is promulgating option A with only
the minor changes discussed above.
The second option in paragraph
(d)(1)(v i), (,pdon B). allows the
permitting authority to establish effluer.t
limits using EPA’s Water Quality
Criteria guidance doruments. if EPA has
published a criteria document for the
pollutant pursuant to section 304(a) of
the CWA. (EPA criteria documents
provide a compreh risive summary of
available data on the effects of a
pollutant, and include maximum
ambient concentrations that protect
aquatic life and human health.) In the
absence of a state numeric criterion for
a pollutant, the permitting authority
would use the appropr.ate EPA Water
Quality Criteria document to calculate
effluent limits for the pollutant in order
to comply with applicable state
narrative water quality criteria (e.g. “no
toxics in toxic amounts’:).
Many commenters objected to option
B because they claimed that EPA does
hot have the legal authority to require
the use of EPA’s water quality criteria in
developing effluent limitations. EPA
reiterates that section 301(b)(1)( C)
requires that t .’PDES permits contain
effluent limits that achieve narrative
water quality criteria. This obligation
applies regardless of whether or not a
state has adopted a numeric water
quaUty criterion for a pollutant of
concern. EPA’s water quality criteria
should not be used as a substitute for
state water quality standards, but
rather, option B may be used as one of
three options to interpret state narrative
water quality criteria until the state
adopts a numeric water quality critenon
for the pollutant. Further. EPA is not
requiring states to use EPAs water
quality criteria. EPA is offering the
-------
Federal Register I Vol. 54. No. 105 1 Friday, June 2. 1969 I Rules and Regulations
water quality criteria as one of three
options available to the state for
interpreting and applying narrative
water quality criteria. EPA’s water
quality criteria provide one reasonable
approach for interpreting state narrative
water quality criteria because EPA’s
criteria account for the effects of a
pollutant on aquatic life and human
health.
Many commenters also suggested that
option B circumvents the states
traditional role in establishing water
quality standards. The commenters
argue that section 303(c) of the CWA
reserves for the states the sole authority
to establish water quality standards.
and that option B would somehow
prevent a state from exercising its
authority under section 303(c). EPA
disagrees that the use of option B in
implementing the narrative criterion
would prevent a state from adopting
numeric water quality criteria. To the
contrary. section 303(c)(2)(B) requires
states to adopt water quality standards
for certain toxic pollutants as soon as
possible. States must adopt standards
according to the provisions of section
333(c) and when the water quality
standards are adopted. the NPDES
permits must contain effluent limits
necessary to meet each standard.
Option B applies only in the absence of
state numeric water quality criteria. If a
state has a numeric water quality
c iterion for the pollutant of concern.
then paragraph (vi) does not apply.
Optinn B is not intended to substitute
EPA’s water quality criteria for state
water quality standards. Option B
simply provides a mechanism for
implementing narrative water quality
criteria. Althoi gh states are required to
acopt all ne essary water qual.ty
standards under section 303. some states
have ot yet done so. Thus EPA is
promulgating paragrapn (vi) as an
tnter m measure to control a pollutant of
concern until the state promulgates a
water quality criterion for the pollutant.
However, .PA’s legal obligation to
ensure that NPDES permits meet all
applicable water quality standards.
including narrative criteria, cannot be
52 1 aside while a state develops water
quality standards. This legal obligation
applies to more than state adopted
water quality stanuards. Section
301(1)(1)(C) requires that NPDES
permits achieve “any more stringent
limitation. including those necessary to
meet water quality standards. treaunent
standards. or schedule of compliance.
stablished pursuant to any state law or
regulations (under authonty preserved
by section 510) or any other Federal
law” including international treaties or
agreements that have force as domestic
law.
Some cominenters suggested that EPA
must incorporate the criteria documents
by reference in order to use them in
option B. The Administrative Procedures
Act. 5 U.S.C. 552(a)(1) and 552(a)(1).
requires agencies to publish in the
Federal Register or incorporate by
reference. with the approval of the
Director of the Federal Register. all
“stibstantive rules “ Although
NPDES permits must be developed in
accordance with today’s regulations.
water quality criteria documents do not
“impose ma.ndatory obligations upon
members of the public arid permit
issuance authorities “ See
Appalachian Power Co. v. Train 566
F.2d 451. 455 (4th Cir. 1977). The
regulations provide other options that a
state may use to determine the
appropriate interpretation of its
narrative water quality criteria.
The preamble to the proposed
regulations solicited comment on a third
option for subparagraph (vi). The third
option proposed to allow the
establishment of effluent limits on
pollutants other than toxicants of
concern such as an indicator parameter.
An indicator parameter could be a
conventional pollutant like total
suspended solids (TSS). the control of
which may be tied to a concomitant
decrease in metals concentration.
Another example of an indicator
parameter is total toxic organics (TTO).
Effluent limitations on TFO can be used
to control the organic pollutants in an
effluent, and are useful where an
effluent contains many orgarnc
compounds. In such a’ case. the
permitting authority must demonstrate
that compliance with a limitation oi the
indicator parameter or some other
effluent limit would ensure the control
of the toxicant of concern to a level that
will attain and maintain applicable state
narrative water quality criteria, and will
protect aquatic life and human health.
EPA received mixed comments on this
option. Some commenters liked the
flexibility provided by the option.
whereas other commenters pointed out
the technical problems of demonstrating
that controls on one pollutant also
control other pollutants
EPA’s existing regulations allow the
permitting authonty to use indicator
parameters for technology-based
controls (see 40 CFR 125.3(c)(4). 125.3(h),
and 122.44(e), and certain effluent
limitation guidelines.) In the case of
effluent limitations guidelines. EPA has
data and other information showing that
contn • on one pollutant sometimes
control one or more other pollutants.
23377
Similar data are often not available
when developing water quality.based
effluent limitations and therefore, the
regulation describing this option
requires a justification for using the
indicator parameter in the permit, There
may be cases where effluent limits on
an indicator parameter are sufficient to
attain and maintain applicable water
quality standards for pollutants of
concern and EPA does not wish to
foreclose this option for water quality’
based controls. Therefore EPA is
including a third option in paragraph (vi)
that allows the permitting authort’y to
use indicator parameters under Lmited
circumstances.
Like options A and B. option C is used
only where a state has not adopted a
water quality criterion for a pollutant for
which the permitting authority has data
showing that the pollutant is present in
an effluent at a concentration that
causes, has the reasonable potential to
cause, or contributes to an excurs:cn
above an applicable state narrative
water quality criterion In order to use
option C the permitting authority roust
satisfy four conditions. First. the permit
must identify which pollutant is
intended to be controlled by the
indicator parameterr This concition is
similar to the requirement in 40 CFR
125.3(h) describing the use of indicator
parameters for technology-based
controls Second. the fact sheet of the
NPDES permit must include a t’nding
that the effluent limit for the ir.d catcr
parameter will attain and maintain
applicable water quality staridaras. This
condition is also similar to the
requirements in 4D CFR 15 3(h) but :s
modified to address water quality-based
effluent limits. Third. the perm’t must
require all monitcring necessary to bhow
that the limits cn the indicator
parameter ccntinue to attain and
maintain applicable water quality
standards, This condition of option C .s
necessary to ensure that the controls on
the indicator parameter are sufficient to
attain and maintain applicable water
quality standards. Fourth, the permit
must contain a reopener clause allowing
the permitting authority to modify or
revoke and reissue the perm t if the
limits on the indicator parameter no
longer attain and maintain applicable
water quality standards. This
requirement clarifies that a permit may
be reopened if the controls on the
indicator parameter are insufflc er.t. The
type and frequency of monitoring
necessary under condition three a5 ve
would be determined by the permiutr.g
authority and would be based on case-
specific factors. In general. EPA expects
that this monitoring would include
-------
‘I
a,
Federal Register I Vu). 34. N . 103 / Frid. y. une . i 69 I Rdles dad Requlations
analysis of the effluent for the indicator
parameter and the pollutant of cancern
at a frequency sufficient to ver:fy the
correlation for the various operating
conditions of the discharger. EPA
recognizes that it may be difficult to
show a correlation between controls on
the indicator parameter and controls on
the pollutants of concern. EPA
recognizes that in most cases the data
probably wail not be availabk to show
such a correlation. Hjwever, where such
data are available EPA believes this
option should be avaiable to the
permitting authority.
Todays reg ’ilations do not allow the
permitting authority to use indicator
parameters under par graphs (dill) (iii)
and (iv). Indicator parameters may not
he used to develop effluent Iimitat .ons
under these paragraphs because, under
these paragraph , the state has
promulgated a nurrieric criterion for the
pollutant of concern. Such a numeric
criterion represents a stat&s affirmative
‘Iacis on with respect to the maximum
allowable ambient concent?ation for the
pc.llutarlt. If paragraphs Idl(l) (iii) and
(: ) provided for the use of ir.slicator
parameters. such prov:sions could
frjstrate the state s efforts to promulgate
dad implement water quality standards.
EPA is limiting the use of indicator
parameters to paiagzsph d)()(vi)
because this paragraph is intended as
an interim measure employed in the
absence of a state numeric criterion for
tie pollutant of concern, and because
EPA seeks to allow the states flexibility
to interpret their narrative water quality
criteria.
There are several azfdit:.inal
noteworthy points about deve!op’ng
effluent !hnitatior.s under option C. In
some cases. protacting qeasitive test
species from observed chronic exposure
can protect against human health
impacts because EPA s experience with
toxicants has shown that values
necessary to protect aquatic life are
often more stringent than values
necessary to protect human health.
Thus, in many cases the controls
necessary to avoid chronic aquatic
effects may also protect against human
exposure. However, the regulatory
authon ties should he cautious if a limit
on whole effluent toxicity is used as an
indicator parameter. Whole effluent
toxicity limits n ay not necessar.ly
a ’ co nI for c3:cinogenic compounds or
hi h!y biouccumulative compounds,
differences in the bioavailability of a
pollutant once discharged to the
receiving water, and the toxic effects
which can occur f om persistent
rhemicals that accumulate in sediai”nts.
The final point about paragraph (vi) is
that in the ta ority of cases where
paragraph (v i) applles waste load
allocations and total maximum daily
loads will not be available for the
pollutant of concern. Nonetheless, any
effluent limit derived under paragraph
(vi) must satL fy the requirements of
paragraph (vii). Paragraph (vii) requires
that all water quality-based effluent
limitations comply with “appropriate
watar quality standards.” and be
consistent with “available” waste load
allocations. Thus for the purposes of
compl ,ing with paragraph (vti . where a
wasceload allocation is unavailable,
effluent limits derived under paragraph
(v i must comply with narrative water
qua ky criteria and other applicable
water quality standards.
Several commenters asked if it was
necessary to show in-stream impact. or
to show adverse effects on human
health before invoking paragraph (vi) as
a basis for establishing water quality.
based limits on a pollutant of concern. It
is not necessary to show adverse effects
on aquatic life or human health to
invoke this paragraph. The CWA does
not require such a demonstration and it
is EPA’s position that it is not necessary
to demonstrate such effects before
establishing limits on a pollutant of
concern.
Several commenters suggested that
option A will create a large resource
burden for the states by requiring them
to develop numerin criteria. EPA
understands that a significant effort is
involved in deriving a numeric criterion
as the basis for water quality-based
effluent limits tinder option A. However,
where a state chooses this option, EPA
sees no alternative but to derive a
numeric criterton that p’olects aquatIc
life and human healin. .Option A gives
the state flexibility in developing
numeric criteria, and if the state
believes that option A involves tOO
many resources the state is free to use
the other, less resource intensive options
described In this paragraph.
Several commenters were concerned
that the anti-backsliding prcvisions of
section 402(o) of the CWA would apply
to the effluent limitations developed
under section 304(1). Section 402(o) does
not necessarily prevent EPA or the
states from reissuing NPDES permits
with less strir.gent effluent limitations
than the limits in the prior permit. rhe
amendments establish a process and
conditions for determining when less
stringent limits are apprcpria a. These
provisions apply to both technology-
based and water qudlity-based effluent
limitations. For water quality-based
effluent him:tations. the applicability of
section 402(o) depends on whether the
receiving waters are attaining and
maintaining applicable water quality
standards at the time of permit renewal.
White there may be cases where section
402(o) prohibits less stringent effluent
limitations, such a result can only be
determined on a case-by-case basis.
It (3 EPA’s intent that the three
options in subparagraph (vi) will allow
the permitting authority to set effluent
limits to control discharges (in the
absence of state numerical water quality
criteria for all pollutants of concern) that
interfere with attaining and maintaining
designated uses, while at the same time,
giving the permitting authority sufficient
tiexibility to account for site-specific
impacts on aquatic life or human health.
A number of commenters indicated
some confusion over the applicability of
subparagraphs (iii). (iv), (v), and (vi),
and some confusion over the
relationship between these provisions.
Paragraph (ii i) is intended to apply when
the permitting authority ha3 data on a
conventional. nonconvent onal. or tox c
pollutant. indicating that a point source
is causing. is expected to cause, or
contributes to an excursion above a
state numeric water quality criterion for
that pollutant. In contrast to paragraph
(iii ), paragraph (iv) requires only whole
effluent toxicity limits. and appites
when the permitting authority has either
toxicity data. pollutant.speciflc data, or
other data, and this data shows that an
effluent causes, is expected to cause, or
contributes to an excursion above a
numeric water quality criterion for
toxicity. Paragraphs (iii) end (iv) do not
operate to require both whole effluent
toxicity limits and chemica-specific
limits in every permit, as some
commenters suggested. Although
paragraph (iii) requires pollutant-
specific effluent limits when the
permitting authority has sufficient data
for that pollutant, paragraphs (iii) and
(iv) are consistent with EPA’s toxics
control strategy which recommends the
appropriate combination of whole
effluent toxicity and pollutant-specific
controls necossary to attain and
maintain all applicable water quality
standards. EPA also emphasizes that the
controls described in paragraphs (iii).
(iv), (v), and (vi) are necessary only after
the permitting authority has determined.
using the principles in paragraph (ii),
that water quality-based effluent limits
are necessary for a discharge.
Paragraph (v) requires only whole
effluent toxicity limits, and is used when
the permitting authority relies on a
narrative water quality criterion. t nlike
paragraph (iv), paragraph (v) appi es
when the state has not adopted a
-------
Federal Register / Vol. 54. No . 105 / Friday._June 2. 1989 I Rules and Regulations
23879
‘umenc water quality criterion for
hole effluent toxicity.
Paragraph (vi) applies when the
permitting authority has data on a
ci ,nventional. ncr.conventional. or toxic
poilutant. indicati:ig that a point source
is discharging the pollutant at a
concentration that is causing. is
expected to cause. or contributes to an
excursion above an applicable narrative
criterion for water quality, and the state
has not adopted a numeric water quality
criterion for the pollutant. Paragraph (vi)
requires only effluent limits for
individual pollutants (except in those
cases where lunuts on whole effluent
toxicity can be used as an indicator
parameter). If the permitting authority
ises paragraph (vi) to require a
pollutant-specific effluent limit, and the
permitting authority also has toxic!ty
cata indicating a toxicity problem. the
pc.rnttung authority would use
pa:awraph (iv) or paragraph (v).
whichever applies, to require whole
efifuent toxicity limits. EPA hopes this
dtscussion of these paragraphs clarifies
the applicability of these regulations.
Several commenters objected to the
references in option A to EPA’s Water
Quaiity Standards Handbook and to
EPA’s water quality criteria documents.
tie ccmmenters suggested that EPA
.1ust incorporate by reference these
documents into today’s regulation, and
solicit public comment on the documents
in order to refer to them in the
rulemaking It is not necessary however.
to incorporate these documents by
reference as part of this rulemaking
because option A refers to these
documents only as suggested resource
materials that may be used as one
option in the regulations. The documents
do nct contain enforceable requrements.
and the use of these documents is not
mandatory under the regulations.
Therefore the documents do not need to
be incorporated by reference into these
regulations.
The final change to 122.44(d)(1) is
subparagraph (vii). This subparagraph
describes two requirements that the
permitting authority must use to derive
water quality-based effluent limits. The
first requirement provides that water
quality-based effluent limits shall be
derived from water quality standards.
Under section 303(c) of the CWA. and
Part 131 of EPA’s regulations. a state
must adopt water quality standards.
(including an antidegradation policy)
and submit the standards to EPA for
‘view. Although Part 131 descrIbes the
ocess for adopting and reviewing
water quality standards. EPA’s
permitting regulations in Part 122 do not
specify that water quality-based effluent
limits must be derived from water
quality standards. (although this
requirement is implied in § 122.44). The
language in paragraph (vii) clarifies this
requirement cf the NPDES permitting
regulations.
The second requiremer.i in
subparagraph (vii) for deriving water
quality-based effluent limits, is that the
water quality-based effluent limits must
be consistent with wateload allocations
(WLAsJ developed and approved in
accordcnce with 40 CFR 130.7. if a WLA
is available for the discharQe. A
bsasteload allocation is defined at 40
CFR 130.2 and reflects the portion of a
receiving water’s loading capacity that
is allocated to a point source. The
requirement to use approved waateload
allocations for water quality-based
permit limits is implied in current
§ 122 44(d) because paragraph (d)
reçuires effluent limits to meet water
quality standards. Today’s language
clarifies EPA’s existing regulations by
stating that when WLAs are available.
they must be used to translate water
quality standards into PDES permit
hm.ts. Although subparagraph (vii)
requires the permitting authority to use a
waateload allocation if one has been
approved under Part 130. today’s
regulations do not allow the permitting
authority to delay developing and
issuing a permit if a wasteload
allocation has not already been
developed and approved.
Deriving water quality-based effluent
limits from water quality standards is
the only reliable method for developing
water quality-based effluent limits that
protect aquatic life and human health.
Pursuant to section 303(c)of the CWA.
the states adopt water quality
standards, and then, under section
303(d). develop total maximum daily
loads (TMDLs), for water quality-limited
segments. to attain and maintain the
water quality standards. The T?vWLs are
used to derive a wasteload allocation
for individual pollutants discharged
from a point source. This process results
in effluent limits that protect aquatic life
and human health because the limits are
derived from water quality standards.
Subparagraph (vii) does not prescribe
detailed procedures for developing
water quality-based effluent limits.
Rather, the regulation prescribes
minimum requirements for developing
water quality-based effluent limits, and
at the same time, gives the permitting
authority the flexibility to determine the
appropriate procedures for developing
water quality-based effluent limits.
Comments on subparagraph (vii) were
generally favorable. The comments
supported the concept of deriving water
quality-based effluent limits from water
quality criteria, and favor the language
requiring water quality-based effluent
limits to be consistent with a wasteload
allocation, if a wasteload allocation is
available for the discharge. Therefore.
because subparagraph (vii) describes
two fundamental principles for deriving
water quality-based effluent limits, and
because the comments on this regulatiovi
were generally favorable. EPA is
promulgating this regulation without
change from the proposed regulation.
d. Technology-Based controls on
Tox:c Pollutants. The final change to
§ 122.44 is a modification to the title of
paragraph (e). The new title reads
“Technology-Based Controls on Toxic
Pollutants.” This title more accurately
describes the scope of paragraph (e).
Paragraph (e) has been used primarily
as a basis for requiring technology.
based ccntrols. Although the proposed
regulations suggested the title “Toxic
Pollutants and Sources of Toxicity.” a
number of commenters suggested that
the proposed cnanges to paragraph (e)
overlapped with the amendments to
paragraph Id). EPA is persuaded by
these comments, and is therefore
clarifying in today’s preamble that
paragraph (e) applies primarily to
techziology.based controls, whereas
paragraph (d) applies whenever the
permitting authority is developing water
quality-based controls.
The proposed regulations incijded a
new paragraph (e)(2), but EPA decided it
is more appropriate to place this
language in paragraph (d)(1). The new
language applies to water quality-based
controls, not technology-based controls,
and the language provides an accurate
statement of the controls necessary in
an NPDES permit to attain and maintain
water quality standards.
The commenters also found the
proposed change in paragraph (e)(3)(iii)
to overlap with the amendments to
paragraph (d). Therefore. EPA decided
not to include the proposal in today’s
final regulations. EPA proposed to add a
reference to whole effluent toxicity in
paragraph (e). but the proposed
language clouded the distinction
between paragraph (d) and paragraph
(e). To maintain a clear distinction
between the applicability of these
paragraphs. EPA decided to not carry
the language proposed for paragraph
(e)(3)(iii) forward into today’s final
regulations.
Thus, the only change that today’s
rulemaking makes to paragraph (e) is to
change the title of the paragraph to
reflect more accurately the scope of the
paragraph.
-------
Federal Register I Vol. 54. No. 105 / Friday. June 2. 1989 I Rules and Regulation3
2. State NPDES Program
Requirements. The proposed regulations
included a new paragraph for 4 123.63(a)
to clarify EPA’s authority to withdraw a
state’s NPDES program if state fails to
develop an adequate program for
deve1o tng water quality.based efl’.ucnt
limits in NPDES permits. Today’s
reg’.iiation3 include this laragua e
without change from the proposed
reguiati n.
The new language focuses on how
weil a state’s NPDES permits protect
water quality. If other elements of a
state’s surface watur tcxics control
program adversely affect the quality of
NPDES permit limits, then EPA may
include other progr elements in its
evaluation cf a state’s NPDES program.
For exaniple. if a state fails to use
consIstent and defensible procedures for
developing water quaiity ’based effluent
limits. EPA would consider this
deficc cy when evaluating a state’s
NFDES prograci.
Several commenters asked for a
de ailad deci3ion of the exact meaning
of t ie piirsse “adequate reguiatory
rrn” as it is used in today’s
re;ul. ons. EPA believes, however, that
it is inappropriate to be too prescriptive
ab3ut the requirements for state surface
water tcccs control pr gratns. The
states have flexibility in developing
programs to aJdress toxics. and today’s
regulaUcr.s do not affect this fle.%lbility.
In it,i oversight of state programs. EPA
has emphasized and will continue to
emphasize the importance of toxics
control programs. and today’s
re idations reflect the priority that EPA
believes is appropriate for these
programs.
EPA is adding this criteria to
123. 3(a) because it is essential for lI
authorized states to operate effective
tuxics control programs. An adequate
state regulatoiy program for developing
water quality-based effluent limits in
NPDES permits should be an Integral
part of each approved state’s NPDES
program.
B. Identification of Watem
Sutction LILA of this preamble
discussed the rules for strengthening
EPA’s ongoing surface water toxics
control program. The remainder of this
preamble discusses the requtrements of
section 3o (l) of the CWA and how EPA
is incorporating these requirements into
EPA’s toxics control program. This
section (111.8) discusses how EPA and
the states w’.!l administer the listing
requiremer. s of section 304(I).
1. Description of the Four Lists
The four lists required 5 y section
304(l (1), paragraphs (A)(i), (A (ii). (B),
and (C) are described below.
Note. Both paragraphs (A)flJ and (Bifi) use
the term “tozic pollutants.” however. EPA is
implementing the section 3c4(fl(i)(8) lieting
inc control reqwremsnts by relying or. the
priority pollutants r.ither than the thousands
of pollutants potentially encompassed by the
term “toxic pollutants.” (See Sectian 11.8 of
this preamble for further discussion.) Also.
ammonia anti chhx ’tr.e are not included
within the terms ‘toxic pollutants.’ “g 307(a)
to :c pollutants” or “priority pollutants” for
the purposes of section J04(l).
Paragraph (A)(i) of section 304(1)(1)
req.iircs s list of t!’cse waters in each
state whfrh, after application of
t chnohgy.based etfluent limits,
“cannot reasonably be anticipated to
attain or maintain water quality
standards for such waters reviewed,
revised, or ar cpted itt accordance with
sectfon 303(c)(2)(B) of the CWA.” due to
section 307(a) toxic pollutants. Section
303 (c)(2)(8) refers to the adoption by the
states of numeric criteria into their
water qus ity standards for section
307(a) toxic pollutants. Therefore, EPA
interprets the (A)(i) list to include only
those waters where water quality
st,indards with numeric criteria adopted
under section 303(cjlZliB) for priority
pollutants are not achieved, or are not
expected to be achieved, due to either
point or nonpoint sources of pollution.
on or before February 4, 1989, after
application BAT, pretreatment and new
sources performance standards. These
are final water quality criteria which
have been reviewed, revised ana
adopted by the state and approved by
EPA.
Paragraph (AJ(ii) of section 304(11(1)
requires a list of those waters within
each state which, after the application
of technology-based effluent limitations,
“cannot reasonably be anticipated to
attain or maintain that water quality
which shall assure the protection of
public health, public water supplies.
agricultural and industrial uses. and the
protection and propagation of shellfish,
fish and wildlife, and allow recreational
activities in and on the water.” EPA
Interprets this to mean that the state
must create a comprehensive list of
waters that are impaired or are
expected to be impaired as of February
4. 1989 by point or nonpoint source
diachorges of toxic. conventional, or
nonconventional pollutants. This list
should include all watnrs not meeting
the goals of the C 1 NA after the
application of technolojzy-based effluent
liinutatior,s. re ard!c s of whether or not
a state has adopted nLmeric cri?eria
within their water quality standards.
This includes all waters which are
classified for uses that do not meet thi.
“fishable and swilnxnable” goals of the
Act.
Paragraph (B) of section 304(l)(1)
requires a list of those waters within
each state for “which the state does not
expect the applicable standard under
§ 303 of the CWA will be achieved after
the requirements of sectiona 301(b), 306,
and 307(b) are met, due entirely or
substantially to discharges from point
sources of any toxic poilutants listed
pursuant to section 307(a)” of the CWA.
EPA interprets this list to include all
waters which can not achieve or are not
expected to achieve, either the numeric
or narrative water quality criteria
applicable to a p . ority pollutant due
entirely or substantially to di3charges
from point sources on or before
February 4. 1989 after application of
BAT, pretreatment and new source
performance standards. Waters where
impairment is due to discharges of
whole effluent toxicity are included on
the paragraph (B) list only when the
toxicity is due in whole or in large part
to one or more of the priority pollutants.
(Waters where whole effluent toxicity is
observed, but is not attributable to a
priority pcllutant, are to be included on
the paragraph (A)(ii) list.)
Forall the waters listed on the
paragraph (B) list, the state must
identify the point sources discharging
the priority pollutant(s) as described
below the develop individual control
strategies for each point source. (See
section iII.C. of this preamble for more
information on individual control
strategies.)
Interpretations of the terms
“applicable standard.” and “due entirely
or substantially to discharges from point
sources,” which appear in the statutory
language of section 304(l)(1)(B). are
discussed in the next section (section
111.8.2) of this preamble.
Paragraph (C) of section 304(1)
describes the fourth list required to be
submitted by the states to EPA. It
requires, for each of the segments
included on the paragraph (B) list. “a
determination of the specific point
sources discharging any such toxic
pollutant which is believed to be
preventing or impairing such water
quality and the amount of each such
toxic pollutant discharged by each such
source.” EPA interprets th:s paragraph
to mean that for each water on the
paragraph (B) list, the state must list
each point source within its jurisdiction
that is discharging the priority
pollutant(s) to the water which is listed.
cnd the amount of eat h priority
-------
Federal Register / Vol. 54. No. 105 I Friday. June 2. 1989 / Rules and Regulations
23881
pollutant discharged by each such
ource. Individual control strategies
,ICSs) are to be prepared for each point
source discharger on the paragraph (C)
list
Some cornmenters maintained that
individual control strategies are
required for all three lists of waters to
be developed under section 304(1). and
that EPA’s interoretation that ICSs are
only required for the paragraph (B) list
of waters is contrary to Congressional
inter.t. The statutory language indicates
that individual control stratcg:es must
be developed which will produce a
reduct;:t of point source discharges of
section 307(a) toxic pollutants in order
to achieve applicable water quality
standards within three yeers of
estab :shment of the strategy. In order
for such point source controls. in
combination with “existing nonpoint
source controls.” to effectively achieve
water quality standards. there is an
irnolic:t assumption that such waters are
capable of achieving or making
sienificam progress toward achieving
water quality standards primarily by
ccritrcthng point sources of sect on
207(a) toxic pollutants. Such a scenario
corresponds to the paragraph (B) list of
waters. and therefore support EPA’s
interpretation that the ICS requirement
Lpplies only to the paragraph (B) list.
However, like lCSs. permits for any
point sct rce discharges to waters on the
paragraphs (Au) and (B) lists must still
trc!ude effl .ient limits to atte n and
n-,atr.ta r. v.a’er quaiity stancards for all
parameters of concern including toxic
poll..tar.:s. through the permits are not
subject to the compitance dazes of
seciior. 304(l)
Nute that every state: as defined by
EPA at 40 CFR 122.2. is required’to
submit lists of waters, sources and
amounts whether or not the state is
authorized by EPA to administer the
DES program.
Some coinmenters asked EPA how to
assess whether to list waters on the
paragraph (B) list which have point
sources which do not yet meet either
existing permit limits denved from
iechnology.based standards under
secuo 301(b) . 306 and 307(b) of the
CWA, or do not yet have such permit
limits. EPA requires the state to list any
water that was not meeting its
aiplicable water quality standards by
Februarj 4, 1989 on one or more of the
lasts of waters described above, as
appropriate.
The only exception to this
requirement is provided when a state
demor.s ates that enforceable permit
hmits derived from technology-based
standards will bring the water into
compliance with applicable water
quality standards. However, EPA
expects that where compliance with
technology-based limits cannot be
expected within three years of the
preparation of the list, there will be too
much uncertainty in the determination
of whether the limits are adequate to
achieve water quality standards in order
to demonstrate to EPA that the water
should not be listed.
lithe existing permit limits are based
on water quality standards and those
limits are not yet achieved as of
February 4. 1989 due entirely or
substantially to discharges from point
sources. the water should be included
on the paragraph (B) list. These waters
qualify for the paragraph (B) list even if
the permit has a compliance schedule to
achieve water quality standards on or
before June 4. 1992. In these cases it may
not be necessary to modify these
existing limits or schedules in the pernut
to meet the compliance deadlines of
section 304(l). and the existing permit
may qual.fy as an ICS. However, the
waters and point sources must be listed
and the permit authority must still
review the existing permit. exercise its
judgment to dec:de if the existing water
quality-based limits will meet the
section 304(1) compliance dates, and
revise the limits if necessary. -
2. Explanation of Terms Used in section
304(l)(1)(B)
Paragraph (B) of section 304(l)(1)
introduces two terms that EPA believes
need further interpretation and
explanation to ensure consistency in
implementing this paragraph. These
terms are “applicable standard.” and
“due entirely or substantially to
discharges from point sources.”
Paragraphs 130.10(d) (4) and (5) of
today’s amendments contain these
interpretations.
a. Applicable standard. For the
purposes of listing waters under
paragraph (B) of section 304(l)(1). in
paragraph 130.10(d)(4) EPA interprets
the “applicable standard” to mean
numeric criteria promulgated within
state water quality standards for
priority pollutants. Where a state
numeric criterion for a priority pollutant
is not promulgated in state water quality
standards. for the purposes of listing
waters under section 304(l). “applicable
standard” means the state narrative
water quality criteria to control toxic
pollutants (e g. “no toxics in toxic
amounts’). These state narrative waLer
quality criteria can be interpreted, on a
chemical-by-chemical basis, by applying
a proposed state numeric criterion, or an
explicit state policy or regulation for
interpreting the narrative criterion, or an
EPA water qual.ty criterion published in
EPA’s water quality criteria guidance
documents. supplemented by other
relevant information. Other relevant
information may include, for example
EPA’s Integrated Risk Information
System (IRIS) database (see EPA
document EPA/600/8—86/032), local
exposure assessments, and other site-
specific :nformation. Among these
alternative interpretations of narrative
criteria. EPA will give substantial
deference to a proposed state n’.amenc
criterion, or an explicit state policy or
regulation where the interpretation will
fully protect the designated uses. In the
absence of any such acceptable state
interpretations which protect the
designated uses, an EPA national water
quality criterion must be used for
interpreting the state’s narrative water
quality criteria, supplemented with other
relevant information as described
above.
Many commenters objected to the
proposal to use national water quality
cnteria to interpret the state’s nurra’mve
water quality criteria for the purposes ci
listing waters under section 304(1)(l)(B)
To make it clear that EPAs intent is not
to undermine or usurp state authority to
develop water quality standards, but to
establish a minimum baseline for
screening waters to be listed. EPA has
added language to today’s preanib!e an
regulation that encourages a state.
whenever possible. to rely on its
formally proposed or adopted
interpretations. policies, criteria and r:sk
levels as the applicable standard for
listing purposes under s ction 304(l)
Only in the absence c! these is EPA
requiring thr use of EPA water quality
cr.ter.u and spec fytng the risk level to
be used Furthermore, EPA allo s the
state to rely on addttiocal or more
recent representative scientific data
when available to update the
information in the EPA water quality
criteria documents, such as EPA’s
Integrated Risk Information System
(IRIS) documents
In the absence of iormaly propored or
adopteJ numeric criteria for all of the
priority pollutants or explicit state
policies which interpret the narrative
water quality crite a. EPA needs some
critcria or definition of impairment to
identify waters for listing. 11 waters that
are exceeding narrative criteria are
excluded from the paragraph (B) list.
those states that have not yet set
numeric water quality criteria for the
priority pollutants would effectively be
exempted from the requirements of
section 304(l)(1)(B). despite the possible
presence of significant water quality
problems. The section 304(l) statutcry
language mandates that states and EPA
-------
Federal Register I Vol. 4. No. 105 / Friday. fune 2. 1989 I Rules and Re i1atiorts
move forwarl expeditiously to achieve
water quah:y goals end it does not
provide relief from deadlines due to jack
uf numeric criteria within state water
quality standarda. One commenter
suggested Lhat EPA require each state to
establish izs own numeric criteria in
water quality standards for the section
307(a) toxic ro1 u ants aa part of the
section 30t 1!) list d lopmern proc’o is.
The C ’iA es cot provide time f . r
deiay in iement ng section 3GHl)
requirements ;endli;g state action to
establish their own numeric criteria in -
water quality standards.
After idanttfvtng a water for Llstirg on
the section 304(L)(1) B) list by using the
EPA criteria, a state may then use .ther
arid more s;te-cpeciflc data and criteria
to estab!ah appropriate permit limits in
the indiviii .iaI control strateg es for the
ornt sources an the water. This process
is described in 122.44(d)(1) of today’s
rule.
EPA received comments arguing that
EPA must incorpotate its water quality
crite a dac ments by reference in order
to require states tc list waters i..
accordance with these docu ients. The
Administrative Procedures Act. 5 u.s.c.
52(a)(1) and 522(a)(1), requires agencies
to publish in the Federal Register or
incorporate by referer.ca with approval
of the Dire:tor of the Federal Register,
all “subst:intive rubs.” has
amended 130.10(d)(4) to allow states
to list waters on the basis of their own
interpretations of the state narrative
criteria, and the use of EPA water
quality criteria documents is clearly not
mandatory. Therefore, EPA is riot
;ncorporatixig the crit ”ra documents by
reference in todays rule. (See the
dl;cussion of thIs issue in section ElLA.
abcve.J
Several cornxuenters asked if state
narrative water q’iaiity árfteria apply to
all water’s regardless of thnir designated
use. Narrative water quality criteth
apply to all designated uses at all flows
unless specified otherwise in a state’s
water quality standards. It is EPA’s
pOlICY that rio acutely toxic conditions
may exist In any state waters.
regardless of designated use. A state’s
narrative water quality iteria and
interpretations of its narrative water
quality criteria may be more protective
than the levels necessary to prevent
acutely toxic conditions. For more
information, please refer to EPA’s Water
Quality Standards Handbook.
December. 1053.
One comrnenter requested that the
definition of applicable standard include
the water quality standards and
limitations established under the Great
Lakes Writer Quality Agreement of 1978.
Ep,\ has net incorporated this comment
into today’s final rule. Section
204fl)(1l(B) refer, to the “applicable
standard under sectIon 303 of this Act.”
S ctton 303 cstablistes the process for
ctate adoption of water quality
standards and. in those situations where
M disapproves a state standard, it
establishes the process for EPA
rrontu!sation c,f a water quality
riand.ird far :uch strte. Provisiens of
the Gre xt Lakes Water Quality
Agreement are not standard3 “under
sec’.mcn 30’S’ of the Clean Water Act.
b. Oue E.’ilzre!y or Substo.etidlly to
Disc. orges Prom Pcznt Sources.
Paragraph 130.10(d)(5) describes two
conditions that require a water to be
hsted und ir paragraph (8) of section
3i 4(l)(1) because the applicable water
quality standard is not ex;ected ta be
met ‘due entirely or substantially to
discharges from point sources.” These
two cor dUons are listed below.
lii making the determination of
whether a water meets either of these
conditions. a state should perform a
water quality analysis usir.g a d. s:gu
flow spec.!ied in state regu.iation or
policy, or the critical design ilow as
established by EPA guidance or
regulation (for example. EPA’s
Technical Gu danca Manual for
Performing Wasteload Ai!ocations—
Book V I, Desiqn Conditions—Chapter 1
Stream Design Flow for St’eady State
Modeling. September 1988 (EPA 440/4-.
57-004).)
If a water meets either of the
conditions below, after the aoplication
of the technology-based requirements of
sections 01(bI, 106. and 307(b). then it
must a pcar on a state’s section
304(11(11(B) list. (See discussion in
section 111.8.1 of this preamble on
application of technology-based
requirements for making listing
decisions.)
(a) Exiittlng or additional water
quality-based limits on one or more
point sources would result in the
achievement of an applicable water
quality standard for a priority pollutant
or:
(b) The discharge of a priority
pollutant from one or more point
sources. regardless of any nonpoint
source contribution of the same
pollutant, is sufficient to cause, or is
expected to cause, an excursion above
the applIcable water quality standard
for the priority pollutant.
The proposed rulemaking contained
three conditions. Many r.ommenters
objected to one or more of them: some
supported one or more of them. The
Agency decided to revise conditions (a)
end (b) slightly and delete r.ondi!:on (c)
in response to comments.
Many ccrnmenters objected to the
three conditions in the proposal beca
the conditions do not consider the
proportion of point source contributions
to r.onpoint source contributions sad
thereby could require controls on por.t
sources which may be contributing
relatively small amounts of the polliit.ti t
of concern. Some commenters suggested
EPA designate a specific percentage t iat
the point source would have to
contribute in order to be listed. EP. .
decided not to revise the conditions ei
respor.:e to these comments becasuse it
is important whenever pc3slble to bring
waters into compLiance with water
quality standards, and if additional
controls on point sources will do so.
then they should net be delayed or
omitted due to contributions from
nonpoint sources. Furthermore.
proportions are difficult to caIc ua:e
because they vary widely. For example.
rainfall events can change dramatica.!v
the proportion of point and nonpoutt
source contributions by contributing
very large but occasional and attr.cs:
unpredictable loads from nonpoint
sources. Ho ever, to the extent that
relative point and nonpoint source
contributions can be determined, a slate
may make appropriate and cost.
erective adjustments to respective
control requirements for nonpoint an .b
point sources through the total
maximum daily load and wasteioad
allocation processes established under
40 CFR 130.7.
Many coinmenters objected to the
pri’posed conditions on the basis that
controls on point sources may not
necessarily bring the water into
compliance with the water quaLty
standard since the ncnpoint source
contribution alone can cause excursmons.
In these cases the comrnenters argued
an NPDES permit would not be able to
be issued that meets EPA’s definition of
an individual control strategy. The
conditions were not revised or deleted
in respcnse to these comments. In
essence, these comments suggest that
EPA should list waters on the basis of
whether or not the water quality
standard can be achieved within the
statutory framework of section 304(J .
rather than on the basis of the pnlluta’it
load to the stream from point sources.
EPA believes that the Congressional
purpose of controlling point sources
which are substantial contributors to a
failure to meet water quality standards.
would be best accomplished by focusing
on the point source discharges to
particular waters. If EPA were to define
“due • substantially to discharges
from point sources” to exclude waterq
where the water quality standards
-------
Federal Register I Vol. 54. No. 105 / Friday. June 2. 1989 I Rules and Regulations
23883
annot be met by point source controls
,ne. then the discharges to some of the
..iOSt polluted waters may not be
controlled. Congress enacted a
comprehensive scheme to address
aters impaired by both point and
nonpoint sources of toxic pollutants. At
the same tune that it enacted section
304(1), Congress passed section 319 to
address nonpoint sources. When section
304(1)(1)(B) is read together with section
319. EPA believes that all waters not
achieving water quality standards for
priority pollutants should be listed
pursuant to at least one or sometimes
both sections of the Act. To exclude a
water from the section 304(l)(1)(B) list
because of nonpoint sources would
leave open the possibility of a state
excluding the same water from its
section 319 list because of point source
contributions. The result of such an
approach could be that waters needing
both point and nonpoint source controls
to meet water quality standards might
be excluded from bath programs.
EPA believes that states should make
continuous progress toward the
attainment of water quality standards as
required by the Act, and that controls on
the point source contribution of a
priority pollutant should not be delayed
‘mi ted while awaiting effective
trols on nonpoint sources of the
pollutant. In cases where there are
signifIcant loadings of a toxic pollutant
from noripoint sources, and effluent
l mits on the point sources by
themselves may not bring the water into
comciiance with the applicable water
quaiity standard, an ICS will satisfy the
language of section 304(l)(1)(D) if the
effluer.t limits in the ICS are consistent
with a wasteload allocation for the
•clischarger. (See section IILD.1 for
discussion on why EPA believes that
tLis approach is reasonable and
appropriate.)
To address commnenters concerns that
an ICS does not address nonpoint
sources. EPA requires that the
supporting documentation for an ICS
show evidence that the impact of
noripoint sources on the identified
segment has been considered during the
preparation of total maximum daily
loads (TMDLs) and wasteload
allocations (WLAs). EPA also
encourages permitting authorities to
utilize all available authorities to control
nonpoint sources, including section 319
of the CWA.
Many commentera felt that the
I’ ‘lage in condition (c) in the proposed
ias too subjective, vague and was
JL authorized by the statute. EPA
ig-ees and has deleted condition Ic) in
response to these comments.
In addition. EPA has deleted Exhibit
A from the final rule. Exhibit A, which
appeared in the proposed rule, was en
illustration for determining if the
concentration of a priority pollutant is
entirely or substantially due to
discharges from point sources. This
chart has been deleted since it caused
considerable confusion and because it
illustrated only seven of myriad possible
discharge scenarios, all of which could
not be illustrated.
Finally, the proposed word “initial”
has been replaced by the word
“existing” in final condition (a). EPA
believes the word “initial” is vague, and
the word “existing” more clearly
describes the situation where existing
limits on one or more point sources, if
made effective, would bring the water
into compliance with an applicable
water quality standard, and therefore it
should be listed on the paragraph (B)
list. This change does not signify an
expansion of the listing requirements,
but is a correction in the language which
makes it consistent with other parts of
today’s rule. For example. this change is
consistent with section IJI.B.1 of today’s
preamble which clarifies that if the
water was not meeting or was not
expected to meet that water quality
standard on or before February 4, 1989
due entirely or substantially to
discharges from point sources. it must
be listed on the paragraph (B) list even if
the point sources on a water already
have existing water quality-based
effluent limitations designed to meet a
water quality standard. No commenters
requested this change in the language.
but EPA believed it was necessary to
make the correction for the reasons
stated above.
For the purposes of interpreting the
term “due entirely or substantially to
discharges from point sources,” any
discharge which meets the definition of
a point source under 40 CFR 122.2 must
be considered as such for the purposes
of listing waters and point sources under
section 304(l)(1)(B), including discharges
from combined sewer overflows (CSOs)
and discharges from stormwater
outfalls. In addition, water quality
unpairments due to in-place sediments
which have been substantially or
entirely contaminated or deposited by
priority pollutant loadings currently
being discharged from an active and
operating point source subject to section
402(a) of the CWA. must be listed under
paragraph (B) of section 304(l) and the
discharger must be listed under
paragraph (C). If the sediments have
been contaminated or deposited entirely
or almost entirely by rionpoint sources
or by a facility cr site which is no longer
in operation or is abandoned, and
therefore cannot be issued an NPDES
permit. EPA would not consider the
contamination to be due to a point
source when evaluating whether a water
should be listed on the paragraph (B)
list. EPA emphasizes that the sediments
themselves are not considered point
sources. but the contamination or
deposition of them by active and
operating industhal or municipal
facilities is considered as contamination
that is due to a point source.
Some commentera asked for
clarification on whether to list waters
based on exceedances of criteria in the
water column or based on biological
impairment caused by contamina ted
sediments. Waters may be listed on
either basis. The evaluation fur listing
on the section 304(l)(1)(B) list is based
on whether there is an excursion or
expected excursion above an applicable
narrative or numeric criterion (or a
priority pollutant which is designed to
protect the designated uses. If the
contaminated sediment is causing
biological damage it may be impairing
the designated uses of a water, and
therefore a state’s narrative criteria for
toxics may be exceeded. Or if the
sediment is releasing a priority pollutant
back into the water column in amounts
that exceed the allowable
concentrations, the state’s numeric
criteria is being exceeded. In either of
these situations, the waters, as well as
the appropriate dischargers. should be
listed. if the contamination is due
entirely or substantially to point
sources.
Some commenters thought that EPA
intended states to list waters where the
sediment is contaminated due entirely
or almost entirely to nonpoint sources or
inactive point source dischargers. EPA
does not intend this. Also. EPA did not
intend to suggest in the proposed rule,
as some commenters believed, that ii
there is a water quality problem due to
in-place sediments which have been
contaminated entirely or almost ent Irely
by an abandoned or inactive point
source or by nonpoint sources, that the
water must be listed if there is any
active point source of the same priority
pollutant. The water would only be
listed if the active point source is
entirely or substantially contributing to
or causing the sediment contamination,
which is in turn impairing the uses of the
water. Thus, for listing purposes, EPA is
treating discharger. which are
contaminating sediments in the same
manner as other discharger..
When a state evaluates whether a
water is impaired “due entirely or
substantially to discharges from point
-------
Federal Rcçstar / Vol. 54. No. 105 / Friday. June 2. 1989 I Rules and Regulations
sources.’ the evaluation must be based
only on the contribution of one priority
pollutant at a time from the point
sources, and only for priority pollutants.
Therefore, a water quality problem due
to a pollutant which is not a priority
pollutant may not be taken into account
when determining whether a water
should or should not be listed on the
paragraph (B) list for pr.ority pollutants.
For eYdmpl?. if a water does not meet
the water quality criterion for chromium
(a prtority polluiant) from point sotrce
ccntrsbuttons. nor does it meet the water
quality criterion for pH (a conventional
pollutant) frcin either point or nonpcint
sources, the state must still list this
water on .he ) list, because of the
chromium point soi rce contribution.
Even though a water may still not meet
its designated uses due to another
rollutant. EPA does not want the states
to dolay contrc!lirig a priority pollutant
of concern from a point source. ( \s a
matter of policy. EP ’i urges states to
attach the samt pnon y ta the
idc uflcation ar.J cona’ol of all non-
riority pollutants of concern.)
Oie comn enter expressed corir n
cbo t being able to eve1op iCSs for
nbined sewer overf!ows ar d
5torrnwater outfails. EPA acknowledges
tiat writina permits for these scurces
may be difficult. However, ease in
v’rting the individual control strategy or
i bmhty to meet appropriate permit limits
15 not the basis for listing waters and
point sources under section 3O4( ).
Another con’,menter contended that
L rider section 402 of the CWA urban
storrnwater discharges do net have to
meet permit limits until 1994 at the
ca’liesi EPA disagrees. Section
4OZp)(2)(E) of the CWA states that ‘ (a )
cischarge for which the Administrator
the State determines that the
storniwater discharge contributes to a
icitation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States” is
exempted from the general rule that EPA
cr the state cannot require a permit for
stormwater discharges prior to October
1. 1992. Stormnwater discharges listed
pursuant to section 304(1) qualify for this
e ’eritptiO!L Furthermore. Congress did
cot specifically exempt any categories
of point sources from the requirements
of section 304(1).
3. Preparation and Review of the Lists
The CWA requires the states to have
submitted the four section 304(1)(1) lists
to EPA for review and approval on or
before February 4. 1989. Paragraphs
130.1O(d)(1)—(3). promulgated as part of
EP.Vs intarp:etiva rule for the Water
Quality Act on fanuary 4. 1989 (Federal
Register Vol. 54 No. 2 at 216) already
require this submission, along with the
requirement that these lists be reviewed
and approved or disapproved by EPA.
En addition to paragraphs (4) and (5)
discussed above, today’s rules also add
paragraphs (6) through (11) to subsection
130.16(d). Paragraphs (6) and (7)
describe the data that each state must
use in developug the lists, and the
documentation that each must provide
to EPA when submitting lists to EPA.
Paragraph (8) describes the basis upon
which EPA will approve or disapprove a
state’s lists. Paragraphs (6) through (8)
are discussed in this section of the
preamble. aw paragraphs (a). (13) and
(11) discus’s public notice and ucmmcct
procc-dures and are discussed in secti.in
111.0.2 of this preamble.
a. Use of Existing and Readily
.1 vo:lable Data. Because EPA believes
that states should build on the work that
has already been done in the continuous
process of assessing water quality.
today’s amendments allow stacos to use
existing and readily available data
when they develop their lists. Also, the
ambitious dead iiies of the CWA re uL-e
EPA to forgo a requirement for ler.gthy
monitoring designs and extensive
collection of new data and to rely on
existing and readily available data. The
regulation which allows states to rely on
existing and readily available data
appears in proposed paragraph
130.1O(d)(6 1.
To assist states in deciding what
existing and readily available data they
should rely on. IZPA i3 designating
sixteen categories of waters about
which, as a minimum, each ‘state must
assemble and evaluate all existing and
readily available data. These categories
of waters are described in paragraph
130.1O(d)(6). EPA considers the exist.ng
and readily available information and
data about the categories of waters
described in paragraph 130.1O(d)(6) to be
the ininumuin data and information that
a stale must assemble and evaluate
when preparing lists in order for EPA to
have an adequate basis to approve or
disapprove the lists. States should
obtain any other additional data and
information needed to identify and
determine as accurately as possible
which waters and point sources to list.
These categories reflect what EPA
considers to be the minimum existing
and readily available water quality data
and information that a state and EPA
can reasonably obtain. This existing
data includes data that states should
i-ave developed in the course of
reviewing and revising water quality
standards, evaluating needs for
technology-based or water quaLity-
based controls, developing total
maximum daily loads (TMDL.s).
wasteload allocations and load
allocations (WLAs/LAs), issuing
permits. and monitoring to determine the
effectiveness of pollution controls.
Furthermore. CPA is requiring that the
states assemble and evaluate this
minimum existing and readily available
data because it encourages cooperation
and communication among the many
Federal. state and local government
agencies and private organizations that
collect, analyze or report water quality
data and information.
EPA is requiring that these wa t ers be
evaluated for the purposes of d ’ieloping
the three lists cf waters required cy
section 304(1) because they are either
waters which have been reported by tte
state or other government or private
sector agencies as failing to meet water
quality standards or as having a high
potential for not meeting water qualm’
standards, or they are waters wh:ch
recetve point source discharges. EP.\
believes that tf a state evaluates ail
waters in these categor.es it will .den::f
vmrt’allv all waters that may ricea i be
listed.
Information and data about the
categories of waters described in
paragraph 130.10(d) are of two general
types. The first is existing acid readily
available data and reports from Federal.
state, local and private sectors. The
second Is dilution calculation results
generated by CPA and the states for use
as a screening tool. These two types of
information arc discussed below.
There are many existing lists, reports
and assessments that provide valuable
information to states when identifying
and preparing lists of waters. New
paragraph 130.1O(d)(6) designates the
minimum information and reports which
each state must assemble and evaluate
in order to identify waters that meet the
section 304(l) statutory requirements for
listing. These include state section
305(b) reports. Clean Lakes
Assessments, the sect Ion 319 Nonpoint
Source Assessments, the National
Priority List prepared under CERCLA.
reports of adverse water quality
conditions by the International Joint
Commission and the Great Lakes Water
Quality Board, and the Toxic Chemical
Release Inventory developed pursuant
to Title UI of the Superfund
Amendments and Reauthorization Act
of 1988. among others. Beyond waters
identified by these specific reports, the
final nile requires the state to obtain
any existing and readily available data
about other specific waters which
should be considered for listing on one
or more of the lists required by section
33 1(t ): for example. waters where fishin
-------
Federal Register I Vol. 54. No. 105 I Friday. June . 1989/Rules and Regulations
bans and recreational restrictions are in
effect. waters which have had repeated
:shki!ls. and waters where there are
waterfowl or wiidllife consumption
advisories or bans. Appendix B of the
Final Guidance for Implementation of
Requirements under section 304(1) of the
Clean Water Act as Amended (March
1983) lists other available data sources
that should be consulted.
A few comanenters requested that
other reports or sources of data be cited
in the regulations. to ensure that the
states review them. EPA has not named
these specific reports in the regulatory
language because there are many
reports or data sources that a state
could use and they can not all be named
spe:ifically in the regulations. However.
subparagraph 130.10(d)(6)(xui) is broad
enough that it includes any such reports
or information sources that report on
water quality. Also. EPA has mentioned
many of Ulese reports suggested by the
con’.meriters as examples of possible
data and information sources.
The second general type of
ir.formauon that EPA is requiring that
the states consider. as a minimum, is
screening information developed using
dilution calculations. Dilution
calculations should be conducted to
indicate possible excursions above
uneric water quality criteria within
.ite water quality standards (or EPA
water quality criteria where state
nLnie:ic criteria are not available).
D:it,tion calculations should be
performed for. but not hmited to. all
po.nt source d.scharges of .rior:ty
pollutants. ammonia and chlorine to
!‘.e p identify waters and diachargers for
listing on any of the Lsts. AL a minimum.
aters w:th primary industrial major
and minor point source dischargers.
major publicly-owned treatment works
(POTWs). and waters with other major
po nt s urce dzschargers must be
screened for expected excursions above
the water quality criteria by performing
c!ik i,Ofl calculations using site-specific
cata, or, if necessary. data based on
national estimates. EPA emphasizes that
to hat a water on the Paragraph (B) list.
the state does not necessarily need to
have enough data to indicate exactly
which point source or sources may be
caus. .ng any observed or projected
critcria excursions or use Impairments.
His su.fflcient that the data indicate that
toe applicable water quality standards
are not being achieved or are not
expected to be achieved due entirely or
suhstantially to discharges from point
urces. After identifying the water br
on the paragraph (B) list, the state
,.. ould then obtain as much discharger-
s ec fic data as necessary to identify the
dischargers which may be causing or
expected to cause the criteria
excursions, and then place these
dischargers on the paragraph (C) list.
Where ambient data on criteria
excursions are being used to identify
waters, the state may use the criteria for
desigiiated use support outlined in
Figure 1 of EPA’s Guidelines for the
Preparation of the 1988 State Water
Quality Assessment section 305(b)
Report. Figure 1 provides guidelines to
states in determining the degree to
which waters are supporting their
designated uses based on the frequency
of criteria excursions and comparison of
mean values to criteria.
Some comtnenters said that reliance
on existing and readily available data
could lead to inaccurate or unreliable
results and that EPA should clarify that
states should make their listing
decisions on existing and readily
available accurate data. Also. EPA
should allow states to use professional
pudginent in resolution of conflicting
data. EPA expects the state to determine
as much as possible the accuracy and
validity of their existing and readily
available data and information about
the sixteen categories of waters, or
about any other waters, when
developing the lists. EPA does not
expect the states to rely on old or
inaccurate data or information. If the
state finds that much of its existing and
readiy available data is unreliable. EPA
strongly encourages the states to obtain
more current add uonal data whenever
possible. Also. EPA expects states to
exercise best professional judgment
when faced with confltcting data.
Some comrnenters felt that requiring
the states to use all existing and readily
available data about the sixteen
categories of waters was too
prescriptive or burdensome. EPA is
requiring the states to examine the
categories in order to ensure that all
possible sources of existing end readily
available data are considered. It may be
that a state has found that a particular
category of data is unsuitable for use. To
accommodate this situation, the
regulations provide that the state submit
its reasons for a decision not to evaluate
any particular category of waters. If a
state demonstrates to EPA that it has
reviewed all existing and rea±ly
available data about the sixteen
categones as appropriate, it can reduce
the “second-guessing” by EPA. which
some coinmenters were concerned
about, when EPA reviews the lists.
EPA’s intent in requiring that states
re iew and evaluate at a minimum all
exiring and readily available data on
the sixteen categories of water ia
23885
paragraph 130.10(d), is to be sure that
EPA and the states cast a broad net in
the list development and review
process. The states are expected to
review and evaluate these data for
accuracy and reliability, determine
which waters are candidates for listing.
and then review and evaluate and
gather. if necessary. more site.specific
data on these candidates in order to
make their final listing decisions. In
short, these categories of waters are the
minunum beginning universe of waters
which states should evaluate for waters
qualified for the section 304(lJ lists.
These latter would be the waters that
the data and information show, after
assurance of its reliability and the use of
professional judgment. cannot
reasonably be anticipated by the state
to attain or maintain applicable water
quality standards as described in
section 304(l)(1) of the CWA.
b. Documentation of Data and
Methodologies Paragraph 130 10(d)(7)
requires that each state submit to EPA.
together with its lists of i iers and
sources, documentation of all data and
methodologies used by the state to
develop the lists.
Subparagraph (i) of (di! 7) requires
each state to submit a description of the
methcdology used by the state to
develop each of the lists of waters and
point sources required by section 304(l)
This description of methodoloey should
include assumptions end criteria used
by the state is hen reviewing and
analy:ing dzta and information.
Suboaragraph (ii) requires the state to
provide a description of the data and
information used by the state, and to
specifically address which nf the
categories of waters described in
paragraph (d)(6) were used. If a state
does not assemble and evaluate deta
atiout one of these categories.
subparagraph (iii) requires the state to
provide the rational for deciding not to
do so as part of its documentation
Subparagraph (iv) requires the state to
provide any other information that the
Regional Admuustator requests in
order to review the state’s submission of
lists. Specifically, subparagraph (iv)
requires a state, if EPA requests. to
demonstrate good cause for not
including a water or discharger on one
or more of the required section 304(fl(1)
lists.
“Good cause” may include, but s not
limited to, the following:
• More recent or more accurate data.
• More accurate water quality
modeling.
-------
Federal e ster / Vol. 54. No. 105 / Fr.day. Jane 2. l9 9 I Ruks and Regi.ilat .cns
23ô36
• Flaws in the original analysis that
led to the water being identified La one
of the categories, or
• Cl’.anges in conditions. e.g.. naw
control equipment, or elimination of
discharges.
These above documentation
requirements are necessary because a
Regional Administrator’s cifice may not
maintain all the availdble water quaLty
and diacharger data for all of its states.
Therefore. part of the review by EPA of
a stat&s submission must necessarily
include a review of the data.
assumptions and criter.a used by the
state for listing waters and point sources
to er.sure that they are consistent with
the statutory and regulatory
requirements for listing. For example. a
states documentation should reflect that
the state constderad stormwater outfalls
as a point source when determintag
whether a water is imparted due entirely
or substantially to discharges from ;ou t
sources.
Some coinrner.ters said that EPA’s
reques for documentation in
§ 130.IC(d)(7) :s burdensome and
without btatuti rv authority. Section
3c4(l) requires EPA to review and
approve or di approve each s’ate’s lists.
(S e sacuon LILD. of this preamble
wluch discusses in detail EPAs
authority to approve and disapprove
lists.) EPA remains convinced that in
order to review’s states lists
adequately, the Agency must know on
what basis the state made its decisior.s
to fiat or nat list waters and point
sources. and must be able to review a!i
exisr:ng and readily a%ailsble data and
infarmatian used for those decisior.s.
Because this information is crucIal to
EPA’s review of a sate’s lists, the
Agency does not view these
requirements to supply doinimentaticn
on methodologies, criteria and
assumptions as overly burdensome and
did not revise the regulatcrj language as
cotninenters requested. La addition.
because the state or EPA must provide
alequate public participation for these
lists, the state should be documenting its
decisions and mothodologies for this
purpose. Therefore these requirements
to develop and submit documentation
should not represent a significant
additional burden to the states.
Two ccsnmeziters requested that the
language in 130.10(d117](ivl which
allows the Regional Admmnistretor to
request any other addilfoital information
be revised to restrict the Regtcnai
Administrator to requestir.g information
that is reasonable, necessary or
pertinent to determine the adequacy of
the slace s lists. EPA agrees with this
comment and has incorporated it into
the regu!atory language . t iubparagrap’i
130.10(d)(7)(iv). Some commenters felt
that the “good cause” language in this
section is essentially “second-guessing”
the state and is burdensome to the state.
EPA relies on its rationale for requesting
documentation. discussed above, for its
decis:on not to revise thts lanuage
pursuant to these comments. In addition.
EPA views the procedure for a state to
submit additional infotmation as a way
to ensure that EPA does not ctisapprove
a state’s decisions that are founded on
an adequate basis. F.PA emphasizes that
a state does not have to automatically
submit ‘good cause” when submitting
its iists to EPA for review, but only
when the Regional Administrator
requests such informat:on on speciF.c
waterbodies or dischargars.
c. Review of Lists by EPA. Section
304(1] requires that all states submit all
four lists described above to EPA no
later than February 4, 1969. Upon
receiving the lists from each state, the
Regional Administrator 13 required to
review and then approve or disapprove
each state’s lists. If a state fails to
subrn t a list cr if a state submits an
inadequate lt, t, then EPA must either
entirely or partially disaoprove the fist
Section 304(11(2) gives EPA 120 days to
approve or disapprove a state’s bat and
wtmere EPA entirely or partially
disapproves a state’s lm L EPA w’.ll. in
cooperation with the state. devehp the
final Ii st.
In order for EPA to complete its
revtaw of a state’s lists, the state must
have met the data and documemitation
requirements in proposed par ’sgraohs (6)
and (7). The Regional Administrator will
approve each list if the state has met the
regulatory requirements for !isttng under
40 CFR 130.10. and c t isapprove each list
that does not.
If. after -eviewwq the state k s ’s.
available data and any tequired
ducunienta:ton, the Regional
Administrator is satisTied that the statc
has identifled and appropriately listed
all waters, then EPA will approve the
lists. (See Section III.D of this preamble
for a detailed discussion of review and
approval and disapproval of lists and
individual control strategies.)
Some commenters asked whether EPA
is intenciang to aptly these requirements
to lists suhmitted before the final rule
becomes effective, and ar ued that to do
so would be to apply the regulation
retroactively, which is prt)hlbited. The
regulations promulgated today will
apply to all Regional derisions issued
after the effective date of today’s nile.
EPA does not view this as app,lrig the
regulations retroactively Ra’her. EPA is
app jing the criteria for review i’f lists
to decms:cns it ma as in tl:e fi.turc
Some commenters asked EPA to
include in today’s rule a procedure f’
removing waters or point sources ft
the section 304(1) lists. Listing of watt.
and point sources under section 304(l) is
a one-time activity. Therefore. it is
unnecessary to develop regulations for
removing waters and point sources frcrn
a list. The public comment and review
period providea by EPA or the state
provides opportunity for waters or point
sources to be deleted frcm. or added to.
a liit.
C. lad, v,duol Gor.trol Strcteges
Iii addition to the four liss required
by section 304(11(1). the states must
prepare and submit to EPA an
innividual control strategy (ICS) for
each point source on the (C) list. Thts
section describes whet EPA will
approve as an ICS.
On January 4. 1969, EPA codified
sections 304(l)( 1 )(D), 304(l)(2). atid
304(l)(3) of the CWA into a new section
in Part 123—4 123.48. Section 123 46(a)
requnes the states to submit iCS to
EPA on or before February 4. 1989. a .ci
§ 123.4S b) requires EPA to appro ’e or
disapprove the ICEs by June 4. 1589.
Todays ru!. s add new paragra hs
(c)-4f) to § 123.46. Paragraph (c) defines
an ICS. Peragraph (d) descri’oes the
petitions submitted under sect;on
304 l)(3). Paragraph (e) describes the
procedures EPA wtll use to approve or
disapprove ICSs. and paragraph (1)
establ:shes the cr.tena that EPA will use
to evaluate an ICS.
Today’s regulat:ons also re-
promuiga:e § 123.46(a). EPA origmal!y
promulgated this regulation on January
4, 1989. but it is necessary to amend th:s
language so the regulation more
accurately reflects EPA’s approach far
implementing section 304(l). The new
language clarifies that an ICS is requtred
for eacn point qourr.e under section
304(l)(1J(C) rather than each water
segment identified under section
3t 4(l)(i)(B).
1. Descr.ption of an Indiv;dual Control
Strategy
Sect on 304(l)(1)(D) provides that sri
individual control strategy inus
produce a reduction in the discharge of
toxic pollutants from point sources
identified under sectlcn
31)4(l)(I)(C), which is ‘ ‘ sufficient, itt
combination wflh existing controls on
point and nonpomnt sources of pollution.
to achieve the applicable water quamty
standard as soon as possible, but not
later than three years after the d.ste of
the establishment of such strategy.
These elements of an individual cc.itr
strategy are cod.z.ed at 40 CFR 123
-------
r
Federal Register I Vol. 54. No.105 I Friday. Jtrne 2. 1989 I Rules and Regulations
23837
Today’s regulations define an ICS as a
‘rial NPDES permit, a draft NPDES
ermit with a schedule for issuing a final
permit, or. for an on-site response action
under CERCLA. the decision document
for the response action. EPA received
many comments on the definition of an
ICS. The following preamble discussion
responds to these coir.iuents and
clarifies some aspects of the definition.
EPA has determined that, for point
source discharges to meet the
requu’ements of section 304(1). an ICS
must consist of a draft or final NPDES
permit for each point source on the (C)
lisL plus supporting documentation that
the permit has adequately cons :dered
the impact from other discharges on the
identified segment ICSs are required for
both currently permitted discharges and
for point sources identified on the (C)
1 t that do not have NPDES permits. A
sufficient ICS. therefore. consists of the
controls for each such point source
(NPDES permit limitations and a
schedule for achieving such limitations
if they cannot be achieved upon permit
issuance) and documentation wrtich
shows that the controls selected are
appropriate and adequate (i.e., fact
sheets with information on total
maximum daily loads and wasteload
allocations). Enforcement orders and
insent decrees, by themselves, are not
ddequate substitutes for ICSs. However.
an enforcement order or judicial decree
based on a final and sufficient NPDES
permit may be a part of the supporting
documentation for the ICS, provided the
ICS satisfies all applicable provisions of
section 304(l) of the CWA.
EPA beLieves this is the correct
interpretation of the term “individual
control strategy’ because paragraph (D)
of section 304(l)(1) states that an ICS
must reduce discharges of toxic
pollutants through “effluent limitations
under section 402” of the CWA. Section
402 of the CWA establishes the NPDES
program. and the effluent limitations in
NPDES permits are the primary control
mechanism that EPA and the states use
to reduce point source discharges of
pollutants. By inserting a reference to
the NPDES program in paragraph (D)
EPA believes that Congress intended for
an NPDES permit to be the essential
element of an ICS.
The comments on EPA’s definition of
an ICS focused on two issues: First, an
ICS should include more than just
NPDES permits for point sources: and
second an ICS should be developed for a
water segment. not for each individual
oint source. EPA considered these
_omments but decided to promulgate the
definition unchanged. for the reasons
discussed below.
a. Types of controls. In arguing that an
ICS should be broader than an NPDES
permit. some commenters requested that
EPA approve state water quality
management plans as ICSs. EPA
remains convinced that such plans
would not satisf the requirements of
section 304(1) because these plans are
not directly enforceable (although they
are binding on the states) and therefore
they cannot ensure. by themselves, that
limitations will be achieved within the
deadlines of section 304(1). This problem
of enforceability could be solved by
defining ICSs to include not cniy the
plans but also the permits necessary to
implement them. EPA is rejecting such
art approach because the two years
allowed by section 304(l) for developing
ICSs does not allow for a sequential
listing of waters. development of state
plans and development of permits based
on the plans. To meet the section 304(1)
deadlines states w’juld. for the most
part. be compelled to develop permits
before completing the planning process.
EPA believes that this suggestion would
not maKe good use of the planning
process. and would consume resources
without improving ICSs.
Several commenters argued that
EPA’s definition of an ICS makes point
sources respor.sibre for nonpoint source
discharges and urged EPA to require
nonpoint source controls as a part of
ICSs. EPA agrees with the commenters
that nonpoint sources can be an
important toxics problem on some of the
waters identified for control under
section 304(l). EPA is not incorporating
nonpoint source controls into ICSs
because EPA does not believe that
Congress gave EPA the authority to
impose nonpoirit source controls as a
part of at’. ICS. The statute clearly
contemplates the implementation of
ICSs through NPDES permits (through
the reference to “effluent limitations
under section 402”). which only provide
point source controls. The legislative
history supports this interpretation. See
Rep. No. 99-1004. 99th Cong.. 2d Sess.
pages 126—130. Furthermore. Ccngress
added section 319. which addresses
nonpoint source programs. at the same
time as section 304(l). Section 319
requires identification of waters that
need nonpoint source controls to meet
water quality standards, and requires
submission of management programs
which identify, among other things,
methods for controlling nonpoint
sources of pollution. Because Congress
wrote a separate section for nonpoint
source programs. EPA does not believe
that Congress intended for EPA to
establish a nonpoint source control
program under section 304(I). As stated
in the proposal. EPA urges states to
implement nonpoint source controls
wherever necessary to meet water
quality standards. To further encourage
nonpoint source controls EPA interprets
the statute’s mandate to consider
“existing controls on point and nonpoint
sources of pollution,” section
304(l)(1)(D), as including nonpoint
source controls that will be in place by
June of 1992. (EPA explains the meaning
of this interpretation more thoroughly in
the March, 1988 guidance.)
Some camineriters argued that EPA’s
definition of an ICS does not account for
multiple discharges to a receiving water
EPA disagrees. An ICS must be
consistent with any total maximum
daily loads (TMDLs) for the water
segment and wasteload allocations
developed for the discharge (where the
wasteload allocation is approved by
EPA pursuant to 40 CFR 13071 An ICS
must also include documentation
indicating that a water will meet all
applicable water quality standards. EPA
believes this definition implements the
congressional desire for coordination in
the evaluation and control of point
sources discharging the same pollutants
to the same water segments.
b. EPA ‘s paint source-based approach
EPA’s definition of an ICS and the
amendments to § 123.48(a) require an
ICS for each point source on the (C) list.
Some commenters noted that section
304(l)(1)(D) requires ICSs for “each such
segment” identified in paragraph (B)
EPA acknowledges that section
304(l)( ’1)(D) refers to waterbody
segments. EPA considered defining an
ICS as the aggregation of all perrn.ts and
supporting documentation for a water
segment. EPA is not adopting this
expanded definition of an ICS because
congressional intent in enacting section
304(l) is better accomplished by
retaining the proposed definition, If
permits were aggregated to form an ICS
for a water segment then the ICS could
not be approved, and in many cases
would not be implemented. until all
permits for the water segment were
developed and incorporated into the
ICS. Furthermore, the aggregation of
permits would result in the same level of
control as single-permit ICSs. Given the
deadlines that Congress imposed in
section 304(l) it is clear that Congress
established a premium on expeditious
attainment of water quality standards.
EPA sees no reason to delay an ICS
until all permits for a water segment are
developed. In addition to finalizing the
proposed definition, EPA is amending
§ 123.46(a) to make clear that ICSs
should be submitted for each point
source on the (C) list.
-------
23888
Federal Register I Vo’. 54. No. t05 I Friday. June 2. 1989 I Rules and Regu1at ons
EPA rejected the idea of creating a
new mechanism for controlling point
sources under section 304(l) because a
new mechanism is not necessary to
implement section 304(l). and the
deadlines in section 30411) do not allow
enough time to design. promulgate and
implement a new mechanism for
controlling discharges of pollutants to
surface waterl.
Lii urging EPA to take a segincat-bised
approach some commenters argued that
such an approach is necessary to
account for multiple discharges to a
wa :r egment. Howe r. an ICS mu2t
be ccncLstent with wastekad
a!lccatior.s and must include
docuniernation indicating that the
effluent limitations are sufficient to meet
the wasteload allocation. EPA believes
that these requirements implement tha
cori rer3iona1 desire for coordunaticn
when e aluatung and controlling point
sources d.scharges of the same pollutant
to the same water segment.
c. Approval of perzr:ts th. t are . ot ;
etf2ct 4 v. . Where a state demonstrctes
that a final permit cannot be issued by
February 4. 1989. a draii permit and
,upp)rting documentation may quaufy
ci an ICS. However, such a dift permit
must accompanied by a schedule
indicating that the final permit will be
isrueO on or before February 4. 1990.
Or.e coinmenter skei EPA to require a
more burdensome shuwing from states
before allowing until February 4. 1990 to
issue the final permit. EPA believes that
the section 304(1) require nent for
achieving controls as soria as possible
along with a deadline for issuing a final
permit is sufficient to guide the stat’s
and regions in meeting the requirements
of section 304(1).
EPA’s definition of an ICS includes
draft permits because the c’escription of
an ICS in section 304(I)(lJ(D) allows for
such an interpretation, and be:ause it is
unrealistic to expect final NPDES
permits to be prepared for every point
source on the (C) lists within the
ambitious deadlines of section 304(l).
‘Nater quality-based effluent limits can
be technically difficult to prepare and
are often subiect to extensive public
comment during the permit development
process. Todays proposal to include
draft permits in the definition of an ICS
requires the permitting authority to
prepare tli effluent limitations required
by § 304(l)(1)(D), but at the same time.
gives the states the necessary flexibility
to meet the ambitious deadlines of
section 304(t).
A draft permit prepared as an (CS
under section 304(l) must be issued . a a
tinal permit within one year of
stabl shment of the ICS. Therefore, if a
state submits a draft permit to EPA on
or before February 4. 1389, the [ CS must
be issued as a final NPDES permit on or
before February 4. 1990. In the case of
state-issued ICSs. the one year time
period allows EPA to exercise its
authority under section 304(l)(2) if a
state fails to issue a final NPDES pernut
within the one year time period. En the
case of EPA-issued ICSs. the [ CS may be
a draft perriut, and like the states. EPA
would also have un to one year in which
to issue a final NPDES permit.
Some commenters argued that EPA’s
choicc of a one year deadline for a state
to finalize draft permits was erhiu’ary
and the connection to EPA’s
implementation of section 30411) was too
tenuous to support it. EPA believes that
to ensure success of the section 304(l)
program no [ CS should be
unconditionally approved until t
represents the state’s final decision to
implement controls. If an approval
contingent upon a final decision by a
state must be subsequently disapproved.
EPA must have sufficient time to
prepare an :cs by its deadline of June 4,
1990. EPA believes that allowing states
more than one year to issue final
per1r ts would jeopardize EPA’s ability
to meet the section 304(l) deadlines. In
addition. EPA believes that one year is
sufficient time for the states to davelop
rinal permits from approved drafts.
Where EPA approvos a draft permit
as an-ICS. EL A ’s approval is
automatically conditio’ied on the state’s
meeting the schedule for issuing the
final permit. If a state fails to meet the’
schedule for issuing the final permit.
then EPA may exercise its authority to
disapprove the (CS and implennant
section 304(I).
An NPDES permit usually becomes
effective 30 days after a final decision to
iscue or modify the permit unless an
evidentiary hearing is requested under
40 CFR 124.74. Evidentiarj hearings ean
delay the effective date of the conditions
chaLlanged in the permit. Because these
potential delays could jeopardize the
ability of EPA and the states to meet the
deadlines in section 3 0 4(l), and because
a final permit reflects the final decision
of the permitting authonty with respect
to the permit EPA will accept a final
(but not necessarily fully effective)
MPDES permit as an [ CS.
d. CERCL.4 sites. As EPA noted in the
proposal, it is possible that some
CCLA sites will be subject to section
304(l) because these sites can be point
source dischar as of a priority pollutant.
Ifs CERCLA sita qualifies for the (C) list
under section 30 1(l), then the site must
also satisfy section 304(t)(1)(tfl relating
to ICSs. including the deadlines in
se. tion 304(l). For “off site” ruspo’tse
actions, the CERCLA site dischar;cr
must obtain an [ PDES permit, and will
therefore satisfy section 3 0 4(l) in thr
same way aê other point sources su
to section 304(l)(1)(C). For “on-site’
actions however, the discharger must
meet all “applicable or re!evant and
appropriate requirements” of the CWA.
but is exempt under section 121 of
CERCLA from the procedural
requirements of the NPCES perrnittl.ng
process. Therefore, on-site actions that
are 5U)jECt to section 304(1) w ll satisfy
pa;agr’;ph (0) of aection 304(1) through
compliance v.tth applicable or re 1 avant
and appropriate requirements under the
CWA. as described in the decision
document for that on-site response
action. Although EPA expects that there
will be relatively few CERCLA sites
subject to section 3 , 4(l). EPA
emphasizes that the ICS for any such
CERCLA site is subject to the deadlines
in sectiun 304(l). The proposed definition
of an [ CS at § 123.48(c) includes
CE CLA decl3ion dotuments for on-sire
response actions.
e. :Von-appro;’ed states. A state that is
not approved by EPA to administer rice
NPDES prcram will fulfill its
obligations undar section 304(l)(1)(D) by
preparilg and submitting wasti.load
allocations to the Regional Offices for
EP. review and approval. Under the
NPDES program, non-approved states
assist EPA in issuing permits by
providing EPA with background
information. wasteload allocations, and
certifications under section 401 of the
CWA. EPA uses the wasteload
allocations to prepare the MPDES
permits for the state. The role of non-
approved states with respect to ICSs
will be the same as their role with
respect to NPDES permits. Non-
approved states are responsible for
preparing wasteload allocations for
each point source on the (C) list. The
Regional Offices will prepare and issue.
in cooperation with non-approved
states, final NPDES permits in the state.
EPA received comments both supporting
and criticizing this interpretation of the
role of non-approved states. One
commenter argued that the minimal role
of non-approved states undermine’;
EPA’s definition of an ICS as en NPDES
permit. EPA disagrees with the
commeriter because section 304(l)(1)(D)
provides that individaal control
strategies are to achieve reductions in
discharges from point scurces “through
the establishment of effluent limitations
under section 402.” Non-approved states
do not have the authority to establisn
effluent limitations in NPDES permits.
Therefore, the role of non-approved
stites is necessarily different from that
of approved states in iinplemer.ting
-------
Federal Register I Vol. 54. No. 105 / Friday. June 2. 1989/Rules and Regulations
23889
section 304(l). Furthermore, a non.
approved state’s role will not be
minimal. Preparing WLA’s and
providing section 401 certifications
requires the state to be fully involved in
the preparation of an ICS. Although
state certifications under section 401 of
the CWA are required for ICSs, EPA’s
regulations at 40 CFR 124.53 provide that
a state will be deemed to waive its right
to certify under section 401 of the CWA
if the state fails to exercise this right
within 60 days from the date that EPA
mails the draft permit to the state.
Section 304(l) establishes a three-year
deadline for achieving water quality
standards, whereas section 301(b)(1)(C)
requires water quality standards to be
met by July 1. 1977. The different
deadiines in the two sections raise the
question of how the two sections
interact. EPA believes that Congress did
not intend for section 304(1) to repeal the
Juv 1977 deadline in section
301(b)(1)(C). Rather. Congress
recognized that permittees will need a
reasonable amount of time, not to
exceed three years. to comply with new
effluent limits that are necessary to
achieve new water quality standards, or
re-interpretations of existing water
quality standards. On the other hand.
ulere is no indication that Congress
tended for section 304(1) to be an
e:ctelision for permittees who have
already failed to comply with effluent
limitations. An ICS may not extend a
compl ance schedule for achiev ng
effluent limits if the permittee has
already failed to abide by the
compliance schedule. Also, where new
effluent limits will require construction
or other activities (e.g. wastewater
treatment system optimization.
pretreatment program implementation.
etc.) an ICS may include a compliance
schedule for such activities. The reason
for this thstinction is that section 304(l)
requires that water quality standards be
met “as soon as possible.” If a permit
already includes a compliance schedule.
then the permitting authority has
already given the permittea a
reasonable time to comply with effluent
limits and therefore achieve water
quality standards. Therefore, where a
compliance schedule has not been met.
the ICS cannot extend the schedule.
Rather, an enforcement order may be
required as part of the supporting
documentation for the ICS.
EPA received comments requesting
EPA to extend the deadline for
-mpliance with the effluent limits
osed pursuant to section 304(l). EPA
...aes not have the authority to extend
these statutory deadlines. EPA does.
however, have the authority to exercise
its enforcement discretion. The
following discussion explains the range
of actions EPA may take in appropriate
cases.
It is possible that some permittees
may not meet the effluent limits on or
before the deadline in section 304(1) for
achteving applicable water quality
standards. For example, the treatment
technology may not be immediately
available to reduce the discharge of a
priority pollutant to the levels necessary
to protect aquatic life and human health.
In such cases. the NPDES permit may
contain a schedule of compliance that
leads to compliance with section 304(1)
and other requirements of the CWA.
(Note, however, that a schedule of
compliance must require compliance rio
later than applicable statutory
deadlines.)
If the permittee does not achieve
effluent Lmits within the time specified
in the perm.t (which must be no later
than the applicable deadline in section
304(l)). the CWA provides for a range of
enforcement actions. These actions are
provided for in section 309 of the CWA
and include administrative orders.
adznuustrative penalty orders, and civil
or criminal judicial actions. The
appropriate enforcement response is
determined on a case-by-case basis. In
limited cases in the past. EPA has issued
administrative orders concurrently with
an NPDF.S permit where the effluent
limits are effective immediately upon
permit issuance. Factors which are
considered when determining the
appropriate enforcement response
include but are not limited to: the
potential impact of the discharge on
human health or the environment: the
compliance history of the pernuttee: and
any good faith efforts by the perixuttee
to achieve compliance.
EPA recognizes that there may be
situations where compliance with
applicable water quality standards will
require ICSs for a number of point
sources on a stream segment. or may
require nonpoint source controls. More
than one point source may contribute
the same priority pollutant to a
waterbody identified cn the list, and
therefore, controls on only one point
source may not achieve water quality
standards. In other cases where there
are significant loadings of a toxic
pollutant from nonpo lnt sources, effluent
limits for the point sources, by
themselves, may not attain and maintain
applicable water quality standards. (See
the discussion of the phrase “entirely or
substantially” in section Ill.B.2 of this
preamble.) In these cases, it is EPA’s
position that an ICS may satisfy the
language in paragraph (0) of section
304(1). and in 123.46(c). (which require
the ICS to achieve water quality
standards), if the effluent limits for the
point sources are consistent with a
wasteload allocation for the point
source. This approach allows the
permitting authority to develop an ICS
for each point source that, together with
other point or nonpoint source controls.
is designed to attain and maintain
applicable water quality standards. This
approach is also consistent with EPA’s
existing surface water toxics control
program. in which each point source is
obligated to reduce its contribution of a
pollutant according to its wasteload
allocation. The result of thia approach
should be substantial reductions in point
source contributions of priority
pollutants, which is consistent with
Congress intent in enacting section
304(l).
Where a waterbody on the (8) list h i
a significant nonpoint source of a
priority pollutant that could impede
progress toward achieving water quality
standards. EPA and the states should
address the nonpornt source using all
available authorities including state and
local authorities arid section 319 of the
CWA. (Note that where point and
noripoirit sources on the same
waterbody contribute different pricrity
pollutants. the degree of nonpoint source
contributions will not affect the decision
whether to list the watei under
paragraph B of section 304(l)(1). For
more information see the discussion of
the (B) list in section 111.8 of this
preamble.)
Nonpoint source loadings are included
in the process of developing water
quality-based effluent limits for point
sources because nonpoint sources are
considered when developing TMDLs
and WLAs under section 303(d) of the
CWA. EPA’s regulations at 40 CFR 130 2
require that TMDLs account for
nonpoint source loadings. The
regulaticns also specify that TMDLs
provide for ‘tradeoffa” between point
sources and nonpoint sources, and that
TMOLs submitted under 40 CFR 130.7
must be approved by EPA. EPA
emphasizes that nonpoint source
controls can make significant
improvements in water quality. For
many waters, the most significant
sources of pollutants are nonpoint
sources. Nonpoint source controls are. in
some cases, more cost-effective than
point source controls, and the
regulations at 40 CFR 130.2 provide that
the relative cost of point source and
nonpoint source controls may be
considered (among other factors such as
rcl:ability and technical achievability)
when preparing TMDLS for the pollutant
-------
:3r 50
Federal IZegister I Vol. 54. o. 135 I Friday, r e 2. 989 I Rules aid Rsguiations
of coacer . Where possible. CPA
encourages the states to use nonpoint
•curce controls to meet the obiectives of
actton 304(1) of the CWA to the e,..tent
that !tOnpotnt source controls are
adopted and implemente d through
appropriate state and Federal
aut ionties.
Section IILB.2 of this preamble
rxpiair.s that a waterbody TII9Y quaLi
for the B1 liSt if the sL’urce of the
prl r.ly po u. ant is sed .ment deposittd
or ccntauuaated due to the discharge of
an acnve point source sub je .t to ectton
,O2 of the .WA. For example. the
effluent from an active point source
d:sctar :nay contain iorz y
plluta:us that are deposited as
sediments in the receiving water, or the
effiuc t m.y contaminate existtng
scdh’ient in the receiving water. La such
COSQS the sediment can interfere w:th
the des’gno ted use of the water, and the
releases c..in cause excursions above
other applicable water quality
standards. Where contaminated
sedimer.t :s caused by an active point
source, it .3 EPA’s position that the
contamination should be characterirad
as “due to the dischar3e from a prMnt
scu’r.e. Severil coinmenters said that
art NrDEs permit could not require
dr’dguig of sediments. and that EPA
should not attempt to write ICSs for
these sources based on contamination of
sediments. Today’s regulations do not
require this. Rather. EPA is requiring
[ CS. to contain the necessary effluent
limits to prevent further contamination
of the sediment and water column. It is
EPA’, goal that the [ CS. for these active
point sources achieve applicable water
quality standrds within the time frames
of section 304 (l). Uowever. because
cc..nu’ols for in-pkce sediments raise
unique problems for the NPDES
program. an lCS for such a poult source
should. at a muuinum. prevent
additional accumulation or
contamination of the sediments that are
the source of the toxic pollutant.
Under EPA’s interpretation of section
304(1), all permits for point sources
subject to section 304(lJ(1)(C). including
final or effective pernuts. must be
included La the review required by
section 304 fl. [ tie EPA’S position that
section 304(I) gives EPA the authority to
reopen a permit before the term of the
permit expires regardless of whether the
permit has a reopener clause.
EPA’s authority under section 304(l) to
reopen final and effective permits is
supported by the requirement that EPA
implement lCSs where EPA
disapproves, or the state fails to submit
an edequate [ CS. Given that Lf Ss must
be implemented through limut,’innni
under sectori 402 the alternatives to
reopening permits would not necessarily
meet the requirements of section
04(l (l1 [ D). The alternatives are: (1)
Allow [ CS. to be unenforceable plans
that might incorporate Limitation. under
section 402 at some later time: (2) omit
certain point sources from the section
304(1) process because the permits for
these po nt sources are not due for
review under 40 CFR 133.14; or (3) wait
until a permit expires tposaibly a: er the
deadine in section 304t1)) to change the
terms of the permit. None of these
alternatives would satisfy the
requirement that ICSs attain watir
quaiity standards by the deadlines in
sc:tcn 304(l). Therefore. EPA will
review, and possibly disapprove undLr
section S ‘II ), final or effective permits
rc rdless of whether the permit has a
reopener clause.
Some commenters thought it
inequitable to reopen a permit before it
expires. EPA has attempted to ease the
plannuig problems created by an
unan :;c:pated change in permit terms by
requring that the permit be in draft form
three years before the permittee is
re ured to comply with the liouts, and
in final form two or more years before
such compliance is required.
Furthermore, the d sfuution of an [ CS as
a draft or final NPDES permit, and the
use of compliance schedules, give the
permittees added flexibility in meeting
the requirements of section 304(1).
One commenter requested that EPA
apply the requirements of 40 CFR 123.44
(which describe the procedures for EPA
disapproval of state-issued NPDES
permits to disapproval of ICSs in order
to implement the congressional
requirement that EPA issue the ICSs ‘in
cocmoeraton v’.th the state and after
opportunity for public comment” The
cammenter seemed to ir.d:cate that EPA
should apply these processes before the
jmmis 4, 1989 disapproval of a states [ CS.
Although EPA has solic tad extensive
informal cooperation with the states in
the approval/disapproval process, EPA
believes that the formal requirement for
cooperation with the states applies
during EPA’s development of an ICS
after disapprovaL As the following
discussion indicates. EPA does not
believe that applying the requirements
of 123.44 would be the best way to
incorporate the requirement for
coupcration with the state in the
development of the [ CS.
As EPA stated in the proposal, to
implement section 3 0 4 ( I). EPA will use
existing procedures where possible.
However. EPA will use the section 304 (I)
process where pre-existing regulatory
procedures are inconsistent with the
section 304(1) review process. CPA ‘
requiring compliance with *123.4
procedures for EPA’s objections tc -.
permits) because it would be
inconsistent with the section 04 !3
review process. Section 402 of the CWA
estabti.shes conditions that are
prerequisites to EPA’s authority to mssi:e
permits in approved states. For exatnplis.
sectien 402 requires an approved state
to subm:t a permit to EPA for review
and requires EPA to object in wnti g
within ninety days. as prerequisites to
EPA ’. authority to issue the permit.
Although the procedures under section
3a4(fl provide an equivalent ooport’.in:y
for state-EPA cooperation in the
development cf pernu s. section 304 (l)
also gives EPA the authority to issue
pem ts where the state fails to issue
permits that satisfy aecuon 304(l ). Under
the existing regulations the state
submits a proposed permit to EPA. and
EPA then has 90 days to ob ect to the
terms of the permit. After EPAs
objection, the state has 90 days to
request a public hearing or to re-submi:
the permit to EPA. II EPA grants a pub:tc
hearing, the state ma’,’ re-submit the
permit within 30 day . after the
Adininiafrator issues the post-hearing
decisiom If the state dces not re-submtt
the permit within the time Limits in
§ 123.44, the exclusive authority to isa
the permit passes to EPA.
These procedures are not appropriate
for the section 304(1) review process.
First. EPA must review final or effective
permits in the ICS review process. not
just draft or proposed permits. Second.
section 3040) gives EPA a deadline by
which to review an [ CS. not the 90 days
provided for in 123.44. Third. section
304(l) makes no provision for the state Ia
re-submit a’disapproved [ CS. Rather.
seLtton 304(I) directs EPA to work in
cooperation with the state (a preparing
and implementing EPA’s ICS.. Finally.
section 304(1) require. EPA to provide
for public notice and an opportunity ta
comment on the ICSs. not ju St an
opportunity to request a hearing as
provided under § 123.44. Taken as a
whole the ICS review process is
inconsistent with the permit review
process under § 123.44. Even though EPA
is not requiring the use of the procedures
in § 123.48. EPA is sensitive to the
comrnenter’s concern that states be as
involved as possible in the issuance of
any disapproved [ CS. EPA re3lons are
required to consult with the state in the
development of any I Se by the
liinguage that was codified at
§ 123.48(a). Although EPA ha. a limited
time in which to develop the ICS. EPA
w ll seek a partnership with the states iii
din process. If EPA issues the permit the
-------
Federal Register / Vol. 54, No. 105 I Friday. June 2. 1989 / Rules and Regulations
23891
state would review and certify the
permit under section 401 of the CWA. In
addition. if EPA issues the permit. EPA
will provide for public comment on the
ICS through the permit development
process. which will provide another
opportunity for the state to comment on
EPA’ . proposed ICS.
For disapproved ICSe. EPA will use
the existing permit issuance procedures
in Part 124 to issue these ICSs, Alter
EPA disapproves an ICS that is a draft
or final NPDES permit, the Agency will
use the procedures described in 40 CFR
Part 124 to issue a final ICS. If EPA
disapproves a decision document for an
on-site response action under CERCLA.
the Agency will use the procedures
under CERCLA for issuing these ICS ..
Some commentere asked EPA to
explain the status of permits issued by
EPA in approved states. EPA Intends to
treat permits issued by EPA in
authorized states in the same manner as
EPA-issued permits foLlowing EPA
objection to a state-issued permit. The
Regional Administrator will issue the
permit in accordance with 40 CFR Parts
121. 122. and 124 and any other
guidelines and requirements of the
CWA
EPA expects that many of the ICSs
that are subject to section 304(1) will be
nal state-issued permits that EPA has
,,revioualy reviewed under 40 CFR Part
123. When a state submits an ICS to
EPA for review under section 304(1). any
previous EPA decision to not object to
the permit under Part 123 does not
waive EPA’s authority to review and
approve or disapprove the ICS under
section 304(1). If EPA reviewed a permit
under Part 123. EPA reserves the right to
review the same permit under the
provisions of section 304(l).
2. Technical Review Criteria. Section
304(l) requires an ICS to achieve
applicable water quality standards as
soon as possible but not later than three
years after the ICS is established.
Although this language establishes a
general standard for evaluating an ICS,
the language says little about the permit
conditions necessary to ensure that
applicable water quality standards will
be achieved. EPA will use the review
criteria in 40 CFR 123.46(f) to evaluate
whether an ICS meets the requirements
of section 304(l). The criteria that EPA
will use to review ICSs are the same as
the criteria EPA uses to review the
water quality-based effluent limits for
any permit Section 1ll.A of this
preamble discusses amendments to
- 22.44(d). These amendments describe
‘ to establish water quality-based
cizluent limits in NPDES permits.
Effluent linuts derived from water
quality standards must satisfy
§ 122.44(d). The regulations at
§ 123.46(0. provide that ICSs shall be
reviewed according to the criteria in
§ 122.44(d). EPA is also amending
§ 123.44(c) to incorporate the review
criteria for ICSe into EPA’s criteria for
reviewing other permits not subject to
section 304(1). Section 123.44(c)
enumerates the criteria that EPA may
use to review state-issued permits. By
using the same criteria for reviewing
ICSs and for reviewing permits that are
not subject to section 304(l). EPA is
ensuring consistency in reviewing the
technical adequacy of these two
categories of permits.
Some commenters asked whether EPA
was intending to apply these
requirements to lists and ICSs submitted
before this final nile becomes effective,
and argued that to do so would be to
apply. the regulation retroactively, which
is prohibited. The regulations
promulgated today will apply to EPA’s
decisions issued after the effective date
of today’s regulations. EPA does not
view this as applying the regulations
retroactively. Rather, EPA is applying
the criteria for review of lists and ICSs
to decisions it makes after the effective
date of these regulations. Therefore.
although these regulations will not apply
retroactively, EPA anticipates that the
concepts embodied in the rule would
apply in most cases of EPA’. review of
lists and ICS . unless the discharger or
the state can show why they should not
apply.
Where EPA disapproves an ICS.
section 304(l)(3) requires EFA to
implement section 304(l) in a manner
which will achieve applicable water
quality standards on or before June 4,
1993. A final permit issued after EPA
disapproves the permit under section
304(l) must include language in the fact
sheet or statement of basis that
identifies the permit as an ICS that
satisfies the requirements of section
304(l) of the CWA. This requirement is
similar to the language in draft permits
subject to section 30 4(l) which identifies
the permit as an ICS. The language in
the final permit will identify for the
public and the regulated community
those ICSs which satisfy the
requirements of section 304(I).
D. EPA Review of Lists and Individual
Control Strategies
Scction 304(1) requires EPA to review
and approve or disapprove the lists and
ICSs submitted by a state. If a state fails
to submit the lists or ICSs. or if a state
submits inadequate lists or ICSs. then
EPA must disapprove the lists or lCSs.
Section 304(L)(2J gives EPA 120 days to
approve or disapprove a state’s ICSs.
and where EPA disapproves an ICS.
section 304(l)(3) requires EPA to
implement section 304(l)(1) on or before
June 4. 1990. Today’s rules establish the
same review procedures for the lists as
for ICSs. Although the deadline
established for ICSe does not explicitly
apply to EPA’. review of lists, EPA
determined that it would not be
appropriate for EPA to establish
different deadlines for the approval of
lists. Some commenters argued that EPA
does not have the authonty to approve
or disapprove lists because section
304(l)(2) speaks only of the disapproval
of ICSs. EPA believes however that the
Agency is authorized to review both the
lists and ICSs. First, the introduction in
section 304(l)(l) requires all the lists and
ICSs to be submitted “to the
Administrator for review, approval, and
implementation .“ EPA’s final
rulemaking of January 4. 1989 codifIes
this language at 40 CFR 123.46(a) and
130.10(d). Review and approval would
be meaningless if the statute did not
allow disapproval where the review
reveals inadequacies in the lists
submitted. Second. section 304(l)
requires the Administrator to prepare
ICS . where the state fails to submit
them. EPA believes that this provision
would not make sense if EPA did not
also have the authority to disapprove a
state’s decision to not submit an ICS to
EPA for review. Such a disapproval
depends on a review and possible
disapproval of at least the paragraph (B)
lists submitted under section 304(l)(1).
The first step in the review process
occurred when the states submitted
their lists and ICSs to the Regional
Offices for review. (The states deadlir.e
for submitting the lists and ICS . was
February 4. 1969.) The Regional Offices
must approve or disapprove the lists and
ICSs by June 4, 1989.
Several cornmenters asked how the
process subsequent to the initial
decision would work. The next steps in
the process depend on the Regional
Administrator’s decision of approval or
disapproval. If the Regional
Administrator approves a state’s
decisions with respect to the lists of
waters and ICSs, and decides that
additional public participation is
unnecessary (see paragraph 2 below)
the decision will be final and the
perm ts will be implemented according
to the normal permitting procedures
(including permit appeal, judicial
review, enforcement. etc.). If the
Regional Administrator takes public
comment on the lists and ICSs then the
region will consider the comments and
issue another decision regarding the lists
and ICSs in approximately January of
-------
23892
Federal Resister I Vol. 54. No. 105 I Friday , June 2. 1989 / Rules and Regulations
1990. but may take until June 4. 1920 to
issue ICSs (where neceesaryJ.
1. PartiaL Approval and Disapproval of
State Subinittals
Soction 304fl) gwee EPA the discretion
to approve or disapprove an entire list
of waters or point sources, or to approve
or disapprove individual waters on the
list, or individual point sources on the
(C) list. EPA has the same discretion to
approve or disapprove one or more
ICSa. The basis for this conclusion is the
requirucient in section 30411) that EPA
implement the listing and ICS
raquxremer.ta of the statute where the
ctate fads to submit an ICS in
acc,ovtLnce with paragraph section
3(j4 i). ubnusLon of an !CS in
accordance with this paragi’aph includes
listing the water where appropriate, and
preparing an adequate 1CS. For
simplicity EPA has decided to refer to
approvaLs or thsapprovals of a hated
waterbody rather than an entire list of
waterbodies.
As described in section [ U.B.1 of this
preamble. section 304(1) requ Ires each
state to st±rnit three lists of waters to
EPA. E1. wdl review each water ody
on each of the three lists. if the
waterbody meets the cr ’terta described
•n the regulations at 130.10(d) of
today’s rulemaking, thca EPA will
approve the state’s decision to list that
‘waterbody. If EPA identi les a
ivaterbody that quali6es for one or more
of the three lists of waters, and the state
haa not included the waterbcdy on the
appropriate list(s), then EPA will
cisapprove the state’s decision to riot
Lst the wa:er’oody under the applicable
par’aqraph(s) in its notice of approval
and disapproval. For example. if a state
included a waterbody on the (A)(i) list.
but not on the (B) List, and if EPA
determined that the waterbody qualified
for both lists, then EPA would approve
the decision to List the waterbody on the
(A)(i) list, but would disapprove the
state’s decision to not place the
waterbody on the (B) list. Another
example is where a state does not
include a waterbody on any of the three
! sts. but EPA dete ” a ” that the
waterbody qualifies for one or more of
the lists. EPA would disapprove the
state’s decision to not list the waterbody
under each paragraph ice which the
waterbody qualifies.
EPA also has the authority to
disapprove the listing of a waterbody by
a state if the waterbody does not qualify
for the list. For example, if the state
i’icludes a waterbody on the (B) list, and
EPA determines that the waterbody
does not qualify for the (B) list. EPA
would disoçprove the stale’s listing of
r’ie waterbcdv on the (B) list, and
indicate this decision in EPA’s notice of
approval or disapproval
EPA will also review each point
source on the (C) list. EPA will approve
the listing of each point source that
meets the critena in section 304(l)(1)(C).
EPA will disapprove the Listing of any
point source that does not satisfy
section 3O4(1 (1)(C , and will disapprove
a state’s decision to not list any point
source that meets the cntena in section
3 04fl)(1)(C).
Like EPA’s review of individual
waters. EPA will review each [ CS. and
twill approve each [ CS submitted by a
state that meets the reqicrement of an
ICS. EPA will also disappro. e a state’s
decision to not submit an ICS f EPA
determines that the state should h3ve
included the ICS in its submittal to EPA.
The notice of approval and disapprovaL
explained in the following section. will
include EPA ’s decisions with respect to
each water, point source. ar.d [ CS.
2. Public Participation
The only explica requircricnt for
public participation in section 304(l) .s
under section 304(l (3) of the CWA.
tinder thia se:tion, ifs state fails to
submit one or more ICSs. or if EPA
disapproves one or more ICSs. then EPA
must implement the requirements of
section 304(i)(l) within one year after
notice and opportunity for public
comment, This section describes the
additional public participation
procedures that EPA will conduct during
the section 334(l) process. In s maJ’y,
whether EPA will be required to conduct
public participation will depend on two
factors: the ex stence of either factor
will be enough to trigger the notice and
comment requirements. The first (actor
13 whether the state conducted adequate
public participation in its deve!opment
of the lists arid ICSs: if it did not then
EPA will do so. The second factor is
whether EPA is disapproving any of a
state’s decisions: any disapprovals will
be subject to public comment In
addition, the regulations allow the
Regional Administrator to request public
comment when ha believes that it would
be useful. Today’s regulations on public
participation amend § 130.10(d) (relating
to lists of waters), and § 1Z3.48(c)
(relating to ICSs).
EPA received a number of comments
objecting to what the commenters
perceived as a new requirement for
public participation in the development
of the lists and [ CSs under section 304(l ).
They argued that the stales could not,
comply with such a requirement when it
was only proposed a short t:me before
the lists and ICSa were due.
Cotiunenters also argued that section
304(l) does not require public
participation, and some claimed that
EPA does not have the authority unde
the C’WA to take public comment on the
lists and ICSs. EPA emphasizes that
these regulations do not require any
state public participation procedures
under section 3044)). Instead the
proposed regulations. and the
regulations promulgated today, require
the Regional Administrators to give the
public an opportwuty to comment on the
lists and ICSs if the state has not
provided such an opportunity. Where
the state has provided such an
opportunity then EPA believes it will he
appropriate in many cases to rely on the
states public participation procedures
rather than duplicaring them. The
principal situation in which the Regions
will take public comment on the state’s
section 304 (l) submissions is where EPA
is disapproving part of a state’s
submission (in which case EPA w’ .ll
always provide an opportunity for
corr.rnant on the disapprovals). There
may be some cases where the state has
provided adeouete opportunity for
comment and where the Reçon
approves a state’s ennre submission but
the Regional Adznuustrator believes that
additional public comment will be
uief’,il. This could occur iI for example.
a Region receives a request from the
public with reasons why an additional
comment period is walTanted. In such a
case the regulations leave the decision
of whether to provide for comment to
the discretion of the Regional
Administrator.
EPA received comments questioning
is authority to conduct public
participation where the statute does no:
specifically require it. EPA believes that
section 501 provides authority and
section 101(e) encourages EPA to
provide an cpportuxuty for public
participation.
One commenter argued that EPA
should provide for public comment on
EPA’s decisions for all states. The
comatenter argued that groups
interested in the section 3 0 4(l) process
did not know that they would be
required to rely on only the state
participation procedure,. EPA is not
persuaded by this argument First the
guidance published in March 1SC8
alerted interested persons that EPA
might rely on state public pazticipa Lion
procedures in its review process (see
EPA Guidance pp. 35-.39). Second. EPA
believes that interested persons should
present all arguments to the states.
where an opportunity is provided. En
general EPA has a strong commitment Zn
providing adequate public participation
in all programs. At the same time EPA
wants to avoid redundant procedtu ’es
-------
Federal Register / Vol. 54. No. 105 I Friday. June 2. 1989 I Rules and Regulations
23893
“tat may simply waste resources of the
•ates. the public and EPA and delay the
inplemention of section 304(1).
EPA intends to rely. to the extent
possible. on state public participation
procedures. EPA baa encouraged the
states to provide for full public
participation when developing their lists
and ICSs under section 304(l). Adequate
state public participation procedures
must, at a minimum. provide for public
notice and an opportunity to comment
on the states lists and ICSs. Parts 25
and 124 of EPA ’s regulations describe
procedures for public notice and
comment that states may us under
section 304 (1). Where a state does
provide adequate public participation on
the lists and ICSs. and where the
Regional Admizustrator approves all of a
state’s dec sicns with respect to the lists
and ICSa, today’s regulations give the
Regional Administrator the discretion to
forego an additional round of notice and
comment on the lists and ICSs.
Where the Regional Administrator
daterrnines that a state did not provide
for adequate notice and opportunity to
comment on the lists and ICSs, EPA’s
notice of approval or disapproval must
incbde all approvals and disapproval;.
Such notice would include all of EPA’s
orovals and disapprovals for all
aters and ICEs subject to section
304(1).
If a state provides for adequate public
parucipa non. but the Regional
Adnwustrator disapproves any of a
eate s decisions with respect to the
waters, point sources, or ICSs. then
EPA’s notice mu3t include each of the
Agency’s disapprovals. In this case it Is
not necessary for the notice to include
EPA’s approvals of a states decisions
under section 304(l). However, the
Regional Administrator has the
discretion to include EPA’s approvals in
the notice provided under section 304(l).
(See 40 CFR § 1 123.48(e) and
130.10(d)(7).)
The final rules require the Regional
Ofilces to mail a copy of the notice to
the appropriate state Director. The final
rule requires the Regional Administrator
to publish a notice of availability. eitheri
(u) in a daily or weekly newspaper with
state-wide circulation. or (b) in the
Federal Register. (See 40 CFR 123.46(e)
end 130.i0(d)(10).) The notice of
avaiiabthty telis the public where to
obtain copies of EPA’s notice of
approval or disapproval, but in most
cises will not list all the approvals and
ipprovals. Under today’s rules.
.lic participation for the lists and
ICSs occurs at the same time, and the
Regional Offices will probably use the
same notice for the lists and ICSs.
EPA is adding the option to substitute
Federal Register notice for notice in a
state newspaper because in some
situations the Federal Register may be a
more effective way to reach an
interested audience than a state
newspaper. Furthermore, some states do
not have a newspaper that has
statewide circulation. The notice in the
Federal Register will not substitute for
the notice that is required to be mailed
directly to interested persons.
EPA considered providing notice and
an opportunity for comment on a state’s
submittal before issuing a notice of
approval or disapproval. EPA rejected
this approach because such notice Is not
required under section 304(1) and
because the ambitious deadlines in
section 304(1) preclude public notice and
comment before EPA approves or
disapproves a state’s lists and ICSs.
Some commenters urged EPA to adopt
this approach. but EPA remains
convinced that providing an opportunity
to comment on decisions during the
period for petitions (120 days after Ju ne
4, 1989) will be sufficient.
a. Contents of EPA’s Notice of
Approval or Disapproval. Today’s
amendments to § 123.46 and to
§ 130.10(d) describe the contents of the
public notice provided under section
304(l). U the Regional Office combines
the notice for the lists and ICSs, then
each notice would include the followuigi
1. The name and address of the EPA
office that reviews ths state’s
s bcuttals.
2. A brief description of the section
304(1) process. For example, the notice
should descr be the requirement to
identify point sources of toxic
pollutants. and should discuss EPA’s
review of the,states submittal.
3. A list of the waters disapproved
under paragraph (A)(i), (A)(ii). and (B),
and a short finding that the waters do
not meet the applicable review criteria.
4. A list of point sources disapproved
under paragraph (C) of section 304(l)(1J.
and a short finding that the poir.t
sources do not satisfy the crt: rta of
paragraph (C).
5. A list of IC s disapproved wider
paragraph (Dl of section 304(1)(1) anJ a
short finding that the ICSs do not meet
the applicable review criteria.
6. If the Regional Adinnustrator
datermines that a state did not provide
adequate public notice and an
opportunity to comment on the waters.
point sources, or ICSs prepared wider
section 304(l). or if the Rogional
Administrator chooses to exercise his or
her discretion, a hat of approvals and a
short finding that the approved waters.
point sources, or ICE. meet the
applicable review criteria.
7. The name, address, and telephone
number of the person at the Regional
0111cc from whom interested parties
may obtain more information.
8.The location whore interested
persons may examine EPA’s racords of
approval or disapproval.
9. Notice that written petitions or
comments are due within 120 days.
The contents of these notices are
similar to the notices given under 40
CFR 124.10. EPA believes that by using
existing procedures wherever possible
the agency will minimize the
administrative burden of implementing
section 304(l).
EPA’s notice of approval or
disapproval allows 120 days for public
comment. The 123-day comment period
coincides with the 120 days described in
section 304(l)(3), which allows interested
persons to petition EPA to list additional
waters. Under section 304(l)(3), EPA will
consider for listing any navigable water
for which any person submits a petition
to EPA. Under the statute, interested
persons must submit petitions on or
before October 4, 1989. Today’s rule
uses the same 120-day period for
receiving petitions and for taking
comments on EPA’s notice of approval
and disapproval. EPA chose to provide a
120-day comment period because it
would be impractical to close the public
comment period on the notice of
approval or dispproval before the
statutory deadline for petitions. If EI’.
closed the comment period beicre
October 4. 19119. it is possmole that the
Agency would receive petitions for
additional listings after the close of
public comments.
b. Public Hearings. EPA is not
proposing new regulations for public
hearings under § 304(1). The 120-day
comment period allows sufficient public
involvement in reviewing EPA’s
decisions with respect to the lists and
ICSs. Furthermore, new regulations for
public hearings are not necessary
because the Regional Admw.istrator iay
hold a public hearing if he or she finds a
signiflcant degree of public interest in
the isate’s submittal.
c. Petitions for Additional L,stw ,’s.
Under section 304(l)(3 ). EPA must
consider petitions from the public for
additional listings of navigable waters.
Petitions are due within 120 days after
disapproval under section 304(l)(3J. and
should be submitted to the appropriate
Regional Administrator. A petition must
identify a waterbody with sufficient
detail so that EPA is able to determine
the location and boundaries of the
waterbody. For example, the petition
-------
23894
Federal Ro riater I Vol. 54. No. 105 I Friday, June 2, 1909 I Rules and Regulations
could identify the waterbody using the
name and number assigned to the
waterbody by EPA’s REACH file. The
REACH file is a data base that includes
a geographic description of the nation’s
surface waters, and the information is
available from EPA’s Regional Offices.
Another method for identifying a
waterbody is to use the common name
for the waterboay. and give the
geographic boundaries for the water.
The petition must identify the list or lists
for which the waterbody qualifies. The
petition must include sufficient
supporting information or data to show
that the watorbody satisfies the criteria
in section 304(l) of the CWA and 40 CFR
§ i30.i0(dl(0). EPA needs this
information to evaluate the petition. If
EPA determines that the petition
demonstrates that the water should be
listed, and the state has not listed the
water, then EPA will disapprove the
state’s failure to list the water.
EPA received comments that it should
require the petitioner to provide
extensive information before EPA would
consider the petition. EPA is rejecting
this suggestion because it does not want
the petition requirements to be so
burdensome as to discourage interested
persons irom petitioning EPA with
regard to waters that should be listed.
At the same time. to grant the petition.
LPA needs sufficient information
indicating that the water meets the
criteria for listing in CWA section 304(l)
and 40 CFR 130.10(d)(6). This approach
will discourage frivolous petitions while
at the same time avo;ding a cumbersome
process for preparing and submitting
petitions.
Petitiuns submitted to EPA pursuant
to section 2O4(i ) 3) are limited to adding
waters to one or more of the three lists
of waters prepared under section
304(I)(1). Under section 304(IJ(3), an
interested party may not petition EPA to
delete a water, point source, or [ CS from
the lists prepared under section 304 (l).
The relevant language describing
petitions under section 304(l)(3J limits
the petitions to navigable waters “
for listing under [ section 304(1) ).” and
does not discuss deleting waters, point
sources, or ICSs from the lists prepared
under sectIon 304(1). As a result of the
statutory language. the public may
submit petitions only for adding waters
to one or more lists of waters prepared
under section 304(l).
d. Response to Comments and
Petitions. After the close of the public
comment period on October 4. 1989 the
Regional Offices will provide, as soon as
practicable but not later than June 4.
i990, a response to the comments and
petitions received. In most cases the
response to comments will represent the
Agency’s final decisions with respect to
the content of the lists prepared under
section 304(l)(1). The response to
comments will be given in the same
manner as the first notice. The contents
of the response to comments are the
same as the first notice of approval or
disapproval except for the following
changes:
1. The lists of disapproved waters,
point sources. and ICSs must reflect any
changes made pursuant to comments or
petitions received.
2. A brief summary of major
comments and petitions received, and
EPA’s response to the comment or
petition.
3. A brief description of the
subsequent steps in the section 304(1)
process.
Interested persons will have an
additional opportunity to comment on
disapproved ICSs, Where EPA
disapproves an ICS because it does not
meet the requirements of section 304(1),
or because the state failed to submit the
ICS to EPA for review, section 304(l)
requires EPA to prepare an [ CS in
cooperation with the state after notice
and an opportunity to comment. The
public notice requirements of section
304(l)(3) will be fulfilled by the public
notice procedures followed by EPA or
the state when issuing the permit that
will constitute the ICS. If EPA
disapproves one or more ICSs, then EPA
or the state may modify, revoke and
reissue, or terminate that [ CS using the
procedures in 40 CFR Part 124. The
procedures in Part 124 require the
permitting authority to provide for
public notice and an opportunity to
comment before issuing a final permit.
Therefore, if the permitting authority
modules, revokes and reissues, or
terminates a disapproved ICS. the
permitting authorty must provide for
public notice and an opportunity to
comment At any time after the Regional
Administrator disapproves an [ CS (or
conditionally approves a draft permit as
an ICS), the Regional Office may submit
a written notification to the state that
the Regional Office intends to issue the
ICS. Upon mailing the notification to the
stale, exclusive authority to issue the
permit passes to EPA. This issue is
ddressed In ‘oday’s regulations at 40
CFR § 123.46(1). EPA is promulgating this
regulation to clarify the time at which
exclusive authority to issue ICSs passes
to EPA under section 304(1).
3. Subsequent Steps in the section 304(l)
Process
a. EPA Implementation of section
304(l ). Where EPA disapproves a state’s
decision with respect to a waterbody or
an [ CS it Is under an obligation to
Implement section 304(l) in cooperation.
with the state. Some commenters
questioned whether EPA’s process
allowed for full cooperation with the
states. EPA proposed. and Is finalizing a
procedure that will allow EPA to
assume the authority to issue a permit
that is disapproved as an [ CS (or one
that the state did not submit). The rule
allows EPA’s Regional Office to notify
the state that it will issue the permit
where the [ CS is disapproved. EPA
rejected requiring the exclusive
permitting authority to revert
automatically to EPA in order to allow
ample opportunity for the region to
negotiate with the state regarding each
permit. At the same time EPA is mindful
of the necessity of expediting the permit.
issuance process where agreement
cannot be reached with the state,
especially considering that Congress has
impoced deadlines for the issuance of
the ICSs and the implementation of the
effluent limits. Therefore EPA is
retaining the approach in the proposal
which allowed EPA to assume
permitting jurisdiction upon notice to the
state. In issuing the permit EPA will
follow its normal permit-issuance
procedures including requesting
certification under section 401 of the
CWA.
For listing. EPA will solicit public
comment on the waters and point
sources that were disapproved by EPA.
(In most cases, these will be waters and
point sources that EPA belIeves that the
state should have Included on one or
more of its lists, but did not) If the state
has not provided adequate public notice
on the lists, EPA will solicit public
notice on all waters and point sources,
both approved and disapproved. Until
EPA takes final Agency action with
regard to the lists, EPA will continue to
cooperate with the state to decide which
waters and point sources should appear
on the lists. EPA may add or delete
waters in response to public comments
or additional data and information
received during the time before its final
decision on the lists. EPA will make
these decisions public as final Agency
action as expeditiously as possible after
the public comment period closes, but
no later than June 4, 1990, In the same
manner as it provides public notice in
June. 1989. This final Agency action
constitutes promulgation by EPA of the
lists, EPA believes it is critical that the
Agency establishes these lists as final as
soon as possible in order to begin
development of individual control
strategies in time to be finished by June
4. 1990, as required by the CWA.
-------
Federal Register I Vcil. 54. No. 105 / Friday, June 2, 1989 I Rules and Regulations
:3R 5
b. Judicial Review of Decision Under
section 304(1). As EPA stated in the
‘rono al. judicial review of a
lisapproved ICS under section 509(b) of
the CWA is not available until EPA
makes a final docision with respect to
the ICS. i.e.. a f .nal decision on the EPA•
issued NPDES permit under Part 124 of
EPA’s regulations. One cominenter
argued that EPA’s pocition on this issue
further undermined u.s definition of an
‘CS by making 509(b)(1 (G) redundant.
Within the limits of the Act, the Agency
has the discretion to define lCSs as
discussed above in Section C.1. The
Agency continues to be icve that its
defln Uon is the best reading of the
tar.ite. and Congress gave EPA
d:screuon in determining what exact
definition to use. Congress’ addition of
section 509(b)(1)(C) to the Act shows
Congress’ intent that EPA’s
promulgation of an ICS. however
def..ned. be reviewed in the courts of
appeals more than any intent to
preclude or restrict EPA’s tnterpretat on
that an NPDES permit be an ICS.
The:efore. EPA believes that the permits
that EPA issues as LCSs are reviewable
in the court of appeals. Review of any
other actions by EPA under section
304(1) must be obtained in a district
court.
V. Effective Data
This rule became effective on May 20,
1989. Title 5 U.S.C. 553(d) provides that
regulations should take effect 30 days
after their publication in the Federal
1 igister. unless EPA finds and publishes
od cause for a shorter time. In
determining that good cause exists in
this case, EPA weighed the necessity for
an immediate effective dote against
problems it would cause for those
subject to the rules. The need far an
immediate effective date arises from the
statute’s deadline for EPA decisions on
state submissions. It is critical that
today’s rule be effective when EPA’s
Regional Offices make their decisions
under section 304(l). Today’s regulations
are impcrtant to ensure consistency and
certaUit) a regional decisions.
V. Regulatory Aiialyaia
A Executive qrder 12:91
Under section 3(b) of Executive Order
12291 the agency must juage whether a
regulation is major and thus subject to
the requirements of a Regulatory Impact
Analysis. The regulation published
today is not major because the rile will’
not result in an effect on the economy of
$100 million or more, will not result in
‘icreased costs or prices, will not have
significant adverse effects on
competition. employment, investment.
productivity, and innovation, and will
not significantly disrupt domestic or
export markets.
EPA received comments arguing that
the regulMt lons were in iact major EPA
disagrces. The regulations specify what
factors states must use to determine
whether permits will achieve water
quality standards, wh:le the
determination of what the standards are
end what permit limits re necessary to
comply with the standaras remains
principally with the states. Compliance
with the water quality standards has
been required by the Clean Water Act
since July 1, 1977. Many of the limits that
are imposed as a result of the
procedures in today’s rule are to
implement standards that were in place
long ago. The reporting requirements
discussed in today’s rile require no
additional monitoring, and preparing the
reports will not result in an effect on the
economy of $100 million or more.
Therefore, the Agency has not
prepared a Regulatory Impact Analysis
under the Executive Order. EPA
submitted this regulation to the Cffice of
Management and Budget (0MB) for
review as required by Executive Order
12291.
3. Paperwork Reduction Act
There is no information collection
requirement after the effective date of
this rulemaking, and, therefore. no
information collection request and
clearance are needed. An information
collection request for the pronosed
rulemaking, submitted by EPA to the
Office of Management and Budget
(0MB) was disapproved by 0MB
because the ‘.nforctation had already
been submitted to EPA pursuant to the
statutory deadline cf February 4. 1989.
and EPA did not formally submit the
ICR in a timely manner after the
proposed rule was published (see PRA
regulations 5 CFR 132013 (b) and (d)).
The comments from 0MB regarding
the ICR for the proposed rule are
available from the Chief, Information
Policy Branch. PM-223. U.a EPA. 4o1 M
Street SW.. Washington, DC 20480: and
the Office of Information and Regulatory
Affairs, Office cf Management and
Budget. Washington, DC 20503.
C. Regulatory Flexth,hty . ict
Under the Regulatory flexibility Act
of 1980 (5 U.S.C. 601 et seq ), Federal
agencies must, when developing
regulations. analyze their impact on
small antities (small businesses, small
government jurisdictions, and small
organizations). This analysis is
unnecessary, however, where the
agency’s administrator certifies that the
rule will not have a significant economic
effect on a substantial number of smell
entities. The agency has concluder I that
this rule will not hove a significant
economic effect on a substantial number
of small entities because today’s
ruiemaking imposes no new
requirements for the regulated
community. Today’s regulations merely
establish the procedures for
implementing section 304(1) of the
CWA, and clarify certain elements of
EPA’s surface water toxics control
program.
List of Subjects
40 CFR Part 122
EPA Administered Permit Programs;
The National Pollutant Discharge
Elimination System.
40 CFR Part 123
State program requirements.
40 CFR Part 130
Water quality planning and
management.
Date: May 20. 909.
F. H0m7 Habichi II.
Acting Adm:n:swccor.
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: ThE NATiONAL
POU,UTANT DISCHARGE
EUMINA’flON SYSTEM
1. The authority citation for Part 12
continues to read as follows:
Authonty The Clean Water Act. 33 L’ S C
1251 et seq.
2. Section 12.2 is amended by adding
in alphabetical order a new definition as
follows:
122.2 DefinItions. -
Whole effluent toxicity means the
aggregate toxic effect of an effluent
measured directly by a toxicity test
3. Paragraph (d)(1) of 122.44 is
revised to read as follows:
122.44 EstabtiahIng Ilmftatlon.,
standards, and oth.r psrmft conoittons
(applicable to Stat. NPDES programs, ,..
123 .25).
• • • . S
(d)
(1) Achieve water quality standards
established under section 303 of the
CWA, induding State narratiie criteria
for water quality.
(I) Limitations must control all
pollutants or pollutant parameters
(either conventional, nonconventional.
or toxic pollutants) which the Director
determines are or may be discharged at
a level which will cause, have the
-------
238S6
Federal Resister I Vol. 54. No. 1Ô5 I Friday. T’ine 2. 1989 / ‘Rules arid Regulations
reasonable potential to cause, or
contribute to an excursion above any
State water quality standard. including
State narrative criteria for water quality.
(ii) When determining whether a
discharge causes. has the reasonable
potentini to cause, or contributes to an
in-stream excursion above a narrative or
numeric criteria within a State water
quality standard, the permitting
authority shall use procedures which
account for existing controls on point
and nonpoint sources of pollution, the
variability of the pollutant or pollutant
parameter in the effluent. the sensitivity
of the species to toxicity testing (when
evaluat r.g whole effluent toxicity), and
where appropriate, the dilution of the
effluent in the receiving water.
(iii) When the permitting authority
determines, using the procedures in
paragraph (dJ(1)(ii) of this section. that a
discharge causes. has the reasonable
potential to cause, or contributes to an
in-stream excursion above the allowable
ambient concentration of a State
numeric criteria within a State water
quality standard for an individual
poilutanc. the permit must contain
effluent liiuits for that pollutant.
(iv) When the permitting authority
deteriunes, using the procedures in
paragraph (d)(1)(ii) of this section. that a
discharge causes. has the reasonable
potential to cause. or contributes to an
in-stream excursion above the numeric
criterion for whole effluent toxicity, the
permit must contain effluent limits for
whole effluent toxicity.
(v) Except as provided in this
subparagraph. when the permitting
authority determines, using the
procedures in paragraph (d)(1)(ii) of this
section. toxicity testing data, or other
information, that a discharge causes, has
the reasonable potential to cause, or
contributes to an in-stream excursion
above a narrative criterion within an
applicable State water quality standard.
the permit must contain effluent limits
for whole effluent toxicity. Limits on
whole effluent toxicity are not necessary
where the permitting authority
demonstrates in the fact sheet or
statement of basis of the NPDES permit.
using the procedures in paragraph
(dfll)(liJ of this section. that chemical-
specific limits for the effluent are
sufficient to attain and maintain
applicable numeric and narrative State
water quality standards.
(vi) Where a State has not established
a water quality criterion for a specific
chemical pollutant that is present in an
effluent at a concentration that causes.
has the reasonable potential to cause, or
contributes to an excursion above a
narrative criterion within an applicable
State water quality standard, the
permitting authority must establish
effluent limits using one or more of the
following options:
(A) Establi8h effluent limits using a
calculated numeric water quality
criterion for the pollutant which the
permitting authority demonstrates will
attain and maintain applicable narrative
water quality criteria and will fully
protect the designated use. Such a
criterion may be derived using a
proposed State criterion, or an explicit
State policy or regulation interpreting its
narrative water quality criterion.
supplemented with other relevant
information which may include: EPAs
Water Quality Standards Handbook.
October 1983. risk assessment data.
exposure data, information about the
pollutant from the Food and Drug
Administration. and current EPA criteria
documents: or
(B) Establish effluent ILmits on a case-
by-case basis. using EPA ’s water quality
criteria, published under section 307(a)
of the CWA. supplemented where
necessary by other relevant information
or
(C) Establish effluent limitations on an
indicator parameter for the pollutant of
concern, provided;
(1) The permit identifies which
pollutants are intended to be controlled
by the use of the effluent limitation:
(2) The fact sheet required by § 124.56
sets forth the basis for the limit,
including a finding that compliance with
the effluent limit on the indicator
parameter will result in controls on the
pollutant of concern which are sufficient
to attain and maintain applicable water
quality standards:
(3) The permit requires all effluent and
ambient monitoring necessary to show
that during the term of the permit the
limit on the indicator parameter
continues to attain and maintain
applicable water quality standards: and
(4) The permit contains a reopener
clause allowing the permitting authority
to modify or revoke and reissue the
permit if the limits on the indicator
parameter no longer attain and maintain
applicable water quality standards.
(vii) When developing water quality-
based effluent limits under this
paragraph the permitting authority shall
ensure that
(A) The level of water quality to be
achieved by limits on point sources
established under this paragraph is
derived from, and complies with all
applicable water quality standards: and
(B) Effluent limits developed to
protect a narrative water quality
criterion, a numeric water quality
criterion, or both, are consistent with the
assumptions and requirements of any
available wasteload allocation for the
discharge prepared by the State and
approved by EPA pursuant to 40 CER
130.7.
• • • • •
4. The title of paragraph (e) of 122.44
is revised to read as follows:
• . . • •
(e) Technology-based controls for
toxic pollutants.’
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 123.44 is amended by
adding paragraph (c)(8) to read as
follows:
§ 123.44 EPA review of and objections to
State permits.
. . S
(c)’ ‘
(8) The effluent limits of a permit fail
to satisfy the requirements of 40 CFR
122.44(d).
. • . .
3. In § 123.46 paragraph (a) is revised
and paragraphs (c), (d). (e) and (1) are
added, as follows:
§ 123.45 indivIdual control strategies.
(a) Not later than February 4. 1989.
each Slate shall submit to the Regional
Administrator for review, approval, and
implementation an individual control
strategy for each point source identified
by the State pursuant to section
304(l)(1)(C) of the Act which will
produce a reduction in the discharge of
toxic pollutants from the point sources
identified under section 304(I)(1)(C)
through the establishment of effluent
limitations under section 402 of the
CWA and water quality standards
under section 303(c)(2)(B) of the CWA.
which reduction is sufficient, in
combination with existing controls on
point and nonpoint sources of pollutibn.
to achieve the applicable water quality
standard as soon as possible, but not
later than three years after the date of
the establishment of such strategy.
(c) For the purposes of this section the
term individual control strategy, as sat
forth in section 304(I) of the CWA.
means a final NPDES permit with
supporting documentation showing that
effluent limits are consistent with an
approved wasteload allocation, or other
documentation which shows that
applicable water quality standards will
be met not later than three years after
the individual control strategy is
established. Where a State is unable to
-------
Federal Register I Vol. 54, No. 105 / Friday, June 2. 1989 I
Rules arid Regulations
23 97
issue a final permit on or before
February 4. 1989. an individual control
strategy may be a draft permit with an
attached schedule (provided the State
meets the schedule for issuing the final
permit) indicating that the permit will be
issued on or before February 4. 1990. if a
puint source is subject to section
304(l)(1)(C) of the CWA and is also
subject to an on-site response action
under sections 104 or 106 of the
Comprehensive Environmental
Response. Compensation. and Liability
Act of 1980 (CERCLA). (42 U.S.C. 9601 et
seq.). an individual control strategy may
be the decision document (which
incorporates the applicable or relevant
and appropriate requirements under the
CWA) prepared under sections 104 or
106 of CERCLA to address the release or
threatened release of hazardous
substances to the environment.
(d) A petition submitted pursuant to
sectwn 304(l)(3) of the CWA must be
submitted to the appropriate Regional
Administrator. Petitions must identify a
waterbody in sufficient detail so that
EPA is able to determine the location
and boundar.es of the waterbody. The
petition must also identify the list or
lists for which the waterbody qualifies.
and the petition must explain why the
wate’body satisfies the criteria for
listing under CWA section 304(l) and 40
CFR 130.10(d)(6).
(e) If the Regional Administrator
disapproves one or more individual
control strategies. or if a State fails to
provide adequate public notice and an
opportunity to comment on the ICSs.
then. not later than June 4. 1989. the
Regional Administrator shall give a
notice of approval or disapproval of the
individual control strategies submitted
by each State pursuant to this section as
follows:
(1) The notice of approval or
disapproval given under this paragraph
shall include the followingi
(i) The name and address of the EPA
office that reviews the State’s
subnuttals.
(ii) A brief description of the section
304(t) process.
(iii) A list of ICSa disapproved under
this section and a finding that the.ICSs
will not meet all applicable review
criteria under this section and section
304(l) of the CWA.
(iv) If the Regional Administrator
determines that a State did not provide
adequate public notice and an
opportunity to comment on the waters.
point sources, or ICSs prepared pursuant
to section 304(1). or if the Regional
Adawustrator chooses to exercise his or
her discretion, a list of the ICSs
approved under this section. and a
finding that the ICSs satisfy all
applicable review criteria.
(v) The location where interested
persons may examine EPA’s records of
apcroval and disapproval.
(vi) The name, address, and telephone
number of the person at the Regional
Office from whom interested persons
may obtain more information.
(vii) Notice that written petitions or
comments are due within 120 days.
(2) The Regional Administrator shall
provide the notice of approval or
disapproval given under this paragraph
to the appropriate State Director. The
Regional Administrator shall publish a
notice of availability, in a daily or
weekly newspaper with State-wide
ci:cula:on or in the Federal Register, for
the notice of approval or disapproval.
The Regional Administrator shall also
provide written notice to each
discharger identified under section
304(l)(1)(C), that EPA has listed the
discharger under section 304(l)(1)(C).
(3) As soon as pract:cable but not
later than June 4. 1990. the Regional
Offices shall issue a response to
petitions or comments received under
section 304(l). The response to
comments shall be given in the same
manner as the notice described in
paragraph (e) of this section except for
the following changes:
(i) The lists of ICSs reflecting any
changes made pursuant to comments or
petitions received.
(ii) A bnef description of the
subsequent steps in the section 304 (l)
process.
(I) EPA shall review, and approve or
disapprove, the individual control
strategies prepared under section 304(l)
of the CWA. using the applicable
criteria set forth in section 304(l) of the
CWA. and in 40 CFR Part 122, including
§ 122.44(d). At any time after the
Regional Administrator disapproves an
ICS (or conditionally aproves a draft
permit as an ICS). the Regional Office
may submit a written notification to the
State that the Regional Office intends to
issue the ICS. Upon mailing the
notification, and notwithstanding any
other regulation. exclusive authority to
issue the permit passes to EPA.
4. Section 1 3.63 is amended by
adding paragraph (a)(5) to read as
follows:
4123.63 Crfted. far withdrawal of state
p rograms.
(a) ‘ ‘
(5) Where the State fails to develop an
adequate regulatory program for
developing water quality-based effluent
limits in NPDES permits.
PART 130—WATER OUAUTY
PLANNING AND MANAGEMENT
1. The authority citation for Part 130
continues to read as follows:
Autboi4ty: 33 U.S.C. 1251 et seq.
. S • S I
2. Section 130.10 is amended by
adding paragraphs (d)(4). (d)(5), (d)(0),
(d)(7). (dfl8), (d)(9). (d)(1O), and (d)(11) to
read as follows:
§ 130.10 State submtttais to EPA.
• I S S S
(d) ‘
(4) For the purposes of listing waters
under § 130.1O(d)(2), “applicable
standard” means a numeric criterion for
a priority pollutant promulg3ted as pa:t
of a state water quality standard. Where
a state numeric criterion for a priority
pollutant is not promulgated as part of a
state water quality standard. for the
purposes of listing waters “applicable
standard” means the state narrative
water quality criterion to control a
priority pollutant (e.g.. no toxics in tox c
amounts) interpreted on a chemical-by-
chemical basis by applying a proposed
state cirterlon. an explicit state policy or
regulation. or an EPA national water
quality criterion, supplemented with
other relevant information.
(5) II a water meets either of the two
conditions listed belnw the water must
be listed under * 130.1O(d)(2) on the
grounds that the applicable standard is
not achieved or expected to be achieved
due entirely or substantially to
discharges from point sourceq.
(i) Existing or additional water
quality-based limits on one or more
point sources would result in the
achievement of an applicable water
quality standard for a toxic pollutant: or
(ii) The discharge of a toxic poIlutar t
from one or more point sources.
regardless of any nonpoint source
contribution of the same pollutant, is
sufficient to cause or is expected to
cause an excursion above the applicable
water quality standard for the toxic
pollutant.
(6) Each state shall assemble and
evaluate all existing and readily
available water quality-related data and
information and each state shall develop
the lists required by paragraphs (d)(l).
(2), and (3) of this section based upon
this data and information, At a
minimum, all existing and readily
available water quality-related data and
information indudes, but is not limited
to, all of the existing and readily
available data about the following
categories of waters In the state:
-------
Federal Register I vol. 54, No. 105 I Friday. June 2. 1989 / Rules and Regulations
23808 ___________
(I) Waters where fishing or shellfish
bans and/or advisories are currently in
effect or are anticipated.
(Li) Waters where there have been
repeated fishldils or where
abnormalities (cancers, lesions, tumors,
etc.) have been observed in fish or other
aquatic life during the last ten years.
(iii) Waters where there are
restrictions on water sports or
recreational contact
(iv) Waters identified by the state in
its most recent state section 305(b)
report as either “partially achieving” or
“not achieving” designated uses.
(v) Waters identified by the states
under section 303(d) of the CWA as
waters needing water quality-based
conti’ols.
(vi) Waters identified by the state as
priority waterbodies. (State Water
Quality Management plans often include
priority waterbody lists which are those
waters that most need water pollution
control decisions to achieve water
quality standards or goals.)
(vii) Waters where ambient data
uncicate potential or actual exceedances
of water quality criteria due to toxic
pollutants from an industry classified as
a primary industry in Appendix A of 40
CFR Part 122.
(viii) Waters for which effluent
toxicity test results indicate possible or
actual exceedances of state water
quality standards, including narrative
‘free from” water quality criteria or EPA
water quality criteria where state
criteria are not available.
(ix ) Waters with primary industrial
major dischargers where dilution
analyses indicate exceedances of state
narrative or numeric water quality
criteria (or EPA water quality criteria
where state standards are not available)
for toxic pollutants. ammonia. or
chlorine. These dilution analyses must
be based on estimates of discharge
levels derived from effluent guidelines
development documents. NPDES
permits or permit application data (e.g.,
Form 2C), Discharge Monitoring Reports
(DMRs). or other available information.
(x) Waters with P01W dlschargers
requiring local pretrea nent programs
where dilution analyse. Indicate
exceedances of state water quality
criteria (or EPA water quality critena
where state water quality criteria are
not available) for toxic pollutants,
ammonia, or chlorine. These dilution
analyse. must be based upon data from
NPDES permits or permit applications
(e.g,. Form ZC). Discharge Monitoring
Reports (DMRs). or other available
information.
(xi) Waters with facilities not
included in the previous two categories
such as inalor POTWs, and industrial
minor dischargers where dilution
analyses indicate exceedances of
numeric or narrative stats water quality
criteria (or EPA water quality criteria
where state water quality criteria are
not available) for toxi pollutants,
ammonia, or chlorine. These dilution
analyses must be based upon estimates
of discharge levels derived from effluent
guideline development documents.
NPDES permits or permit application
data. Discharge Monitoring Reports
(DMRs). or other available information.
(xii) Waters classified for uses that
will not support the “fishable/
swimmable’ goals of the Clean Water
Act,
(xiii) Waters where ambient toxicity
or adverse water quality conditions
have been reported by local, state. EPA
or other Federal Agencies, the private
sector, public interest groups. or
universities. These organizations and
groups should be actively solicited for
research they may be conducting or
reporting. For example. university
researchers, the United States
Department of Agriculture, the National
Oceanic and Atmospheric
Administration, the United States
Geological Survey, and the United
States Fish and Wildlife Service are
good sources of field data and research.
(xiv) Waters identified by the state as
impaired in its most recent Clean Lake
Assessments conducted under section
314 of the Clean Water Act
(xv) Waters identified as impaired by
nor.point sources in the America’s Clean
Woten’ The States’ Nonpoint Source
Assessments 1985 (Association of State
and Interstate Water Pollution Control
Administrators (ASIWPCAII or waters
identified as unpaired or threatened in a
nonpouit source assessment submitted
by the stat to EPA under section 319 of
the Clean Water Act
(xvi) Surface waters impaired by
pollutants from hazardous waste sites
on the National Priority List prepared
under section 105(8J(A) of CLA,
(7) Each state shall provide
documentation to the Regional
Mmini trator to support the state’s
determination to list or not to list waters
as required by paragraphs (d)(i), (d)(2)
and (d)(3) of this section. ThIs
documentation shall be submitted to the
Regional Administrator together with
the lists required by paragraphs (d)(1),
(d)(2), and (d)(3) of this section and shall
include as a minimum:
(i) A description of the methodology
used to develop each list;
(ii) A description of the data and
information used to identify waters and
sources including a description of the
data and information used by the state
as required by paragraph (d)(8) of tb
section:
(iii) A rationale for any decision not u
use any one of the categories of existing
and readily available data required by
paragraph (d)(6) of this section: and
(iv) Any other information requested
by the Regional Administrator that is
reasonable or necessary to determine
the adequacy of a state’s lists. Upon
request by the Regional Administrator.
each state must demonstrate good cause
for not including a water or waters on
one or more lists. Good cause includes.
but is not limited to. more recent or
accurate data: more accurate water
quality modelingi flaws in the original
analysis that led to the water being
identified in a category in 130.lo(d)(6).
or changes in conditions. e.g., new
control equipment, or elimination of
discharges.
(8) The Regional Administraior shall
approve or disapprove each List reqwzed
by paragraphs (d)(1), (d)(z). and (d)(3) ‘if
this section no later than June 4. 1989
The Regional Administrator shall
approve each List required under
paragraphs (d)(1), (d)(2, and (d)(3) of
this section oxil if it meets the
regulatory requirements for listing under
paragraphs (d)(1), (d)(2), and (d)(3J of
this section and if the state has met all
the requirements of paragraphs (d)(6)
and (d) (7) of this section.
(9)11 a state fails to submit lists in
accordance with paragraph (d) of this
section or the Regional Administrator
does not approve the lists submitted by
such state in accordance with this
paragraph. then not later than June 4.
1990. the Regional Administrator, in
cooperation with such state, shall
implement the requirements of CWA
section 304(l) (1) and (2) in such state.
(10)11 the Regional Administrator
disapproves a state’s decision with
respect to one or more of the waters
required under paragraph (d) (1). (2), or
(3) of this section, or one or more of the
individual control strategies required
pursuant to section 304(lJ(1)(D), then not
later than June 4. 1989. the Regional
Administrator shall distribute the notice
of approval or disapproval given wider
this paragraph to the appropriate state
Director. Th. Regional Administrator
shall also publish a notice of
availability, in a daily or weekly
newspaper with state-wide circulation
or in the Federal Register, for the notice
of approvai or disapproval. The
Regional Administrator shall also
provide written notice to each
discharger identified under section
304(l)(1)(CJ. that EPA has listed the
discharger under section 304(l)(l)(C).
-------
Federal Register I Vol. 54. No. 105 I Friday. Fune 2. 1989 I Rules and Regulations
23899
The notice of approval and disapproval
shall include the followinç
(1) The name and address of the EPA
office that reviews the state’s
submittals.
(ii) A brief dcscription of the section
304(1) process.
(iii) A list of waters, point sources and
pollutants disapproved under this
paragraph.
(iv) if the Regional Administrator
determines that a state did not provide
adequate public notice and an
opportunity to comment on the lists
prepared under this section. or if the
Regional Administrator chooses to
exercise his or her discretion, a list of
waters, point sources, or pollutants
approved under this paragraph.
(v) The name, address, and telephone
number of the person at the Regional
Office from whom interested persons
may obtain more information,
(vi) Notice that written petitions or
comments are due within 1W days. -
(11) As soon as practicable. but not
later than June 4, 1990. the Regional
Office shall issue a response to petitions
or comments received under paragraph
(d)(10) of this section. Notice shall be
given in the same manner as notice
described in paragraph (d)(10) of this
section. except for the following changes
to the notice of approvals and
disapprovals:
(i) The lists of waters, point sources
and pollutants must reflect any changes
made pursuant to comments or petitions
received.
(ii) A brief description of the
subsequent steps in the section 3 0 4(l)
process shall be included.
IFR D c c. 89-13180 Filed 9-1-89 8:45 aml
cece e
-------
Federal Register I Vol. 54. No. 100 / Thursday. May 25. 1989 / Notices
22619
days of receipt. This notice announces
receipt of 7 such PMN(s) and provides a
summary of each.
DATES: Close to Review Penods:
Y 89—118. 89—119. 89—120. 89—121. 89—122.
89—123, May 22. 1989.
Y 89—124. May 25. 1989.
FOR FURThER INFORMATION CONTACT:
Michael M. Stahl. Director. TSCA
Assistance Office (TS—799). Office of
Toxic Substances. Environmental
Protection Agency. Rin. EB—44. 401 M
Street SW.. Washington, DC 20480(202)
554-1404. TDD (202) 554-0551.
SUPPLEMENTARY INFORMATiON ’. The
following notice contains information
extracted from the nonconfidential
version of the submission provided by
the manufacturer on the PMNs received
by EPA. The complete nonconfidential
document is available in the Public
Reading Room NE .-C004 at the above
address between 8.00 a.m. and 4:00 p.m..
Monday through Friday. excluding legal
holidays.
Y 89-118
Manufacturer. Confidential.
Chemical. (C) Polyurethane.
Use/Production. (G) Polyurethane for
plastic & textile industry. Prod. range:
Confidential.
Y 89-119
Manufacturer. Confidential.
Chemical. (G) Aliphatic polyether
urethane.
Use/Production. (G) Used in coatings
appliedty industrial manufacturers.
Prod. range: Confidential.
V 89-120
Manufacturer. Confidential.
Chemical. (C) Aliphatic polyether
urethane.
Use/Production. (C) Used in coatings
applied by industrial manufacturers.
Prod. range: Confidential.
Y 89-421
Importer. Confidential.
Chemical. (S) Polyester-grafted.
styrene-acrylic copolymer.
Use/Production. (C) Binder resin of
pigment. Import range: Confidential.
Y 89-122
Manufacturer. Confidential.
Chemical. (S) 2-propernc aCid. 2-
methyl. 2-hydroxyethy lester. methyl 2-
methyl-propenoate: butyl 2-propenoate;
phenylethene: phenylethene: ethyl-3.3.
di( t-butyl peroxyl peroxyl)butrate.
Use/Production. (Si Manufacture
protective & decorative coatings. Prod.
range. 544.310.88—793.786.70 kg/yr.
Y 89-123
Importer. NOF America Corporation.
Chemical. (C) Alkyl acrylate; styrene.
Use/Import. (G) Open. nondispersive
use (solid). Import range: Confidential.
Y 89—124
Manufacturer. Confidential.
Chemical. (C) Rosin. phenolic
modified acid.
Use/.j’roduction. (C) Resin for
coatings (protective). Prod. range:
Confidential.
Date: May 22. 1989.
Steven Newbwi.Rina.
Acting Director. Information Management
Division. Office of Toxic Substances.
(FR Doc. 89-12583 Filed 5-24-89 8:45 aml
sIWNO Coca e5.e- -
(FRL—3575—2)
Washington’s Application for National
Pollutant Discharge Elimination
System (NPDES) General Permits
Authority
AGENCy Evirorunental Protection
Agency.
ACTION: Notice of application, public
comment period.
SUNUAR On November 30. 1988, the
State of Washington submitted to EPA a
final application for authority to
administer General Permits under the
NPDES program. Approval of this
application would authorize state
issuance of general permits in lieu of
individual NPDES permits. The
application received from Washington is
complete and is now available for
inspection and copying. EPA requests
public, comments and will hold a public
hearing if sufficient public interest
exists.
DAT EPA must receive comments and
requests for a public hearing on or
before June 28. 1989.
ADDRESS: Address comments and
requests for further information to: Ms.
Andi Marizo, Water Permits Section,
WD-134, Evironmental Protection
Agency, 1200 Sixth Avenue, Seattle
Washington 98101.
SUPPLEMENTARY INFORMATiON: EPA
regulations at 40 CFR 122.28 provide for
the issuance of general permits to
regulate discharges of wastewater
which result from substantially similar
operations, are of the same type wastes.
require the same effluent limitations.
require similar monitoring, and are more
appropriately controlled under a general
permit rather than by individual permits.
State authority to issue general permits
would significantly reduce the backlog
of umssued NPDES permits and reduce
the administrative burden and cost of
issuing individual permits.
On November 14. 1973. Washington
received authority to administer the
NPDES program under section 402 of the.
Clean Water Act. Their program. as it
currently exists, does not include
provisions for the issuance of general
permits. The states final application for
authority to issue general permits was
received November 30. 1988. The
submittal contains a letter from the state
asking for approval, a copy of the
Memorandum of Agreement (MOA). a
supplementary NPDES program
description. and copies of relevant state
statutes and regulations. The submittal
also includes a statement by the
Attorney General certifying, with
appropriate citations to the statutes and
regulations, that the state has adequate
legal authority to administer the general
permits program.
After the close of the comment period.
the Regional Administrator of EPA. with
the concurrence of EPA Headquarters.
will approve or disapprove this
proposed modification to Washington’s
NPDES program. This decision will be
based upon the contents of the
submittal, all written comments received
during the comment period and
presented at the public hearing, if one is
held, and upon meeting the requirements
of 40 CFR Part 123. If Washington’s
request is approved, the Regional
Administrator will notify the state and
notice will be published in the Federal
Register. Washington’s program will
implement Federal law-, however, each
general permit will be subject to EPA
review and approval ai provided by 40
CFR 123.44(a)(2). Public notice and
opportunity to request a hearing will
also be provided for each general
permit. If the Regional Administrator
disapproves the state’s request for
general permits authority, he will notify
the state of the reasons for disapproval
and of any revisions or modifications
which are necessary to obtain approval.
The public may review Washington’s
application from 9 a.rn. to 4 p.m.,
Monday through Friday. excluding
holidays, at the Evironmental Protection
Agency, Region 10. 1200 Sixth Avenue.
10th Floor Library, Seattle. Washington
98101. or at the Washington Operations
Office. St. Martins Campus on College
and Sixth Street. Olympia. Washington
98504. Copies of the submission may
also be obtained by contacting Ms. Andi
Marizo at the Seattle address listed or at
(206) 442—8399.
Approval of the State General Permits
Program would establish no new
substantive requirements. nor would it
later the regulatory control over any
industrial category. Program approval
-------
Federal Register / Vol. 54. No. 100 I Thursday. May 25. 1989 I Notices
would merely provide a simplified
administrative process.
Dateth May lSb 1989.
Robie 0. RusselL
Reg:onoMdmuusgretor. EPA Region in
IFR Doc. 89-12424 flIed S—Z1-89 9.45 am)
rnwan cam . ! e--
FEDERAL MARITIME COMMISSION
Agreement(s) Filed
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 L Street
NW.. Room 10325. interested parties
may submit comments on each
agreement to the Secretary. Federal
Maritime Commission. Washington. DC
20573. within 10 days after the date of
the Federal Register in which this notice
appears. The requirements for
comments are found in 572.503 of Title
46 of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
r mmi jon regarding a pending
agreement.
Agreement No.. 212-C10382-015
Tftle. Argentina/U.S. Gulf Ports
Agreement
Parties: A Bottacchi S.A. do
Navegacion C.F.LL Empresa Lineas
Maritimas Argentina. S.A. American
Transport Line,, Inc. Companhia
Maritima Nacional Companhia do
Navegacao Lloyd Bresileiro
Transportadon Mazitima Mexlcana S.A.
Reefer Express Line. Pt7.. Ltd.
Synopsis: The proposed modification
would extend the Alternate Coast
Service accounting provisions, and
certain provisions related to space
chartering and pe e 1 accounting until
December 31,1998. and would delete
certain provisions which hay, expired
by their own terms.
Agreement No.. 212-010388.014
Tills: Argentina/U.S. Atlantic Coast
Agreement
Parties: A. Bottaonhl S.A. de
Navegacion C.P.LL Empress Lineas
Mantissas Argentina. S.A. American
Transport Unes. Inc. Companhia do
Navegacao Lloyd Brasileniro Reefer
Express Lines Pty.. Ltd. Van Nievelt.
Coudziaan & Co., (Holland Pan AM)
Synopsis: The proposed modification
would extend the Alternate Coast
Service accounting provisions, and
certain provisions related to space
chartering and pool accounting until
December 31. 1989, and would delete
certain provisions which have expired
by their own terms.
Agreement No.: 212-010388-011
Tide: U.S. Atlantic Coast/Argentina
Agreement
Parties: A. Bottacchi S.A. de
Navegacion C.FJJ. Empresa Lineas
Mantimas Argentinas S.A. American
Transport Lines. Inc.
Synopsis: The proposed modification
would extend the Alternate Coast
Service accounting provisions, and
certain provisions related to space
chartering and pool accounting until
December 31. 1989. and would delete
certain provisions which have expired
by their own terms.
Agreement No.: 212-010089-011
Tide: U.S. Gulf Ports/Argentina
Agreement
Parties: A. Bottacchi S.A. de
Navegacion C.P.U. Empresa Linens
Maritimas Argentinas S.A. American
Transport Lines. Inc.
Synopsis: The proposed modification
would extend the Alternate Coast
Service accounting provisions. and
certain provisions related to space
chartering and pool accounting until
December 31. 1989. and would delete
certain provisions which have expired
by their own terms.
By Order of the Federal Maritime
Commission.
Dated: May 23.1989.
Joseph C. Policing
Secretory.
(FR Dec. 89-12553 Filed 5-24-8 9.45 am)
OWNS C C C ! $ri -N
Agreement(s) Filed
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may Inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime CommIssion. 1100 L Street.
NW, Room 10325. Interested parties
may submit comm nts on each
agreement to the Secretary. Federal
Maritime Commission, Waithrngton. DC
20573. within 10 days after the date of
the Federal Register in which this notice
appears. The requirements for
comments are fgund in f 572,603 of Title
46 of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
Commission regarding a pending
agreement
Agreement No.. 224-002401-010.
Title: City of Long Beach Terminal
Agreement.
Parties: City of Long Beach. Sea.Land
Service. Inc. (Sea.Landl.
Synopsis: The Agreement revises
paragraph 7.2.3. of the Amended and
Restated Preferential Assignment
Agreement No. 224-4 0240I-007 to
reduce the minimum supplemental
rent for (1) Parcel 2 for the period
May 18. 1989 to May 31. 1990. and. ()
Parcels 2 and 3 for the period
commencing June 1. 1990. The
Agreement also provides that Sea-
Land may self-insure against losses
rather than providing an insurance
policy evidencing the required
coverages.
Agreement No. 224-200233-003.
Tide: Philadelphia Port Corporation
Terminal Agreement
Parties: Philadelphia Port Corporation.
Halt Cargo Systems. inc.
Synopsis: The Agreement amends
Exhibit C. schedule of terminal rates.
of the basic terminal lease and
operating agreement, as amended, for
the Packer Avenue Marine Terminal.
The Agreement (1) revises the all
inclusive rate requirement in Item
One. Table A—I. to read: “an annual
volume of at least 10.000 containers’
and (2) clarifies that “ocean common
corner” includes both individual
ocean common canners as well as
those ocean common carriers who
operate vessels under cross space
charter agreements.
By Order of the Federal Maritime
Commission.
Joseph C. Policing,
Secretary.
Dated: May 23,1989.
(FR Doc. 89-12514 Filed 5-24—89. 8:45 am)
Ocean Freight Forwarder Ucense
A—
Notice is given that the following
applicants have filed with the Federal
Maritime Commission applications for
licenses as ocean freight forwarders
pursuant to section 19 of the Shipping
Act of 1984(46 U.S.C. app. 1718 and 46
CFR Part 510).
Persona knowing of any r nun why
any of the following applicants should
not receive a license are requested to
contact the Office of Freight Forwarder
and Passenger Vessel Operation,.
Federal Maritime Commission.
Washington. DC 20573.
AR! Shipping Corporation. 156 Fifth
Avenue.New York, NY 10010.
Officers: Dan Tidier. President, Carol
Polishuk. Vice President, Paul
Polishuk. Treasurer
MTD (USA) Corporation. 2920 SW. 121
Ave., Miami. FL 33175. OIflcers
-------
21470
Federal Register I Vol. 54, No. 95 I Thursday, May 18. 1989 I Notices
Any person desiring to be heard or to
protest said filing should file a motion to
intervene or a protest with the Federal
Energy Regulatory Commission, 825
North Capitol Street. NE.. Washington.
DC 20426. in accordance with Rules 214
and 211 of the Commission’s Rules of
Practice and Procedure (18 CFR 385.214.
385.211 (1988)). All such motions or
protests should be filed on or before
May 18. 1989. Protests will be
considered by the Commission in
determining the appropriate action to be
taken. but will not serve to make
protestants parties to the proceeding.
Any person wishing to become a party
must file a motion to intervene. Copies
of this filing are on file with the
Commission and are available for public
inspection.
Lois 0. Cashell.
Secretory
IFR Doc. 89—11896 Filed 5—17-89 8:45 amj
BIWNO CODE siii-oi’.e
ENVIRONMENTAL PROTECTION
AGENCY
[ FRL-3572—II
Extension of ‘Time; InitIal 404(c)
Consultation for Proposed Two Forks
Dam and Reservoir
AGENCY: Environmental Protection
Agency (EPA).
ACTIOPC Notice of an extension of time.
SUMMARY: On March 5 of 1988. an
application for a Clean Water Act
section 404. 33 U.S.C. section 1334.
permit was submitted to the U.S. Army
Corps of Engineers. Omaha District
(Corps) for construction of the Two
Forks Dam and Reservoir near Denver.
Colorado. On March 24, 1989, EPA’s
Denver Regional Administrator initiated
an action under regulations for Clean
Water Act section 404(c), (40 CFR
231.3(a)(1)) which may lead to the
prohibition or restriction of the
discharge site for the proposed dam.
EPA has notified the Corps, the permit
applicant and affected landowners of
this action and has provided the
opportunity for them to consult with
EPA regarding possible adverse
environmental effects of the project. As
provided in the regulations for section
404(c), the close of EPA s consultation
process was originally established as
April 28. 1989. After meeting with the
permit applicant and other affected
parties the Regional Decision Officer.
acting as the Regional Administrator in
this action determined that good cause
e’(ists for extending the timeframe for
consultation to July 14. 1989. This action
is taken with the knowledge of and at
the request of the permit applicant.
FOR FURTHER INFORMATION CONTACT:
Gene Reetz. Two Forks Technical Team
Leader, or Pat Courtney. Records Clerk.
State Programs Management Branch.
Water Management Division. 999 18th
Street. Suite 500, Denver, Colorado
80202—2405. (3031 293—1570. (FTS) 564—
1570.
Lee A. DaHihu.
Regional Decision Officer. PA Region VII !.
(FR Doc. 89-11884 Filed 5-17—89: 8:45 am)
BIWNO cOOS 65 5040- 5
(FRL—3572—21
Draft General NPDES Permit for
Seafood Processors In the State of
Alaska; Proposed Reissuance
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: Notice of the draft NPDES
permit for Alaskan Seafood Processors
(No. AK—C—52-0000); Proposed
reissuance.
SUMMARY: The Regional Administrator
of Region 10 is today providing notice of
the draft general National Pollutant
Discharge Elimination System (NPOES)
permit for seafood processors in Alaska
(proposed reissuance). The draft general
permit proposes effluent limitations,
monitoring requirements, and reporting
requirements for discharges from
Alaskan seafood processors. This permit
will cover mobile and shore-based
seafood processing facilities in all
waters tinder U.S. jurisdiction off the
coast of Alaska. other than those waters
listed as excluded areas.
DATES: Interested persons may submit
comments on the draft general permit
and administrative record to the
Regional Administrator. Region 10. at
the Seattle address below no later than
June 19. 1989.
ADDRESS: The draft general permit Is
based on the administrative record.
which is available for public review in
three locations:
Environmental Protection Agency.
Water Permits and Compliance
Branch. WD— 134. 1200 SIxth Avenue,
Seattle. Washington 98101
Environmental Protection Agency,
Alaska Operations Office. Federal
Building. Room E551. Box 19. 701 C
Street. Anchorage. Alaska 99513
Environmental Protection Agency,
Alaska Operations Office. 3200
Hospital Drive. Suite 101. Juneau.
Alaska. 99801.
FOR FURTHER INFORMATION CONTACT:
For further information and copies of the
draft permit and fact sheet contact Ben
Cope. Region 10. at the Seattle address
above or by telephone at (206) 442—1442
or FT’S 399—1442.
SUPPLEMENTARY INFORMA’flON:
A. Background
Section 301(a) of the Clean Water Act
(the Act) provides that the discharge of
pollutants is unlawful except in
accordance with an NPDES permit.
EPA’s regulations authorize the issuance
of genera) permits to categories of
discharges when a number of point
sources are:
1. Located within the same geographic
area and warrant similar pollution
control measures:
2. Involve the same or substantially
similar types of operations:
3. Discharge the same types of wastes:
4. Require the same effluent
limitatigns or operating conditions:
5. Require the same or similar
monitoring requirements: and
6. In the opinion of the Director, are
more appropriately controlled under a
general permit than under individual
permits.
Like individual permits. a violation of
a condition contained in a general
permit constitutes a violation of the
Clean Water Act and subjects the owner
or operator of the permitted facility to
the penalties specified in section 309 of
the Act.
Owners or operators authorized by a
general permit may request to be
excluded from coverage by this general
permit by applying to the Director for an
individual permit. This request must be
,..am e by submitting an NPDES permit
application, together with supporting
documentation for the request no later
than 90 days after publication by EPA of
the final general permit in the Federal
Register. or 180 days prior to the
commencement of operation of a new
source or new discharger.
B. Seafood Processor. in Alaska
As of January 1989. the existing
seafood general permit has covered 243
seafood processors (165 are mobile and
78 are shore-based). The draft permit
proposed for reissuance is to expand
coverage to include many more
processors throughout Alaska. EPA now
proposes to cover an estimated
additional 150 of those currently not
covered under any NPDES permit. These
iso facilities are small, mobile
processing vessels that discharge more
than 6 mile from shore in open water.
at a depth of at least 42 feet. These
facilities were excluded from coverage
under the the existing general permit.
They were consequently required to
-------
Federal Register I Vol. 54. No. 95 I Thursday, May 18. 1989 I Notices
21471
apply for an individual NPDES permit.
In order to reduce the regulatory burden
on these facilities. EPA proposes to
cover them under the reissued permit.
This will increase total coverage
statewide under the general permit to
about 400 facilities.
The following areas are excluded from
coverage wider the proposed reissued
general permit
1. Akutam Alcutan Harbor. if the
amount of waste exceeds 310.000
pounds per month.
2. Kodiak: Gibson Cove. Near Island
Channel, SL Paul Harbor, and Women’s
Bay.
3. Unalaska/Dutch Harbor
Iliuliuk Bay. Iliuliuk Harbor. Dutch
Harbor. and Captain’s Bay.
Unalaska Bay. south of the northerznost
point of Hog Island.
4. Discharges in the following areas:
a. Areas where water depth is less
than 42 feet which are likely to have
poor flushing (bays, harbors, inlets.
cqves. and lagoons that are protected).
b. Areas of special concern (spawning
areas. State Critical Habitats and
Refuges. National Wildlife Refuges. and
the seaward boundaries of Wilderness
Refuges. National Parks and
Monuments, and wilderness classified
lands).
5. Discharges to fresh waters in the
vicinity of drinking water sources.
C. Effluent Limitations
1. Size of Waste Particles
In compliance with BC? for remote
Alaska processors, seafood wastes may
be discharged only if they do not exceed
0.5 inch in any dimension.
2. Discharge Depth
The permit specifies that process
wastes shall be discharged through an
outfall located beneath the mean lower
low water (MLLW) level of the receiving
water surface at a point which provides
maximum dispersion of the wastes. The
discharged depth for shorn-based
processing facilities must be at least 10
feet. into a total depth to the bottom
substrate of 20 feet at MLLW. On a case
by case basis. EPA may grant waiver of
the depth requirement, provided
adequate justification for the waiver is
submitted by the permittee in the Notice
of Intent to be Covered.
3. Treatment of Sanitary Wastes
The permit requires that all sanitary
wastes generated at a facility be:
a. Discharged to a septic system or a
municipal treatment works, or
b. Treated prior to discharge by an
approved marine sanitation device that
complies with pollution control
standards and regulations under section
312 of the Act. or
c. Treated to meet the secondary
treatment effluent limitations. •.
4. Prohibition of the Discharge of
Garbage
This permit prohibits the discharge of
garbage (especially plastics) from
seafood prbcessing facilities.
£ prohibition of Discharges from
Dopked Vessels
This general permit prohibits the
discharge of pollutants from vessels
docked at or otherwise tied up to the
permittee s facility.
6. State of Alaska Water Quality
Standards
Based on the State of Alaska Water
Quality Standards, there shall be no
discharge of floating solids. grease. oily
water or wastes that produce a sheen on
the surface of the receiving water. or
foam that persists at or near the
shoreline and/or impacts nearby
shoreline activities. In addition, no
wastes shall be allowed to accumulate
on the shore.
D. Monitoring Requirements
1. Dive Surveys
Most.facilities covered by this permit
will be required to conduct two dive
surveys in the first year of coverage.
Dive surveys are required in order to
document any negative impacts
esultitig from the discharge of seafood
wastes.
if dive surveys indicate the presence
of a year-rd’und waste pile
accumulation, a request for a state-
designated zone of deposit shall be
submitted within 30 days of the second
dive survey.
Facilities discharging to the following
receiving waters will be required to
conduct two dive surveys per year.
based on the higher concentration of
large facilities in these areas: Unalaska
Bay, Akutan Harbor. Wrangell Narrows.
and Orca Inlet
2 Other Monitoring Requfrementn
Facilities that are exempt from the
dive survey requirement (due to a
prohibitive depth of the outfall or
hazardous diving conditions) are
required to conduct bottom samples to
document any waste pile accumulations.
Facilities are required to conduct bottom
samples twice in the first year of
coverage. Facilities on the Kenai River,
Kasilof River, and fresh waters are
required to conduct annual bottom
samples.
Annual dye testing of the
wastehandling system is required for
facilities that db not have annual dive
requirements to insure proper operation
of the outfall as well as the collection
system over the life of the permit.
The permit requires effluent sampling
for total residual chlorine to assess
potential impacts to the receiving water.
Most facilities chlorinate intake water
prior to processing for disinfection
purposes.
E. Reporting Requirementa
The permittees will be recuired to
submit to EPA and ADEC the following:
1. Notice of Intent to be Covered
Existing facilities covered under this
general permit must notify the Director
of their intent to be covered no later
than 30 days after permit reissuance. For
new dischargers. the intent must be
submitted 30 days prior to
commencement of operations.
The Notice of Intent to be Covered
must include the following infonna lion:
a. NPDES permit number previously
assigned State seafood processors
permit number.
b. Owner name. address. phone
number.
c. Operator name, address, phone
number.
d. Facility name. address. location.
vessel registration number, previous
facility and/or vessel name, date of
purchase/transfer, number of
employees.
e. Treatment method of treating
seafood and sanitary wastes, method of
garbage/plastics disposal, depth of
discharge below the water surface. total
water column depth at the discharge
location. water use diagram (estimates
of flow, used in seafood processing.
sanitary systems, freezing, etc.)
L Receiving Water(s): name of
receiving water(s), bathymetric map of
receiving water showing the outfall
location (shore-based and near-shore
facilities only).
g. Production Data: (for each type of
raw product processed). Name of raw
product. Type of finished product.
Maximum quantity processed per day.
Projected dates of each operating
season. Projected number of processing
days per season.
Subm’ittal (to EPA) of the State of
Alaska Department of Environmental
Conservation Annual Uniform Permit
Application for Seafood Processors, if it
Includes all of the information above.
wilt also satisfy this requirement.
-------
21472
Federal Register I Vol. 54, No. 95 / Thursday, May 18. 1989 / Notices
Z Annual Report
The Annual Report shall be submitted
by the end of the processing season or
by January 31 of each year. whichever is
sooner, and shall Include the following:
a. Dive or Bottom Sampling Reports.
b. é sidual Chlorine Momtonng
Results.
c. Dye Test Results.
d. Production Data for the previous
year (a copy of the daily records will
suffice) including, for each location:
Dates of operations at each location.
production data (raw and finished
product for each type of product), and a
map showing the bathymetry at each
location (when locations are within 4
mile of shore or in less than 90 feet of
total water depth).
e. Updated Notice of Intent to be
Covered. Any changes to the
information submitted in the original
Notice of Intent to be Covered.
1. Special Reporting Requirements in
Areas of Concern: Facilities discharging
to Unalaska Bay. Akutan Harbor.
Wrangell Narrows. and Orca Inlet shall
submit monthly Discharge Mortitonrig
Reports (DMRs).
F. Other Legal Requirements
1. National Environmental Policy Act
(NEPA)
Pursuant to section 301 of the Clean
Water Act. new source performance
standards were pomulgated by EPA in
1975 for categories of discharges
covered under this permit. In
accordance with section 511(c)(l) of the
Act, NPDES permits for new sources are
subiect to the provisions of the National
Environmental Policy Act (NEPA). An
assessment of potentially significant
impacts on the quality of the human
environment resulting from operation of
the new source is required under NEPA.
Prior to the issuance of the existing
general permit. EPA conducted an
environmental assessment to determine
if the environmental impacts associated
with the discharges from new sources
operating under the permit would be
significant. On December 1. 1983, EPA
determined that the environmental
impacts would not be significant and
issued a Finding of No Significant
Impact (FaNS!). Because the proposed
general permit will also allow coverage
to new source seafood processors. EPA
has reexamined the environmental
assessment in relation to the conditions
of the proposed general permit.
Because there have been no
significant changes in the fundamental
factors affecting the facilities covered by
the general permit and the waters it is
designed to protect. EPA has determined
that the permit will not cause any
significant environmental impacts.
Although the proposed permit covers
more Alaskan waters than the existing
permit, additional monitoring
requirements in areas of concern have
been incorporated into the proposed
permit (such as more frequent dive
surveys in Orca inlet). These
requirements are derived from current
individual permitting policies in these
areas.
The reissued permit continues to
allow EPA to issue individual permits to
facilities if water quality is not
adequately protected under the general
permit. Individual environmental
assessments will be prepared for new
sources not covered under this proposed
general permit.
Based on the above factors. EPA has
determined that the environmental
assessment and Finding of No
Significant Impact prepared for the
existing permit are still valid for the
purposes of this permit reissuance.
2. Paperwork Reduct,on Act
EPA has reviewed the requirements
imposed on regulated facilities by this
proposed general permit under the
Paperwork Reduction Act of 1980. 44
U.S.C. 3501 et seq. The information
collection requirements of this permit
have already been approved by the
Office of Management and Budget in
submissions made for the ‘NPDES permit
program under the Clean Water Act.
3. Executive Order 12291
The Office of Management and Budget
has exempted this action from the
review requirements of Executive Order
12291 pursuant to section 8(b) of that
order.
4. Regulatory Flexibilty Act
After review of the facts presented in
the notice printed above. I hereby certify
pursuant to the provisions of 5 U.S.C.
805(b) that this general NPDES permit
will not have a significant impact on a
substantial number of small entities.
Moreover, the permit reduces a
significant administrative burden on
regulated sources.
Dateth May tO. 1989.
Robie C. Russell,
Reg:ona!Adman:seraeor. Region l i Z
IFR Doe. 89—11821 Filed 5—17—89:843 aml
BIWNO COOS I5lO -SO-U
FEDERAL HOME LOAN BANK BOARD
Thrice-Monthly Survey of Liabilities of
FSL1C-Insured Thrifts
Date’ May ii. 1989
AGENCY: Federal Home Loan Bank
Board.
ACflOtC Notice.
SUMMARY: The public is advised that the
Federal Home Loan Bank Board
(“Board”) has submitted a request for a
new information collection survey
entitled “Thrice.Monthly Survey of
Liabilities of FSL1C.lnsured Thrifts’, to
the Office of Management and Budget
for approval in accordance with the
Paperwork Reduction Act (44 U.S.C.
Chapter 35).
The information collected from the
survey will enable the Bank Board to
better meet the cash needs of thrifts
from funds raised in financial markets
by the twelve Federal Home Loan
Banks. We estimate it will take
approximately 25 hours per response to
complete the information collection.
oa’rts: Comments on the information
collection request are welcome and
should be received on or before June 2.
1989.
ADDRESS: Comments regarding the
paperwork.burden aspects of the
request should be directed to: Office of
Management and Budget. Office of
Information and Regulatory Affairs.
Washington. DC 20503. Attention. Desk
Officer for the Federal Home Loan Bank
Board.
The Board would appreciate
commenters sending copies of their
comments to the Board.
Request for copies of the proposed
information collection requests and
supporting documentation are
obtainable at the Board address given
below: Director. Information Services
j,iiIion, Office of Secretariat. Federal
lIome Loan Bank Board. 1700 C Street
NW., Washington. DC 20552. Phone:
202—418—2751.
FOR FURTHER INFORMATiON CONTACT’.
Richard C. Pickering, Deputy Director,
Office of Policy & Economic Research.
(202) 900-8770, Federal Home Loan Bank
Board, 1700 C Street, NW., Washington.
DC 20552.
By the Federal Home Loan Bank Board.
John F. GhI . nni .
Assieloni Secretor,’.
IFR Doc. 89-11878 Filed 5—17-89: &45 ami
UNU COOS I7 .Oi-U
FEDERAL MARITIME COMMISSION
Agreement(s) Filed
The Federal Maritime Commission
hereby gives notice that the following
agreement(s) has been filed with the
Commission pursuant to section 15 of
-------
Federal Register I Vol. 54. No. 18 I Monday. January 30. 1989 I Notices
4335
ACTION: Notice of availability .
SUMMARY: A request for application.
(RFA NPIR-003—89) is avails ble The
purpose of the RFA is to solicit grant
proposals which will result in the
development of :nnova live. cost.
effective methods for biodegradation of
hazardous organic wastes at Superfund
sites. The Agency has SI .500.000
available and expects to supporl 10 to 15
proposals.
(Section . Superfund Amendments and
Reauthorization Act. 1986J.
DATE: Applications must be received no
later than May 1, 1989. to be considered
for funding.
ADDRESS: Copies of the RFA may be
obtained from: U.S. Environmental
Protection Agency. ORD Publications. 26
West Martin Luther King Drive.
Cincinnati. Ohio 45268. Phone: 513—569—
7562.
FOR FURThER INFORMATION CONTAC’fl
Questions relating to the RFA may be
directed to Mr. Donald Carey at: U.S.
Environmental Protection Agency.
Research Grants Staff. RD—675. 401 M
Street SW.. Washington. DC 20460.
Phone: 202—382—7445.
Clance Gaylord.
Director. RCS
Roger Cortui.
Director. QER.
(FR Doc. 89—2027 Flied 1—27—89: 8.45 aml
BIWNG CODE 555040-U
(FRL -35119i
Science Advisory Board, Clean Alt
Scientific Advisory Committee, Clinical
Lab Review Subcommittee; Open
Meeting
SUMMARY: Pursuant to the F ’ederal
Advisory Committee Act. Pub. L 92—483.
notice is hereby given of a public
meeting of the Clinical Lab Review
Subcommittee of the Clean Air Scientific
Advisory Committee (CASAC) of the
Environmental Protection Agencys
Science Advisory Board. The meeting
will be held from 10 a.m. to 5 p.m. on
February 9. 1989. in the Old Well Room.
Carolina Inn. Cameron Avenue and
Columbia Street. Chapel I-fill. North
Carolina 27514. A writing session of the
subcommittee will be held on February
10. 1989. in the South Parlor Room of the
Carolina Inn. The starting time will be
announced at the close of the meeting
on February 9. 1989.
Purpose: The purpose of the meeting is
to allow the Subcommittee to review
and provide its advice to the Agency on
the EPA’s clinical research program. The
Subcommittee will review the Clinical
Lab Research Program Document and
respond to oral presentations of Agency
staff.
A vailob,llly of the Documen tiThe
Clinical Lab Research Program
Document may be obtained from Mr.
David Kleffman. Acting Director.
Environmental Health Research Staff.
Office o( Health Research (RD—883), U.S.
EPA. 401 M Street SW.. Washington. DC
,? 0460. (202) 382—5893. (FTS) 382—5893.
FOR FURThER INFORMATION CONtACT
The meeting is open to the public. Any
member of the public wishing further
information concerning the meeting
should contact Mr. Robert Flaak,
Environmental Scientist and Executive
Secretary. Clean Air Scientific Advisory
Committee. Science Advisory Board (A—
10111. U.S. EPA. Washington. DC 20460.
(202) 382—2552. (FTS) 382—2552. Seating
at the meeting is limited and will be on a
first come basis.
Donald G. Barnes.
Director. Science Adv,so,y Boord
Date’ January 19. 1989.
(FR Doc. 89-2025 Filed 1—27-89. 8.45 ami
SILUNO COCE esio-5o-U
(FRL 3511—3)
Zenltl t Chemical Co. Site; Notice of
Proposed Settlement
AGENCY: Environmental Protection
Agency.
ACTiON: Notice of proposed settlement .
SUMMARY: Under section 122(h) of the
Comprehensive Environmental
Response. Compensation and Liability
Act (CERCL.A). the Environmental
Protect.en Agency (EPA) has agreed to
settle claims for response costs at the
Zenith Chemical Company Site. Dalton.
Georgia. with KEM Manufacturing. EPA
will consider public comments on the
proposed settlements for thirty (30)
days. EPA may withdraw from or
modify the proposed settlements should
such comments disclose facts or
considerations which indicated the
proposed settlements are inappropriate.
improper or inadequate. Copies of the
proposed settlements are available from:
Ms. Carolyn McCall, Investigations
Support Clerk, Investigation and Cost
Recovery Unit. Site Investigation and
Support Branch. Waste Management
Division. U.S. EPA. Region IV. 345
Courtland St.. NE.. Atlanta. Ga 30365.
404—347—5059.
Written comments may be submitted
to the person above by thirty (30) days
from date of publication.
Date: January 13. 1989.
Joe R. Frsiwnitbes.
Acting Regional Adminsstrtnor
(FR Doc. 89—2026 Filed 1—27—89. 845 amj
BIU.INO CODE 5550-50-U
(FRL-35 09-4 1
Approval of Connecticut’s NPDES
Program To Regulate Federal Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Notice of approval of the State
of Connecticut’s request for authority to
administer the National Pollutant
Discharge Elimination System (NPDES)
and Pretreatment programs with respect
to Federal Facilities.
SUMMARY: On January 9. 1989. the
Environmental Protection Agency (EPA)
approved the State of Connecticut’s
request to include regulation of Federal
Facilities under its State water pollution
permit program responsibility.
Previously the State had been approved
to administer the NPDES and
Pretreatment programs For facilities
other than Federal Facilities.
FOR FURThER INFORMATION CONTACT
Michael Fedak, Water Management
Division. U.S. Environmental Protection
Agency. J.F.K. Federal Building, Boston,
MA 02203, (817) 585—3493.
SUPPLEMENTARY INFORMATION: In 1977
Congress amended section 313 of the
Clean Water Act (33 U.S.C. 1251 et seq)
to authorize States to regulate Federally
owned or operated facilities under their
water pollution control programs Prior
to the amendment. States. including
those authorized pursuant to section
402(b) of the Clean Water Act to
participate in the NPDES program. were
precluded from regulating Federal
Facilities.
With the passage of the 1977
amendments. EPA has been authorizing
States to administer the NPDES program
over Federal Facilities in approved
States. Today’s Federal Register notice
is to announce the approval of the State
of Connecticut’s request to assume
NPDES authority over Federal Facilities.
In support of its application to assume
NPDES authority over Federal Facilities.
the State of Connecticut has submitted
to EPA copies of the relevant statutes
and regulations. The State has also
submitted a statement by the Attorney
General certifying that the State has
adequate legal authority to regulate
Federal Facilities. EPA has concluded.
upon reviewing all of these submitted
materials, that the State has adequate
authority to apply its approved State
-------
4338
Federal Register I VoL 54. No. 18 I Monday, January 30, 1989 I Notices
NPDES and Pretreatment programs to
Federal Facilities. The Regional
Administrator has determined that this
is not a substantial revision to
Connecticut’s program and therefore
does not recuire publication of a
proposal with public notice and
Opportunity for comment
Federal Register Notice of Approval of
State NPDES Programs or Modifications
EPA will provide Federal Register
notice of any action by the Agency
approving or modifying a State NPDES
program. The following table will
provide the public with an up.to-date
list of the status of NPDES permitting
authority throughout the country.
Approved
State
Approved
to
Approved
State
NPDES
ptogism
regulate
Feawte
factht,eo
proeeat.
m
program
Alabsma ..._.
10119/79
10119179
10119/79
Ar lianaae’ .__
11101/88
11101188
11101186
California
Colorado’ —-
Connecscut......,
Delaware. ..._._
Georgia
05114173
03127175
09/26/73
04101174
06128/74
06/05/18
01/03/89
.._._.._
12109178
06/03/81
.._..._...
09112181
HaweL._.........
11128114
06/01/79
06/12183
llbrnu’ ——
10123/fl
09/20/19
Indiana_
01/01175
12109/76
IOwa
06110178
08/10/78
06109181
Kansas.
06126174
06128/85
Kenticky’ ._._
09130/83
09/30/83
09/30/83
Ma?fpllfld.._
09105/74
11/10/87
08/30/65
Mcttgan.._
10111173
12/09178
06107/OS
I
06130/14
12/00/75
07/16/79
MIu1’ ’pp .
05101174
01/26/83
05113/82
Miasoijn..__
10/30/74
06/26/79
08/03/81
Momans’ .._..
06110/14
06/23/81
Noteaslia....,.......
06/12174
11/02/79
09/07/84
Neyada..._
09/19/75
06/31/78
New Jersey ‘...
04/13/62
04/13/82
04113/8.2
New
10/26/15
06/13/80
North Cer ns...
10119/75
08126184
06114 /82
Norm Qakols_
Qhio.._......._..
06113/75
03/11174
01/26/83
07/27/83
Oregon’ ._
09126/13
03/02/79
03/12161
PennayMnis....
06/30/78
08 130/76
Rhode lsler ’.
09/17/84
09Jul51
09I17184
South Carolina..
06/10/75
08126180
04/06/09
Terinease._.......
1212 5/fl
06110/83
Utah’
07/07/87
07 /07/6?
07/07/Si
Vermont ._
*gu, teand.._
Virgaaa. . . .. . ... .. . . .
03111 / 74
08130174
09131/75
93 (16 (83
02/06183
Wasrimgtan._
11/14/73
09/30 /86
West Virginia ‘.
05! 10/82
05/10/62
06/10/82
Wlsconsm...........
02104174
11/28(75
12124/SO
Wyoming.._
01/30/75
05l18 /61
‘Slat. approved to wai gunu pswnt.
Review Under the Regulatory Flexibility
Act and Executive Order 1 1
Under the Regulatory Flexibility Act. 5
U.S.C. 601 el seq.. EPA is required to
prepare a Regulatory Analysis for all
rules which may have a significant
impact on a substantial number of small
entities. The approval of the Connecticut
NPDES permit program to administer
Federal Facilities merely transfers
responsibility for administration of these
facilities from the Federal to the State
government. No new substantive
requirements are established by this
action. Therefore, this notice does not
have a significant impact on a
substantial number of smail entities. It
therefore does not trigger the
requirement of a Regulatory flexibility
Analysis.
The Office of Management and Budget
has exempted this rule from the
requirements of section 3 of Executive
Order 12291.
Michael R. Deland,
Reg:onaL4dminisbalor. Region!.
(FR Doc. 89-2028 Filed 1- -69 8:45 eml
erWSO CODS O
FEDERAL MARITIME COMMISSION
(Docket No. 69-011
Jugoilnija; Possible Violations; Order
of Investigation
Jugolinija is a vessel operating
common carrier which operates non-
conference container service from
United States Ports and Points to
Mediterranean and Middle East Ports
and Points.
It appears that Jugolinila engaged In
violations of sections 1O(b)(1), lo(b)(3)
and 10(b)(11) of the Shipping Act of 1984
(“Act” or “1984 Act”), 48 U.S.C app.
1709(b)(1). 1709(b)(3) and 1709(b)(11).
involving Jugo1ini a’s foodstuffs and
grocery rates to the Middle East from
the United States during the period
March 1985 through August 1987. It
appears that on 539 shipments during
that period. Jugolinija knowingly and
willfully undercharged a single shipper
by $570,404. it also appears that during
that period. Jugolinija may have
provided this shipper free transportation
of empty containers from the Middle
East to Italy as a concession for
shipments from the United States to the
Middle East In violation of sections
10(b)(3) and 1O(bJ(11) of the Act.
Now therefore it is ordered, that
pursuant to sections 10,11. and 13 of the
1984 Act. 46 U.S C. app. 1709.1710 and
1712. an investigation is hereby
instituted to determine:
(1) Whether Jugolinija violated section
10(b)(1) of the Act, by charging,
demanding, collecting or receiving
greater. less or different compensation
for the transportation of foodstuffs and
grocery items from the United Slates to
Middle East destinations than the rates
and charges specified In its applicable
tariff on file with the Commission during
the period from March 1985 through
August 1987; and whether such
violations were knowing and willful;
(2) Whether Jugolinija violated section
10(b)(3J of the Act by extending or
denying to any person any privilege.
concession. equipment. or facility in
connection with: (I) The transportation
of foodstuffs and grocery items from the
United States to Middle East
destinations during the period from
March 1985 through August 1987: and (ii)
the transportation of empty shipper
leased containers; and whether such
violations were knowing and willful:
(3) Whether fugolimja violated section
1O(b)(11) of the Act by giving any undue
or unreasonable preference or
advantage to any particular person.
locality, or description of traffic, in
connection with: (ii The transportation
of foodstuffs and grocery items front the
United Slates to Middle East
destinations during the period from
March 1985 through August 1987: or (ii)
the transportation of empty shipper
leased containers: and whether such
violations were knowing and willful;
(4) Whether, in the event Jugolinija is
found to have violated section 10(b)(1).
10(b)(3) or 1O(b)(11) of the Act civil
penalties should be assessed and, if so,
the amount of such penalties;
(5) Whether, in the event Jugolinija is
found to have violated section lo(b)(1)
or 10(b)(3) of the Act, its tariffs should
be suspended pursuant to section 13 of
the Act:
(6) Whether, in the event Jugolimja is
found to have violated section lo(b)(1J.
1O(bJ(3), or 1O(b)(11) of the Act, an
appropriate cease and desist order
should be g;aed
It is f her ordered, that a public
hearing be held in this proceeding and
that this matter be assigned for hearing
before an Administrative Law Judge of
the Commission’s Office of
Administrative Law Judges at a date
and place to be hereafter determined by
the Administrative Law Judge in
compliance with Rule 61 of the
Commission’s Rules of Practice and
Procedure. 48 CFR 502.61:
It Is further ordered. that Jugolinija is
designated Respondent in this
proceeding;
It is further ordered, that the
Commission’s Bureau of Hearing
Counsel is designated a party to this
proceeding:
It is further ordered. that notice of this
Order be published in the Federal
Register, and a copy be served on
parties of record:
It is further ordered, that other
persons having an interest in
participating in this proceeding may file
petitions for leave to intervene in
-------
Thursday
January 12, 1989
Part III
Environmental
Protection Agency
40 CFR Parts 122,. 123 and 130
National Pollutant Discharge Elimination
System; Surface Water Toxics Control
Program; Proposed Rule
-------
1300
Federal Register I Vol. 54. No. 8 I Thursday. January 12. 1989 I Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122, 123 and 130
LFRL—3431—I I
National Pollutant Discharge
Elimination System: Surface Water
Toxics Control Program
AGENCY: Environmernal Protection
Agency.
ACTION: Proposed rule.
SUMMARY: Today’s action proposes to
amend Parts 122. 123. and 130 of EPA’s
regulations. The proposed regulations
clarify EPA’s surface watec toxics
control program. and incorporate section
308(a) of the Water Quality Act of 1987
into EPA’s toxics control program.
SectIon 308(a) of the Water Quality Act
added section 304(l) to the Clean Water
Act (hereafter referred to as section
304(l)). Section 304(l) requires the States
to identify those waters that are
adversely affected by toxic.
conventional, and nonconventiorial
pollutants, and requires the States to
prepare individual control strategies
that will control point source discharges
of toxic pollutants. The States must
submit lists of waters and individual
control strategies to EPA for review, and
if EPA disapproves a State’s decision
with respect to a list or an individual
control strategy, then EPA must
implement the requirements of section
304(l) in cooperation with the State. EPA
and the States must accomplish the
tasks in section 304(1) according to an
ambitious series of deadlines. Today’s
proposed rules will strengthen State and
Federal controls over discharges of toxic
pollutants. and will assist EPA and the
States in satisfying the requirements of
section 304(l) of the CWA.
OATE EPA will accept comments from
the public until February 13. 1989.
aoonessam Submit comments to Paul
Connor. Program Development Branch.
Office of Water Enforcement and
Permits. (EN—336). U.S. Environmental
Protection Agency. 401 M Street. SW..
Washington. DC 20460. The public
record for this proposed regulation is
available at the EPA library. M2904. U.S.
Environmental Protection Agency. 401 M
Street. SW.. Washington. DC 20460.
FOR FURTHER INFORMATiON CONTACT
Paul Connor. Program Development
Branch. Office of Waler Enforcement
and Permits. (EN—336), U.S. -
Environmental Protection Agency. 401 M
Street. SW.. Washington. DC 20460.
(!O2I 475—9537. or Judith Leckrone.
Monitoring and Data Support Diwsiun.
Office iif W.tter Regulations .irad
Standards. (WH—553). U.S.
Environmental Protection Agency. 401 M
Street. SW.. Washington. DC 20480.
(202) 382—7056.
SUPPLEMENTARY INFORMATION
Preamble Outline
I. Authority
II. Background
A. EPA’s Surface Wm er Toxics Control
Program
B. Section 304(11 and its Relationship to
EPA’, Surface Water Toxics Control Program
C. Purpose and Summary of Today’s
Proposed Regulations
Ill. Section.by.Sectian Analysis
A. Changes to EPA’s Surface Water Toxics
Control Program
I Amendments 1040 CFR 122.44
a. A Definition for Whole Effluent Toxicity
b. Narrative Water Quality Standards
c. Developing Water Quality.Based
Effluent Limits
d. Limitations on Toxic Pollutants and
Sources of Toxicity
2. State NPDES Program Requirements
B. ldentificalion of Waters
I Description of the Four Lists
:. Explanation of Terms Used in Section
3 04(ll(I)(B)
a. Applicable Stdndard
b. “Due Entirety or Substantially to
Discharges from Point Sources”
3. Pieparation and Review of the Lists
a. Use of Existing and Readily Available
Data
b. Documentation of data and
Methodologies
c. Review of Lists By EPA
4. Biennial Submission of Lists Under
sections 303 1d) and 305 1b 1 of the CWA
a. Authority to Require Biennial
Submission of Lists
b. Proposed Amendments to 40 CFR Part
130
c. A proposal for a ‘l’wo List” Format for
Biennial Submissions
C. Individual Control Srrategies
1, DescrIption of an Individual Control
Strategy
2. Technical Review Criteria
0. EPA Review of Lists and Individual
Control Strategies
1. Partial Approval and Disapproval of
State Submittals
2. Public Notice of Approval or Disapproval
a. Contents of EPA’s Notice of Approval or
Disapproval
b. Public Heanngs
c. Petitions for Additional Listings
d. Response to Comments and Petition.
IV. Regulatory Analysis
A. Executive Order 12291
B. Paperwork Reduction Act
C Regulatory Flexibility Act
I. Authority
These regulations are issued under the
authonty of the Clean Water Act. 33
U.S.C. 1251 at seq.
II. Background
EPA’s surface water tu ics control
program uses ‘,evrr:il key terms. For tha
convenience of the reader and for the
purposes of this preamble. these terms
are described as follows:
“Narrative standard” refers to a
narrative water quality standard
adopted by a State under section 303(c)
of the Clean Water Act. All States have
adopted a narrative standard that
prohibits the discharge of toxic
pollutants in toxic amounts.
“Priority pollutant” refers to the 126
pollutants described at 44 FR 34393
(19791. as amended by 46 FR 2208(1981).
and 48 FR 10723 (1981). The 128 priority
pollutants are derived from the 65
classes of compounds listed at 40 CFR
401.15.
“Toxic pollutant” means any pollutant
listed as toxic under section 307(a)(1) of
the CWA. EPA has listed 85 classes of
compounds under section 307(a)(l) of
the CWA. and these 65 classes are lis:ed
at 40 CFR 401.15.
“Toxic,” refers to any pollutant or
combination of pollutants which causes
toxicity to aquatic life or terrestrial life.
or causes ad erse human health
impacts.
“Whole effluent toxicity” means the
aggregate toxic effect of an effluent
measured directly with a toxicity test. A
toxicity test measures the degree of
response of an exposed test organism to
a specific chemical or effluent. Like
biochemical oxygen demand (SOD).
which is also a biological measurement.
toxicity can be limited in an NPDES
permit.
A. EP.4 ‘s Surface Waler Toxics Control
Program
EPA has described its surface water
toxics control program in several
documents. These descriptions are not
repeated here, but the reader is referred
to these documents for more information
on EPA’s approach for controlling
discharges of toxic pollutants. On March
9. 1984, EPA published a document
called’Development of Water Quality-
Based Permit Limitations for Toxic
Pollutants: National Policy” 49 FR 9016
(1984). The policy emphasizes EPA’s
integrated approach in the NPDES
permit program for assessing and
controlling the discharge of toxic
pollutants to the nation’s surface waters.
Two preambles to EPA’s rulemakings
also describe EPA’s surface water toicics
control strategy. The preamble to EPAs
NPDES regulations (45 FR 33520 (1980))
emphasizes that NPDES permits must
contain limitations reflecting the most
stringent of tecnnology-based or water
quality-based controls for toxic
pollutants. The second preamble
discussion (49 FR 37998 (1984))
emphasizes the need to establish
-------
Federal Register / Vol. 54, No. B I Thursday. January 12. 1989 I Proposed Rules
1301
(fluent limitations in NPDES permits to
control toxic pollutants. This preamble
also describes several regulations in
Part 122 that require dischargers to
identify and report the presence of toxic
pollutants in discharges.
EPA’s regulations also reflect the
Agency’s surface water toxics control
strategy. Part 131 of EPA’s regulations
describes the process for developing.
reviewing. revising, and approving State
water quality standards. Part 122
describes the general NPDES permit
regulations, and these regulations
require NPDES permits to include
conditions necessary to achieve water
quality standards. Part 125 describes the
technology-based methods for
controlling toxic pollutants. Part 129
contains effluent standards for certain
toxic pollutants. and Part 130 describes
EPA s program for identifying waters
affected by toxic pollutants.
EPA has also developed standard
procedures. policies, and guidance
documents necessary to support the
toxics control program. The “Water
Quality Standards Handbook” (October
1983). describes how to develop water
quality standards and describes the
procedures that a State should follow in
idopting water quality standards. (The
.-Iandbook is available from the Critena
and Standards Division (WH—585), U.S.
EPA. 401 M Street SW.. Washington. DC
20460 ) Two important guidance
documents that support EPA’s toxucs
control program are the “Technical
Support Document for Water Quality-
Based Toxics Control.” (TSD). EPA 440!
4—85—032. September. 1985, and the
‘Permit Writer’s Guide to Water
Quality-Based Permitting.” (EPA 440/4—
87-005. July 1987. (Both documents are
available from the Permits Division (EN—
336). U.S. EPA. 401 M Street SW..
Washington. DC, 20460.) The Technical
Support Document (TSD) provides a
detailed technical explanation of
biological and chemical techniques to
assess and control toxic pollutants and
toxicity. The ISO explains how to
assess aquatic toxicity and how to
calcula:e the risk to human health of an
effluent, explains wasteload allocation
modeling, and explains the equations for
deriving water quality-based effluent
limits The Permit Writers Guide gives
State and Federal NPDES permit writers
a step-by-step methodology for deriving
water quality-based effluent limits for
toxic pollutants and toxicity.
8. Section 304 (l) and its Relationship to
EPA s Surface Waler Toxics Control
Prngron i
Section 304(l) of the CWA reinforces
EPA’s on-going program to identify and
control dusch.irges of toxics. Section
304(l) requires the States to submit four
lists to EPA for review and approval on
or before February 4. 1989. The statutory
language of section 304(l) requires the
listing of waters for which water quality
standards will not be achieved due
to discharges from point sources
of any toxic pollutants listed pursuant to
section 307(a ); ‘ .“ The toxic
pollutants identified under section
307(a) of the CWA refer to categories
and classes of pollutants that can
include thousands of compounds. EPA’s
water quality criteria and effluent
guidelines focus on a list of 128 “priority
pollutants” which are common, widely
used chemicals for which toxicological
data are available. Therefore. EPA will
address the 128 priority pollutants for
the purposes of implementing section
304(l). and will use this term when
describing the regulatory requirements
governing the control of toxic pollutants
under section 304(l) of the CWA.
The four lists required by section
304(l) are described as follows, and are
identified by their corresponding
paragraphs in section 304(l)(1):
1. (A)(i) —A list of those waters in the
State which, after application of
technology-based effluent limits, cannot
reasonably be anticipated to attain or
maintain water quality standards for
priority pollutants adopted under
section 303(c)(2)(B) of the CWA:
2. (A)(ii}—A list of all waters which.
after application of technology-based
effluent limits, cannot reasonably be
anticipated to attain or maintain that
water quality which shall assure
protection of public health, public water
supplies, agricultural and industrial
uses, and the protection and
propagation of a balanced population of
shellfish, fish and wildlife, and allow
recreational activities in and on the
water
3. (B)—A list of those waters which.
after application of technology-based
effluent limits, the State does not expect
will achieve applicable water quality
standards, due entirely or substantially
to point source discharges of priority
pollutants:
4. (C)—A list of the point sources of
priority pollutants which are believed to
be preventing or impairing water quality
For waters on the (13) list, and the
amount of each priority pollutant
discharged by each point source.
The listing requirements of section
304(l)(1) are similar to the requirements
of section 303(d) of the CWA and to
EPA’s regulations at 40 CFR 130.7 and
130.10 which require the States to
submit to EPA a ranked list of “water
quality limited segments ’ As part of the
existing -eporting requirements in Part
130. the States must submit to EPA a libt
of waterbodies for which technology-
based effluent limits are not stringent
enough to attain or maintain water
quality standards. Because the
requirements of section 304(fl(1l are
similar to the requirements of section
303(d). EPA is incorporating the listing
requirements of section 304(l)(1) into
Part 130. These regulations are
discussed in more detail in section III B
of thus preamble.
In addition to the listing requirements
under section 304(l)(1), the States must
prepare an individual control strategy
(ICS) for all water segments on the (13)
list. (The definition of an ICS is
discussed in more detail in section 111 C
of this preamble.) An ICS must require
reductions in the discharge of priority
pollutants from point sources on the (C)
list, which reductions are sufficient, in
combination with existing controls on
point and nonpoint sources of pollution.
to achieve applicable water quality
standards as soon as possible but not
later than three years after
establishment of the ICS. Where EPA
approves a State submittal, the deadline
for compliance is as soon as possible
but not later than June 4. 1992. Where
EPA disapproves a State submittal and
promulgates an ICS in lieu of a State. the
deadline for compliance is as soon as
possible but not later than June 4. 1993
All lCSs are due to EPA. from States
approved by EPA to administer the
NPDES program. by February 4. 1989
EPA must approve or disapprove the
lists and ICSs by June 4, 1989 When
EPA disapproves an ICS. EPA must
implement section 304(I)(1) “in
cooperation with such State and after
notice and opportunity for public
comment.” by June 4. 1990.
A State’s obligation to prepare and
submit an ICS to EPA is similar to an
approved NPDES State’s obligation to
prepare NPDES permits and submit the
permits to EPA for review. However.
section 304(l) establishes new deadlines
and procedures for issuing and
reviewing some NPDES permits. (Many
NPDES permits are not subject to
section 304(l). Permits that are not
subject to section 304(1) should receive
the same priority for reissuance or
oversight that the permits would receive
regardless of section 304(l)
Today’s proposed rulemaking us one
of several EPA actions to implement
section 304(l). In March 1988. EPA
issued guidance entitled
“Implementation of Requirements Under
§ 304(l) of the Clear Water Act. dS
Amr ’nded” (March. 1988). (EPA
published a notice of availability for the
guidance on March 18, 1988. and the
-------
1302
Federal Register I Vol. 54. No . 8 / Thursday. January 12.1989 / Proposed Rules
document is available by writing to the
Permits Division. Office of Water (EN—
336). U.S. Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460.) Until EPA promulgates final
regulations under section 304(l). this
proposed rulemaking will serve as
guidance that supplements EPA ’s
guidance of March 1908 on section
304(l).
EPA has promulgated a final
codification rule that incorporated into
EPA’s regulations the provisions of the
WQA relating to the NPDES program
and section 304(l). The codification rule
is available from the Permits Division
(EN—338 1. U.S. Environmental Protection
Agency, 401 M Street SW.. Washington.
DC 20460. (202) 475-9545. The
codification rule placed the statutory
language of paragraphs (A). (B). and (C)
of section 304(I) into 40 CFR 130.10(d).
The codification rule also placed section
304(11(1)10) and sections 304(l) (2) and
(31 into 40 CFR 123.46. These new
paragraphs require States to submit lists
of waters and individual control
strategies to EPA for review. Today’s
proposed rules supplement the
codification rule by defining key terms
in section 304(l) and describing Federal
and State responsibilities under section
304(l).
C. Purpose and Summary of Today’s
Proposed Regulations
The purpose of today’s proposed rules
is to reinforce EPA’s surface water
toxics control program. and to specify in
more detail the requirements of section
304(l). Section 304(l) does not change the
direction of EPA’s surface water toxics
control program. but rather, establishes
ambitious deadlines by which EPA and
the States must identify and control
priority pollutants. While EPA’s toxics
control policies regiüre control of all
toxic pollutants. including but not
limited to toxicity and the priority
pollutants, the WQA reflects Congress’
intent that priority pollutants be
addressed on a rapid schedule. After the
deadlines of section 304(1) pass. EPA
and the States must continue the toxics
control program by deterinuiing the
presence of toxic pollutants in effluents
and receiving waters. developing the
necessary policies and regulations to
control toxic pollutants and toxicity, and
establishing effluent limits in permits.
Today’s proposed regulations amend
three parts of the CFR. Changes to EPA’s
surface water toxics control program are
located in Parts 122 and 123 of the CFR.
Part 130 incorporates the proposed
regulations for listing waters under
section 304(l)(1) (A)—(C). and the
pruposed reguldtions for individual
control strategies prepared under
section 304(1) are located in Part 123.
1. Changes to EPA’s Surface Water
Toxics Control Program
EPA is proposing several amendments
to 4122.44(d). The proposed changes to
§ 122.44(d) describe the procedures the
permitting authority shall use to
determine whether an NPDES permit
must include a water quality-based
effluent limit. The proposed regulations
also address the procedures for deriving
effluent limits from State narrative or
numeric water quality standards. EPA is
also proposing to amend paragraph (e)
of §122.44 to clarify that limits to
control toxics can include water quality-
based limits on conventional and
nonconventional pollutants. as well as
limits on toxic pollutants. Finally. EPA is
proposing to amend the critena for State
program withdrawal in 40 CFR Part 123.
These proposed regulations are
described in section fil.A of this
preamble.
2. Changes to 40 CFR Part 130
Today’s regulations amend Part 130 to
incorporate the listing requirements of
section 304(lJ(1). Today’s amendments to
Part 130 incorporate the listing format
introduced by section 304(l) into the
listing requIrements of section 303(d).
and make the lists of water and
pollutants part of the section 305(b)
reports submitted biennially by the
State to EPA. (The proposed regulations
also establish procedures for EPA’s
review and approval or disapproval of
the lists prepared under section 304(l)).
These regulations are described in
sections 11l.B and 1U.D of this preamble:
3. Changes to 40 CFR Part 123
The proposed changes to Part 123
establish procedures for EPA’s approval
and disapproval of the ICSs prepared
under section 304(l). Today’s proposed
rules provide for public participation in
reviewing the ICSs. and also establish
the criteria EPA will use to evaluate the
adequacy of ICSs. These proposed
regulations are discussed more fully in
sections l1I.C and Ul.D of this preamble.
EPA believes that today’s proposed
rules and preamble will assist the States
and the public at large in developing a
better understanding of EPA’s surface
water toxics control program. Today’s
rulemaking will also ensure that the
activities carried out under Section 304(l)
will be consistent with EPA’s statutory
obligations and national policy for
controlling toxic pollutants and whole
effluent toxicity.
111. Section-by-Section Analysis
This section discusses today’s
proposed rules in four parts. Part A
describes proposed regulations that
amend and clarify EPA’s existing
surface water toxics control program.
Part B describes the requirements for
identifying and listing waterbodies
under paragraph I of sectIon 304(l). Part
C discusses the requirements for
preparing and reviewing ICSs, and Part
0 discusses the procedures for
reviewing and approving or
disapproving the lists and ICSii.
A. Changes to EPA’s Surface Water
l’ox,cs Control Progrom
1. Amendments to 40 CFR 122.44
Two of the most important
components of EPA’s surface water
toxics control program are the
development and implementation of
water quality-based permit limits. The
permitting authority (either EPA or a
State approved by EPA to administer
the NPDES program) uses water quality.
based limits when effluent limits more
stringent than technology-based limits
are necessary to attain or maintain
water quality standards. Although
section 301(b)(1)(C) of the CWA requires
NPDES permits to achieve the effluent
limits necessary to attain and maintain
water quality standards, the existing
NPDES regulations do not describe the
procedures for developing water quality.
based effluent limits. This section
explains today’s proposed regulations
for developing water quality-based
effluent limits,
EPA uses an integrated approach to
water quality-based permitting. The
integrated approach includes both
biological and chemical testing
procedures for characterizing effluents
and developing effluent limits. EPA’s
integrated approach to waterquality.
based permitting is explained more fully
in the Technical Support Document and
in EPA’s National Policy of March 9.
1984 which are described in section ll.A
of this preamble.
Although EPA has issued detailed
guidance on the integrated approach to
water quality-based permitting, EPA’s
NPDES regulations discuss water
quality-based effluent limits only in
general terms related to achieving water
quality standards. Today’s proposed
regulations will establish minimum
consistent procedures for the States.
EPA, and the regulated community, to
identify those permits that must have
water quality-based effluent limits, and
to develop water quality-based limits.
a. A Definition for Whole Effluent
Toxicity Today’s proposed regulations
-------
Federal Register / Vol. 54, No. 8 I Thursday, January 12 . 1989 / Proposed Rules
add a definition for “whole effluent
toxicity” to the definitions in 40 CFR
122.2. Whole effluent toxicity is defined
as the aggregate toxic effect of an
effluent measured directly with a
toxicity test. A toxicity test measures
the degree of response of an exposed
test organism to a specific chemical or
effluent. The proposed definition is the
same definition used in the TSD.
EPA is proposing a definition for
whole effluent toxicity because controls
for whole effluent toxicity are an
essential component of EPA’s integrated
approach to toxics control. Where
controls on individual pollutants do not
adequately protect water quality.
assessing and controlling whole effluent
toxicity is necessary to reduce or
eliminate the toxic impact of the
effluent. The regulations proposed for
§ 122.44(d) and (e) in today’s rulemaking
use the term whole effluent toxicity, and
a definition for the term will assist the
public in better understanding how
controls on whole effluent toxicity are
used in EPA’s surface water toxics
control program.
b. Narrative Water Quality
Standards. Today’s proposed
amendments to § 122.44(d) add language
to paragraph (d)(i). Paragraph (d)
requires NPDES permits to contain
effluent limits more stringent than
technology-based limits, where mote
stringent limits are necessary to
‘achieve water quality standards
established under section 303 of the
CWA.” Today’s proposed language
amends paragraph (dRI) to clarify that
effluent limits established under
paragraph (d) must achieve any State
narrative water quality standard as well
us numenc water qualtily standards.
c. Developing Water Quality-Based
Effluent Limits. Today’s rulemaking
proposes five new subparagraphs for
§ 122.44(d)(1). The subparagraphs
describe the procedures for determining
whether a discharge is causing or
contributing to a violation of a Water
quality standard, identify those permits
that must haye water quality-based
uffluent limits, and describe several
principles for developing water quality-
based effluent limits. The Agency has
dc’prmined that additional clarification
of § 122.44(d) is necessary to implement
the national water quality-based toxics
control program and to implement the
recommendations of EPA’s national
policy, 49 FR 9018 (1984).
The proposed subparagraphs that
,imend § 122.44(dJ(l) are intended to
describe procedures for implementing
existing State water quality standards
and are nut intended to suggest that
States change existing standards.
S ,’ctiur 31)3 (cIl2HB) of the CWA. as
amended, addresses State review and
adoption of water quality standards for
toxic pollutants listed pursuant to
section 307(a)(1) of the CWA. EPA has
prepared guidance on section 303(c)(2)
which is available from: Criteria and
Standards Division (WH—585), Office of
Water, U.S. Environmental Protection
Agency, 401 M Street SW,. Washington.
DC 20460.
Proposed subparagraph (i) of
§ 122 ,44(d)(1) concerns the procedures
for determining excursions, or the
reasonable potential for excursions.
above applicable water quality
standards. To determine whether a
discharge has a reasonable potential for
causing an excursion above a water
quality standard, and thus requires a
water quality-based effluent limit, the
permitting authority must use reliable
and consistent procedures. Although the
procedures can vary considerably from
one State to another, most such
procedures account for any dilution of
the effluent in the receiving water, after
considering mixing zones if applicable.
any contributions of the pollutant from
upstream point and nonpoint sources.
the variability of the pollutant in the
effluent. and. when evaluating whole
effluent toxicity, the sensitivity of the
test species to toxicity testing.
Generally, if there is a great deal of
dilution of the effluent in the receiving
water, then it is less likely that the
discharge will cause a violation of a
water quality standard.
Similarly, the uncertainty caused by
limited data on the concentration of a
pollutant in an effluent results in a
larger margin of error when determining
whether a discharge causes or has the
reasonable potential to cause an
excursion above a water quality
standard. Unless effluent variability is
adequately considered, the permitting
authority may make erroneous decisions
concerning whether to develop permit
limitations for a pollutant. Toxicity
testing must account for species
sensitivity because different test species
exhibit different sensitivities to the
same effluent.
Subparagraph (i) addresses
discharges that cause or have the
reasonable potential to cause violations
of water quality standards. Because the
concentration of a pollutant in an
effluent and in the receiving water can
vary considerably, it is necessary to
address discharges that have the
reasonable potential to violate water
quality standards. EPA requires water
quality-based effluent limits for these
discharges in order to ensure
compliance with section 301(b)(1 1(C)
which requires NPDF.S permits to
1303
achieve applicable water quality
standards.
Subparagraph (i) should assist the
permitting authority in determining
whether it is necessary, under Federal
regulations, to establish limits for a
pollutant. Note, however, that this
determination is different from
calculating water quality-based effluent
limits. Effluent data are not necessary to
calculate water quality-based effluent
limits: Water quality-based effluent
limits may be derived From the water
quality standard and available dilution
Effluent data are required only for
determining whether a pollutant exists
in an effluent at a concentration which
is high enough that EPA would require a
limit in the NPDES permit.
Proposed subparagraph (ii) of
§ 122.44(d)(1) provides that a permit
must contain water quality.bascd
effluent limits when the permitting
authunty determines that a discharge
causes or has the reasonable potential
to cause tin excursion above a water
quality standard. The proposed rule
requires effluent limits for the individu.il
pollutant (where the pollutant is
regulated by a State numeric water
quality standard) and for whole effluent
toxicity (where toxicity is regulated by .1
numeric State water quality standard)
(See proposed subparagraph (iii) for the
circumstances under which a permitting
authonty may forego limits on whole
effluent toxicity.) Although the existin8
NPDES regulations require the effluent
limits in a permit to achieve applicable
water quality standards, today’s
proposed regulations specify for the first
time that the permitting authority must
establish effluent limits for a pollutant if
the discharge of the pollutant exceeds a
water quality standard.
Proposed subparagraph (iii) requirec
the permitting authority to establish
permit limits on whole effluent toxicity
when the discharger causes or has the
reasonable potential to cause an
excursion above a State’s narrative
water quality standard. The
combination of subparagraphs (ii) and
(iii) allow the permitting authority to
control toxic discharges by using the
appropriate combination of chemical.
specific effluent limits and whole
effluent toxicity limits
Proposed subparagraph (iii) allows the
permitting authority to choose not to
develop whole effluent toxicity limits
where the permitting authority can
demonstrate that chemical-specific
limits will attain and maintain
applicable water quality standards
including narrative water quality
standards. One method for making ihiq
demonstration would be to use tox,rutv
-------
1304
Federal Register / Vol. 54 . No. 8 I Thursday, January 12. 1989 I Proposed Rules
testing to show that the effluent has no
acute or chronic toxic effects on aquatic
lire.
Proposed subparagraph (iv) addresses
the situation in which a State has not
adopted a numeric water quality
cnterrnn for a toxic, conventionaL or
nonconventional pollutant that is known
to adversely affect or threaten human
health or aquatic life. In this situation
the permitting authority does not have a
numeric criterion to use for deriving a
water quality-based effluent limit. The
proposed regulation requires the
permitting authority to address the
discharge of the pollutant using two
options. The first option allows the
permitting authority to establish permit
limits using EPA’s Water Quality
Criteria guidance documents. if EPA has
published a criteria document for the
pollutant pursuant to section 304(a) of
the CWA. (EPA criteria documents
provide a comprehensive summary of
available data on the effects of a
pollutant, and include maximum
ambient concentrations that protect
nqiiitlc life and human health.) In the
absence of a State numeric criterion for
a pollutant. the permitting authority
would use ‘he appropriate EPA Water
Quality Critena document to calculate
effluent limits for the pollutant in order
to comply with applicable State
narrative water quality standards (e.g.
‘no to’uc in toxic amounts”).
The second option in today’s
proposed regulations. for controlling a
pollutant when a State has not adopted
a water quality criterion for the
pollutant, allows the permitting
authority to establish permit limits using
a numeric criterion which the permitting
authority demonstrates is protective of
aquatic life and human health. When
using this approach. States may deri.ve
values different from the values in the
EPA’s water quality criteria documents
to reflect site-specific factors. including
predicted local human consumption of
aquatic foods, as well as the Slate’s
determination of an appropriate risk
level, and any more recent scientific
data that may not be included in EPA’s
criteria documents. Under this option
the permitting authority should use all
available scientific information on the
effect of a pollutant on human health
and aquatic life. Available information
includes but is not limited to. risk
assessments, exposure data, and site.
specific water quality parameters.
Although todays proposed regulations
include only two options. EPA is
soliciting comment on another option
which would allow the establishment of
effluent limits on pollut.ints other than
the loxic’ant of concern such as an
Indicator parameter. An indicator
parameter could be a conventional
pollutant like total suspended solids
(TSS). the control of which may be tied
to a concomitant decrease in metals
concentration. In such a case. the
permitting authority would have to
demonstrate that compliance with a
limitation on the indicator parameter or
other effluent limit would ensure the
control of the toxicant of concern to a
level that would attain and maintain
applicable State narrative water quality
standards, and will protect aquatic life
and human health. This demonstration
would be made by the State by
calculating a criterion pursuant to option
I or 2 above for the toxicant of concern
and a subsequent showing that the
effluent limit on the indicator parameter
will control the toxicant of concern to
the level of the criterion calculated.
EPA is proposing the two options in
subparagraph (iv) in order to set permit
limits to control discharges (in the
absence of State numerical water
quality standards for all pollutants of
concern) that adversely affect water
quality, while at the same time, giving
the permitting authority sufficient
flexibility to account for site-specific
Impacts on aquatic life or human health.
EPA requests comment on the two
options in proposed subparagraph (iv) of
§ 122.44(dJ(1), and the third approach
described in this preamble.
The final changes to 122.44(d)(1) are
in proposed subparagraph (v). This
proposed subparagraph describes two
requirements that the permitting
authority must use to derive water
quality-based effluent limits.
The first requirement provides that
water quality-based effluent limits shall
be derived from water quality
standards. Under section 303(c) of the
CWA, and Part 131 of EPA’s regulations.
a State must adopt water quality
standards (including an antidegradation
policy), and submit the standards to
EPA for review. Although Part 131
describes the process for adopting and
reviewing water quality standards.
EPA’s permitting regulations in Part 122
do not specify that water quality-based
effluent limits must be derived from
water quality standards. The proposed
language in paragraph (v) clarifies this
requirement of the NPDES permitting
regulations.
The second requirement in proposed
subparagraph (v) for deriving water
quality-based effluent limits, is that the
water quality-based effluent limits must
be consistent with wasteload
allocations (WLAs) developed and
approved in accordance with 40 CFR
130.7 if a WLA is av.iilahle for the
discharge, A wasteload allocation is
defined at 40 CFR 130.2 and reflects the
portion of a receiving water’s loading
capacity that is allocated to a point
source. The requirement to use approved
wasteload allocations for water quality-
based permit limits is implied in current
§ 122,44(d) because paragraph (d)
requires effluent limits to meet water
quality standards. Today’s proposed
language clarifies EPA’s existing
regulations by stating that when WLAa
are available, they must be used to
translate water quality standards into
NPDES permit limits. Although proposed
subparagraph (v) requires the permitting
authority to use a wasteload allocation
if one has been approved, today’s
proposed rule does not allow the
permitting authority to delay developing
and isswng a permit if a wasteload
allocation has not already been
developed and approved.
Deriving water quality-based effluent
limits from water quality standards is
the only reliable method for developing
water quality-based effluent limits that
protect aquatic life and human health.
Pursuant to section 303(c) of the CWA.
the States adopt water quality
standards, and then, under section
303(d), develop total maximum daily
loads (TMDLs) to attain and maintain
the water quality standards. The TMDLS .
are used to derive a wasteload
allocation for individual pollutants
discharged from a point source. This
process results in effluent limits that
protect aquatic life and human health
because the limits are derived from
water quality standards.
Proposed subparagraph (v) does not
prescribe detailed procedures for
developing water quality-based effluent
limits. Rather, the proposed regulations
prescribe minimum reqwrements for
developing water quality-based effluent
limits, and at the same time, give the
permitting authority the flexibility to
determine the appropriate procedures
for developing water quality-based
effluent limits. Today’s proposed rule
clarifies that all water quality-based
effluent limits must be derived using
procedures that are consistent with
todays proposed requirements in
122.44(dHl)(vJ.
d. Limitations on Toxic Pollutants and
Si,urves of Toxicity. The final change to
§ 122.44 proposes to amend paragraph
(ef. EPA is adding the term “sources of
toxicity” to the title of paragraph (e).
This change reflects EPA’s current
approach for controlling toxic pollutants
and other pollutants (whether
conventional or nonconventional) that
cause toxicity
-------
Federal Register / Vol. 54. No. 8 / Thursday. January 12. 1989 I Proposed Rules
EPA is redesignating existing
paragraph (e)(2) as paragraph (e)(3) and
is adding a new paragraph (e)(Z) which
pros ides that an NPDES permit must
limit any pollutant (whether
conventional, nonconventional, or
toxic), including whole effluent toxicity.
that is or may be discharged at a level
that causes or has the reasonable
potential to cause an excursion above
any water quality standard. including
State narrative water quality standards.
Today’s proposal clarifies that
paragraph (eJ applies to any pollutant.
not just toxic pollutants, and applies to
excursions above narrative water
quality standards, not just numeric
limits in State water quality standards.
Proposed paragraph (e)(2) is
necessary because any pollutant
regulated under the CWA can adversely
affect water quality. The proposed
paragraph specifies that NPDES permits
must establish limits on any pollutant,
where necessary to attain and maintain
applicable water quality standards. The
proposed paragraph also emphasizes the
importance of narrative water quality
standards Narrative standards have the
same force and effect as other State
vater qii lity standards. Today’s
ropoced regulations emphasize that
n3rrative standards must be
implemented, where necessary to satisfy
the requirements of section 301(bj(1)(C).
and to achieve the goals of the CWA.
EPA is amending redesignated
paragraph (e)(3) to clarify that
limitations established under 122.44
(b), or (d). may be satisfied by a
combination of limits on whole effluent
toxicity and limits on one or more other
pollutants.
Todays proposed regulations provide
for limits on whole effluent toxicity
because such limits are often necessary
to attain and maintain water quality
standards. Effluent limits on toxic.
conventional, and nonconventional
pollutants may be insufficient to attain
and maintain all applicable water
quality standards. In these cases limits
on whole effluent toxicity should be
used to ensure that all applicable water
quality standards are achieved.
The proposed paragraph is consistent
with EPA s integrated approach to water
qualuty.baced permitting, and reflects
the language in proposed paragraph
(e)(2) which requires effluent limits on
any pollutant. and which may require
I... on whole effluent toxicity.
!ssary to achieve water quality
.idards.
2 St.ite NPI)F.S Program Rcquiremi’nts
The St,iti’s pl.iy .i major role in
intrullin.. ilzsr harqes of pollutant’. I I)
‘tir 1’h • Si i’rq ‘.il.’ i
especially important in (hose States
authorized under section 402(b) of the
CWA to carry out the NPDES program.
An authorized State cames the primary
responsibility for implementing a
surface water toxics control program.
This section describes proposed
amendments to 40 CFR 123.63. The
amendments clarify EPA’s authority to
withdraw a State’s NPDES program if
the State fails to develop an adequate
program for developing water quality-
based effluent limits in NPDES permits.
The proposed changes focus on how
well a State’s NPDES permits protect
water quality. If other elements of a
State’s surface water toxics control
program adversely affect the quality of
NPDES permit limits, then EPA may
include other program elements in its
evaluation of a State’s NPDES program.
For example. ifs State fails to use
consistent and defensible procedures for
developing water quality-based effluent
limits. EPA would consider this
deficiency when evaluating a State’s
NPDES program.
EPA is adding this criteria to
123.63(a) because it is essential for all
authorized States to operate effective
toxics control programs. An adequate
State regulatory program for developing
water quality-based effluent limits in
NPDES permits should be an integral
part of each approved State’s NPDES
program. EPA requests comments on the
proposed criterion in 123.63 relating to
a States program for controlling toxic
pollutants.
B. Identification of Water’s
Section ul.A of this preamble
discussed the proposed rules for
strengthening EPA’s ongoing surface
water toxics control program. The
remainder of this preamble discusses
the requirements of section 304(1) of the
CWA and how EPA is incorporating
these requirements into EPA’s toxics
control program. This section (llI.B)
discusses how EPA and the States will
administer the listing requirements of
section 304(l). and incorporate them into
the ongoing water quality assessment
program.
The rules proposed today address two
distinct but related actions with regard
to the four lists. The first action is the
submittal of the lists by the States to
EPA on or before February 4. 1989. as
required by section 304(l)(1) of the
CWA: and the second is the biennial
submission of lists to EPA under the
aulhority of sections 303(d) and 305(1,) of
the CWA. After a description of the
lists, the requiremi’nts for the initi.il
sulimittil will lie discii’.sid ‘i the nc ”,t
‘ . ,‘‘ !ii fl ut ‘hi.. pr i•.tn’t.I” “ .!li’ u t l
discussion of the biennial submission nI
lists.
1. Description of the Four Lists
The four lists required by section
304(l)(1 ), paragraphs (A)(i). (A)(ii). (B).
and (C) are described below: first, by
their statutory language and then
followed with a brief clarification of
what EPA expects States to include on
the lists.
Note, as explained in Section ll.B of
this preamble. that EPA is implementing
section 304(l) listing and control
requirements by relying on the priority
pollutants rather than the thousands of
pollutants potentially encompassed b
the term toxic pollutants.
For more information about the lists.
see EPA’s guidance entitled
Implementation of Requirements Under
section 304(l) of the Clean Water Act. .is
Amended (March. 1988).
Paragraph (A)(i) of section 304(1)(l/
requires a list of those waters in each
State which, after application of
technology-based effluent limits,
“cannot reasonably be anticipated to
attain or maintain water quality
standards for such waters reviewed.
revised, or adopted in accordance with
section 303(c)(2)(B) of the CWA.” due to
priority pollutants. Section 303(c)(2)(B )
refers to the adoption by the States of
numeric criteria into their water qudlity
standards for section 307(a) toxic
pollutants. Therefore, the (A)(i) list
includes only those waters where
numeric water quality standards for
priority pollutants are not achieved, or
are not expected to be achieved due to
either point or nonpoint sources of
pollution. These are water quality
standards which have been reviewed.
revised and adopted by the State.
Waters impaired by chlorine and
ammonia are not included on this list
because they are not pnorlty pollutants
governed by the sectiofl 304 (l)
requirements which regulate section
307(a) toxic pollutants.
Paragraph (A)(n) of section 3&4111(i/
requires a list of those waters within
each State which, after the application
of technology.based effluent limitations
“cannot reasonably be anticipated to
attain or maintain that water quality
which shall assure the protection of
public health. public water supplies.
agricultural and industrial uses, and ih ’
protection and propagation of shellfish.
fish and wildlife, and allow recreational
activities in and on the water.” EPA
interprets this to mean that the St,iii ’
must create a comprehensi e lust uf
w,utprc th.it .irr ump.iired i,r • rt’
i’ pu’t t d In’ i”r.ii;ecl ‘.ut on..
• • ir
1305
-------
1308
- Federal Register I Vol. 54. No . 8 I Thursday. January 12. 1989 / Proposed Rules
conventional, or nonconventional
pollutants. This list should include all
waters not meeting the goals of the
CWA after the application of
technology-based effluent limitations.
regardless of whether or not a State has
adopted numeric water quality
standards. This includes waters which
are classified for uses that do not meet
the “fishable and swimmable” goals of
the Act.
Paragraph (B) of section 304(l)(1)
requires a list of those waters within
each State for “which the State does not
expect the applicable standard under
section 303 of the CWA will be achieved
after the requirements of sections 301(b).
306, and 307(b) are met, due entirely or
substantially to discharges from point
sources of any toxic pollutants listed
pursuant to section 307(a )” of the CWA.
This list must include all waters which
can not achieve either the numeric or
narrative water quality standard for a
priority pollutant due entirely or
substantially to discharges from point
sources after application of BAT,
pretreatment and new source
performance standards. Waters
impaired by discharges of chlorine and
ammonia are not included on this list
since they are not one of the priority
pollutants. (Such waters would qualify
for the (A)(ii) list) Waters where
impairment is due to discharges of
whole effluent toxicity are included on
the paragraph (B) list only when the
toxicity is due in whole or in part to one
or more of the priority pollutants.
(Waters where whole effluent toxicity is
observed. but Is not attributable to a
priority pollutant, are to be included on
the paragraph (Aflii) list.)
For all the waters listed on the
paragraph (B) list, the State must
identify the point sources discharging
the priority pollutant(s) as described
below and provide individual control
strategies for each point source. (See
section IILC. of this preamble for mote
information on individual Control
Strategies.)
Proposed Interpretations of the terms
“applicable standard.” and “due entirely
or substantially to discharges from point
source.” which appear In the statutory
language of section aoql)(1)(B). ate
discussed in the next section (section
Ill.B.2) of this preamble.
Paragraph (C) of section 304(1)
describes the fourth list required to be
submitted by the States to EPA. It
requires. for each of the segments
included on the paragraph (B) list. “a
determination of the specific point
sources discharging any such toxic
pollutant which is believed to be
preventing or impairing such water
quality and the amount of each such
toxic pollutant discharged by each such
source.” EPA interprets this paragraph
to mean that for each water on the
paragraph (B) list, the State must list
each point source within its jurisdiction
that is discharging the priority
pollutant(s) to the water which is listed.
and the amount of each priority
pollutant discharged by each such
source. Individual control strategies are
to be prepared for each point source
discharger on the paragraph (C) list.
Note that every State, as defined by
EPA at 40 CFR 122.2. is required to
submit lists of waters, sources and
amounts whether or not the State is
authorized by EPA to administer the
NPOES program. However, States that
are not approved by EPA to administer
the NPDES pro ram are not required to
submit ICSs to EPA because an ICS will
be. in nearly all cases, a draft of final
NPDES permit.
2. Explanation of Terms Used in Section
304(l)(l)(B)
Paragraph (B) of section 304(l)(1)
introduces two terms that EPA believes
need further interpretation and
explanation to ensure consistency
among States when preparing the list
required by this paragraph. These terms
are “applicable standard.” and “due
entirely or substantially to disharges
from point sources.” Proposed
130.10(d) (4) and (5) of today’s
amendments contain these proposed
interpretations.
(a) Applicable Standard. For the
purposes of listing waters under
paragraph (B) of section 304(l)(1).
proposed 130.l0(d)(4) interprets the
“applicable standard” to mean numeric
criteria within State water quality
standards for priority pollutants.
Further, where State numeric criteria for
priority pollutants are not established,
EPA proposes to interpret the applicable
standard to mean the narrative standard
for toxicity (e.g.. “no toxics in toxic
amounts”) where the narrative standard
may be violated due to a priority
pollutant Therefore, in the absence of
adopted numeric criteria for a priority
pollutant. the narrative standard would
be used as the basis for listing under
section 304(l)(l)(B) by applying EPA
national water quality criteria on a
chemical-by-chemical basis.
EPA is proposing this requirement in
today’s amendments because of the
absence of State numeric water quulity
criteria for a priority pollutant. EPA
national water quality criteria provide a
national uniform baseline by which each
of the States may judge if a water is
impaired and therefore should he listed.
Without this requirement. many waters
unpaired by priority pollutants could not
be listed because some States would
lack any benchmark against which to
evaluate its waters.
(b) Due Entirely or Substantially to
Discharges from Pornt Sources. EPA is
proposing in today’s amendments. at
paragraph 130.10(d)(5). three conditions
that would require a water to be listed
“aragraph (B) of section 304(i)(1)
be’ the applicable water quality
sta is not expected to be met “due
en r substantially to discharges
fror. .. :nt sources.” These three
conditions are listed below.
(Note: Each condition is followed by
numbers which refer to the “discharge
scenarios” illustrated in Exhibit A. Scenarios
numbered one through six meet one or more
of the three conditions below and therefore
should be Included on the paragraph (B) list.
Scenario number seven would not be
included on the paragraph (B) list. These
scenarios illustrate only. few examples of
possible discharge situations. They are
included here as guideline, for the States for
developing their paregraph (B) list.)
swse coos u
-------
EXHIBIT A:
I Iluci i-ru ion for dctcrrn ning if the conccntration
of a §3 07(a) tn ic pollutant is entirely or
substantially due to discharges from point sourccs
- — — a n — — S — — — — a — — — —
-
-
-
— —— _ —
SCENARIOS
# 1 #2
YES YES
YES YES
YES YES
POINT SOURCE
CONTRIBUTION ___
NONPOINT SOURCE
CONTRIBUTION
Federal Register / Vol. 54. No. 5 I Thursday, January 12. 1989 I Proposed Rules 1307
3X
WQS
2X
WOS
WQS
ON PARAGRAPH
(B) LIST?
#3 #4 #5 #6 #7
NO
• ‘NO u
-------
1308
Federal Register I Vol. 54. No. 8 / Thursday. january 12. 1989 I Proposed Rules
In making the determination of
whether a water meets one or more of
these conditions, a Slate should use the
critical design flow as established by
approved EPA guidance or regulation
(for example. EPA’s Technical Support
Document for Water Quality-based
Toxics Control).
Also, when a State evaluates whether
a water is impaired “due intirely or
substantially to discharges from point
sources” the evaluation must be based
only on the contribution of one priority
pollutant at a time from the point
sources. and only for priority pollutants.
Therefore, a water quality problem due
to a pollutant which is not a priority
pollutant may not be taken into account
when determining whether a water
should or should not be listed on the
paragraph (8) list for priority pollutants.
For example. if a water does not meet
the water quality standard due to
chromium from point source
contributions, and the water does not
meet the water quality standard due to
phosphorous from either point or
nonpoint sources, the State must list this
water on the (B) list. EPA does not want
the States to delay controlling a priority
pollutant from a point source even if a
water still needs controls on other
pollutants or other sources.
If a water meets one or more of the
conditions below then it must appear on
a State’s section 304(l)(1 )(B) list:
(a) Initial or additional water quality-
based limits on one or more point
sources would result in the achievement
of an applicable water quality standard
for a priority pollutant (Scenarios 1. 2. 3)
or
(b) The discharge of a priority
pollutant from one or more point
sources, regardless of any rionpoint
source contribution of the same
pollutant. would be sufficient to cause a
violation of the applicable water quality
standard for the priority pollutant
(Scenarios 1. 2.5. 6) on
(ci The contribution of a priority
pollutant from one or more point sources
is large enough that the applicable water
quality standard for that priority
pollutant is threatened and additional
point source controls are needed to limit
the discharge of the pollutant (Scenario
4).
The third condition (ci is included to
.illow States and EPA to list a water
here the point source contribution of a
priority pollutant is very large but not
large enough to violate the water quality
standard alone. As a mutter of equity,
EPA believes that these waters should
lie listed and lCSs written rot the point
sourr.e(s) contributing the priority
pollutant(s). Fur example, without this
r.ondit inn, scenario =4 would not be
required to be listed even though there
is a much larger contribution than
scenario *3 which is required to be
listed under condition (a). EPA is
soliciting comments on whether
condition (c) should be included as a
condition for listing.
EPA is proposing these three
conditions to ensure consistency among
Regions and Slates in how they decide
which waters to list. Further, since the
Clean Water Act requires listing based
on compliance or noncompliance with
water quality standards. EPA chose
these three conditions so that a State
lists a water based on Its relationship to
a water quality standard.
For the purposes of interpreting the
term “due entirely or substantially to
discharges from point sources.” any
discharge which meets the definition of
a point source under 40 CFR 122.2 must
be considered as such, including
discharges from combined sewer
overflows and discharges from
stormwater drains. In addition, water
quality impairments due to in-place
sediments contaminated by a prionty
pollutant discharged by an active and
operating point source subject to section
402(a) of the CWA must be listed under
paragraph (B) of section 304(1) and the
discharge must be listed under
paragraph (C). If the sediments have
been contaminated with a priority
pollutant from a facility or site which is
no longer in operation or is abandoned,
and therefore cannot be issued an
NPDES permit. the water does not have
to be listed on the paragraph (B) list if
that is the only point source of a priority
pollutant, since the impairment is no
longer due to a point source subject to
section 402(a) of the CWA. However, if
there are other point sources discharging
the priority pollutant, the water must be
listed.
3. Preparation and Review of the Lists
The CWA requires the States to
submit the four section 304(l)(l) lists to
EPA for review and approval on or
before February 4. 1989. Section
130.10(d), promulgated as part of EPA’s
codification rule for the Water Quality
Act. already requires this submission.
along with the requirement that these
lists be reviewed and approved or
disapproved by EPA.
In addition to proposed paragraphs (4)
and (5) discussed above, today’s
proposed rules also add paragraphs (6)
through (11) to § 130.10(d). Paragraphs
(6) and (7) describe the data that each
State must use in developing the lists.
and the documentation that each must
provide to EPA when submitting lists to
EPA. Proposed paragraph (8) describes
the basis upon which F PA will .ipprove
or disapprove a State’s lists. Paragraphs
(6) through (8) are discussed in this
section of the preamble. New
paragraphs (9). (10) and (11) discuss
public notice and comment procedures
and are discussed in section 111.0.2 of
this preamble.
(a) Use of Existing and Readily
A vailable Data. Because EPA believes
that States should build on the work
that has already been done in the
continuous process of assessing water
quality, EPA is proposing in today’s
amendments that States use existing
and readily available data when they
develop their lists. Also, the ambitious
deadlines of the CWA require EPA to
forgo a requirement for lengthy
monitoring designs and extensive
collection of new data and to rely on
existing and readily available data. The
proposal that States rely on existing and
readily available data appears in
proposed § 130.10(d)(6).
To assist States in deciding what
existing and readily available data they
should rely on. EPA is proposing sixteen
categories of waters about which, as a
minimum, each State must assemble and
evaluate all.existing and readily
available data. These categories of
waters are described in proposed
§ 130.10(d)(6). EPA considers the
existing and readily available
information and data about the
categories of waters described in
§ 130i0(d)(6 ) to be the minimum data
and information that a State should
assemble and evaluate when preparing
lists. States should obtain any other
additional data and information needed
to identify and determine as accurately
as possible which waters end point
sources to list. (Existing and readily
available data about these categories of
waters would also be required by
today’s proposed amendments to be
used, as a minimum, for the
development of lists for the biennial
submissions under sections 303(d) and
305(b) of the CWA. Biennial
submissions of lists are discussed later
in this preamble.)
These categories were developed after
consultation with EPA Regional Office
staff and reflect what EPA considers the
minimum existing and readily available
water quality data and information that
a State and EPA can reasonably obtain.
This existing data includes data that
States should have developed in the
course of reviewing and revising water
quality standards. evaluating needs for
technology-based or water quality-
based controls. developing total
maximum daily loads (1’MDLs).
wasteload allocations and load
allocations (WLAsILAs). issuing
-------
Federn! Re istcr / Vol. 54. No. 8 / Thursday. January 12. 1989 I Proposed Rules
13 aa
permits. and monitoring to determine the
effectiveness of pollution controls.
Furthermore. EPA is requinng that the
States assemble and evaluate this
minimum existing and readily available
data because it encourages cooperation
and communication among the many
Federal. State and local government
agencies and private organizations that
collect, analyze or report water quality
data and information.
EPA is proposing that these specific
waters be evaluated for the purposes of
section 304(l) because either they are
waters which have been reported by the
State or other government or pnvate
sector agencies as failing to meet water
quality standards or as having a high
potential for not meeting water quality
standards, or they are waters hich
receive point source discharges. EPA
believes that if a State evaluates all
waters in these categories it will identify
virtually all waters that should be listed.
Information and data about the
categories of waters described in
§ 130.10(d) are of two general types. The
first is existing and readily available
data and reports from Federal. State.
local and private sectors. The second is
lilution calculation results generated by
£PA and the States for use as a
screening tool. These two types of
information are discussed below.
There are many existing lists, reports
and assessments that provide valuable
information to States when identifying
and preparing lists of waters. New
subparagraph * 130 10(d)(6) designates
the minimum specific information and
reports which each State must assemble
and evaluate in order to identify waters
that meet the section 304(l) statutory
requirements for listing. These include
State section 305(b) reports. Clean Lakes
Assessments, the section 319 Nonpoint
Source Assessments and the National
Priority List prepared under CERCLA.
among others. Beyond waters identified
by these specific reports. the proposed
amet dments would require the State to
obtain any existing and readily
available data about other specific
waters which should be considered for
list ng on one or more of the lists
required by section 304(l); for example.
waters where fishing bans and
recreational restrictions are in effect
and waters which have had repealed
fishkills. Appendix B of the Final
Guidance for Implementation of
Requirements under section 304(l) of the
‘lean Water Act as Amended (March
.J88p lists other available data sources
ihal should be consulted.
The second general type of
information that EPA is proposing that
th. States consider, as a minimum, is
,c’ .i’nin information develnpi’d ii ii e
dilution calculations. Dilution
calculations should be conducted to
indicate possible exceedances of
numeric criteria within State water
quality standards (or EPA criteria where
State numeric criteria are not available).
Dilution calculations should be
performed for, but not limited to. all
point source discharges of priority
pollutants, ammonia and chlorine to
help identify waters and dischargers for
listing on any of the lists. At a minimum.
waters with primary industrial major
and minor point source dischargers.
major municipal point source
dischargers. and waters with federal
major point source dischargers must be
screened for expected criteria
exceedances by performing dilution
calculations using site-specific data or. if
necessary. data based on national
estimates.
EPA emphasizes that to list a water
on the paragraph (8) list, that the State
does not necessarily have to have
enough data to indicate exactly which
point source or sources may be causing
any observed criteria exceedances or
use impairments, it is enough that the
data indicate that the applicable water
quality standards are not being achieved
due entirely or substantially to
discharges from point sources. After
identifying the water for listing on the
paragraph (8) list, the State should then
obtain as much discharger-specific data
as necessary to identify the dischargers
which may be causing the criteria
exceedances
Where ambient data on criteria
exceedances are being used to identify
waters, the State should use the criteria
for designated use support outlined in
Figure 1 of EPA’s Guidelines for the
Preparation of the 1988 State Water
Quality Assessment (305(b)) Report.
Figure 1 provides guidelines to States in
determining the degree to which waters
are supporting their designated uses on
the basis of frequency of criteria
exceedances and companson of mean
value to criteria.
EPA is soliciting comments on the
above proposed data requirements being
added to § 130.10(d).
(b) Documentation of Dub and
Methodologies. Proposed paragraph
§ 130.10(d)(7) requires that each State
submit to EPA. together with its lists of
waters and sources, documentation of
all data and methodologies used by the
State to develop the lists.
Proposed subparagraph (i) of (dff7)
requires each State to submit a
description of the methodology used by
the State to develop each of the lists of
waters and point sources required by
section 304(l). This description of
‘rcthudclog’.’ choi ld ifl lude
assumptions and criteria used by the
State when reviewing and analyzing
data and information.
Proposed subparagraph (ii) requires
the State to provide a description of the
data and information used by the State.
specifically including which of the
categories of waters described in
paragraph (d)(0) were used. If a Stale
does not assemble and evaluate data
about one of these categories.
subparagraph (iii) requires the State to
provide as part of its documentation the
rationale for deciding not to do so.
Proposed subparagraph (iv) requires
the Slate to provide any other
information that the Regional
Administrator requests in order to
review the State’s submission of lists.
Specifically, proposed subparagraph (iv)
requires a State. if EPA requests. to
demonstrate good cause for not
including a water or discharger on one
or more of the required section 304(1)11)
lists.
“Good cause” may include, but is not
limited to, the following:
• More recent or more accurate data.
• More sophisticated water quality
modeling.
• Flaws in the original analysis that
led to the water being identified in one
of the categories, or
• Changes in conditions. e.g.. new
control equipment. or elimination of
discharges.
EPA is proposing these documentation
requirements because a Regional
Administrators office may not maintain
all the available water quality and
discharger data for all of its States.
Therefore, part of the review by EPA of
a State’s submission must necessarily
include a review of the data,
assumptions and criteria used by the
State for listing waters and point
sources to ensure that they are
consistent with the regulatory
requirements for listing. For example a
States documentation should reflect
that the State considered stormwater
drains as a point source when
determining whether a water is impaired
due entirely or substantially to
discharges from point sources.
EPA requests comments on the
proposed requirements for
documentation by a State.
(c) Review of Lists by EPA. Section
304(l) requires that all States submit all
four lists described above to EPA no
later than February 4. 1989. Upon
receiving the lists from each State. the
Regional Administrator is required to
review and then approve or disapprove
each State’s lists.
In order for EPA to complete its
rn i v i Stain s l’iitc the Si.i’ø m i—t
-------
1310
Federal Register / Vol. 54. No. 8 I Thursday. January 12. 1989 / Proposed Rules
have met the data and documentation
requirements in proposed paragraphs (6)
and (7). The Regional Administrator will
approve each list if the State has met the
regulatory requirements for listing under
40 CFR 130.10. and disapprove each list
that does not.
If. after reviewing the State lists.
available data and any required
documentation, the Regional
Administrator is satisfied that the State
has identified and appropriately listed
all waters, then EPA will approve the
lists. (See Section 111.0 of the preamble
for a discussion of approval and
disapproval procedures.)
4. Biennial Submission of Lists under
Section 303(d) and Section 305(b) of the
CWA
(a) Authority to Require Biennial
Submission of Lists. Even before the
Water Quality Act of 1987. sections
303(d) and 305(b) of the CWA and
implementing regulations required
States to identify and list certain waters
and pollutants and to report these lists
to EPA For review and approval.
Therefore, under these two sections of
the Act. EPA is proposing today to
require States to continue the work
begun under the section 304(l) initiative
for identifying, listing and reporting
waters. The lists required under section
304(l)(1) are similar to the lists required
under section 303(d).
Section 303(d) gives EPA the authority
to require each State to identify and list
the waters within its jurisdiction that do
not achieve or are not expected to
achieve water quality standards, and to
require the State to develop Total
Maximum Daily Loads (TMDL5) for
these waters under section 303(d). The
States must also identify the pollutants
preventing the attainment of water
quality standards. Section 303(d) also
gives EPA the authority to review and
approve or disapprove the lists of
waters and TMDLs prepared by a State.
Section 305(b) of the CWA requires
each State to submit to EPA. biennially,
“a description of the water quality of aU
navigable waters in such State.” and a
determination of whether a Stats’s
waters meet EPA water quality criteria
prepared under section 304(a) of the
CWA. EPA believes that the lists of
waler quality limited segments and
pollutants required under section 303(d)
are important descriptive elements of
tt e water quality of a State. Therefore.
EPA is proposing today that, beginning
with the 1990 section 305(b) reports,
States should report these lists of waters
and pollutants required to be identified
under section 303(d) and reported to
EPA in the format similar to section
ni(l) in these biennial reports. EPA
requests comments on its proposal to
require biennial submission of lists
similar to those introduced by section
304(l)(1) of the CWA.
In addition, EPA is proposing today
that the State assessments of the quality
of all publicly-owned lakes required
under section 3l4(a )(2) of the CWA also
be submitted biennially in the section
305(b) reports.
Not only does EPA have the legal
authority to require a biennial
submission of lists, but there are
practical reasons for incorporating the
lists introduced by section 304(l) and
section 314(a) into the biennial section
305(b) reports. After the States, in
cooperation with EPA. have prepared
the initial list of waters and facilities it
is important for States to continue the
newly focused monitoring and
assessment efforts begun under section
304(l) and section 314(a).
As EPA and the States develop new
data and information after February 4.
1989. waterbodies that have toxicity
problems may be identified for the first
time, Therefore, EPA is committed to
working with the States to identify all
waters affected by toxic and other
pollutants. In order to identify all such
waters and to protect threatened waters.
it is necessary to continue the process
begun by sections 304(l) and 314(a).
(b) Proposed Amendments to 41’) CFR
Part 130. In order to ensure that waters.
pollutants and sources continue to be
properly and uniformly identified and
reported. EPA is proposing today to
amend CFR Part 130 to incorporate some
of the identification, listing and
reporting requirements introduced by
section 304(l) of the CWA. Part 130
currently includes the regulations for
section 303(d) and section 305(b) of the
CWA .
The following discussion will briefly
describe the maim’ requirements of
sections 303(d), 305(b) and 304(l), and
how the proposed amendments to Part
130 would incorporate and continue
some of the elements of section 304(1).
Identification of wagers not meeting
water quality standards. Both sections
304(l) and 303(d) require the
identification of waters not meeting
applicable water quality standards. -
40 CFR 130.7 now requires the States
to identify those water quality limited
segments still requiring wasteload
allocations and load allocations (WLAs/
LAs) and total maximum daily loads
(‘I’MDLs). Water quality limited
segments are waters which do not or are
not expected to meet water quality
based standards after the application of
Best Available Technology (BAT).
pretreatment and new source
performance standards, or aft.’r any
other local. State or Federal pollution
control requirement including best
management practices.
This requirement to identify water
quality limited segments is very similar
to the requirements at section
304(l)(1)(A)(i) and (B). These paragraphs
require the identification of waters
which meet the above definition of
water quality limited segments. But
section 304(l) specifically requires each
State to identify waters that do not meet
applicable numeric or narrative water
quality standards for priority pollutants.
after the application of BAT.
pretreatment and new source
performance standards. (See section 9.1
of this preamble for a detailed
description of which waters are required
to be identified by section 304ffl(1).)
The proposed amendments to 40 CFR
Part 130 would require that each Slate
continue to identify those waters not
achieving or riot expected to achieve
numenc or narrative water quality
standards for priority pollutants
required by section 304(l)—alorig with
those waters not achieving or not
expected to achieve applicable water
quality standards for any other pollutant
as currently required by section 303(d).
Under todays proposed amendments
to section 130.7(b)(2). all of these waters
would be reported in a three-list format
for listing waters similar to the one
introduced by section 304(l). These lists
would fulfill the section 303(d)
requirements for identifying and
reporting certain waters,
Today’s proposed amendments to Part
130 include the same interpretation of
“applicable standard” and the phrase
“due entirely or substantially to
discharges from point sources” that is
proposed today for the identification
and listing of waters under section
304(l)(l)(B), These terms and definitions
apply only to the lIst required under
proposed * 130.7(b)(2)(ll), (See earlier
discussion in Section 111.B.1.)
Identification of watere not meeting
the fishable and swimmable goals of the
Act. In addition to identifying and listing
waters which do not achieve applicable
water quality standards. section 304(l)
also requires that each State identify
and list waters that do not meet the
“fishable and swimmable” goals of the
Clean Water Act after the application of
BAT, pretreatment, and new source
performance standards. (These goals are
“protection of public health, public
water supplies, agricultural and
industrial uses, and the protection and
propagation of a balanced population of
shellfish, fish and wildlife, and’
recreational activities in and on the
water “)
-------
Federal Register I Vol. 54. No. 8 / Thursday. January 12. 1989 / Proposed Rules
1311
Section 303(d) does not include this
requirement For each State to identify.
list and report waters not meeting the
f,shable and swimmable goals of the
Act, and therefore this element of
section 304(l) is not being incorporated
into Part 130 by todays proposed
amendments. However, under its section
305(b) authority. EPA can and does
require that these waters be identified
and reported by each State to EPA in its
biennial report Therefore, these waters
must continue to be identified and
reported every two years in section
305(b) reports even though they are not
required under section 303(d) authority
or by todays proposed amendments to
§ 130.7.
Dcta requirements for idenlifying
waters Currently section 303(d) and
Part 130 include no specific
requirements on what data a State must
assemble and evaluate for identifying
waters. However, today’s proposed
amendments would establish such
requirements. They incorporate into Part
130 the same data requirements for
biennial submission of lists as those
proposed today for the 1989 submission
of 304(l) lists.
These proposed amendments to Part
130 would require that at a minimum the
States assemble and evaluate all the
existing and readily available water
quality data about the categories of
waters described in the proposed
§ 130 10 (dH6) when identifying waters
required to be listed pursuant to section
303(d). (See earlier discussion in section
111.2 of this preamble on using these
same categories to prepare lists of
waters under section 304(l).)
In addition, today’s proposed
amendments would require that each
State submit with its lists of water
documentation of the decision
methodologies the State emplo)ed and
the data it reviewed when developing its
lists. The proposed amendments also
include that if a State creates lists which
are not based upon the assembly and
evaluation of data and information
about waters in all of the categories in
§ 130 lo(d)(6). the State must provide to
the Regional Administrator a rationale
for the decision not to do so. A specific
rationale must be provided for each
category not used.
In addition, proposed subparagraph
(iv) requires the State to provide any
other information that the Regional
Administrator requests in order to
review the State’s submission of lists.
Specifically, proposed subparagraph (iv)
requires a State. if EPA requests. to
demonstrate good cause for not
including on one or more of the required
section 303(d) lists a specific waterbody
or segment.
These requirements for using
minimum existing and readily a%ailable
data about the categories of waters.
providing documentation and specific
rationales, and demonstrating good
cause are the same requirements being
proposed today for developing and
reporting of the lists required by section
304(l) in February 1989. (See section Ill 2
of this preamble for a detailed
discussion of these requirements.) These
proposed amendments to Part 130
appear in § 130.7(bH2).
EPA is proposing that these
requirements be the same for two
reasons. First, since the section 303(d)
lists under today’s proposed regulations
would be very similar to the section
304(1) lists submitted in February 1989.
EPA believes it is important that they be
developed and reviewed on the same
basis. Second. EPA believes thot these
requirements will encourage each State
to continually unprove its monitoring
and assessment programs so that every
biennial submission of lists reflects
continually updated data,
Identification of sources and
polIutanL Section 304(l)(l) requires for
every water listed pursuant to
paragraph (B). that each State identify
the point sources discharging the
priority pollutant into the water, and the
amount of such pollutant being
discharged. Existing Part 130 does not
require any such identification of
sources and amounts. only the
identification of pollutants.
Howe%er. in order for EPA and the
States to set priorities and to establish
control requirements in the NPDES
program. EPA believes that States
should continue the work started by
section 304(l) of identifying point
sources of priority pollutants which
cause or contribute to water quality
standards violations or impairments.
Therefore. EPA proposes today to
amend § 130.7(b)(3) to require the
identification by States of point sources
of priority pollutants for waters listed
pursuant to § 130.7(bfl2llii). This
paragraph requires the same list of
waters required by section 304(l)(1)(B).
The State would not be required to
submit this list of sources to EPA as part
of its section 305(b) reports, but must
still submit it to EPA under separate
cover no less frequently than every tw 1 o
years.
EPA will maintain the existing
requirement in § 130.7 that for all the
waters identified that the State must
identify the pollutants which are
preventing or are expected to prevent
the achievement of appl;cable water
quality standards. This list should be
submitted biennidlly as part of the
St;ites section 305(h) report
Reporting lists of ivoters and lake
assess:nen(s. Section 303(d) and ecisuing
§ 130.7 currently require each State to
submit its lists of water quality limited
segments “from time to time.” EPA is
proposing today to change this schedule
for submission to a schedule that would
require each State to report to EPA its
lists of waters. pollutants and sources
no less frequently than every two years.
The lists of waters and pollutants would
be submitted biennially as part of the
State’s section 305(b) reports. and the
list of sources would be submitted to
EPA biennially in the section 305(b)
report or under separate cover
Since the section 305(b) reports must
include a description of the States
water quality, EPA believes it would be
appropriate and beneficial for each
State report to include the section 303(d)
lists of waters and pollutants. Regular
submission of these lists would allow
for more orderly and accurate
assessment of each States progress in
meeting water quality program goals.
These proposed amendments appear at
§ 13o.7(d)(l) and 130.8(b)(5).
In addition, today’s proposed
amendments add paragraph (6) to
§ 130.8 to require that lake water quality
assessments be submitted biennially as
part of each State’s section 305(b)
report. Section 314 (a)(2) of the CWA
requires that each State submit
biennially to EPA an assessment of the
water quality of all publicly-owned
lakes. The specific elements of the
required assessment are outlined in
section 314(a)(l) and include a list and
description of those publicly-owned
lakes for which uses are known to be
impau’ed. a description of the status and
trends of the water quality of each
publicly-owned lake, the nature and
extent of poliution loadings from point
and noripoint sources and the extent to
which the use of each lake is impaired
as a result of such pollution. The
assessment must also indude a
description of the methods and
procedures needed to control sources of
pollution, restore the lake water quality.
mitigate the harmful effects of high
acidity. and remove toxic metals and
other toxic substances mobilized by high
acidity.
Priority ranking of waters. Existing
§ 130.7 requires each State to rank
waters identified in order of priority for
control actions. When setting pnoritie5.
a State must consider the uses of the
waters identiüed and the sever!ty of the
pollution. The State should also take
into account such factors as the need to
improve National Pollutant Discharge
Elimination System (NPDES) permit
limits, the need for nonpount ‘ otirre
-------
1312
Federal Register / Vol. 54, No. 8 / Thursday, January 12. 1989 / Proposed Rules
controls. priority Clean Lake protects
and pending State Revolving Loan Fund
decisions.
Todays proposed amendments would
not change this requirement that each
State establish a priority ranking for the
waters identified and listed pursuant to
section 303(d) and reported biennially in
section 305(b) reports.
Developing WLAs/L ’ls and TMDLs.
EPA is not changing the requirement in
§ 130.7(c) that the States prepare
wasteload allocations (WLAs), load
allocations (LAs) and total maximum
daily loads (TMDLs) For each waterbody
identified and listed pursuant to section
303(d).
Review and approval of lists
subm :ted biennially. Section 130.7 and
section 303(d) currently require that the
Regional Administrator either approve
or disapprove lists of waters. WLAs/
LAs and TMDLs no later than 30 days
after submission by the State. EPA will
continue to review and approve or
disapprove lists submitted pursuant to
section 303(d) and reported in section
305(b) reports. However, the existing
regulations do not include specific
conditions or requirements that a State
must meet in order for each list to be
approved.
Therefore, today’s proposed
amendments to § 130.7(d) would add
specific conditions for approval of lists
by EPA. These conditions are identical
to the ones proposed today as review
conditions for the section 304(t) Lists.
Since today’s proposed amendments to
§ 130.7 would continue the work
initiated by section 304(l), it is important
that the proposed biennial submissions
of lists of waters be reviewed on a basis
consistent with review of the section
304(l) lists. These proposed amendments
appear at § 130.7(d)(2).
Under today’s proposed amendments.
in order for EPA to complete Its review
of a State’s lists, the State must have
met the data and documentation
requirements in proposed paragraphs (8)
and (7). The Regional Administrator will
approve each list if it meets the
regulatory requirements for listing under
40 CFR 130.7, and disapprove each list
that does not.
If. after reviewing the Slate lists.
available data and any required
documentation, the Regional
Administrator is satisfied that the Slate
has identified and appropriately listed
all waters, then EPA will approve the
lists.
Today’s proposed amendments
maintain the 30 day review and
approval period of section 303(d).
EPA emphasizes that to gain approval
For the list required under
130 7(b)(2) (1). the State must have
revised it to reflect the States most
recent triennial review of water quality
standards. The list required under
§ 130.7(b)(2)(1) is a list of waters which
do not or are not expected to achieve
numeric water quality standards for
priority pollutants. Therefore, it is
important that as a State revises its
water quality standards every three
years. as required by section
303(c)(2)(B). that it subsequently
identifies waters which do not achieve
or are not expected to achieve the new
or revised water quality standards.
(cJ. A Proposal fora i’wo.L,st’
Format for Bienn:ol Submissions.
Instead of continuing to use the section
304(l) format of three lists for the
biennial submissions. EPA is
considering simplifying the reporting of
water quality-limited segments under
section 303(d) to only two lists of
waters. One list would include all
waters not achieving or expected to
achieve applicable water quality
standards (including standards for
whole effluent toxicity) due to any
discharges of a priority pollutant.
ammonia or chlorine horn either point or
nonpoint sources. The other list would
be of waters not achieving or not
expected to achieve water quality
standards due to all pollutants from
either point or nonpoint sources. (The
first list described, the “toxics list.”
would be a subset of the second list.)
The applicable water quality standard
would continue to be defined, as it is
now for section 304(l), as any State
numeric or narrative standard of EPA
criteria in the absence of State
standards.
The rationale for using two lists
instead of three is that the dislinctions’
among the three lists required by section
304(l)(1) are subtle and can be
confusing. Furthermore, the section
304(1 ) format focuses on identifying
priority pollutants discharged from point
sources. Though these specific
pollutants cause many of the nation’s
water quality problems. whole effluent
toxicity, point source discharges of
ammonia and chlorine, and discharges
from nonpoint sources continue to cause
maior water quality problems. By using
this two-list format. EPA would hope to
encourage States to identify and
prioritize for control all of their water
quality problems. along with continuing
the section 304(l) initiative to identify
and control pnonty pollutants.
EPA is soliciting comments on
requiring only two lists of waters under
section 303(d) authority. Informally, this
proposal has received favorable
responses. 11 normal comments are also
as favorable, it is likely that EPA will
require a iwo-list, rather than a three-list
format in the final rule without further
opportunity to comment.
C. Individual Control Stroti gies
In addition to the four lists required
by section 304(t)(1). the States must
prepare and submit to EPA an
individual control strategy [ ICS) for
each point source on the C) list. This
section descnbes the minimum
requirements of an ICS.
EPA has codified sections 304(lJ(1)(D).
304(1)(2), arid 304(l)(3) of the C’NA into
a new section in Part 123— I 123.46.
Section 123.46(a) requires the States to
submit ICSs to EPA on or before
February 4. 1989, and 1123.46(b)
requires EPA to approve or disapprove
the ICSs by June 4, 1989. (The
codification rule uses the term
“Administrator” because the rule
adheres closely to the language of
section 304(l). However. EPA has now
delegated the Administrator’s
obligations under section 304(I) to the
Regional Administrators. Therefore.
today’s proposed regulations use the
term “Regional Administrator.”)
Where EPA disapproves an ICS. EPA
must prepare the ICS in cooperation
with the State. Today’s proposed rules
add four new paragraphs to § 123.46.
Proposed paragraph (cJ defines an ICS.
Proposed paragraph (d) describes the
petitions submitted under section
304(l)(3). Proposed paragraph (e)
describes the procedures EPA will use
to approve or disapprove ICSs. and
proposed paragraph (0 establishes the
criteria that EPA will use to evaluate an
‘Cs.
1. Description of an Individual Control
Strategy
Section 304(l)(1)(D) provides that an
individual control strategy mus
produce a reduction in the discharge of
toxic pollutants from point
sources “ identified under section
304(l)(1)(C). which is “ sufficient, in
combination with existing controls on
point and nonpoint sources of pollution.
to achieve the applicable water quality
standard as soon as possible. but not
later than three years after the date of
the establishment of such strategy.”
These elements of an individual control
strategy are codiled at 40 CFR 123.46(a).
Today’s proposed definition of an ICS
includes a final NPDES permit. a draft
NPDES permit with a schedule for
issuing a final permit. or. for an on.site
response action under CERCLA, the
decision document for the response
action. The following preamble
discussion describes each of these
elements of the proposed definition in
mon’ detjil.
-------
Federal Register I Vol. 54, No. B I Thursday. January 12. 1989 I Proposed Rules
1313
EPA has determined that, lot most
point source discharges to meet the
requirements of section 304(1). an ICS
should consist of a final NPDES permit
for each point source on the (C) list, plus
supporting documentation that such
permits have adequately considered the
impact from the other discharges on the
identified segment. A sufficient ICS.
therefore, consists of the controls which
are developed (NPDES permit
limitations and a schedule for achieving
such limitations if they cannot be
achieved upon permit issuance) and
documentation which shows that the
controls selected are appropriate and
adequate (i.e.. fact sheets with
information on total maximum daily
loads and waterload allocations)
EPA believes this is the correct
interpretation of the term “individual
control strategy” because paragraph (D I
of section 304(I) states that an ICS must
reduce discharges of toxic pollutants
through “effluent limitations under
section 402” of the CWA. Section 402 of
the CWA establishes the NPDES
program, and the effluent limitations in
NPDES permits are the primary control
mechanism that EPA and the States use
io reduce point source discharges of
pollutants. By inserting a reference to
the NPDES program in paragraph (D l
EPA believes that Congress intended for
an NPDES permit to be the primary
element of an ICS.
Where a State demonstrates that a
f:nal permit cannot be issued by
February 4. 1989. a draft permit and
supporting documentation may be
accepted as an ICS. However, such a
draft permit must be accompanied by a
schedule indicating that the final permit
will be issued on or before February 4,
1990.
EPA’s definition of an ICS includes
di aft permits because the description of
art ICS in section 304(l)(1)(D) allows for
such an interpretation, and because it is
unrealistic to expect final NPDES
permits to be prepared for every point
source on the (C) lists within the
ambitious deadlines of section 304(1).
Water quality.based effluent limits.can
be technically difficult to prepare and
are often subject to extensive public
comment during the permit development
process. Today’s proposal to include
draft permits in the definition of an ICS
requires the permitting authority to
prepare the effluent limitations required
by section 304(l)(1)(D), but at the same
time, gives the States the necessary
flexibility to meet the ambitious
deadlines of section 304(1).
A draft permit prepared as an ICS
under section 304(l) must be issued as a
final permit within one year of
ct,ibIi’ .h,npnt of the ICS. (This one se,ir
period is consistent with the language in
section 304(l)(3) which establishes a one
year period for implementing the
provisions of section 304(l) with respect
to disapproved ICSs.) Therefore, if a
State submits a draft permit to EPA on
or before February 4. 1989, the ICS must
be issued as a final NPDES permit on or
before February 4. 1990. Although the
one.year time period reduces the time
available to the permittee to meet the
deadlines in section 304(l), the one-year
time period for issuing final NPDES
permits wilL nonetheless, allow the
permittee sufficient time to achieve
applicable water quality standards
before the June 4. 1992 deadline in
section 304(1). In the case of State-issued
ICSs. the one year tune period allows
EPA to exercise its authority under
section 304(l)(2) if a State fails to issue a
final NPDES permit within the one year
time period. In the case of EPA-issued
ICSs. the ICS may be a draft permit. and
like the States. EPA would also have up
to one year in which to issue a final
NPDES permit.
Where EPA approves a draft permit
as an ICS, EPA’s approval is
conditioned on the States meeting the
schedule for isswng the final permit. If a
State fails to meet the schedule for
issuing the final permit. then EPA may
exercise its authority to disapprove the
ICS and implement section 304(l).
It as possible that some CERCLA sites
will be subject to section 304(1) because
these sites can be point source
discharges of a priority pollutant. If a
CERCLA site qualifies for the (C) list
under section 304(1). ‘then the site must
also satisfy section 304(I)(1)(D) relating
to ICSs. For “off-site” response actions,
the CERCI.A site discharger must obtain
an NPDES permit. and will therefore
satisfy section 304(l) in the same way as
other point sources subject to section
304(l)(1)(C). For “on-site” actions
however, the discharger must meet all
“applicable or relevant and appropriate
requirements” of the CWA, but is
exempt under section 121 of CERCLA
from the procedural requirements of the
NPDES permitting process. Therefore.
on-site actions that are subject to
section 304(I) will satisfy paragraph (D)
of section 304(1) through compliance
with applicable or relevant and
appropriate requirements under the
CWA. as described in the decision
document for that on-site response
action. Although EPA expects that there
will be Few CERCLA sites subject to
section 304(1). EPA emphasizes that the
ICS for any such CERCLA site is subject
to the deadlines in section 304(l). The
proposed definition of an ICS at
§ 123 46(c) includes cERCLA decision
documents for on.sute response actions
EPA solicits comment on this approach
For CERCLA sites that are subject to
section 304(l)(1)(D).
EPA considered, but rejected. other
interpretations of the term “Individual
control strategy.” A water quality
management plan prepared under 40
CFR 130â cannot be art ICS because
these p . ’are not directly enforceable
(although they are binding on the States)
and cannot ensure, by themselves, that
limitations will be achieved within the
deadlines under section 304(I).
Enforcement orders and consent
decrees, by themselves, are not
adequate substitutes for ICSs. However.
an enforcement order or judicial decree
based on a final and sufficient NPDES
permit may accompany an ICS. provided
the ICS satisfies all applicable
provisions of section 304(l) of the CWA.
The requirement in section 304(l)( 1 (D)
that an ICS establish effluent limits
under section 402 of the CWA. and
therefore consist of an NPDES permit.
raises several issues when implementing
section 304(l). The remainder of section
Ill.C.1 of this preamble discusses the
issues that arise from EPA’s definition of
an ICS.
An NPDES permit usually becomes
effective 30 days after a final decision to
issue or modify the permit unless an
evidentiary hearing is requested under
40 CFR 124.74 Evidentiary heanngs can
delay the effective date of the permit.
Because these potential delays could
jeopardize the ability of EPA and the
States to meet the deadlines in section
304(l). and because a final permit
reflects the final decision of the
permitting authority with respect to the
permit. EPA will accept a final (but not
necessarily effective) NPDES permit as
an ICS.
Another issue arising from the
definition of an ICS is the role of States
that are not approved by EPA to
administer the NPDES program. This
issue arises directly from an
inconsistency in the language of section
304(I). The statute requires States to
prepare “effluent limitations under
section 402” of the CWA. but some
States are not approved by EPA to
prepare such limitations. EPA believes
the preferred approach for resolving this
internal inconsistency in section 304(l) is
to require non-approved States to fulfill
the same obligations under section 304(1)
that they fulfill under the NPDES
program. A State that Is not approved by
EPA to administer the NPDES program
will fulfill its obligations under section
304(11(11(D) by preparing and submitting
wasteload allocations to the Regional
Offices for EPA review and approvel
Under the NPOES program. non
-------
Federal Register I Vol. 54. No. 8 / Thursday. January 12. 1989 / Proposed Rules
1314
approved States assist EPA in issuing
permits by providing EPA with
background information. wasteload
allocations, and certifications under
section 401 of the CWA. EPA uses the
wasteload allocations to prepare the
NPDES permits for the State. The role of
non-approved States with respect to
ICSs will be the same as their role with
respect to NPDES permits. Non-
approved States are responsible for
preparing wasteload allocations for
each point source on the (C) list. It
should be emphasized that non-
approved States must prepare and
submit the required information to EPA
within the deadlines of section 304(I).
The Regional Offices will prepare and
issue, in cooperation with non-approved
States, final NPDES permits in the State.
EPA’s notice of approval and
disapproval will use the same format in
approved and non-approved States.
Although EPA is responsible for issuing
the lCSa in non-approved States. EPA is
not responsible for preparing the four
lists required by section 304(l)(lJ in non-
approved States. All States, whether
approved or non-approved, must submit
the four lists to EPA.
Section 304(1) establishes a three year
deadline for achieving water quality
standards, whereas section 3011 blll)(C)
requires water quality standards to be
met by July 1. 1977. The different
deadlines in the two sections raise the
question of how the two sections
interact. EPA believes that Congress did
not intend for section 3 04(l) to repeal the
July 1977 deadline in section
30 1(b)(1)(C). Rather. Congress
recognized that permittees will need a
reasonable amount of time, not to
exceed three years. to comply with new
effluent limits that are necessary to
achieve new water quality standards, or
reinterpretations of existing water
quality standards. On the other hand.
there is no indication that Congress
intended for section 304(1) to be an
extension for permittees who have
already failed to comply with effluent
limitations. Therefore. where effluent
limits are based on water quality
standards adopted after July 1977. or
based on new interpretations of’existing
standards, the permit may include a
compliance schedule. Also, where new
effluent limits will require construction
or other activities (eg.. wastewater
treatment system optimization.
pretreatment program implementation.
etc.) an ICS may include a compliance
schedule for such activities. However.
an ICS may not extend a compliance
schedule for achieving effluent limits if
ihe permittee has already railed to abide
hy th rompli,incp schedule. The r ,isun
for this distinction is that section 304(l)
requires that water quality standards be
met ‘as soon as possible.” If a permit
already includes a compliance schedule.
then the permitting authority has
already given the permittee a
reasonable time to comply with effluent
limits and therefore achieve water
quality standards. Where a permit
includes a compliance schedule for
attaining effluent limits necessary to
achieve water quality standards, the
compliance schedule usually represents
the most expeditious time frame for
achieving water quality standards.
Therefore, where a compliance schedule
has not been met, the (CS cannot extend
the schedule. Rather, an enforcement
order may be required as part of the ICS.
In addition, it may be necessary to
revise technology-based controls to
reflect new effluent guidelines or other
new information on available controls.
If these requirements cannot be met
immediately, they may also be
addressed by a compliance schedule in
an ICS provided the compliance
schedule is consistent with current
regulations regarding the inclusion of
compliance schedules in permits.
It is possible that some permittees
may not meet the effluent limits in their
NPDES permits on or before the
deadline in section 304(I) for achieving
applicable water quality standards. For
example, the treatment technology may
not be immediately available to reduce
the discharge of a priority pollutant to
the levels necessary to protect aquatic
life and human health. In sUch cases. the
NPDES permit may contain a schedule
of compliance that leads to compliance
with section 304(l) and other
requirements of the CWA. (Note,
however, that a schedule of compliance
must require compliance no later than
applicable statutory deadlines.)
If the perinittee does not achieve
effluent limits within the time specified
in the permit (but no later than the
applicable deadline in section 304(l)),
the CWA provides for a range of
enforcement actions. These actions are
provided for in section 309 of the CWA
and include, administrative orders.
administrative penalty orders, and civil
or criminal judicial actions. The
appropriate enforcement response is
determined on a case-by-case basis. In
limited cases in the past. EPA has issued
administrative orders concurrently with
an NPDES permit where the effluent
limits are effective immediately upon
permit issuance. Factors which are
considered when determining the
appropriate enforcement response
include but are not limited to: The
potential impact of the disrh.irce on
human health or the environment: the
compliance history of the permittee: and
any good faith efforts by the permittee
to achieve compliance. EPA solicits
comment on the best approach for
issuing and enforcing permits that
cannot meet the deadlines in section
304 (I) for achieving applicable water
quality standards.
EPA recognizes that there may be
situations where compliance with
applicable water quality standards will
require lCSs for a number of point
sources on a stream segment. or may
require nonpoint source controls. More
than one point source may contribute
the same pnonty pollutant to a
waterbody identified on the “B” list, and
therefore. controls on only one point
source may not achieve water quality
standards. In ether cases where there
are significant loadings of a toxic
pollutant from nonpoint sources, effluent
limits for the point sources, by
themselves, may not attain and maintain
applicable water quality standards. (See
the discussion of the phrase ‘entirely or
substantially” in section IILB.i of this
preamble.) In these cases. it is EPAs
positiop that an ICS may satisfy the
language in paragraph (D) of section
304 (l), and in proposed § 123.46(c)
(which require the (CS to achieve water
quality standards), if the effluent limits
for the point source are consistent with
a wasteload allocation for the point
source. This approach allows the
permitting authority to develop an ICS
for each point source that, together with
other point or nonpoint source controls,
is designed to attain and maintain
applicable water quality standards. This
approach is also consistent with EPA’s
existing surface water toxics control
program. in which each point source is
obligated to reduce its contribution of a
pollutant according to its wasteload
allocation. The result of this approach
should be substantial reductions in point
source contributions of priority
pollutants, which is consistent with
Congress’ intent in enacting section
304 (l).
Where a waterbody on the (B) list has
a significant nonpoint source of a
priority pollutant that could impede
progress toward achieving water quality
standards. EPA and the States should
address the nonpoint source using all
available authorities including State and
local authorities and section 319 of the
CWA. (Note that where point and
nonpoint sources on the same
waterbody contribute different priority
pollutants, the degree of nonpoint source
contributions will not affect the decision
whether to list the water under
par.igrapli B of section 3O4( II) For
-------
Federal Register / Vol. 54, No. 8 I Thursday. January 12. 1989 / Proposed Rules
1315
more information see the discussion of
the (B) list in section III.B of this
preamble
Nonpoint sources are part of the
process of developing water quality-
based effluent limits for point sources
because 000point sources are
considered when developing TMDLs
and WLAs under section 303(d) of the
CWA. EPA emphasizes that nonpoint
source controls can make significant
improvements in water quality. For
many waters, the most significant
sources of pollutants are nonpoint
sources. Furthermore. nonpoint source
controls are. in some cases, more cost-
effective than point source controls. The
wasteload allocation process gives
Stales the flexibility to allocate
wasieloads among vanous points and
nonpoint sources on an affected
waterbody. in order to maximize
en ironmentai benefits while keeping
control costs to a minimum. Thus where
possible. WPA encourages the States to
use nonpoint source controls to meet the
objectives of section 304(l) of the CWA.
Section flI.B.1 of this preamble
e’iplains that a waterbody may qualify
for the (B) list if the source of the
priority pollutant is sediment deposited
or contaminated by an active point
source subject to section 402 of the
CWPt For example, the effluent from an
active point source discharge may
contain priority pollutants that are
depocited as sediments in the receiving
aier. or the effluent may contaminate
e isitng sediment in the receiving waler.
In such cases the sediment can interfere
with the designated use of the water.
and the releases can cause excursions
above applicable water quality
standards. Where contaminated
sediment is caused by an active point
source, it is EPA’s position that the point
source is responsible [ or the priority
pollutants. It is EPA’s goal that the ICSs
for these active point sources achieve
applicable water quality standards
within the timeframes of section 304(1).
I lowever. because controls for in-place
sediments raise unique problems for the
NPDES program, an ICS for such a point
source should, wherever possible.
prevent additional accumulation or
contamination of the sediments that are
the source of the toxic pollutant.
Under EPA’S interpretation of section
3 0 4 (l) all permits. including final or
effective permits for point sources
subject to section 304(l)(1)(C) must be
included in the review required by
section 304 (I). It is EPA’s position that
section 304(I gives EPA the authority to
reopen a permit before the term of the
permit expires regardless of whether the
p’rmtt has a .-eopener clause. The
authority to reopen final and effective
permits is indicated by the language in
section 304 (I) that requires an ICS to
‘establish ( I effluent
limitations under section 402.” EPA’s
authority under section 304(l) to reopen
final and effective permits is also
supported by the fact that the
alternatives to reopening permits do not
necessarily meet the requirements of
section 304(l)(1)(D). The alternatives are:
(1) Allow ICSs to be unenforceable
plane that might incorporate limitations
under section 402 at some later time: (2)
omit certain point sources from the
section 304(1) process because the
permits for these point sources are not
due for review under 40 CFR 123.44; or
(3) wait until a permit expires (possibly
after the deadlines in section 304(l)) to
change the terms of the permit. None of
these alternatives would satisfy the
requirement that ICSs attain water
quality standards by the deadlines In
section 304(1). Therefore. EPA will
review, and possibly disapprove under
section 304 (l). final or effective permits.
regardless of whether the permit has a
reopener clause.
In enacting section 304(1) Congress
mandated that EPA and the States act
expeditiously to control point sources of
priority pollutants. Congress
established. in section 304(l), a new
process for reviewing permits. To
implement section 304(l). EPA will use
existing procedures where possible.
However. EPA will use the section 304(l)
process where pro-existing regulatory
procedures are inconsistent with the
section 304(l) review process. For
example, EPA’s regulations at 40 CFR
123.44 describe the procedures for EPA’,
objections to permits prepared by the
States. (Section 402 of the CWA
establishes conditions that are
prereqwsites to EPA’s authority to issue
permits in approved States. For
example, section 402 require. an
approved State to submit a permit to
EPA for review and reqwres EPA to
object in writing within ninety days, as
prerequisites to EPA’s authority to issue
the permit.) Although the procedures
under section 304(l) provide an
equivalent opportunity for State-EPA
cooperation in the development of
permits. section 304(l) also gives EPA
the authority to issue permits where the
State fails to issue permits that satisfy
section 304(l). Under the existing
regulations the State submits a proposed
permit to EPA, and EPA then has 90
days to object to the terms of the permit.
After EPA’s objection, the State has 90
days to request a public hearing or to re-
submit the permit to EPA. If EPA grants
a public hearing. the State may re-
submit the permit within 30 days after
the Administrator issues the post-
hearing decision. If the State does not
re-submit the permit within the time
limits in § 123.44. the exclusive authority
to issue the permit passes to EPA. These
procedures are not appropriate for the
section 304(l) review process. First. EPA
must review final or effective permits in
the ICS review process. not just draft or
proposed permits. Second. section 304(I)
gives EPA a specific deadline by which
to review an ICS. not the 90 days
provided for in 123.44. Third. section
304(l) makes no provision for the State
to resubmit a disapproved ICS. Rather.
section 3 0 4(l) directs EPA to work in
cooperation with the State in preparing
and implementing EPA’s ICSs. Finally.
section 304(l) reqwres EPA to provide
for public notice and an opportunity to
comment on the ICSs. not just an
opportunity to request a hearing as
provided under 123.44. Taken as a
whole the ICS review process is
inconsistent with the permit review
process under 123.44. Therefore EPA
will not use the permit review and
objection procedures set forth in Part
123 when reviewing lCSs. Instead. EPA
will review and approve or disapprove
an ICS using the criteria and procedures
set forth in today’s proposed
amendments to 40 CFR 123.40.
For disapproved ICSs. EPA will use
existing procedures to issue these ICSs.
After EPA disapproves an ICS that is a
draft or final NPDES permit. the Agency
will use the procedures described in 40
CFR Part 124 to issue a final ICS. If EPA
disapproves a decision document for an
on’site response action under CERCLA.
the Agency will use the procedures
under CERCLA for issuing these ICSs.
EPA expects that many of the lCSs
that are subject to section 304(I) will be
final State-issued permits that EPA has
previously reviewed under 40 CFR Part
123. When a State submits an ICS to
EPA for review under section 304(l), any
previous EPA decision to not object to
the permit under Part 123 does not
waive EPA’s authority to review and
approve or disapprove the ICS under
section 304(l). If EPA reviewed a permit
under Part 123. EPA reserves the right to
review the same permit under the
provisions of section 304(l).
2. Technical Review Criteria
Section 304(l) requires an [ CS to
achieve applicable water quality
standards as soon as possible but not
later than three years after the ICS is
established. Although this language
establishes a general standard for
evaluating an IcS. the language says
little about the permit condItions
-------
1316
Federal Register I Vol. 54. No. 8 I Thursday. January 12. 1989 I Proposed Rules
necessary to ensure that applicable
water quality standai ’ds will be
achieved. EPA is proposing review
criteria in 40 CFR 123.40 (1) that will
assist the Regions. States, and regulated
community in evaluating whether an ICS
meets the requirements of section 304(l).
The criteria that EPA will use to
review ICSs are the same as the criteria
EPA uses to review the water quality-
based effluent limits for any permit.
Section llI.A of this preamble discusses
proposed amendments to 122.44 (d)
and (e). These proposed amendments
describe how to establish water quality.
based effluent limits in NPDES permits.
Effluent limits derived from water
quality standards must satisfy the
proposed language for 122.44 (d) and
(e). The proposed regulations at
§ 123.46 ( 1). provide that ICSs shall be
reviewed according to the cnteria in
§ 122.44 (d) and (e). EPA is also
amending § 123.44(c) to incorporate the
review criteria for ICSs into EPA’s
criteria for reviewing other permits not
sub ecl to section 304(l). Section
123.44(c) enumerates the criteria that
EPA may use to review State-issued
permits. By using the same criteria for
reviewing ICS . and for reviewing
permits that are not subject to section
304(l), EPA is insuring consistency in
reviewing the technical adequacy of
these two categories of permits.
Where EPA disapproves an ICS.
section 304(11(3) requires EPA to
implement section 304(1) in a manner
which will achieve applicable water
quality standards on or before June 4,
1993. A final permit issued after EPA
disapproves the permit under section
304(I) must include language in the fact
sheet or statement of basis that
identifies the permit as an ICS that
satisfies the requirements of section
304(l) of the CWA. This requirement is
similar to the language in draft permit.
subject to section 304(I) which identifies
the permit as an ICS. The language in
the final permit will identify for the
public and the regulated community
those lCSs which satisfy the
requirements of section 30 4(l).
D. EPA Review of 1.1313 and Individual
Control Strategies
Section 304(l) requires EPA to review
and approve or disapprove the lists and
ICSs submitted by a State. If a Stale
fails to submit the lists or ICSs. or if a
Stale submits inadequate lists or ICS ..
then EPA must disapprove the lists or
ICSs. Section 304 (1 1(2) gives EPA 120
days to approve or disapprove a States
submittal, and where EPA disapproves a
list or ICS. section 304 (I)(3) requires EPA
to implement section 304 11 1(1) on or
before June 4, 1990. Today s proposed
rules establish the same review
procedures for the lists and for the ICSs.
(Note, however, that the regulations
describing the notice and comment
procedures for the lists are separate
from the regulations for the ICSs
because Part 130 addresses State lists of
waters, and Part 123 addresses EPA
review of permits.)
The procedures described in this
section are necessary because the time
frame in EPA’s existing procedures for
reviewing similar Slate submittal. are
different from the deadlines established
by section 304(I). For example. section
303(d) of the CWA and EPA’s
implementing regulations at * 130.7
include procedures for reviewing State
eubmittala of “Water quality limited
segments” under section 303(d) of the
CWA. It is unrealistic for the Regional
Administrator to review the lists
submitted under section 304(l) within the
30 days allowed by section 303(d).
The first step in the review process
occurs when a State submits its lists and
lCSs to the appropriate Regional Office
for review. The States’ deadline for
submitting the lists and ICSs is February
4. 1989. and the Regional Offices must
approve or disapprove the lists and ICS .
by June 4. 1989. EPA’s deadline for
approving or disapproving the lists and
ICSs is June 4, 1989 and does not change
if a State submits its lists or lCSs before
February 4, 1989. If a State submits its
lists and ICSs after the February 4, 1989
deadline, then it will be difficult for EPA
to meet the June 4, 1989 deadline for
approving or disapproving a State’s
submittal.
1. Partial Approval and Disapproval of
State Submittal.
Section 304(l) gives EPA the discretion
to approve or disapprove an entire list
of waters or facilities, or to approve or
disapprove individual waters of the list,
or individual point sources on the (C)
list. EPA ha. the same discretion to
approve or disapprove one or more
lCSs. The basi . for this conclusion is the
requirement in sectIon 304(l) that EPA
implement the listing and ICS
requirements of the statute where the
State fails to submit an ICS in
accordance with paragraph (I).
Submission of an ICS in accordance
with paragraph (I) includes listing the
water where appropriate, and preparing
an adequate tCS. For simplicity EPA has
decided to refer to approvals or
disapproval. of a listed waterbody
rather than an entire list of weterbodies.
As described in section lIl.B.1 of this
preamble. section 304(l) requires each
State to submit three lists of waters to
EPA. EPA will review each waterbody
on each of the three lists. If the
waterbody meets the criteria described
in the proposed regulations at
5 130.10(d) of today’s rulemaking. then
EPA will approve the State’s decision to
list that waterbody. If EPA identifies a
waterbody that qualifies for one or more
of the three lists of waters, and the State
had not included the waterbody on the
appropriate list(s), then EPA will
disapprove the States decision to not
list the waterbody under the applicable
paragraph(s) in it notice of approval
and disapproval. For example, if a State
included a waterbody on the (A)(i) list
but not on the (B) list, and if EPA
determined that the waterbody qualified
for both lists, then EPA would approve
the decision to list the waterbody on the
(A)(i) list, but would disapprove the
State’s decision to not list the
waterbody under the (B) list. Another
example is where a State does not
include a waterbody on any of the three
lists, but EPA determines that the
waterbodv qualifies for one or more of
the lists. EPA would disapprove the
State’s decision to not list the
waterbody under each paragraph for
which the waterbody qualifies.
EPA also has the authority to
disapprove the listing of a waterbody by
a State if the waterbody does not qualify
for the list. For example. if the State
includes a waterbody on the (B) list, and
EPA determines that the waterbody
does not qualify for the (B) list, EPA
would disapprove the State’s listing of
the waterbody on the B list, and indicale
this decision in EPA’s notice of approval
or disapproval.
EPA will also review each point
source on the (C) list. EPA will approve
the listing of each point source that
meets the criteria in section 304 (l)(1 )(C).
EPA will disapprove the listing of any
point source that does not satisfy
section 304(l)(1)(C), and will disapprove
a State’s decision to not list any point
source that meets the criteria in
paragraph C of section 304(l)(1).
Like EPA’s review of individual
waters, EPA will review each ICS. and
will approve each ICS submitted by a
State that meets the requirements of an
ICS. EPA will also disapprove a State’s
decision to not submit an ICS if EPA
determines that the State should have
included the ICS in its submittal to EPA.
The notice of approval and disapproval.
explained in the following section, will
include EPA’. decisions with respect to
each water, point source, and ICS.
2. Public Notice of Approval or
Disapproval
Under section 304(11(3) of the CWA. if
a State fails to submit one or more
wdtcrs or ICSs. or if EPA disapprove
-------
Federal Register / Vol. 54. No. 8 I Thursday._January 12. 1989 I Proposed Rules
1317
one or more waters or ICSs. then EPA
will implement the requirements of
scctiun 304(l)(1) after notice and
opportunity for public comment This
scciion describes the public
participation procedures necessary
when EPA implements section 304(11.
Today’s proposed regulations on public
par:icipation amend § 130.10(d) (relating
to lists of waters), and § 123.46(.)
(relating to ICSs).
EPA intends to rely, to the extent
possible. on State public participation
procedures. EPA encourages the States
to provide for full public participation
when developing their lists and ICSs
under section 304(l). State public
participation procedures must, at a
minimum, provide for public notice and
an opportunity to comment on the
States lists and ICSs. Parts 25 and 124
of EPA’s regulations describe
procedures for public notice and
comment that States may use under
section 304(l) The 120-day comment
period in section 304(l)(3) does not apply
to States because section 304(l)(3)
applies only when EPA disapproves one
or more ICSs. Where a State does
provide adequate public participation on
the lists and lCSs, and where the
Regional Administrator approves all of a
State’s decisions with respect to the lists
and ICSs. today’s proposed reguldilons
give the Regional Administrator the
discretion to forego an additional round
of notice and comment on the lists and
ICSs.
Where the Regional Administrator
determines that a State did not provide
fur adequate notice and opportunity to
comment on the lists and ICSs. EPA’s
notice of approval or disapproval must
include all approvals and disapprovals.
Such notice would include all of EPA’s
approvals and dusapprovals for all
waters and ICSs subject to section
304 (l).
If a State provides for adequate public
participation, but the Regional
Administrator disapproves any of a
State’s decisions with respect to the
waters, point sources, or ICSs. then
EPA’s notice must include each of the
Agency’s disapprovals. In this case it is
not necessary for the notice to include
F.PA’s approvals of a State’s decisions
under section 304(t). However, the
Regional Administrator has the
discretion to include EPA’s approvals in
the notice provided under section 304(I).
(See proposed 40 CFR 123.48(e) and
130.10(d)(7).)
The proposed rules require the
Regional Offices to mail a copy of the
notice to the State Director, to each
permittee identified as a point source
under section 304(l)(1)(C). and to every
interested person on the mailing list
maintained by the Regional Office.
(Interested persons may contact the
appropriate Regional Office for more
information about the mailing lists
maintained in each Region.) The
proposed rule also requires the Regional
Administrator to publish a notice of
availability in a daily or weekly
newspaper with State-wide circulation
(See proposed 40 CFR 123.48(e) and
130.1O(d)(7).) The notice of availability
tells the public where to obtain copies of
EPA’s notice of approval or disapproval.
Under today’s proposed rules, public
participation for the lists and ICSs
occurs at the same time, and the
Regional Offices will probably use the
same notice for the lists and ICSs.
EPA considered notice in the Federal
Register as an alternative to today’s
proposal. However, a Federal Register
notice does not necessarily provide
actual notice to the parties involved,
whereas a direct mailing to the
interested parties provides actual notice.
A Federal Register notice takes more
time to prepare and publish than
notification by mail, Finally, a notice in
the Federal Register is not necessarily
appropnate because the lists are
primarily of State-wide concern.
EPA considered provuling notice and
an opportunity for comment on a State’s
submittal before issuing a notice of
approval or disapproval. EPA rejected
this approach because such notice is not
required under section 304(l) and
because the ambitious deadlines in
section 304( I) preclude public notice and
comment before EPA approves or
disapproves a State’s lists and ICSs.
EPA solicits comment on the methods
that should be used for providing notice
of the approvals and disapprovals.
a. Contents of EPA ‘s Notice of
Approval or Disapproval. Today’s
proposed amendments to § 123.48 and to
§ 130.10(d) describe the contents of the
public notice provided under section
304(I). lithe Regional Office combines
the notice for the lists and ICSs, then
each notice would include the following:
1. The name and address of the EPA
office that reviews the State’s
submittals.
2. A brief description of the 304(l)
process. For example. the notice should
describe the requirement to identify
point sources of toxic pollutants, and
should discuss EPA’s review of the
State’s submittal,
3. A list of the waters disapproved
under paragraph (Afli). (A)(ii). and (B).
and a short finding that the waters do
not meet the applicable review criteria.
4. A list of point sources disapproved
under paragraph (C) of section 304(l)(1).
and a short finding that the point
sources do not satisfy the criteria of
paragraph (C).
5. A list of ICSs disapproved under
paragraph (D) of section 304(l)(1) and a
short finding that the ICSs do not meet
the applicable review criteria.
6. lithe Regional Administrator
determines that a Slate did not provide
adequate public notice and an
opportunity to comment on the waters,
point sources, or ICSs prepared under
section 304(l). or if the Regional
Administrator chooses to exercise his or
her discretion, a list of approvals and a
short finding that the approved waters,
point sources. or ICSs meet the
applicable review criteria.
7. The name, address, and telephone
number of the person at the Regional
Office from whom interested parties
may obtain more information.
8. The location where interested
persons may examine EPA’s records of
approval or disapproval.
9. Notice that written petitions or
comments are due within 120 days.
The contents of these notices are
similar to the notices given under 40
CFR 124.10. EPA believes that by using
existing procedures wherever possible
the agency will minimize the
administrative burden of implementing
section 304(l).
EPA’s notice of approval or
disapproval allows 120 days for public
comment. The 120-day comment period
coincides with the 120 days described in
section 304(11(3). which allows interested
persons to petition EPA to list additional
waters. Under section 304(l)(3). EPA will
consider for listing any navigable water
for which any persán submits a petition
to EPA. Under the statute, interested
persons must submit petitions on or
before October 4, 1989. Today’s
proposed rule uses the same 120-day
period for receiving petitions and for
taking comments on EPA’s notice of
approval and disapproval. EPA chose to
provide a 120-day comment period
because it would be impractical to close
the public comment period on the notice
of approval or disapproval before the
statutory deadline for petitions. If EPA
dosed the comment period before
October 4. 1989. it is possible that the
Agency would receive petitions for
additional listings after the close of
public comments. EPA solicits
comments on the appropriate notice and
comment procedures under section
304(l).
b. Public Hearings. EPA is not
proposing new regulations for public
heanngs under section 304(l). The 120-
day comment period allows suffirient
public involvement in reviewing EPA’s
decisions with respect to the lids ,ind
-------
1318
Federal Register / Vol.54. No. 8 / Thursday. January 12. 1989 I Proposed Rules
ICSs. Furthermore, new regulations for
public hearings are not necessary
because the Regional Administrator may
hold a public hearing if he or she finds a
significant degree of public interest in
the State’s submittal. EPA is soliciting
comment on the need for public
hearings.
c. Petitions for Additional Listings.
Under section 304(l)(3), EPA must
consider petitions from the public for
additional listings of navigable waters.
Petitions are due within 120 days after
disapproval under section 304(I)(3). and
should be submitted to the appropriate
Regional Administrator. A petition must
identify a waterbody with sufficient
detail so that EPA is able to determine
the location and boundaries of the
waterbody. For example. the petition
could identify the waterbody using the
name and number assigned to the
waterbody by EPA’s REACH file. The
REACH file is a data base on the
nations surface waters, and the
information is available from EPA’s
Regional Offices. Another method for
identifying a waterbody is to use the
common name for the waterbody, and
give the geographic boundaries for the
water. The petition must also identify
the list or lists for which the waterbody
qualifies, and the petition must explain
why the waterbody satisfies the criteria
for the list or lists. EPA needs this
information to evaluate the petition. If
EPA has data that show the water
should be listed, and the State has not
listed the water, then EPA will
disapprove the State’s failure to list the
waler.
Petitions submitted to EPA pursuant
to section 304(l)(3) are limited to adding
waters to one or more of the three lists
of waters prepared under section
304(l)(1). Under section 304(I)(3), an
interested party may not petition EPA to
delete a water, point source, or ICS from
the lists prepared under sectioa 304(1).
The relevant language describing
petitions under section 304(l)(3) limits
the petitions to navigable waters
for listing under (section 304(1)1,” and
does not discuss deleting waters, point
sources, or ICSs from the lists prepared
under section 3 0 4(l). As a result of the
statutory language. tbe public may
submit petitions only for adding waters
to one or more lists of waters prepared
under section 304(l).
d. Response to Comments and
Petuiuns. After the close of the public
comment period on October 4. 1989. the
Regional Offices will provide, not later
than January 4, 1990. a response to the
comments and petitions received. The
response Co comments will be given in
the s ine m.inner us the first notice The
contents of the response to comments
are the same as the first notice of
approval or disapproval except for the
following changes:
1. The lists of disapproved waters.
point sources, and ICSs must reflect any
changes made pursuant to comments or
petitions received.
2. A brief summary of major
comments and petitions received. .irid
EPA’s response to the comment or
petition.
3. A brief description of the
subsequent steps in the 304(I) process.
For example. the point sources on the
(C) list will require ICSs such that water
quality standards will be met by the
applicable deadline in section 304(l).
Interested persons will have an
additional opportunity to comment on
disapproved ICSs. Where EPA
disapproves an ICS because it does not
meet the requirements of section 304(l),
or because the State failed to submit the
ICS to EPA for review. section 304(l)
requires EPA to prepare an ICS in
cooperation with the State after notice
and an opportunity to comment. The
public notice requirements of section
304(l)(3) will be fulfilled by the public
notice procedures followed by EPA or
the State when issuing the permit that
will constitute the ICS. If EPA
disapproves one or more ICSs. then EPA
or the State may modify. revoke and
reissue, or terminate that ICS using the
procedures in 40 CFR Part 124. The
procedures in Part 124 require the
permitting authority to provide for
public notice and an opportunity to
comment before issuing a rinal permit.
Therefore, if the permitting authority
modifies, revokes and reissues. or
terminates a disapproved ICS. the
permitting authority must provide for
public notice and an opportunity to
comment. Judicial review of a
disapproved ICS under section 509(b) at
the CWA is not available until EPA
makes a final decision with respect to
the NPOES permit under Part 124 of
EPA’s regulations. At any time after the
Regional Administrator disapproves an
ICS (or conditionally approves a draft
permit as an ICS). the Regional Office
may submit a written notification to the
State that the Regional Office intends to
issue the ICS. Upon mailing the
notification to the State, exclusive
authority to issue the permit passes to
EPA. This issue is addressed in today’s
proposed regulations at 40 CFR 123.46(11.
EPA is proposing this regulation to
clarify the time at which exclusive
outhonty to issue lCSs pdsscs to EPA
under s.ttion 304(l).
IV. Regulatory Analysis
A. £ ecudve Order 1Z91
Under section 3(b) of Executive Order
12291 the agency must judge whether a
regulation is maior and thus subject to
the requirements of a Regulatory Imoart
Analysis. The proposed regulation
published today is not ma or because
the rule will not result in an effect on
economy of $100 million or more. will
not result in increased costs or pnces.
will not have significant adverse effects
on competition. employment,
investment, productivity, and
innovation, and will not significantly
disrupt domestic or export markets.
Therefore, the Agency has not prepared
a Regulatory Impact Analysis under the
Executive Order. EPA submitted this
regulation to the Office of Management
and Budget (0MB) for review as
required by Executive Order 12291
B Paperwork Reduction Act
The information collection
reqwrements in this proposed rule hav,
been submitted for approval to the
Office of Management and Budget
(0MB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 eS seq. An
Information Collection Request
document has been prepared by EPA
(ICR No. 1490) and a copy may be
obtained from Rick Westlund.
Information Policy Branch. U S. EPA. 401
M Street, SW. (PM—223). Washington.
DC 20460 or by calling (202) 382—2706.
The public reporting burden for this
collection of information is
approximately 730 hours per response
for the listing requirements of these
proposed regulations, and
approximately one hour per response for
the preparation of permit issuance
schedules. These estimates include the
time for reviewing instructions.
searching existing data sources.
gathering and maintaining the data
needed. arid completing and reviewing
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden. to
Chief. Information Policy Branch. PM—
223. U.S. EPA. 401 M Street SW.
Washington. DC 20460: and to the Offlt.e’
of Information and Regulatory Aff.iirc.
Office of Manailement and Budget.
Washington. DC 20503. marked
“Attention: Desk Officer for EPA.” The
final rule will respond to any 0MB or
public comments on the information
collection requirements contained in this
propn .i I.
-------
Federal Register / Vol. 54. No.8 / Thursday, January 12. 9 / Proposed Rules
1319
Regulatory Flexibility Act
Under the Regulatory Flexibility Act
of 1980 (5 U.S C. 601 el seq.). Federal
dgenc les must, when developing
regulations, analyze their impact on
small entities (small businesses, small
government iunsdicnons. and small
organizations). This analysis is
unnecessary, however, where the
agency’s administrator certifies that the
nile will not have a significant economic
effect on a substantial number of small
entities. The agency has concluded that
this rule will not have a significant
economic effect on a substantial number
of small entities because today’s
rulemaking proposes no new
requirements for the regulated
community Today’s proposed
regulations merely establish the
procedures for implementing section
304(l) of the CWA. and clarify certain
elements of EPAs surface water toxics
control program.
L.st of Subjects
40 CFR Port 122
EPA administered permit programs:
The National Pollutant Discharge
Elimination System.
0 CFR Part 223
State program requirements
40 CFR Part 130
Water quality planning and
r. lunagernent.
flute January 4. i98
Lee M Thomas,
,‘J’7,:,l. trU’Dr
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 USC,
1,51 et seq
2 Section 122.2 is amended by adding
n new definition as follows:
§ 122.2 DefinItions.
Whole effluent bA icily means the
,. ggregate toxic effect of an effluent
measured directly by a toxicity test.
3, Paragraph (d)(1) of § 122.44 is
revised to read as follows:
§ 122.44 EstablishIng limitations,
stsndards, and other permIt conditions
(applicable to State NPDES programs, see
§ 123.25).
Id) -
(1) Achieve water quality standards
established under section 303 of the
CWA. including State narrative
standards for water quality.
(i) When determining whether a
discharge causes or has the reasonable
potential to cause an in-stream
excursion above a narrative or numeric
State water quality standard, the
permitting authority shall use
procedures which account for existing
controls on point and nonpoint sources
of pollution, the variability of the
pollutant or pollutant parameter in the
effluent, the sensitivity of the species to
toxicity testing (when evaluating whole
effluent toxicity), and where
appropriate, the dilution of the effluent
in the receiving water.
(ii) When the permitting authority
determines, using the procedures in
paragraph (d)(1)(i) of this section. that a
discharge causes or has the reasonable
potential to cause on in-stream
excursion above the allowable ambient
concentration for a State numeric water
quality standard, the permit must
contain effluent limits for the individual
pollutant (where the pollutant to
regulated by a State numeric water
quality standard) and for whole effluent
toxicity (where whole effluent toxicity is
regulated by a numeric State water
quality standard).
(iii) Except as provided in this
subparagraph, when-the permitting
authority determines, using the
procedures in paragraph (d)(1)(i) of this
section. and using toxicity testing data
or other information, that a discharge
causes or has the reasonable potential
to cause. an in-stream excursion above
the allowable ambient concentration for
a State narrative water quality standard.
the permit must contain effluent limits
for whole effluent toxicity. Limits on
whole effluent toxicity are not necessary
where the permitting authonty
demonstrates in the fact sheet or
statement of basis of the NPDES permit.
using the procedures in paragraph
(d)(1J(i) of this section. that chemical-
specific limits for the effluent are
sufficient to attain and maintain
applicable numeric and narrative State
water quality standards.
(iv) Where a State has not established
a water quality standard for a specific
chemical pollutant that is known to
ad ersely affect or threaten human
health or aquatic life, the permitting
authority must establish effluent limits
using one or more of the following
optionr
IA) Establish permit limits, on a case-
by-case basis, using EPA’s Water
Quality Criteria: or
113) establish permit limits using a
numeric criterion for the pollutant which
the permitting authority demonstrates is
protective of aquatic life and human
health. Such criteria may be derived
using the procedures described in EPA’s
Water Quality Standards Handbook.
October 1983. or from an acceptable
State criteria development procedure
which employs all information available
to the State including risk assessment
data, exposure data, information about
the pollutant from the Food and Drug
Administration, and current EPA criteria
documents.
(v) When developing water quality’
based effluent limits under this
paragraph the permitting authority shall
ensure that:
(A) The level of water quality to be
achieved by limits on point sources
established under this paragraph is
denved from, and complies with all
applicable water quality standards: and
(8) effluent limits developed to protect
a narrative water quality standard, a
numeric water quality standard, or both
standards, are consistent with the
assumptions and requirements of any
available wasteload allocation for the
discharge prepared by the State and
approved by EPA pursuant to 40 CFR
130.7.
4. The introductory text of paragraph
fe) of § 122.44 is revised to read as
follows:
(eJ Tovic pollutants and sources of
toxicity. Limitations established under
paragraphs (a). (b). or fd) of this section.
to control pollutants meeting the criteria
listed in paragraphs (e)(1) and (e)(2) of
this section. Limitations will be
established in accordance with
paragraph (e)(2) and (e)f 3) of this
section. An explanation of the
development of these limitations shall
be included the fact sheet under
§ 124.56(b)(1)(i).
5. Paragraph (e)(1J of § 122.44 is
revised, paragraph (e)(2) of § 122.44 is
redesignated as paragraph (e)(3J. a new
paragraph (e)(2) is added, and
redesignated paragraph fe)(3) is
amended by adding (iii) as follows:
(e)
(1) Limitations must control all toxic
pollutants which the Director
determines (based on information
reported in a permit application under
§ 122.21(g) (7) or (10) or in a notification
under § 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.
bused treatment requirements
-------
1320
Federal Register I Vol. 54. No . 8 I Thursday. January 12. 1989 I Proposed Rules
appropriate to the permittee under
125.3(c).
(2) LImitations must control all
pollutants (either conventional.
noncoriveritional. or toxic pollutants)
which the Director determines are or
may be discharged at a level which will
cause or have the reasonable potential
to cause an excursion above any State
water quality standard, including State
narrative standards for water quality.
(3)’ •
(iii) Limitations on whole effluent
toxicity which control the combined
toxic effects of two or more pollutants.
(If the discharge has the potential to
adversely affect human health, and if
limitations on whole effluent toxicity do
not adequately, protect against all
human health impacts, then limitations
on the appropriate specific chemicals
must be used to address the potential
human health impacts.)
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for Part 123
continues to read as follows:
Authonty Clean Water Act. 33 U.S.C. 1251
et seq.
2. Section 123.44 is amended by
adding paragraph (c)(8) to read as
follows:
123.44 EPA review of and objections to
State permits.
• . . .
(c)
(8) The effluent limits of a permit fail
to satisfy the requirements of 40 CFR
122.44(d).
3. Paragraphs (ci. Id), (e). and (Q are
added to 123.40 as follows:
§ 123.46 IndIvidual control strategies.
• • • I •
(c) For the purposes of this section the
term individual control strategy, as set
Forth in section 304(l) of the CWA.
means a final NPDES permit with
supporting documentation showing that
applicable water quality standards will
be met not later than three years after’
the individual control strategy is
established. Where a State is unable to
issue a final permit on or before
February 4. 1989, an individual control
strategy may be a draft permit with an
attached schedule (provided the State
meets the schedule for issuing the final
permit) indicating that the permit will be
issued on or before February 4. 1990. If a
point source that is subject to section
304(lfllJ(C) of the CWA is also subject
to an on-site response action under
section 104 or 106 of the Comprehensive
Environmental Response.
Compensation, and Liability Act of 1980
(CERCLA) (42 Li S.C. 9601 et seq.), an
individual control strategy may be the
decision document (which incorporates
the applicable or relevant and
appropriate requirements under the
CWA) prepared under section 104 or 106
of CERCLA to address the release or
threatened release of hazardous
substances to the environment.
(d) A petition submitted pursuant to
section 304(l)(3) of the CWA must be
submitted to .the appropriate Regional
Administrator. Petitions must identify a
aterbody in sufficient detail so that EPA
is able to determine the location and
boundaries of the waterbody. Petitions
must also identify the list or lists for
which the waterbody qualifies, and
petitions must explain why the
waterbody satisfies the criteria for the
list or lists.
(e) If the Regional Administrator
disapproves one or more individual
control strategies, or if a Slate fails to
provide adequate public notice and an
opportunity to comment on the ICSs.
then, not later than June 4. 1989, the
Regional Administrator shall give a
notice of approval or disapproval of the
individual control strategies submitted
by each State pursuant to this seàtlon as
follows:
(1) The Regional Administrator shall
distribute the notice of approval or
disapproval given under this paragraph
to the appropriate State Director, to
each perimttee identified in the notice,
and to every interested person on the
mailing list maintained by the Regional
Administrator. The Regional
Administrator shall also publish a notice
of availability, in a daily or weekly
newspaper with State-wide circulation.
for the notice of approval or
disapproval.
(2) The notice of approval or
disapproval given under this paragraph
shall include the following:
(I) The name and address of the EPA
office that reviews the Slate’s
submittals.
(ii) A brief description of the section
304(1) process.
(iii) A list of ICSs disapproved under
this section and a finding that the ICSs
will not meet all applicable review
criteria under this section and section
30 4(l) of the CWA.
(iv) If the Regional Administrator
determines that a Slate did not provide
adequate public notice and an
opportunity to comment on the waters.
point sources, or ICSs prepared pursuant
to section 304(l). or it the Regional
Administrator chooses to exercise his or
her discretion, a list of the ICSs
approved under this section. and a
finding that the ICSs satisfy all
applicable review criteria.
(v) The location where interested
persons may examine EPA’s records of
approval and disapproval.
(vi) The name, address. and telephone
number of Ihe person at the Regional
Office from whom interested persons
may obtain more information.
(vii) Notice that written petitions or
comments are due within 120 days.
(3) Not later than January 4, 1990. Ihe
Regional Offices shall issue a response
to petitions or comments received under
section 304(l). The response to
comments shall be given in the same
manner as the notice described in
paragraph (e)(ii) of this section except
for the following changes:
(1) The lists of ICSa must reflect any
changes made pursuant to comments or
petitions received.
(ii) A brief description of the
subsequent steps in the 304(I) process.
(f) EPA shall review, and approve or
disapprove, the individual control
strategies prepared under section 304 (l)
of the CWA. using the applicable
cnteria set forth in section 304(l) of the
CWA. arid in 40 CFR Part 122. including
§ 122.44 (d) and (el. At any time after the
Regional Administrator disapproves an
ICS (or conditionally approves a draft
permit as an ICS). the Regional Office
may submit a written notification to the
State that the Regional Office intends to
issue the ICS. Upon mailing the
notification, exclusive authority to issue
the permit passes to EPA.
(4) Section 123.63 is amended by
adding paragraph (a)(5) to read as
followr
§ 123.63 Crltena for withdrawal of State
programs.
• I • I
(a)
(5) Where the State fails to develop an
adequate regulatory program for
developing water quality-based effluent
limits in NPDES permits.
• I I I I
PART 130—WATER QUALITY
PLANNING AND MANAGEMENT
1. The authority citation for Part 130
continues to read as follows:
Autbority: 33 U.S.C. 1251 et seq.
2. Section 130.7 is amended by
redesignating paragraph (b)(2) as
paragraph (b)(’lO), adding new
paragraphs (b)(2), (b)(3). (b)(4). (b)(5).
(b)(6). (b)(7). (b )(8), and (b)(91: by
revising the first sentence of paragraph
(d)(1): and by adding new paragraphs
(d)(2) and (d)(3) to read as follows:
-------
Federal Register / Vol. 54, No. 8 I Thursday, January 12, 1989 I Proposed Rules
1.321
§ 130.7 IdentIfication and listIng of watere
and development of total maximum daily
loads (‘TMDL).
(b ) ’
(2) Each State shall divide the waters
required to be identified by paragraph
(b)(1) of this section into three lists as
described below:
(i) Waters within the State which
cannot reasonably be anticipated to
atiain or maintain water quality
standards for such waters reviewed.
revised, or adopted in accordance with
section 303(C)(2)(B) of the CWA. due to
toxic pollutants;
(ii) Waters in the State for which the
Slate does not expect the applicable
standard under section 303 of the CWA
will be achieved due entirely or
substantially to discharges from point
sources of any toxic pollutants listed
pursuant to section 307(a) of the Clean
Water Act.
(ii.) All other waters identified under
paragraph (b)(1) of this section.
(3) For the purposes of listing waters
under § 130.7(b)(2)(ii), “applicable
standard” means a numeric criterion for
a toxic pollutant within State water
quality standards, Where a State
numenc cntenon for a toxic pollutant is
not established in State water quality
standards, for the purposes of listing
waters “applicable standard” means the
Sldte narrative water quality standard
(e g. ‘no toxics in toxic amounts”)
interpreted by applying the EPA
national water quality criteria on a
chemical-by-chemical basis,
(4) If a waLer meets one or more of the
three conditions listed below it meets
the requirements for being listed under
§ 130 7(b)(2)(ii) on the grounds that the
applicable standard is not achieved or
expected to be achieved due entirely or
substantially to discharges from point
sources.
(t) Initial or additional water quality-
based limits on one or more point
sources would result in the achievement
of an applicable water quality standard
for a toxic pollutant or ’
(ii) The discharge of a toxic pollutant
f-rim one or more point sources,
r’gardless of any nonpoint source
ciintrbution of the same pollutant,
. ould be sufficient to cause a violation
of the applicable water quality standard
for the toxic pollutant ozr
(iii) The contribution of a toxic
pollutant from one or more point sources
is large enough that the applicable water
qualily standard for that toxic pollutant
is threatened and additional point
source .ontrols are needed to limit the
discharge of the toxic pollutant.
(5) Each State shall assemble and
‘bate .ill existing and readily
available water quality-related data and
information and each State shall
develop the lists required by
§ 130 7(b)(2) based upon this data and
information, At a minimum, all existing
and readily available wate! 9 uality-
related data and inforniatith iticludes
all of the categories of waters listed in
§ 130.10(d)(6),
(6) Each State shall provide
documentation to the Regional
Administrator to support the State’s
determination to list or not to list waters
as required by § 130.7(b)(2). This
documentation shall be submitted to the
Regional Administrator together with
the lists required by § 130.7(b)(2) and
shall include as a minimum:
(I) A description of the methodology
used to develop each list and
(ii) A description of the data and
information used to identify waters,
including a description of the data and
information used by the State as
required by § 130.7(b)(5) and described
in § 130.10(d)(6): and
(iii) A rationale for any decision to not
use any one of the categories of existing
and readily available data required by
§ 130.7(b)(5) and described iii
§ 130.10(b)(6); and
(iv) Any other information requested
by the Regional Administrator. Upon
request by the Regional Administrator,
each State must demonstrate good cause
for not including a water or waters on
one or more lists. Good cause includes,
but is not limited to. more recent or
accuraie data: more sophisticated water
quality modeling; flaws in the onginal
analysis that led to the water being
listed in the categories in § 130.10(d)(6);
or changes in conditions, e.g.. new
control equipment, or elimination of
discharges.
(7) The State shall establish a priority
ranking for such water quality limited
segments identified and listed pursuant
to paragraph (b) of this section taking
into account the seventy of the pollution
and the uses to be made of such waters,
(8) For each segment of each list of
waters required under paragraph (b)(2)
of this section. the State shall identify
each pollutant causing or expected to
cause violations of the water quality
standards.
(9) For each segment of navigable
waters included on the list required
pursuant to * 130.7(b)(2)(ii), the State
shall identify the specific point sources
discharging any toxic pollutant which is
believed to be preventing or impairing
the water quality. The State shell submit
a list of these point sources to EPA no
less frequently than every two years
(dl Submission and EPA approval (1)
E.ich Stale shall submit biennially for
approval to the Regional Administrator
the lists of waters and pollutants
required under paragraph (b) of this
section. The lists of waters and
pollutants shall be submitted to EPA in
the ,biennial water quality report
required by § 130.8 of this part and
section 305(b) of the CWA.
I • • I S
(2) The Regional Administrator shall
approve or disapprove each list required
by § 130.7(b)(2). The Regional
Administrator shall approve each list
under § 130.7(b)(2) only if it meets the
requirements of § 130.7(b)(2) and if the
State has met the requirements of
§ 130.7 (b)(5) and (b)(6).
(3) Each State shall submit to EPA no
less frequently than every two years the
list of point sources required under
§ 130.7(b)(9). The list of sources may be
included in the State’s biennial section
305(b) report under § 1308 of this part or
submitted to EPA under separate cover
3. Section 130.8 is amended by adding
paragraphs (b) (5) and (6) to read as
follows:
§ 130.8 Water quality report.
• • S I •
(b)
(5) The lists of waters and pollutants
required under § 130.7(b). These lists
fulfill the requirements for listing under
section 303(d) of the CWA and are
subject to the review and approval
procedures of that section of the Act.
(6) An assessment of the water quality
of all publicly owned lakes, including
the status and trends of such water
quality as specifically outlined in
Section 314(a)(1) of the Clean Water Act.
• S • S I
4. Section 130.10 is amended by
adding paragraphs (d)(4), (d)(5). (d )(6),
(d)(7), (d1181, (d)(9). (d)(10). and (d)(11) to
read as follows:
§ 130.10 State submittala to EPA.
• . • • •
(4) For the purposes of listing waters
under § 130.10(d)(2), “applicable
standard” means a numenc criterion for
a toxic pollutant within State water
qualily standards. Where a State
numeric criterion for a toxic pollutant is
not established in State water quality
standards, for the purposes of listing
waters “applicable standard” means the
State narrative water quality standard
(e.g.. “no toxics in toxic amounts”)
interpreted by applying the EPA
national water quality criteria on a
chemical-by-chemical basis
(5) If a water meets one or more of ihe
three conditions listed below it meets
the requirements for being listed under
-------
1322
Federal Register / Vol. 54. No. 8 I Thursday. january 12. 1989 I Proposed Rules
§ 130,10(dflz) on the grounds that the
applicable standard is not achieved or
expected to be achieved due entirely or
substantially to discharges from point
sources.
(i) Initial or additional water quality-
based limits on one or more point
sources would result in the achievement
of an applicable water quality standard
for a toxic pollutant or
(ii) The discharge of a toxic pollutant
from one or more point sources.
regardless of any nonpoint source
contribution of the same pollutant.
would be sufficient to cause a violation
of the applicable water quality standard
for the toxic pollutant or:
(iii) The contribution of a toxic
pollutant from one or more point sources
is large enough that the applicable water
quality standard for that toxic pollutant
may be exceeded and additional point
source controls are needed to limit the
discharge of the toxic pollutant.
(6) Each State shall assemble and
evaluate all existing and readily
available water quality.related data and
information and each Slate shall
develop the lists required by paragraphs
(d) (1). (2), and (3) of this section based
upon this data and information. At a
minimum, all existing and readily
available water quality.related data and
information includes all of the following
categories of waters:
(i) Waters where fishing or shellfish
bans and/or advisories are currently in
effect or are anticipated.
(ii) Waters where there have been
repeated fishkills or where
abnormalities (cancers, lesions, tumors,
etc.) have been observed in fish or other
aquatic life during the last ten years.
(iii) Waters where there are
restrictions on water sports or
recreational contact.
(iv) Waters identified by the State in
its most recent Slate section 305(b)
report as either “partially achieving” or
“not achieving” designated uses.
(v) Waters identified by the Slates
and reported to EPA as waters needing
water quality.based controls.
(vi) Waters identified by the State as
priority waterbodies. (State Water
Quality Management plans often include
priority waterbody lists which are those
waters that most need water pollution
control decisions to achieve water
quality goals.)
(vii) Waters where ambient data
indicate potential criteria exceedances
due to toxic pollutants from primary
industries.
(viii) Waters for which effluent
toxicity test results indicate possible
violations of Stale water quality
standards, including narrative ‘free
from’ criteria or EPA cnteria where
State standards are not available.
(ix) Waters with primary industrial
major dischargers where dilution
analyses indicate exceedances of State
water quality standards (or EPA criteria
where Slate standards are not available)
for toxic pollutants. ammonia, or
chlorine. These dilution analyses must
be based on estimates of BAT levels
from effluent guidelines development
documents, NPDES permit application
data (e.g.. Form 2C). Discharge
Monitoring Reports (DMRs), or other
available information.
(x) Waters with municipal major
dischargers requiring pretreatment
where dilution analyses indicate
exceedances of State water quality
standards (or EPA criteria where State
standards are not available) for toxic
pollutants. ammonia, or chlonrie. These
dilution analyses must be based upon
data from NPDES permit applications
(e.g.. Form 2A). Discharger Monitoring
Reports (DMRs). or other available
information.
(xi) Waters with facilities not
included in the previous two categories
such as municipal majors, and minors
having water quality impacts where
dilution analyses indicate exceedances
of State water quality standards (or EPA
criteria where State standards are not
available) for toxic pollutants. ammonia.
or chlorine. These dilution analyses
must be based upon estimates of BAT
levels from effluent guideline
development documents. NPDES permit
application data. Discharge Monitoring
Reports. (DMRs). or other available
information.
(xii) Waters classified for uses that
will not support the “fishable!
swimmable” goal of the Clean Water
Act.
(xiii) Waters where ambient toxicity
or adverse water quality conditions
have been reported by local. Slate. EPA
or other Federal Agencies. the private
sector, public interest groups, or
universities. These organizations and
groups should be actively solicited for
research they may be conducting or
reporting. For example. university
researchers, the U.S. Department of
Agriculture Extension Service, the
National Oceanic and Atmospheric
Administration, the U.S. Geological
Society, and the U.S. Fish and Wildlife
Service are good sources of field
research and activities.
(xiv) Waters identified as having
impaired or threatened designated uses
in the Clean Lake Assessments
conducted under section 314 of the
Clean Water Act.
(xvl Waters identiFied as impaired by
nonpoint sources in thu 1985 .4nicrico’s
Clean Water: Slate Nonpoint Source
Assessments (Association of State and
Interstate Water Pollution Control
Administrators (AS! WPCA)) or waters
identified as impaired or threatened in
the rionpoint source assessments
submitted by States to EPA under
section 319 of the Clean Water Act.
(xvi) Surface waters impaired by
pollutants from hazardous waste sites
on the National Priority List prepared
under section 105(8)(A) of CERCLA.
(7) Each State shall provide
documentation to the Regional
Administrator to support the State’s
determination to list or not to list waters
as required by paragraphs (d)(l). (d)(2).
and (d)(3) of this section. This
documentation shall be submitted to the
Regional Administrator together with
the lists required by paragraphs (d)(l).
(d)(2J, and (d)(3) of this section and shall
include as a minimum:
(i) A description of the methodology
used to develop each list: and
(ii) A description of the data and
information used to identify waters and
sources including a description of the
data and information used by the State
as required by paragraph (d)(6) of this
section: and
(iii) A rationale for any decision to not
use any•one of the categories of existing
and readily available data required by
paragraph (d)(6) of this section: and
(iv) Any other information requested
by the Regional Administrator. Upon
request by the Regional Administrator.
each State must demonstrate good cause
for not including a water or waters on
one or more lists. Good cause includes.
but Is not limited to. more recent or
accurate data: more sophisticated water
quality modeling: flaws in the original
analysis that led to the water being
listed in the categories in § 130.1O(d)(6):
or changes in conditions. e.g.. new
control equipment. or elimination of
discharges,
(8) The Regional Administrator shall
approve or disapprove each list required
by paragraphs (d)(1). (dllZ). and (d)(3) of
this section no later than June 4. 1989.
The Regional Administrator shall
approve each list required under
paragraphs (d)tl). (d)(2) and (d)(3) of
‘this section only if it meets the
regulatory requirements for listing under
paragraphs (d)(1). (d)(2). and (d)(3) of
this section and lithe State has met all
the requirements of paragraphs (d)(6)
and (dl(7) of this section.
(9) If a State fails to submit lists in
accordance with paragraph (d) of this
section or the Regional Administrator
does not approve the lists submitted by
such State in accordance with this
paragraph. then not later than juno 4.
-------
Federal Register / Vol. 54. No. B / Thursday, January 12. 1989 / Proposed Rules
1323
iggo. the Regional Administrator, in
cooperation with such State. shall
implement the requirements of CWA
section 304( 11(1) in such State.
(10) lithe Regional Administrator
disapproves a State’s decision with
respect to one or more of the waters
required under paragraphs (d) (1). (2).
and (3) oF this section. or one or more of
the individual control strategies required
pursuant to section 304(l)(1)(D), then not
later than June 4. 1989: the Regional
Administrator shall give a notice of
approval of disapproval of the lists
submitted by each State pursuant to this
paragraph. The notice shall include the
following:
(i) The name and address of the EPA
office that reviews the State’s
submittals.
(ii) A brief description of the section
304(l) process.
(iii) A list of waters, point sources and
pollutants disapproved under this
paragraph.
(iv) If the Regional Administrator
determines that a SLate did not provide
adequate public notice and an
opportunity to comment on the lists
prepared under this section. or ii the
Regional Administrator chooses to
exercise his or her discretion. a list of
waters, point sources, or pollutants
approved under this paragraph.
(v) The name. address. and telephone
number of the person at the Regional
Office from whom interested persons
may obtain more information.
(vi) Notice that written petitions or
comments are due within 120 days.
(ii) Not later than January 4. 1990. the
Regional Office shall issue a response to
petitions or comments received under
paragraph (d)(1oJ of this section. Notice
shall be given in the same manner as the
notice descried in paragraph (10) of this
section. except for the following
changes:
(I) The lists of waters, point sources
and pollutants must reflect any changes
made pursuant to comments or petitions
received.
(ii) A brief description c i i the
subsequent steps In the section 304(I)
process shall be included.
(FR Doc. 89-423 Filed 1—11-8 8:45 aml
S 5.LING CODE 6555-10-U
-------
832
Federal Register / Vol. 54. No. 8 I Tuesday. January 10. 1989 I Proposed Rules
Skelly Drive. Suite 550. Tulsa. Oklahoma
74135: telephone: (918) 581—6430.
SUPPLEMENTARY INFORMATIOIC The
Federal rules at 30 CFR 943.18
established a May 15. 1987, deadline for
Texas to submit rules governing the
training, examination, and certification
of blasters. Texas was not able to meet
that deadline, and in a letter dated June
4. 1987 (Administrative Record No. Tx—
3891. Texas requested an extension of
the deadline until December 31. 1987. By
letter dated July 31. 1987 [ Administrative
Record No. Tx—393J, Texas submitted,
along with numerous other proposed
amendments, proposed rules governing
the training, examination, and
certification of blasters. OSMRE was
not immediately aware that the July 31,
1987. package contained the blaster
rules, and on August 18. 1987. (52 FR
309301 OSMRE published a notice in the
Federau Register announcing receipt of
the request to extend the deadline for
Texas to submit rules governing the
training, examination, and certification
of blasters.
OSMRE had received the proposed
amendments before the notice proposing
to extend the deadline was published;
therefore, the proposed rule published in
the August 18. 1987. Federal Register
extending the deadline for Texas to
submit rules governing the training.
examination and certification of blasters
is withdrawn, and 30 CFR 943.10 is not
amended.
List of Subjects in 30 CFR Part 943
Coal mining, intergovernmental
relations, Surface mining. Underground
mining.
Raymond L Lawn..
.4ss:stont Director. Western Field Operations.
Date December 30. 1988.
(FR Doe. 89-40? Filed 1-4-89: 8.45 aml
isis ’s coos uio-oe-s
30 CFR Part 943
Withdrawal of a Propos.d Rulemaking
To Amend the Texas Permanent
Regulatory Program
awocr. Office of Surface Mining
Reclamation and Enforcement (OSMRE).
Interior.
acriors Withdrawal of proposed
amendments.
SUMMARY: OSMRE is announcing the
withdrawal of proposed amendments to
ihe Texas permanent regulatory
program. The proposed amendments
consisted or changes to the Texas
ri’gulations governing prime farmland.
wairr quality standards end effluent
lumit.jiions. drsign.ition of lands as
unsuitable for surface coal mining, and
notices of violation.
UVEC’nvE DATC January 10. 1989.
FOR FURTHER INFORMATION CONTACT
Mr. James H. Moncrief. Director. Tulsa
Field Office. Office of Surface Mining
Reclamation and Enforcement. 5100 E.
Skelly Drive. Suite 550, Tulsa. Oklahoma
74135: telephone: (918) 581—6430.
SUPPLEMENTARY INFORMATION: By letter
dated October 22, 1980, (Administrative
Record No. TX—373), Texas submitted a
package of proposed amendments to
OSMRE. The proposed amendments
consisted of modifications to Texas
reguldtions governing prime farmland.
water quality standards and effluent
limitations, designation of lands
unsuitable for mining, and notices of
violation. OSMRE announced receipt of
the amendments on December 3. 1986
(51 FR 43618).
Texas followed the State rulemaking
process and solicited comments on the
proposed amendments. Texas revised
the amendments based on comments
received and OSMRE announced receipt
on February 17. 1988 (53 FR 4645) of the
revised amendments.
By letter dated November 29. 1988
(Administrative Record No. TX—422).
Texas withdrew the proposed
amendments, stating that it intends to
resubmit them with other amendments
at a future date. Therefore, the revised.
proposed amendments published in the
February 17. 1988 Federal Register are
withdrawn.
List of Subjects in 30 CFR Part 943
Coal mining, Intergovernmental
relations. Surface mining. Underground
mining.
Date: January 4. 1989.
Raymond L Lawn..
Assistant Director. Western Field Operations.
(FR Dcc. 89-408 Filed 1-0-89:8.45..
S &iNS C c c i 4310.0 5-s
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
(CGO13 85-091
Security zone; Sinclair Inlet, WA;
CorrectIon
AGENCY ’ Coast Guard. DOT.
ACT1ON Proposed rule: correction .
SUMMARY: In the Federal Register. Vol.
53. No. 236, dated December 8. 1988.
commencing or page 49562. a notice of
proposed rulemaking considering a
prnpn’al to .‘atalilish a sPcurity 7Ofln i T t
the waters of Sindair Inlet immediately
adjacent to the Puget Sound Naval
Shipyard Bremerton. Washington was
published. Upon further review of th.
coordinates of the proposed secuiily
zone an error was detected.
FOR FURTHER INFORMATiON coN’racT:
CDR W.O. Harper, (206) 442-3711.
PART 165—(CORRECTED)
165.I303 (Corrected)
Paragraph (aJ of 105.1303 entitled
“Puget Sound Naval Shipyard
Bremerton. WA”, is correctly added to
read as follows:
(a) Location. The following is a
security zone: The waters of the Sindjir
Inlet encompassed by a line
commencing on the north shore of
Sinclair Inlet at latitude 47’33’40 ’N.
longitude 122’37’29W: thence to
latitude 47’33’35’N. longitude
1Z2’37’Z8 ’W: thence to latitude
47 3321 ’ N. longitude 12237’37’\V.
thence to Idlitude 4733’02N. longitude
l22’38’26W; thence to latitude
4733’02N. longitude 12238’40W:
thence to the shoreline at latitude
47’33’23N. longitude 12238’40 ’W:
thence easterly along the shoreline to
the point of ongin.
Ddted December 28, 1988.
G.A. Penington.
Captain. U.S Coast Guarv Commander.
Thirteenth Coast Guard Oistrzc: 4cting
IFR Doc 89-350 Filed 1-9-49:9:45 aml
fruiT ’ s CCC I 4515-ia-S
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 403
IEN-FRL-3503-8 1
EPA Administered Permit Programs;
The National Pollutant DIscharge
ElIminatIon System; General
Pretreatment Regulations for Existing
and New Sources; Proposals to
Implement the Recommendations of
the Domestic Sewage Study
AGENCY: Environmental Protection
A ertcy (EPA).
acnotc Notice of extension of public
comment period.
SUMMARY: The United States
Environmental Protection Agency (EPA)
is today providing notice that the public
comment period for proposed
amendments to 40 CFR Parts 122 and
403 to carry out the recommendations of
the Domestic Sewage Study is e tr’nd d.
The proposed nmt’ndmentq were
-------
Federal Register / Vol. 54. No. 6 / Tuesday. January 10. 1989 / Proposed Rules
833
published in the Federal Register art
November 23. 1988 (53 FR 476321.
DATES: All comments on the November
23. 1988 proposed rule published at 53
FR 47632 must be received on or before
February 22. 1989.
ADDRESSES: Interested persons may
submit written comments to Marilyn
Goode. Permits Division (EN—3361.
Environmental Protection Agency. 401 M
Street SW.. Washington. DC 20400.
FOR FURTHER INFORMATION CONTACT
Marilyn Goode. Permits Division (EN—
336g. Environmental Protection Agency.
401 M Street SW.. Washington DC
20460. (202) 475—9528.
SUPc .EMENTARY INFORMATION: On
November 23. 1988. EPA published
proposed amendments to 40 CFR Parts
123 and 403 to implement the
recommendations of the Domestic
Sewage Study. The November 23 notice
set a period of 60 days br the receipt of
public comments. Since publication of
that notice. EPA has received several
requests to lengthen the comment
period. In response to these requests.
EPA has decided to extend the comment
period to February 22. 1989.
Date: Jenuary 3. 1989.
Rebecca W. Hanmer. -
Acting ,% wet ant Admrn:srrotor for I Voter.
(FR Doc. 89-422 Filed 1-9-89 3:45 aml
wujao cam ii-- a -
GENERAL SERVICES
ADMINISTRATION
41 CFR Parts 201-8,201-13, and 201-
.39
Restructuring and Simplification of
Federal Information Resources
Management Standards
AGENCTI Information Resources
Management Service. GSA.
ACTION: Notice of proposed rulemaking .
SUUMARY The purpose of this proposed
rule is to simplify provisions on the use
and Implementation of Federal
automatic data processing and
telecommunications standards. It results
in maior changes in the regulatory
coverage and presentation of FIRMR
provisions on standards. The intent of
these changes is to remove redundant
and non-regulatory provisions from the
FIRMR that may be found in other
agency issuances. and to reorganize the
FIRMR so that users may more readily
locate standards provisions relevant to
their particular requirements. The
changes do not relax an agency’s
obligation to comply with the standards.
The use of uniform standards permits
the integration and sharing of
information and processes among
endors. and helps a enc;cs ma imizc
the productivity of their nves!ments in
information technology. Ready access to
information about standards
applicability and to standards
specifications is critical to realizing the
benefits standards cart help provide. To
ensure that agencies have up-to-date
standards specifications for use in
solicitations and contracts. GSA plans
to publish and distribute its “ADP and
Telecommunications Standards Index”
initially on a semi-annual basis. FIRMR
changes are published infrequently, and
continued inclusion of information about
standards and specifications in the
codified regulation will not provide such
timely access as more frequent
distr:bution of the Lnde’c. These changes
will also make FIRMR c vcrage of
standards specifications cnnsistent with
Federal Acquisition Regulation (FAR)
coverage of similar specifications.
Federal Information Processrn
Stdr.dards (FIPS). and the ii!ap!anlenting
specifications that are included in
agency contracts, can have important
effects on agencies and on businesses
that sell td the Government. Proposed
changes to standards and specifications
will continue to be published iii the
Federal Register and circulated to
agency regulatory and standards
contacts for comment, and the
comments resolved, before changes are
adopted and printed in the Index.
The specific changes in this proposal
indude the following. Information
regarding the applicability of Federal
standards is removed, the individual
standard “requirements statements” for
inclusion in solicitation documents are
removed, and overall policies and
procedures governing the use of
standards are separated from
contracting policies and procedures
regarding the implementation of
standards. In addition, contracting
provisions are reorganized for
consistency with the FAR.
Because these changes represent such
a radical departure from current FIRMR
provisions. this notice solicits comments
not only on the changes but also on any
adverse impact the changes may cause.
Comments are specifically requested on
whether the proposed approach will
make the FIRMR easier to use.
OATL Comments are due: March 13.
1989.
ADDAE3 Comments should be
submitted to the General Services
Administration (KMPR). Protect 87 20A.
Washington. DC 20405.
FOR FURTHER IN ORMATION CONTACT:
Margaret Truntich or Mary Anderson.
Regulations Branch. Office of
Information Rewurces Management
Policy, telephone (202) 568-0194 or FTS.
506-0194. The full text of the proposed
rule for Proiect 87.ZOA is available upon
request, by telephoning (202) 500-0194 or
F’rS. 566-0194.
SUPPLEMENTARY INFORMATION: (1)
FIRMR Part 201—8, Implementation and
Use of Federal Standards, will be
removed and reserved and provisions
will be relocated as follows: (aj
Provisions addressing overall policies
and procedures for using Federal
standards will be relocated in FIRMR
Part 201—13. and (b) contracting
provisions that implement standards in
the acquisition process will be amended
and relocated in FIRMR Part 201—39. All
existing Federal standard “requirement
statements’ for inclusion in suiicitation
documents will be removed.
(2) The changes proposed icr FIR.MR
Part 201—13 are exp 1 arned in the
following paragraphs.
(a) Reserved Part 201—13 will he
activated under the title. Operations and
ControL It will contain management
policies and procedures pertaining to the
use of standards and other aspects of
information resources management.
(b) Subpart 201—13.1. Stand.irds. will
be established to contain overall
policies and procedures for using
standards, including Federal
Information Processing Standards
(FIPS). Federal Telecommunications
Standards (FED—STDS). joint FIPS/FED—
STDS. and agency standards.
(c) Other subparts in Part 201—13 will
be reserved.
(3) The changes proposed for FIRMR
Part 201—39 are explained in the
following paragraphs.
(a) Reserved Part 39 will be activated
under the title. Acquisition of
Information Resources. It will contain
the special acquisition rules that apply
Governmentwide to Information
resources.
(b) Subpart 201—39.10. Standards, will
be established and organized consistent
with Part 10 of the FAR. It will contain
policies and procedures from Part 201-8
pertaining to the implementation and
use of requirements statements in the
acquisition process. Provisions vill be
amended by replacing the term
“requirements statement” with the term
“specifications”. removing the
applicability statements for individual
standards, and adding a requirement for
agencies to review the GSA “ADP and
Telecommunications Standards Index”
ts determine standards applicubility.
-------
NPDES Program
Regulations and Preambles
1992-1995
U.S. Environmental Protection Agency
Office of Wastewater Management
Washington, D.C. 20460
-------
1990
-------
Friday
November 16, 1990
Part II
Environmental
Protection Agency
40 CFR Parts 122, 123, and 124
National Pollutant Discharge Elimination
System Permit Application Regulations
for Storm Water Dlscharges Final Rule
Pnnted on RECYCIGd Paper
-------
47990 Federal Register / Vol. 55. No. 222 / Friday._November 16. 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122,123, and 124
tFRL—3 834—?l
RIN 3040-AAYS
National Pollutant Discharge
Elimination System Permit Application
Regulations for Storm Water
Discharges
AOENCY Environmental Protection
Agency (EPA).
£CflOI Final rule.
SUMNARr Today’s final rule begins to
implement section 402(p) of the Clean
Water Act (CWA) (added by section 405
of the Water Quality Act of 1987
(WQA)). which requires the
Environmental Protcction Agency (EPA)
to establish regulations setting forth
National Pollutant Discharge
Elimination System (NPDESJ permit
application requirements for storm
water discharges associated with
industrial activity: discharges from a
municipal separate storm sewer system
serving a population of 250.000 or more:
and discharges from municipal separate
storm sewer systems serving a
population oF 100.000 or more, but less
than 250.000.
Today’s rule also clarifies the
requirements of section 401 oF the WQA.
which amended CWA section 402(1)(2)
to provide that NPDES permits shall not
be required for discharges of storm
water runoff from mining operations or
oil and gas exploration, production.
processing, or treatment operations or
transmission facilities, composed
rntirely of flows whiLh are from
conveyances (including but not limited
to pipes, conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and
which are not contaminated by contact
with, or do not come into contact with.
ny overburden, raw material.
intermedi te product. finished product.
byproduct. or waste product located on
the site of such operations. This rule sets
forth NPDES permit application
requirements addressing storm water
discharges associated with industrial
uctivity and siorm water discharges
from large and medium municipal
separate storm sewer systems.
Oai’U This final rule becomes effective
December 17. 1990. In accordance with
40 CFR 23.2. this rule shall be considered
final for purposes of judicial review on
November 30. 1990. at 1 p.m. eastern
daylight time The public record is
located at EPA I lcadquarters. EPA
Public Information Reference Unit, room
2402. 401 M Street SW.. Washington DC
20460. A reasonable fee may be charged
for copying.
FOR P . 1*7 1 115 INFORMAtION CONTACT
For further information on the rule
contact: Thomas J. Seaton. Kevin Weiss.
or Michael Mitchell Office of Water
Enforcement and Permits (EN—336),
United States Enuãronmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460. (202)475-0518.
SUP 11MENTA*V INFORMATION:
L Background end Water Quality Concerns
II. Water Quality Act of 1987
IlL Remand of 1984 Regulations
IV. Codification Rule and Case.by.Case
Designations
V. Consent Decree of October20. 1989
Vi. Today’s Final Rule and Response to
Comments
A. Overview
B. Definition of Storm Water
C. Responsibility for Storm Water
Discharges Associated with Industrial
Activity Into Municipal Separate Storm
Sewers
0. Preliminary Permitting Strategy for
Storm Water Discharges Associated with
Industrial Activity
1. Tier i—Baseline Permitting
2. TIer 3—Watershed Permitting
3. Tier 3.—Industry Specific Permitting
4. Titer 4.—Facility Specific Permitting
5. Relationship of Strategy to Permit
Application Requirements
a. Individual Permit Application
Requirements
b. Group Application
c. Case.by ’Caae Requirements
E. Storm Water Discharge Sampling
F. Storm Water Discharges Associated
with Industrial Activity
1. PermIt Applicability
a. Storm Water Discharges Associated with
Industrial Activity to Waters of the
United States
b. Storm Water Discha ies Through
Municipal Separate Storm Sewers
c. Storm Waler Discharges Through Non.
Municipal Storm Sewers
2. Scope of “Associated with Industrial
Activity”
3 IndIvidual Application Requir.ments
4. Group Applications
a. Facilities Covered
b. Scope uf Group Application
c. Group Application Requirements
5. Group Application: Applicability in
NPDES States
S. Group Application: Procedural Concerns
7. PermIt Applicability and Application, for
Oil. Gas and Mining Operations
a. Gas and Oil Operations
b. Use of Reportable Quantities to
Determine if a Storm Water Discharge
from an Oil or Gas Operation is
Contaminated
c. Mining Operations
I I. Application Requirements for
Construction Activities
a. Permit application requirements
b. Administrative burdens
G. Municipal Separate Storm Sewer
System.
1. Municipal Separate Storm Sewer.
2. Effective Prohibition on Non.Storm
Water Discharges
3. Slte ’Specilic Storm Water Quality
Management Program. for Municipal
System,
4. Large and Medium Municipal Storm
Sewer Systems
a. Overview of proposed options and
comments
b. Definition of large and medium
municipal separate storm sewer system
c. Response to comments
H. Permit Application Requirements for
Large and Medium Municipal System.
1. Implementing the Permit Program
2. Struciure of Permit Application
a. Patti Application
b. Part 2 Application
3. Major Outfall.
4. FIeld Screening Program
5. Source IdentifIcation
S. Characterization of Discharges
a. Screening Analysis for Illicit Discharges
b. Representative Data
c. Loading end Concentrstion Estimates
7. Storm Water Quality Management Plans
a. Measures to Reduce Pollutants in Runoff
from Commercial and Residential Area.
b. Measures for Illicit Discharges and
Improper Disposal
c. Measures to Reduce Pollutants in Siorm
Water Discharges Associated with
Industrial Activity Through Municipal
Systems
d. Measures to Reduce Pollutants in Runoff
from Construction Sites Through
Municipal Systems
8. Assessment of Controls -
L Annual Reports
. Ap ’plication Deadlines
VII. Economic Impact
VIII. Paperwork Reduction Act
IX. Regulatory Flexibility Act
SUPPLEMENTARY INFORMATION:
L Background and Water Quality
Concerns
The 1972 amendments to the Federal
Water Pollution Control Act (referred to
as the Clean Water Act or CWA).
prohibit the discharge of any pollutant
to navigable waters from a point source
unless the discharge is authorized by an
NPDES permit. Efforts to improve water
quality under the NPDES program
traditionally and primarily focused on
reducing pollutants in discharges of
industrial process wastewater and
municipal sewage. This program
emphasis developed for a number of
reasons. At the onset of the program in
1972. many sources of industrial process
wastewater and municipal sewage were
not adequately controlled and
represented pressing environmental
problems. In addition, sewage outfall.
and industrial process discharges were
easily identified as responsible for poor.
often drastically degraded. water quality
conditions. However, as pollution
control measures were initially
-------
FdersI Register I VoL 58, No. 2 I FrIday, November 18,1990 I Rules and Pagulatlons 47991
developed for these discharges. It
became evident that more diffuse
as.. rcu (oncurring over a wide ares) of
water pollution, such as agricultural and
urban runoff wee also major causes of
water quality problems. Some diffuse
sources of waler pollution, such as
agricultural storm water discharges and
irrigation return flows, are statutorily
exempted from the NPDES program.
Since enactment of the 1972
amendments to the CWA. considering
the rise of economic activity and
population, signiFicant In
controlling water pollution has been
mad., particularly with regard to
Industrial pru ss wastewiater end
municipal sewage. Expenditures by
EPA, the States. and local govenvnents
to construct and upgrade sewage
treatment facilities have substantially
increased the population served by
higher levels of treatment. Bacidogs of
expired permits for industrial proce s
wastewater discharges have been
reduced. Continued Improvements are
expected for these discharges as the
NPDES program continues to place
increasing emphasis on water quality.
based pollution controls. especially for
toxic pollutants.
Although assessments of water
quality are difficult to perform and
verify, several national assessments of
water quality are available. For the
purpose of these assessments, urban
runoff was considered to be a diffuse
source or nonpoint source pollution.
From a legal standpoint, however, most
urban runoff I, discharged through
conveyances such as separate storm
sewers or other conveyances which are
point sources under the CWA. These
discharges are subject to the NPD
program. The “National Water Quality
Inventory. 1988 Report to Congress”
provides a general assessment of water
quality based on biennial reports
submitted by the States under sectiun
305(b of the CWA. In preparing the
section 305(b) Reports. the States were
asked to indicate the fraction of the
States’ waters that were assessed, as
well as the fraction of the States’ waters
that were fully supporting. partly
supporting. cruel supporting designated
uses. The Report indicates that of the
rivers, lakes, and estuaries that were
assessed by States (approximately one-
fifth of stream miles, one-third of lake
acres and one.half of estuarine waters).
roughly 70% to 75% are supporting the
uses for which they are designated. For
waters with use Impairments, States
wee said to delesunne impacts due to
diffuse sources (agricultural and urban
runoff and other sources), municipal
sewage. Industrial pruc sa wastewoters,
combined sewer overflows, and natural
and other sources, then combine
Impacts to arrive at estimates of the
relative percentage of State waters
affected by each source. in this manner,
the relative Importance of the various
sources of pollution that are causing use
impairments was assessed and weighted
national averages were calculatcd.
Based on 37 States that provided
Information on sources of pollution.
Industrial process wastewaters were
cited as the cause of nonsupport for 7.5%
of rivers and streams, 10% of lakes, and
8% of estuaries. Municipal sewage was
the cause of nonsupport for 13% of rivers
and streams. 5% lakes. 48% estuaries,
41% of the Great Lake shoreline, and
11% of coastal waters, The Assessment
conduded that pollution from diffuse
sources, such as runoff from agricultural.
urban areas, construction sites. land
disposal and resource extraction, is
cited by the States as the leading cause
of water quality impairment. These
sources appear to be increasingly
important contributors of use
impairment as discharges of industrial
process wastewaters and municipal
sewage plants come under increased
control and as Intensified data
collection efforts provide additional
information. Some examples of diffuse
sources cited as causing use Impairment
arm for rivers and streams. 9% from
separate storm sewers. 0% from
construction and 13% from resource
extraction, for Lakes. 28% from separate
storm sewers and 28% from land
disposal; for the Great Lakes shoreline.
10% from separate storm sewers. 34%
from resource extraction. and 82% from
land disposal; for estuaries. 20% from
separate storm sewers and V% from
land disposal; and fur coastal areas. 20%
from separate storm sewers and 29%
from land disposal.
The Stales conducted a more
comprehensive study of diffuse pollution
sources under the sponsorship of the
Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA) and EPA. The study
resulted In the report “America’s Clean
Water—The States’ Nonpoint Source
Assessment. 1985” whIch indicated that
38 States reported urban runoff as a
major cause of beneficial use
impairneuL In addition. States
reported construction site runoff as a
major cause of use Impairment.
To provide a better understanding of
the nature of urban runoff from
commercial and residential areas, from
1975 through 1g83 EPA provided funding
and guidance to the Nationwide Urban
Runoff Program (NURP). The NUR?
Induded 28 projects across the Nation.
conducted separately at the local level
but centrally reviewed, coordinated, and
guided.
One focus of the NURP was to
characterize the water quality of
discharges from separate storm sewers
which drain residential. commercial.
and light industrial (industrial parks)
sites. The majority of samples collected
In the study were analyzed for eight
conventional pollutants and three
metals. Data collected under the NURP
indicated that on an annual loading
basis. suspended solids in disrtharges
from separate storm sewers draining
runoff from residential. commcrci al and
light industrial areas are around an
order of magnitude greater th in solids in
diiicharges from municipal secondary
sewage treatment plants. in addition.
the study indicated that annual lcnidin q
of chemical oxygen demand (COD) are
comparable in magnitude to fflucr.t
from secondary sewage treatment
plants. When analyzing annual loadin c
associated with urban runoff, it is
important to recognize thtat discharges
of urban runoff are highly intermittent.
and that the short-term loadings
associated with individual events will
be high and may have shcn -.kloading
effects on receiving water, such as iow
dissolved oxygen levels. NURP data
also showed that focal coliform cour.ts
in urban runoff are typically in the tens
to hundreds of thousands per 100 ml of
runoff during warm weather conditions.
although the study suggested that fecat
coliform may not be the most
appropnete indicator organism for
identifying potential health risks in
storm water runoff. Although NURP did
not evaluate oil and grease. other
studies have demonstrated that urban
runoff is an extremely important source
of oil pollution to receiving watcrs. wit’i
hydrocarbon levels in urban runoff
typically being reported at a range of 2
to 13 mg/I. These hydrocarbons tend to
accumulate in bottom sediments where
they may persist for long periods of time
and exert adverse impacts on henthic
organisms.
A portion of the NURP study invol’. ed
monitoring 120 priority pollutants in
storm water discharges from lands used
for residential, commercial and light
Industrial activities. Seventy-seven
priority pollutants were detected in
samples of storm water discharges from
residential. commercial and light
Industrial lands taken during the NURP
study. including 14 inorganic and 63
organic pollutants. Table A—I shows the
priority pollutants which were detected
in at least ten percent of the discharge
samples which were sampled for
priority pollutants.
-------
47B Federal Register I Vol. 55. No. 222 / Friday. November 16. 1990 I Rules and Regulations
T*aLe A-i.— PRIOeITY POLUITANT$ DE-
TECTED IN AT LEAST 10% OF NURP
(5 , , isl
M
wAae__
bo
—
m
a
U w
The NURP data also showed a
significant number of these samples
exceeded various EPA freshwater water
quality criteria.
The NURP study provides Insight en
what can be considered background
level, of pollutants for urban runoff, as
the study focused primarily on
monitoring runoff from residential.
commercial and light industrial areas.
However, NURP concluded that the
quality of urban runoff can bi adversely
Impacted by several sources of
pollutants that were not directly
evaluated in the study and are generally
aot reflected in the NURP data.
Induding Illicit connections,
construction site runoff. industrial site
runoff and illegal dumping.
Other studies have shown that many
storm sewers contain illicit discharges
of non-storm water and that large
amounts of wastes. particularly used
oils, are improperly disposed in storm
sewers. Removal of these discharges
present opportunities for dramatic
improvements In the quality of storm
water discharges. Storm water
discharges From Industrial facilities may
contain tonics and conventional
pollutants when material management
practices allow exposure to storm water.
In addition to wastes from illicit
connections and improperly disposed
wastes.
In some municipalIties. illicit
connections of sanitary. commercial and
industrial discharges to sterns sewer
systems have had a significant impact
on the water quality of receiving waters,
, AlthoughtheNURPstudydldnot
emphasize the Identification of Illicit
connections to storm sewers (other than
to assure that monitoring sites used in
13 the study were free from sanitary
sewage contamination), the utudy
concluded that illicit connections can
as result in high bacterial counts and
9 ’ dangers to public health. The study also
noted that removing such discharges
presented opportunities for dramatic
ii improvements in the quality of urban
94 storm water discharges.
Studies have shown that Illicit
connections to storm sewers can create
i severe, wide-spread contamination
IS problems. For example, the Huron River
Pollution Abatement Program Inspected
660 businesses, homes and other
is buildings located in Waahtenaw County.
‘9 Michigan and identIfied 14% of the
‘° buildings.. having improper storm
drain connections, illicit discharges
were detected at a higher rate of 60% For
10 automobile related businesses, Including
service stations. automobile dealerships.
car washes, body shops and light
— industrial facilities. While some of the
problems discovered in this study were
the result of improper plumbing or illegal
connections, a majority were approved
connections at the time they were built.
Intensive construction activities may
result in severe localized impacts on
water quality because of high unit loads
of pollutants, primarily sediment..
Construction sites can also generate
other pollutants such as phosphorus and
nitrogen from fertilizer, pesticides.
petroleum products. construction
chemicals and solid wastes. These
materials can be toxic to aquatic
organisms and degrade water for
drinking and water.contact recreation.
Sediment loadings rates from
construction sites are typic. Ily 10 to 20
times that of agricultural lands, with
runoff rates as high as 100 times that of
agricultural lands. and typically 1,000 to
2,000 tImes that of forest lands. Even a
small amount of construction may have
a significant negative impact on water
quality in localized areas. Over a short
period of time, construction sites can
contribute more sediment to streams
than was previously deposited over
several decades.
U. Watsr Quality Act of 1987
The WQA contains three provisions
which specifically address storm water
discharges. The central WQA provision
governing storm water discharges is
section 405. which adds section 402(p) to
the CWA. Section 405(pJ(1) provides
that EPA or NPDES States cannot
require a permit for certain storm wut,..
discharges until October 1. 1992, except:
for storm water discharges listed under
section 402(p)(2). SectIon 402(p112) lists
five types of storm water discharges
which are required to obtain a permit
prior to October 1.1992:
(A) A discharge with respect to which
a permit has been issued prior to
February 4. 1987;
(B) A discharge associated with
industrial activity:
(C) A discharge from a municipiil
separate storm sewer system serving a
population of 250.000 or more:
(U) A discharge from a municipal
separate storm sewer system serving a
population of 100,000 or more, but less
than 250.OOft or
(E) A discharge for which the
Administrator or the State. as the case
may be, determines that the storm water
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to the waters of
the United States.
Section 402(p 4)(A) requires EPA to
promulgate final regulations governing
storm water permit application
requirements for storm water discharges
associated with industrial activity and
discharges from large municipal
separate storm sewer systems (systems
serving a population of 250.000 or more)
“no later than two years” after the daii’
of enactment (i.e., no later than
February 4. 1989). Section 402(p)(4)(B)
also requires EPA to promulgate final
regulations governing storm water
permit application requirements for
discharges from medium municipal
separate storm sewer systems (systems
serving a population of 100.000 or more
but less than 250.000) “no later than four
years” after enactment (i.e.. no later
than February 4. 1991).
In addition. section 402(pff 4) pros ides
that permit applicetions.for storm water
discharges associated with industrial
activity and discharges from large
municipal separate storm sewer sysi.!ms
“shall be filed no later than three y.ars’
after the date of enactment of ihe WQA
(i.e.. no later than February 4. 1990).
Permit applications for discharges from
medium municipal systems must be filed
“no later than five years’ after
enactment (i.e.. no later than February 4.
1992).
The WQA clarified and amended th.
requirements for permits for storm ater
discharges in the new CWA section
402(p)(3 ). The Act clarified that permit’
for discharges associated with industri
activity must meet oil of the applicable
provisions of section 402 and section 301
i— .
I.- . ..
a
p5th _ i. Ik I —
PiA $L . , , ,,J 5,. t ,,.dt..,,&
-------
Federal Register / Vol. 55, No. 222 I Friday, November 16, 1990 I Rules and Regulations
47 93
Including technology and water quality
based standards. However, the new Act
makes significant changes to the permit
standards for discharges from municipal
storm sewers. Section 402(p)(3)(B)
provides that permits for such
discharges:
(i) May be issued on. system. or
jurlsdlctlon.wids basis:
(Ii) Shall include a requirement to
effectively prohibit non.storm water
discharges into the storm sewers: and
(iii) Sh.U require controls to reduce the
discharge of pollutants to the maximum
extent practicable. including management
practices, control techniques and system.
design and engineering methods, and such
other provisions as the Administrator or the
State determines appropnate for the control
of such pollutants.
These changes are discussed in more
detail later In today’s rule.
The EPA. in consultation with the
States. Is required to conduct two
studies on storm water discharges that
are in the class of discharges for which
EPA and NPDES States cannot require
permits prior to October 1, 1992. The
first study will identify those storm
water discharges or classes of storm
water discharges for which permits are
not required prior to October 1. 1992,
and determine, to the maximum extent
practicable, the nature and extent of
pollutants in such discharges. The
second study is for the purpose of
establishing procedures and methods to
control storm water discharges to the
extent necessary to mitigate impacts on
water quality. Based on the two studies
the EPA. in consultation with Stale and
local officials, is required to issue
regulations no later than October 1.
1992. which designate additional storm
water discharges to be regulated to
protect water quality and establish a
comprehensive program to regulate such
designated sources. This program must.
at a minimum. (A) Establish priorities.
(B) establish requirements for State
storm water management programs, and
(C) establish expeditious deadlines. The
program tay include performance
standards, guidelines, guidance, and
management practices and treatment
requirements, as appropriate.
Section 401 of the WQA amends
section 402(1)(2) of the CWA to provide
that the EPA shall not require a permit
for discharges of storm water runoff
from mining operations or oil and gaa
exploration, production. processing. or
treatment operations or transmission
facilities if the storm water discharge is
not contaminated by contact with, or
does not come into Contact with, any
uverburden, raw material, intermediate
product, finished product. byproduct. or
waste product located on the site of
such operations.
Section 503 of the WQA amends
section 502(14) of the CWA to exclude
agricultural storm water discharges from
the definition of point source.
IlL Remand of 1984 RegulatIons
On December 4, 1987. the United
States Court of Appeals for the District
of Columbia Circuit vacated 40 CFR
122.28. (as promulgated on September
28,1984.49 FR 37998. September 26,
1984). and remanded the regulations to
EPA for further rulemaking (NRDC v.
EPA. No. 80-1607). EPA had requested
the remand because of significant
changes made by the storm water
provisions of the WQA. The effect of the
decision was to invalidate the storm
water discharge regulations then found
at 122.26.
Storm water discharges which had
been issued an NPDES permit prior to
February 4. 1987, were not affected by
the Court remand or the February 12,
1988. rule implementing the court order
(53 FR 4157). (See section 402(p)(2)(A) of
the CWA.) Similar y. the remand did not
affect the authority of EPA or an NPDES
State to require a permit for any storm
water discharge (except an agricultural
storm water discharge) designated
under section 402(p)(2)(EJ of the CWA.
The notice of the remand clarified that
such designated discharges meet the
regulatory definition of point source
found at 40 CFR 122.2 and that EPA or
an NPDES State can rely on the
statutory authority and require the filing
of an application (Form I and Form 2C)
for an NPDES permit with respect to
such discharges on a case.by.case basis.
IV. Codification Rul. and Case.by.Case
)esigna t ions
Codification Rule
On January 4. 1989. (54 FR 255). EPA
published a final rule which codified
numerous provisions of the WQA into
EPA regulations. The codification rule
induded several provisions dealing with
storm water discharges. The codification
rule promulgated the language found at
section 402(p) (1) and (2) of the amended
Clean Water Act at 40 CFR 122.28(a)(1).
In addition, the codification rule
promulgated the language of Section 503
of the WQA which exempted
agricultural storm water discharges from
the definition of point source at 40 CFR
122.2. and section 401 of’the WQA
addressing uncontaminated storm water
discharges from mining or oil and gas
operations at 40 CFR 122.26(a)(2).
EPA also codified the statutory
authority of section 402(p)(2)(E) of the
CWA for the Administrator or the State
Director. as the case may be. to
designate storm water discharges for a
permit on a case.by ”case basis at 40
FR 122.26(a)(1)(v).
Case by Case Designations
Section 402(p)(2flE) of the CWA
authorizes case.by.case designations of
storm water discharges for immediate.
permitting if the Administrator or the
State Director determines that the storm
water discharge contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States.
In determining that a storm water
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
United Stales for the purpose of a
designation under section 402(p)(2)(EJ.
the legislative history for the provision
provides that “EPA or the State should
use any available water quality or
sampling data to determine whether the
latter two criteria (contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States) are met.
and should require additional sampling
as necessary to determine whether or
not these criteria are met.” Conference
Report, Cong. Rec. S16443 (daily ed.
October 16. 1986). In accordance with
this legislativç history, today’s rule
promulgates permit application
requirements for certain storm water
discharges. including discharges
designated on a case.by.case basis. EPA
will consider a number of factors when
determining whether a storm water
discharge is a significant contributor of
pollution to the waters of the United
States. These factors include: the
location of the discharge with respect to
waters of the United States: the size of
the discharge: the quantity and nature of
the pollutants reaching waters of the
United States: and any other relevant
factors. Today’s rule incorporates these
factors at 40 CFR 122.28(a)(1)(v).
Under today’s rule. case-by.case
designations are made under regulatory
procedures found at 40 CFR 124.52. The
procedures at 40 CFR 124.52 require that
whenever the Director decides that an
individual permit is required, the
Director shall notify the discharger in
writing that the discharge requires a
permit and the reasons for the decision.
in addition, an application form is sent
with the notice. Section 124.52 provides
a 60 day period from the date of notice
for submitting a permit application.
Although this 00 day period may be
appropriate for many designated storm
water discharges. site specific factors
may dictate that the Director provide
-------
47994 Federal Register I Vol. 55. No. 222 I Friday. November 16. 1990 I Rules and Regulations
additional time for submit:ing a permit
application. For example, due to the
complexities associated with
designation of a municipal separate
storm sewer system for a system- or
jurisdiction.wide permit. the Director
may provide the applicant with
additional time to submit relevant
information or may require that
information be submitted in several
phases.
V. Consent Decree of October 20. 1989
On April 20. 1989. EPA was served
notice of intent to sue by Kathy
Williams el a!. because of the Agency’s
failure to promulgate final storm
regulations on February 4. 1989.
pursuant to Section 402(pJ(4) of the
CWA. A suit was filed by the same
party on July 20. 1989. alleging the same
cause of action, to wit: the Agency’s
failure to promulgate regulations under
section 402(p)(4) of the CWA. On
October 20, 1989. EPA entered into a
consent decree with Kathy Williams et
ul, wherein the Federal District Court,
District of Oregon, Southern Division.
decreed that the Agency promu!gate
final regulations for storm water
discharges identilied in sections
402(p)(2) (B) and (C) of the CWA no
later than luly 20. 1990. Kathy Williams
eta!.. v. William K. Reilly.
Administrator. et a!.. No. 89-6265-.E (D-
Ore.) In July 1990. the consent degree
was amended to provide for a
promulgation date of October 31.
Todays rule is promulgated in
compliance with the terms of the
consent decree as amended.
VI. Today’s Final Rule and Response to
Comments
A. Overview
Section 405 of the WQA alters the
regulatory approach to control
pollutants in storm waler discharges by
adopting a phased and tiered approach.
The new provision phases in permit
application requirements, permit
issuance deadlines and compliance with
permit conditions for different
categories of storm water discharges.
The approach is tiered in that storm
water discharges associated with
industrial activity must comply with
sections 301 and 402 of the CWA
Lrequiring control of the discharge of
pollutants that utilize the Best Available
Technology (BAT) and the Best
Conventional Pollutant Control
Technology (BC1’) and where necessary.
waler quality-based controls), but
permits for discharges from municipal
separate storm sewer systems must
require controls to reduce the discharge
of pollutants to the maximum extent
practicable, and where necessary water
quality-based controls, and must include
a requirement to effectively prohibit
non-storm water discharges into the
storm sewers. Furthermore. EPA in
consultation with State and local
officials must develop a comprehensive
program to designate and regulate other
storm water discharges to protect water
quality.
This final regulation establishes
requirements for the storm water permit
application process. It also sets forth the
required components of municipal storm
water quality management plans, as
well as a preliminary permitting strategy
for industrial activities. In implementing
these regulations. EPA and the States
will at.rive to achieve environmental
results in a cost effective manner by
placing high priority on pollution
prevention activities, and by targeting
activities based on reducing risk from
particularly harmful pollutants and/or
from discharges to high value waters.
EPA and the States will also work with
applicants to avoid cross media
transfers of storm water contaminants.
especially through injection to shallow
wells in the Class V Underground
Injection Control Program.
In addition, EPA recognizes that
problems associated with storm water.
cbmbined sewer overflows (CSOs) and
infiltration and inflow (Ia !) are all inter-
related even though they are treated
somewhat differently under the law.
EPA believes that it is important to
begin linking these programs and
activities and, because of the potential
cost to local governments, to investigate
the use of innovative, non-traditional
approaches to reducing or preventing
contamination of storm water.
The application process for
developing municipal storm water
management plans provides an ideal
opportunity between steps 1 and 2 for
considering the full range of
nontraditional, preventive approaches,
including municipalities, public
awareness/education programs, use of
vegetation and/or land conservancy
practices. alternative paving materials.
creative ways to eliminate l&l and
illegal hook-ups, and potentials for
waler reuse. EPA has already
announced its plans to present an award
for the best creative, cost effective
approaches to storm water and CSOs
beginning in 1991.
This rulemaking establishes permit
application requirements for classes of
storm water discharges that were
specifically identified in section
402(p)(2) These priority slorm water
discharges include storm water
discharges associated with industrial
activity and discharges from a municip&’
separate storm sewer serving a
population of 100.000 or more.
This rulemaking was developed after
careful consideration of 450 eats of
comments, comprising over 3200 pages,
that were received from a variety of
industries, trade associations,
municipalities. State and Federal
Agencies. environmental groups, and
private citizens. These comments were
received during a 90-day comment
period which extended from December
7, 1988, to March 7, 1989. EPA received
several requests for an extension of the
comment period from 30-days up to 90-
days. Many arguments were advanced
for an extension lncludinç the extent
and complexity of the proposal. the
existence of other concurrent EPA
proposals, and the need for technical
evaluations of the proposal. EPA
considered these comments as they
were received, but declined to extend
the comment period beyond 90 days.
The standard comment period on
proposals normally range from 3010 00
days. In light of the statutory deadline of
February 4. 1989. additional time for the
comment period beyond what was
already a substantially lengthened
comment period would have been
inappropriate. The number and extent of
the comments received on this proposal
indicated that interested parties had
substantially adequate time to review
and comment on the regulation.
Furthermore, the public was invited to
attend six public meetings in
Washington DC. Chicago. Dallas.
Oakland. Jacksonville. and Boston to
present questions and comments. EPA is
convinced that substantial and adequate
public participation was sought and
received by the Agency.
Numerous commenters have also
requested that the rule be reproposed
due to the extent of the proposal and the
number of options and issues upon
which the Agency requested comments.
EPA has decided against a reproposai.
The December 7. 1988, notice of
proposed rulemaking was extremely
detailed and thoroughly identified major
issues in such a manner as to allow the
public clear opportunities to comment.
The comments that were received were,
extensive, and many provided valuable
information and ideas that have been
incorporated into the regulation.
Accordingly, the Agency is confident it
has produced a workable and rational
approach to the initial regulation of
storm water discharges and a reguiatiori
that reflects the experience and
knowledge of the public as piovided in
the comments. and which was
developed in accordance ivith the
-------
Federal Register / Vol. 55, No. 222 / Friday. November 16. 1990 I Rules and Regulations
47995
procedurai requirements of the
Mmlnistrative Procedures Act (APA).
EPA believes that while the number of
Issues raised by the proposal was
extensive, the number of detailed
comments Indicates that the public was
able to understand the issues in order to
comment adequately. Thus. a reproposal
Is unnecessary.
8. Definition of Storm Water
The December 7. 1988. notice
requested comment on defining storm
water as storm water runoff, surface
runofL street wadh waters related to
street cleaning or maintenance.
Infiltration (other than infiltration
contaminated by seepage from sanitary
sewers or by other discharges) and
drainage related to storm events or
snow melt. This definition is consistent
with the regulatory definition of “storm
sewer” at 40 CFR 35.2005(b)(47J which is
used in the context of grants for
construction of treatment works. This
definition aids In distinguishing separate
storm water sewers from sanitary
sewers, combined sewers, process
discharge outfalls and non-storm water.
non-process discharge outfall..
The definition of “storm water” ha.
an Important bearing on the NPDES
permitting scheme under the CWA. The
following discusses the interrelationship
of NPDES permitting requirements for
storm water discharges addressed by
this rule and NPDES permitting
requirements for other non-storm water
discharges which may be discharged via
the storm sewer as a storm water
discharge. Today’s rule addresses
pennit application requirements for
storm water discharges associated with
industrial activity and for discharges
from municipal separate storm sewer
systems serving a population of 100.000
or more. Storm water discharges
associated with Industrial activity are to
be covered by permits which contain
technology-based controls based on
BATIBCI’ considerations or water
quality-based controls, If necessary. A
permit for storm water discharges from
an industrial facility may also cover
other non-storm water discharges from
the facility; Today’s rule establishes
individual (Form I and Form IF) and
group application requirements for
storm water discharges associated with
Industrial activity. In addition, EPA or
authorized PWDES States with
authorized general permit programs may
Issue general permits which establish
alternative application or notification
requirements for storm water discharges
covered by the general permit(s). Where
a storm water discharge associated with
industrial activity is mixed with a non-
storm water discharge. both discharges
must be covered by an NPDES permit
(this can be In the same permit or with
multiple permits). Permit application
requIrements for these “combination”
discharges are discussed later in today’s
notice.
Today’s rule also addresses permit
application requirements for discharges
from municipal separate storm sewer
systems serving a population of 100,000
or more. Under today’s rule. appropriate
municipal owners or operators of these
systems must obtain NPDES permits for
discharges from these systems. These
permits are to establish controls to the
maximum extent practicable (MEP).
effectively prohibit non.storin water
discharges to the municipal separate
storm sewer system and, where
necessary. contain applicable water
quality-based controls. Where non•
storm water discharges or storm water
discharges associbted with industrial
activity discharge through a municipal
separate storm sewer system (including
systems serving a population of 100.000
or more as well as other systems). which
ultimately discharges to a waters of the
United States, such discharges through a
municipal storm sewer need to be
covered by an NPDES permit that is
Independent of the permit Issued for
discharges from the municipal separate
storm sewer system. Today’s rule
defines the term “illicit discharge” to
describe any discharge through a
municipal separate storm sewer that is
not composed entirely of storm water
and that is not covered by an NPDES
permit. Such illicit discharges are not
authorized under the CWA. Section
402(pfl3)(B) of the CWA requires that
permits for discharges from municipal
separate storm sewers require the
municipality to “effectively prohibit”
non-storm water discharges from the
municipal separate storm sewer. As
discussed in more detail below, today’s
rule begins to implement the “effective
prohibition” by requiring municipal
operators of municipal separate storm
sewer systems serving a population of
100,000 or more to submit a description
of a program to detect and control
certain non.atorm water discharges to
their municipal system. Ultimately. such
non-storm water discharges through a
municipal separate storm sewer must
either be removed from the system or
become subject to an NPDES permit
(other than the permit for the discharge
from the municipal separate sto?m
sewer). For reasons discussed ‘n more
detail below, in generaL municipalities
will not be held responsible for
prohibiting some specific components of
discharges or flows lisled below through
their municipal separate storm sewer
system. even though such components
may be considered non-storm water
discharges, unless such discharges are
specifically identified on a case-by-case
basis as needing to be addressed.
However, operators of such non-storm
water discharges need to obtain NPDES
permits for these discharges under the
present framework of the CWA (rather
than the municipal operator of the
municipal separate storm sewer system).
(Note that section 516 of the Water
Quality Act of 1987 requires EPA to
conduct a study of de minimis
discharges of pollutants to waters of the
United Slates and to determine the most
effective and appropriate methods of
regulatiig any such discharges.)
EPA received numerous comments on
the proposed regulatory definition of
storm water, many of which proposed
exclusions or additions to the definition.
Several commenters suggested that the
definition should include or not include
detention and retention reservoir
releases, water line flushing, fire
hydrant flushing. runoff from fire
fighting, swimming pool drainnge and
discharge. landscape irrigittion. di% erted
stream flows, uncontaminated pumped
ground water, rising ground waters,
discharges from potable water sources.
uncontaminated waters from cooling
towers, foundation drains, non-contact
cooling water (such as HVAC or
heating. ventilation and air conditioning
condensation water that POTWs require
to be discharged to separate storm
sewers rather than sanitary sewers).
irrigation water, springs, roof drains,
water from crawl space pumps. looting
drains, lawn watering. individual car
washing. flows from riparian habitats
and wetlands. Most of these comments
were made with regard to the concern
that these were commonly occumng
discharges which did not pose
significant environmental problems. It
was also noted that, unless these flows
are classified as storm water, permits
would be required for these discharges.
In response to the comments which
requested EPA to define the term “storm
water” broadly to include a number of
classes of discharges which are not in
any way related to precipitation events.
EPA believes that this rulemaking is not
an appropriate forum for addressing the
appropriate regulation under the NPDES
program of such non-storm water
discharges. even though some classes of
non-storm water discharges may
typically contain only minimal amounts
of pollutants. Congress did not intend
that the term storm water be used to
describe any discharge that has a de
n inimis amount of pollutants, nor did it
intend for section 402(p) to be used to
-------
47996 Federal Register I Vol. 55 No. 222 I Friday. November 16, 1990 I Rules and Regulations
provide a moratorium from permitting
other non-storm water discharges.
Consequently, the final definition of
storm water has not been expanded
from what was proposed. However, as
discussed In more detail later in today’s
notice. municipal operators of municipal
separate storm sewer systems will
generally not be held responsible for
“effectively prohibiting” limited dasses
of these discharges through their
municipal separate storm sewer
systems.
The proposed nile included
infiltration in the definition of storm
water. In this context one commenter
suggested that the term infiltration be
defined. Infiltration I. defined at 40 CFR
3L J5(b)( ) as water other than
wastewater that enters a sewer system
(including sewer service connections
and foundation drains) from the ground
through such means as defective pipes.
pipe joints, connections or manholes.
Infiltration does not Indude, and is
distinguished from. inflow. Mother
commenter urged that ground water
Infiltration not be classified as storm
water because the chemical
characteristics and contaminants of
ground water will differ from surface
storm water because of a longer contact
period with materials in the soil and
because ground water quality will not
reflect current practices at the site. In
today’s rule, the definition of storm
water exdudes infiltration since
pollutants in these flows will depend on
a large number of factors, including
Interactions with soil and past land use
practices at a given site. Further
infiltration flows can be contaminated
by sources that are not related to
precipitation events, such as seepage
from sanitary sewers. Accordingly the
final regulatory language does not
Include infiltration in the definition of
storm water. Such flows may be subject
to appropriate permit condition. in
industrial permits. As discussed In more
detail below, municipal management
programs must address infiltration
where identified as a source of
pollutants to waters of the United
States.
On. commenter questioned the status
of discharges from detention and
retention basins used to collect storm
water. This regulation covers discharges
of storm water associated with
industrial activity and discharges from
municipal separate storm sewer systems
serving a population of 100.000 or more
into waters of the United States.
Therefore, discharges from basins that
e part of a conveyance system for a
storm water discharge associated with
industrial activity or part of a municipal
separate storm sewer system serving a
population of 100,000 or more are
covered by this regulation. Flows which
are channeled into basins and which do
not discharge into waters of the United
States are not addressed by today’s rule.
Several commenters requested that
the term illicit connection be replaced
with a term that does not connote illegal
discharges or activity, because many
discharges of non-storm water to
municipal separate storm sewer systems
occurred prior to the establishment of
the NPD program and in accordance
with local or State requirements at the
time of the connection. EPA disagrees
that there should be a change In this
terminology. The fact that these
connections were at one time legal does
not confer such status now. The CWA
prohibits the point source discharge of
non-storm water not subject to an
NPDES permit through municipal
separate storm sewers to waters of the
United States. Thus, dassifying such
discharges as Illicit properly Identifies
such discharges as being illegal.
A commenter wanted clarification of
the terms “other discharges” and
“drainage” that are used in the
definition of “storm water.” As noted
above, today’s rule clarifies that
infiltration Is not considered storm
water. Thus the portion of the definition
of storm water that refers to “other
discharges” has also been removed.
However, the term drainage has been
retained. “Drainage” does not take on
any meaning other than the flow of
runoff into a conveyance, as the word is
commonly understood.
One commenter stated that irrigation
flows combined with storm water
discharges should be excluded from
consideration in the storm water
program. The Agency would note that
Irrigation return flows are excluded (rain
regulation under the NPDES program.
Section 4oeLlllll states that the
Administrator or the State shaU not
require permits for discharges composed
entirely of return flows from irrigated
agriculture. The legislative history of the
1977 Clean Water Act, which enacted
this language, slates that the word
“entirely” was Intended to limit the
exception to only those flows which do
not contain additional discharges from
activities unrelated to mop production.
Congressional Record Vol. 123(1977),
pg. 4360 Senate Report No. 95-370,
Accordingly. a storm water discharge
component, from an industrial facility
for example, included in such “joint”
discharges may be regulated pursuant to
an NPDES permit either at the point at
which the storm water flow enters or
joins the imgation flow, or where the
combined flow enters waters of the
United States or a municipal separisle
storm sewer.
Some commenters expressed conrrn
about including street wash waters as
storm water. One commeuter argued
including street wash waters in the
definition of storm water should not ta’
construed to eliminate the need For
management practices relating to
construction activities where sediment
may simply wash into storm drains FPA
agrees with these points and the
concerns that storm sewers may rere’ e
material that pose environmental
problems if street wash waters are
included in the definition. Accordir , .
such discharges are no longer in the
definition as proposed. and must be
addressed by municipal managemeni
programs as part of the prohibition on
non’storm water discharges through
municipal separate storm sewer
systems.
Several commenters requested thsl
the terms discharge and point source, in
the context of permits for storm wakr
discharge. be clarified. Several
commenters stated that the EPA should
clarify that storm water discharge dot’s
not include “sheet flow” off of an
industrial facility, EPA interprets this c
request for clarification on the status of
the terms “point source” and
“discharge” under these regulations. In
response. this rulemaking only covers
storm water discharges from point
sources, A point source is defined at 40
CFR 122.2 as “any discernible, confined,
and discrete conveyance, including but
not limited to, any pipe. ditch. channel,
tunnel, conduit, well, discrete fissure.
container, rolling stock, concentrated
animal feeding operation. landfill
leachate collection system. vessel or
other floating craft from which
pollutants are or may be discharged.
This term does not include return floss s
from irrigated agriculture or agncultur 0
storm water runoff,” EPA agrees with
one commenter that this definition is
adequate for defining what discharges iii
storm water are covered by this
rulemaking. EPA notes that this
definition would encompass municipal
separate storm sewers. In view of this
comprehensive definition of point
source, EPA need clarify in this
rulemaking only that a storm water
discharge subject to NPDES regulation
does not include storm water that entet:,
the waters of the United Stateit via
means ocher than a “point source.” As
further discussed below, storm water
from an industrial facility which enters
and is subsequently discharged through
a municipal separate storm sewer is a
“discharge associated with industrial
-------
F L nI &e l.r 7 Vol. 5 No. Pfl, Friday. No .bar 18, 1590 i-lea and aegolatio
47997
actlvfty” wbith must be covered b an
individual or general permit pursuant to
today’s rule.
U’A would also note that individual
facUlties have the burden of determiaiag
whether a permit application should be
submitted to addreu a point source
discharge. Those unsure of the
dasaification of storm water flow from a
facility, should file permit applications
addressing the flow, or prior to
submitting the application cousult
permitting authorities for clarification.
One coumienter stated that “point
source” for this rulemaking should be
defined. for the purposes of achieving
better water quality, as those areas
where “discharges leave the municipal
Iseparate storm sewer) system.” EPA
notes in response that “point source as
currently defined will address such
discharges, while keeping the defir.ition
of discharge and point source within the
framework of the NPDES program. and
without adding potentially confusing
and ambiguous additional definitions to
the regulation. If this comment is
asserting that the term point source
should not include discharges from
sources through the municipal system.
EPA disagrees. As discussed in detail
below. discharges through municipal
separate storm sewer systems which are
not nnnected to an operabLe treatment
works are discharges pub ect to NPDES
permit requirements at (40 CFR 122.3(dfl.
and may properly be deemed point
sources.
One industry argued that the
definition of “point source” should be
modified for storm water discharges so
as to exclude discharges from land that
is not artificially graded and which has
a propensity to form channels where
precipitation runs off. EPA Intends to
embrace the broadest possible definition
of point source consistent with the
legislative intent of the CWA and court
interpretations to indude any
identifiable conveyance from which
pollutants might enter the waters of the
United States. In most court cases
Int . .. ttng the term “paint source”, the
term has been Interpreted broadly. For
example. the holding In Sierra Club v.
Abs ton Constn,ction Co.. Inc., 820 F.2d
41 (5th Cir. 1980) indIcates that changing
the surface of land or establishing
grading patterns on land will result In a
puint source where the runoff fine, the
site is ultimately discharged tb waters of
the United States:
Simpi. erosion orsr the material surface.
resulting In the diaebarge of water sad other
materials into navigable waters, does sos
onastasia pofas discimipo. absont
sons effint te change sv,faco. te direct
the water flow or ollierwisa impede ft.
‘Creel fy flow. resulting aa
discharge into a navigable body of water.
may be part of a point isr i dtiduargs If lbs
(discharger) it east left ally collected or
c)i.rsisled the water sad other asfetiah . A
point sawceelpeflulkss may abs ha
where ( d’” s) “ “sign spoil piho hem
discarded overburden auth that d a na 5
periods of pnaptsuon. monte. of spoil pile
walls results in discharges Into a navigable
body of water by means of ditches, gullies
and similar conveyances, even if the
(dlsth.rgers) have done nothing b., ..4 the
nun. collection of r and one, materials
‘ ‘ ‘Nothing In the Actrebavon
(diochaipre) from liabilIty simply because
the operators did not actually cooaInict those
conveysecas. so long as they ore reasonably
likely to be the means by which pollutants
me ulthnately deposited Into a navigable
body of water. Conveyance, of pollution
termed either ass malt of natural erosion or
by material means. sad which coimatule a
component of a• ‘ ‘drainage system. may
lit the statutory definition and thereby
subject the operators to liability under the
Act.” 820 F.d at 45 (emphasis added).
Under this approach, point source
discharges of storm water result from
stnietées which increase the
Impeeviousnese of the ground which acts
to collect runoff. with runoff being
conveyed along the resulting drainage or
grading patterns.
The entire thrust of today, regulation
is to control pollutants that enter
receiving water from storm water
conveyances. it is these conveyances
that will carry the largest volume of
water and higher levels of pollutants.
The storm water permit application
process and permit conditions will
address circumstances and discharges
peculiar to individual facilities.
One industry commented that the
definition of waters of the Stats under
some State NPDES programs included
municipal storm sewer systems. The
commenter was concerned that certain
industrial facilities diech”rguig thrbugb
municipal storm sewers in these states
would be reqiured to obtain an NPDES
permit, despite EPAs proposal not 10
require permits from such facilities
generally. In response. EPA notes that
section 510 of the CWA. approved
States are able to have stricter
reqwremsmts in their NPDES program. In
approved NPDES States, the definition
of waters of the Slate controls with
regard to what ‘ “ ‘ 4 tutas a discharge to
a water body. However. EPA believes
that this will have little impact. sir , a. as
discussed below. all industrial
dischargers, ina .lrnling those discharging
through municipal separate storm sewer
systems, will be subiect to general or
individual NPDES permits, regardless of
any additional State requirements.
One municipality commented teat
neither the term “point source” nor
“discharge” should be used in
con ”” 1 with indutrial into
urban storm water systems because that
gives the impi n that such systems
are navigable waters. EPA disagrees
that any confusion should result from
the use of these terms in this context. In
this rulemaking. EPA always addresses
such discharges as “discharges through
municipal separate storm sewer
systems” as opposed to “tharhurges to
waters of the United Slates.”
Noneik.Ie.s , such Industrial discharges
through municipal storm sewdi systems
are subject to the requirements of
today’s rule. u d scus”ed elsewhere.
One commenler desired clarification
with regard to what constituted an
outfall, and if an outfall could be a pipe
that connected two storm water
conveyances. This rulemaking defines
outfall as a point of discharge into the
waters of the United States. and not a
conveyance which connects to Sections
of municipal separate storm sewer. In
response to another comment, this
rulemaking only addresses discharges to
waters of United States. cunsequently
discharges to ground waters are not
covered by this rulemaking (unless there
is a hydrological connection between
the ground water and a nearby surface
water body. See. e.q.. F.exon Con,. v.
Train. 554 F.2d 1310w 1312 n.1 (5th Cir.
1977). McClellan Ecological Seepage
Situation v. Weinbeigvr. 707 F.Supp.
1182.1195—96 (ED. CaL 198811.
In the WQA and other places. the
term “storm water” is presenled as a
single word. Numerous comments were
received by EPA as to the appropriate
spelling. Many of these comments
recommended that two words for storm
water as appropriate. EPA has decided
to use an approach consistent with the
Government Printing Office’s approved
form where storm water appears as two
words.
C Responsibility for Storm Water
Discharges Associated With Indust r i o!
Activity Through Municipal Separate
Storer Sewer,
Th. December 7.1988. notice of
proposed rulemaking requested
comments on the appropriate permitting
scheme for storm water discharges
associated with industrial activity
through municipal separate storm
sewers. EPA proposed a permitting
scheme that would define the
acquirement to obtain coverage under an
NPDES pcrmit for a storm water
discharge associated with industrial
activity through a municipal separate
storm sewer in terms of the
classification of the municipal separate
stoma sewer. EPA proposed holding
municipal operators of large or medium
-------
47996 Federal Register I Vol. 55, No. 222 / Friday, November 1O 1990 I Rules and Regulations
mimicipal separate storm sewer systems
primarily responsible for applying for
and obtaining an NPDES permit
severing system discharges as well as
storm water discharge. (including storm
water discharge, associated with
Industrial activity) through the system.
Under the proposed approach, operators
of storm water discharge. associated
with industrial activity which discharge
through a large or medium municipal
separate storm sewer system would
generally not be required to obtain
permit coverage for their discharge
(unless designated as a significant
contributor of pollution pursuant to
section 402(p)(ZflEJ) provided the
municipality was notified of: The name,
location and type of facility and a
certification that the discharge has been
tested (If feasible) for non-storm water
(Including the-results of any testing). The
notification procedure also required the
operator of the storm water discharge
associated with industrial activity to
determine that The discharge is
composed entirely of storm water, the
discharge does not contain hazardous
substances in excess of reporting
quantities: and the facility is in
compliance with applicable provisions
of the NPDES permit issued to the
municipality for storm water.
En the proposal, EPA also requested
comments on whether a decision on
regulatoty requirements for storm water
discharges associated with industrial
activity through other municipal
separate storm sewer systems (generally
those serving a population of less than
100.000) should be postponed until
completion of two studies of storm
water discharges required under section
402(p)(5) of the CWA.
EPA favored these approaches
because they appeared to reduce the
potential administrative burden
associated with preparing and
processing the thousands of permit
applications associated with the
rulemaking and provide EPA additional
flexibility in developing permitting
requirements for storm water discharges
associated with industrial activity. EPA
alsu expressed its belief, based upon an
analysis of ordinances controlling
construction site runoff in place in
certain cities, that municipalities
generally possessed legal authority
sufficient to control contributions of
Industrial storm water pollutants to their
separate storm sewers to the degree
necessary to implement the proposed
rule EPA commented that municipal
controls on industrial sources
implemented to comply with an NPDES
permit issued to the municipality would
likely result in a level of storm water
pollution control very similar to that put
directly on the Industrial source through
Its own NPDES permit This was to be
accomplished by requiring municipal
pennitees, to the maximum extent
practicable, to require Industrial
facilities In the municipality to develop
and Implement storm water controls
based on a consideration of the same or
similar factors as those used to make
BAT/BCT determinations. (See 40 CFR
125.3 (d)(2) and (dll3)).
The great majority of commenters on
the December?. 1988 notIce addressed
this aspect of the proposal. Based on
consideration of the comments received
on the notice, EPA has decided that It is
appropriate to revise the approach in Its
proposed rule to require direct permit
coverage for all storm water discharges
associated with Industrial activity.
including those that discharge through
municipal separate storm sewers. In
response to this decision. EPA has
continued to analyze the appropriate
manner to respond to the large number
of storm water discharges subject to this
rulemaking. The development of EPA’s
policy regarding permitting these
discharges is discussed in more detail in
the section VLD of today’s preamble.
EPA notes that the status of
discharges associated with Industrial
activity which pass through a municipal
separate storm sewer system under
section 402(p) raises difficult legal and
policy questions. EPA believes that
treating these discharges under permits
separate from those issued to the
municipality will most fully address
both the legal and policy concerns
raised in public comment.
Certain commenters supported EPA’s
proposal. Some commenters claimed
that EPA lacked any authority to permit
industrial discharges which were not
discharged immediately to waters of the
U.S. Other commenters agreed with
EPA’s statements in the proposal that Its
approach would result in a more
manageable administrative burden for
EPA and the NPDES states. However.
numerous comments also were received
which provided various arguments in
support of revising the proposed
approach. These comments addressed
several areas Including the definition of
discharge under the CWA. the
requirements and associated statutory
time frames of section 402(p). as well as
the resource and enforcement
constraints of municipalities. EPA is
persuaded by these comments and has
modified its approach accordingly. The
key comments on this issue are
discussed below.
EPA disagrees with commenters who
suggested that EPA lack. authonty to
permit separately Industrial discharge’
through municipal sewers. The CWA
prohibits the discharge of a pollutant
except pursuant to an NPDES permit
Section 992(12)(A) of the CWA defines
the “discharge of a pollutant” as “any
addition of any pollutant to navigable
waters from any point source.” i There
Is no qualification in the statutory
language regarding the source of the
pollutants being discharged. Thus,
pollutants from a remote location which
are discharged through a point source
conveyance controlled by a different
entity (such as a municipal storm sewer)
are nonetheless discharges for which a
permit Is required.
EPA’s regulatory definition of the term
“discharge” reflects this broad
construction. EPA defines the term to
include
additions of pollutants into waters of the
United Stales from: surface runoff which is
collected or channelled by man dsschoiyes
through pipe& sewers, or other con veywicea
owned by a State, nlun,czpo!ity, or other
person which does no: lead to o tieo:rnent
works: and discharges through pipes, sewers,
or other conveyances, leading into pnvately
owned treatment works.
40 CFR 1 .2 (1989) (emphasis added).
The only exception to this general rule
the one contemplated by section 307(b,
of the CWA. i.e.. the Introduction of
pollutants into publicly-owned
treatment works. EPA treats these as
‘indlrect discharges,” subject not to
NPDES requirements. but to
pretreatment standards under section
307(b).
In light of its construction of the term
discharge, EPA has consistently
maintained that a person who sends
pollutants from a remote location
through a point source into a water of
the US. may be held liable For the
unpermitted discharge of that pollutant.
Thus. EPA asserts the authority to
require a permit either from the operator
of the point source conveyance. (such as
a municipal storm sewer or a privately-
owned treatment works), or from any
person causing pollutants to be present
in that conveyance and discharged
through the point source, or both. See
Decision of the Genemi Counsel (of
EPAJ No. 43 (“In re Fnendswood
Development Co.”) (June 11. 1970)
(operator of privately owned treatment
work and discharger. to it are both
subject to NPDES permit requirements).
See also. 40 CFR 122.3(g). 122.44(m)
‘indeed. the DC Civcuii has held. in hi simm
mats, context. that EPA may not exempt any point
seems d.,cha , e. at poliu,ants ti’ani he
requlmmant .0 obtain an NPDES pen ,Iut NRDC,.
CcaSI.. - F Zd t3 . 1377 IDC Cir 19771
-------
Feirsi RegIster / Vol. 55 No. Z / FrIday, November i a 1900 / Rules and RegUIatIo. e 4790
(NPD permit writer has discretion to
permit contributors to a privately owned
treatment works as direct discliargers).
En other words, where pollutants are
added by one person to a conveyance
owned/operated by another person, and
that conveyance discharges those
pollutants through a point source. EPA
may permit either person or both to
ensure that tire discharge is properly
controlled. Pollutants from industrial
sites discharged through a storm sewer
to a point source are appropriately
treated In this fashion.
Furthermore, EPA believe, that storm
water from an industrial plant which is
discharged through a municipal storm
sewer is a “discharge associated with
industrial activity.” Today’s rule, as in
the proposal, defines discharges
associated with industrial activity solely
in terms of the origin of the storm water
runoff. There is no distinction for bow
the storm water reaches the waters of
the U.S. In other words, pollutants In
storm water from an industrial plant
which are discharged are “associated
with industrial activity,” regardless of
whether the industrial facility operates
the conveyance discharging the storm
water or whether the storm waler is
ultimately discharged through a
municipal storm sewer). Indeed, there I .
no distinction in the lndustrial” nature
of these two types of discharges. The
poltutanta of concern In an industrial
storm water discharge are present when
the storm water leaves the facility.
either through an In ,. estrial or municipal
storm water conveyance. EPA has no
data to suggest that the pollutants in
industrial storm water entering a
municipal storm sewer are any different
than those In storm water discharged
immediately to a wa’er of the U.S. Thus.
industrial storm water in a municipal
sewer is pro rIy classified as
“associated with industrial activity.”
Although EPA proposed not to cover
these di charges by separate permit, the
Agency believes that ft I. clearly not
precluded from doing so.
Many comments also supported the
proposed approach, noting that holding
munfr psJttiee primarily responsible for
obtaining a permit which covers
Industrial storm water discharges
through municipal systems would
reduce the administrativ, burden
associated with preparing and
processing thousands of permit
applIcations—permit applications that
would be submitted if each industrial
discharger through a large or medium
municipal separate storm sewer system
bad to apply individually (or as part of a
group application).
EPA appreciates these concerns. Yet
EPA also recognizes that there are also
significant problems with putting the
burden of controlling these sources on
the munIcIpalItIes (except far designated
discharges) which must be balanced
with the concerns about the permit
application burden on Industries. The
industrial permitting strategy discussed
in section Vii) below attempts to
achieve this balance.’
EPA also does not believe that the
administrative burden will be nearly as
significant a. originally thought, for
several reasons. First, as discussed in
section VLF.2 below and in response to
significant public comment. EPA has
significantly narrowed the scope of Lire
definition of “associated with industrial
activity” to focus in on those facilities
which are most commonly considered
“industrial” and thought to have the
potential for the highest levels of
pollutants in their storm water
discharges. EPA believe, this Ii a more
appropriate way to ensure a
manageable scope for the industrial
storm water program in light of the
statutory language of section 4 02(p).
since it does not attempt to arbitrarily
distinguish industrial facilities on the
basis of the ownership of the
conveyance through which a facility
discharges its storm water. Second.
EPA’s industrial permitting strategy
discussed in section VLDis designed
around a euive use of general ‘permits
to covei’ the vast majority of industrial
sources. These general permits will
require industrial facilities to develop
storm water control plans and practices
similar to those that would have been
required by the municipality. Yet.
general permits will eliminate the need
fur thousands of individual or group
permit applications, greatly reducing the
busden on both Indust ry EPA/States.
Finally, even under the proposal. EPA
believes that a large number of
industrial dischargers would have been
appropriate for designation for
individual permitting wader section
402(p$2J(E), with the attendant
individual application requirements.
Today’s approach pill actually decrease
the overall burden on these fadlities
rather than filing an individual permit
application upon designation, these
facilities will generally be covered b7 a
general permit
By contrast, several commenters
a,.est.d that not only does EPA have
the authority to cover these discharge,
by separate permit, it Is reqirhed to by
the language of section 4 pJ. As
- I above, storm waler born an
mdu,thaI plant which passes through a
municipal storm sewer 10 a point source
and is discharged to waters of the U.S is
a “discharge associated with industrial
activity.” Thcri1,tc. it I. subject to the
app, ata requirements of section
402(p). The operator of the discharge (or
the industrial facility where the storm
water originates) must apply for a a
permit within three years of the 1987
amendments fre.. Feb. 4. 1990k ‘EPA
must issue a permit by one year Eater
(Feb. 4, 1991); and the permit must
require compliance within three years of
permit issuance, That permit must
ensure that the discharge is in
compliance with all appr ,riate
provisions of sections 301 and 402.
Commenters asserted that EPA’s
proposal would violate these two
requirements of the law. First, the
statute require, aLl Industrial storm
weter discharges to obtain a permit in
the first round of permitting (i.e..
February 4. 1990). However. Congress
established a different fram..work to
address discharges from small municipal
separate storm se wer systems. Section
402(pJ requires EPA to complete two
studies of storm water discharges. and
based on those studies, promulgate
additional regulations. including
requirement, for state storm water
management programs by October 1,
1992. EPA is prohibited from issuing
permits for storm water discharge. from
small municipal systems until October 1,
1992 irnless the discharge Is designated
under sect on 4021 pUZ)(E). Thus,
industrial storm water discharges from
these systems would not be covered by
a permit until later than contemplated
by stabile. Second, permits for
mui icipaI storm sewer systems requir’
controis on storm water discharges ‘ Ic.
the maximum extent practicable.” as
opposed to the BATFBCT requirements
of section 301(bl(2). Yet, all industrial
storm water discharges must comply
with section 301(bff2). Thus, covering
induitrial storm water under a
municipal storm water permit will not
ensure the legally-required level of
control of industrial storm water
discharges.
In addition to comments on the
requirements of section 402(pJ. EPA
received several comments questioning
whether EPA’. yruyu. 5i to cover
industrial pollutants in municipal
separate storm sewers solely In the
permit leaned to the municipally would
ensure adequate control of these
pollutants due to both inadequate
‘ Vt stodd be noled ibef d e e l pueejtgpt,
Ills FSqIllNó on fU NS be Pbnee .
lam I. &L.4 a, bSM& Ae
diic d bi r. idep p s , eky _ .. _ .
èsci ,, so r ,a. p pseei
ipplicallon in one ,vsr
-------
OoI Pedmal Ka ister I Vol. 55, No. 222/ FrIday, November 16. 1990 / Rules and Regulations
resources and enforcement. Same
municipalities stated that the burdens of
this responsibility would be too great
with regard to source Identification and
general adminIstration of the program.
These commenters claimed they lacked
the necessary technical and regulatory
expertise to regulate such sources.
Commenten also noted that additional
resources to control these sources would
be difficult to obtain given the
restrictions on local taxation In many
states and the tact that EPA will not be
providing funding to local governments
to implement their storm water
programs.
Munldpalltles also expressed
concerns regarding enforcement of
EPA’. proposed approach. Some
munidpaiitles remarked that they did
not have appropriate legal authority to
address these discharges. Several
commentera also stated that requiring
municipalities to be responsible for
addressing storm water discharges
associated with industrial activity
through their municipal system would
result in unequal treatment of industries
nationwide because of different
municipal requirements and
enforcement procedures. Several
municipal entities expressed concern
with regard to their responsibility and
liability for pollutants discharged to
their municipal storm sewer system, and
further asserted that It was unfair to
require municipalities to bear the full
cost of controlling such pollutant.. Other
municipalities suggested that overall
municipal storm water control would be
impaired, since municipalities would
spend a disproportionate amount of
resource. trymg to control industrial
discharges through their sewers, rather
than addressing other storm water
problems. In a related vein, certain
commenters suggested that, where
industrial storm water was a significant
problem in a municipal sewer. EPA’s
proposed approach would hamper
enforcement at the federal/state level,
since all enforcement measures could be
directed only at the municipality, rather
then at the most direct source of that
problem.
In response to all of these concerns.
EPA has decided to require storm water
discharges associated with Industrial
activity which discharge through
municipal separate storm sewers to
obtain separate individual or general
NPDES permits. EPA believes that this
change will adequately address all of
the key concerns raised by commenters.
The Agency was particularly
influenced by concerns that many
municipalities lacked the authority
under slate law to address industrial
storm water practices. EPA had
assumed that since several cities
regulate construction site activities, that
they could regulate other industrial
operations In a similar manner. Several
commenters suggested otherwise. in
light of these concerns, EPA agrees with
certain commentsrs that municipal
controls on Indusirial facilities, In lieu of
federal control, might not comply with
section 402(p)(3)(A) for those facilitiea. 3
This calls Into question whether EPA’s
proposed approach would have
reasonably Implemented Congressional
Intent to address Industrial storm water
early and stringently In the permitting
process.
EPA also agrees with those
commenter. who argued that municipal
controls on Industrial storm water
sources were not directly analogous to
the pretreatment program under section
307(b), as EPA suggested in the
preamble to the proposal. The authority
of cities to control the type and volume
of Industrial pollutants into a POTW Is
generally unquestioned under the laws
of most states, since sewage and
Industrial waste treatment is a service
provided by the municipality. Thus, EPA
has greater confidence that cities can
and will adopt effective pretreatment
programs. By contrast, many cities are
limited In the types of controls they can
impose on flows into storm sewers:
cities are more often lImited to
regulations on quantity of industrial
flows to prevent flooding the system. So
too, the pretreatment program allows for
federal enforcement of local
pretreatment requirements. Enforcement
against direct discharger. (including
discharger. through municipal storm
sewers) is possible only when the
municipal requirements are contained in
an NPDES permit.
Although today’s rule will require
industrial discharges through municipal
storm sewers to be covered by separate
permit. EPA still believes that municipal
operators of large and medium
municipal systems have an Important
role in source identification and the
development of pollutant controls for
industries that discharge storm water
through municipal separate storm sewer
systems Is appropriate. Under the CWA,
‘DA note. thai the I . aI issue raised by
‘4tu u rouMhl whether industrial stern
wstsr would be cemroll.d to BAT if by a
inunidpal permit at the • level is pnmarlly.
theoretical issue. A. enpialned abe u. the proposal
assumed thai dues would establish controls on
industry very similar to thou. astablualued In an
NPDES permit usuu beet prol.u.anal iudwnsnt.
Ae hey concern, rains,. is whether cities can. in
fact, e.tablish such controls. ‘Thus, today’. flosi ui.
should not appreciably diangs ths mquustn.nts to
be Imposed on indv,tnul cowsu.. only how thou.
raquiremsnls a ,, untamed.
large and medium municipalities are
responsible for reducing pollutants in
discharges from municipal separate
storm sewer. to th. maximum extent
practicable. Because storm water from
Industrial facilities may be a major
contributor of pollutants to municipal
separate storm sewer systems,
municipalities are obligated to develop
controls for storm water discharges
associated with industrial activity
through their system in their storm
water management program. (See
section VLH.7. of today’s preamble.) The
CWA provides that permits for
municipal separate storm sewers shall
require municipalities to reduce
pollutants to the maximum extent
practicable. Permits issued to
municipalities for discharges from
municipal separate storm sewers will
reflect terms, specified controls, and
programs that achieve that goaL As with
all NPDES permit., responsibility and
liability Is determined by the
discharger’s compliance with the terms
of the permit. A municipality’s
responsibility for industrial storm water
discharged through their system is
governed by the terms of the permit
issued. If an industrial source dIscharges
storm water through a municipal
separate storm sewer in violation of
requirements Incorporated into a permit
for the industrial facility’s discharge.
that industrial operator of the discharge
may be subject to an enforcement action
Instituted by the Director of the NPDES
program.
Today’s rule also requires operators of
storm water discharges associated with
Industrial activity through large and
medium municipal systems to provide
municipal entities of the name, location,
and type of facility that is discharging to
the municipal system. This information
will provide municipalities with a base
of information from which management
plans can be devised and implemented.
This requirement Is in addition to any
requirements contained in the industrial
facility’s permit. As in the proposal, the
notification process will assist cities in
development of their industrial control
programs.
EPA intends for the NPDES program.
through requirements in permits for
storm water discharges associated with
industrial activity, to work in concert
with municipalities in the industrial
component of their storm water
management program efforts. EPA
believes that permItting of municipal
storm sewer systems and the industrial
discharges through them will act in a
complementary manner to fully control
the pollutants in those sewer systems.
This will fully implement the intent of
-------
Federal Regibter/ Vol. 55 No. 222 I Friday. November 10. iggo I Rules and Regulations
48O
Congress to control industrial as well as
large and medium municipal stolin
water discharges as expeditiously and
effectively as possible. This approach
will also address the concerns of
municipalities that they lack sufficient
authority and resources to control all
industrial contributions to their storm
sewers and will be liable for discharges
outside of their control.
The permit application requirements
for large and medium municipal
separate storm sewer systems.
discussed in more detail later in todays
preamble, address the responsibilities of
the municipal operators of these systems
to identify and control pollutants in
storm waler discharges associated with
industrial activity. Permit applications
for large and medium municipal
separate storm sewer systems are to
identify the location of facilities which
discharge storm water associated with
industrial activity to the municipal
system (see section Vl.H.7. of the
preamble). In addition, municipal
applicants will provide a description of
a proposed management program to
reduce, to the maximum extent
practicable, pollutants from storm water
discharges associated with industrial
activity which discharge to the
municipal system (see section VLH.7.c
of this preamble). EPA notes that each
municipal program will be tailored to
the conditions in that city. Differences in
regional weather patterns, hydrology,
water quality standards, and storm
sewer systems themselves dictate that
storm water management practices will
vary to some degree in each
municipality. Accordingly, similar
Industrial storm water discharges may
be treated differently In terms of the
requirements imposed by the
municipality, depending on the
municipal program. Nonetheless, any
individual or general permit issued to
the industrial facility must comply with
section 402(p)(3)(A) of the CWA.
EPA intends to provide assistance and
guidance to murncipalities and
permitting authorities for developing
storm water management programs that
achieve permit requirements. EPA
intends to issue a guidance document
addreutng municipal permit
applications in the near term.
Controls developed in management
plans for municipal system permits may
take a variety of forms. Where
necessary, municipal permittees can
pursue local remedies to develop
measures to reduce pollutants or halt
storm water discharges with high levels
of pollutants through municipal atoms
sewer systems. Some local entities have
already implemented ordinances or laws
that ate designed to reduce the
discharge of pollutants to municipal
separate storm sewers, while other
municipalities have developed a variety
of techniques to control pollutants in
storm water. Alternatively, where
appropriate, municipal permittees may
develop end.of.pipe controls to control
pollutants in these discharges such as
regional wet detention ponds or
diverting flow to publidy owned
treatment works. Finally, municipal
applicants may bring individual storm
water discharges, which cannot be
adequately controlled by the municipal
permittees or general permit coverage.
to the attention of the permitting
authority. Then, at the Director’s
discretion, appropriate additional
controls can be required in the permit
for the facility generating the targeted
storm water discharge.
One commenter suggested that
municipal operators of municipal
separate storm sewers should have
control overall storm water discharges
from a facility the’ discharges both
through the munic 1 ial system and to
waters of the Uniied States. In response.
under this regulatory and statutory
scheme, industries that discharge storm
water directly into the waters of the
United States, through municipal
separate storm sewer systems, or both
are required to obtain permit coverage
for their discharges. However,
municipalities are not precluded from
exercising control over such facilities
through their own municipal authorities.
It is important to note that EPA has
established effluent guideline limitations
for storm water discharges for nine
subcategories of industrial dischargers
(Cement Manufacturing (40 CFR part
411), Feedlots (40 CFR part 412).
Fertilizer Manufacturing (40 CFR part
418). Petroleum Refining (40 CFR part
4191, Phosphate Manufacturing (40 CFR
part 422). Steam Electric (40 CFR part
423). Coal Mining (40 CFR part 434), Ore
Mining and Dressing (40 CFR part 440)
and Asphalt (40 CFR part 441)). Most of
the existing facilities in these
subcategories already have individual
permits for their storm water discharges.
Under today’s rule, facilities with
existing NPDES permits for storm water
discharges through a municipal storm
sewer will be required to maintain these
permits and apply for an individual
permit, under 122.20(c), when existing
permits expire. EPA received numerous
comments supporting this decision
because requiring facilities that have
existing permits to comply with today’s
requirements immediately would be
inefficient and not serve improved water
quality.
Sections 402(p) (1) and (2) of the CWA
provide that discharges from municip.il
separate storm sewer systems serving a
population of less than 100.000 are nut
required to obtain a permit prior to
October 1. 1982, unless designated on a
case.by.case basis under section
402(p)(2)(E). However, as discussed
above, storm water discharges
associated with industrial activity
through such municipal systems ore rot
excluded. Thus, under today’s rule, all
storm water discharges associated with
industrial activity that discharge through
municipal separate storm sewer systr.ms
are required to obtain NPDES perm:t
coverage, including those which
discharge through systems serving
populations less than 100.000. EPA
believes requiring permits will address
the legal concerns raised by commentcr!
regarding these sources. In addition. it
will allow for control of these significant
sources of pollution while EPA
continues to study under section
402(p)(6) whether to require the
development of municipal storm waler
management plans in these
municipalities. If these municipalities do
ultimately obtain NPDES permits for
their municipal separate storm sewer
systems. early permitting of the
Industrial contributions may aid those
cities in their storm water management
efforts.
in the December 7, 1988. proposal,
EPA recognized that storm water
discharges associated with industrial
activity from Federal facilities through
municipal separate storm sewer systems
may pose unique legal and
administrative situations. EPA received
numerous comments on this issue, with
most of these comments coming from
cities and counties, The comments
reflected a general concern with respect
to a municipality’s ability to control
Federal storm water discharges through
municipal separate storm sewer
systems. Most municipalities staled that
they do not have the legal authority to
adequately enforce against problem
storm water discharges from Federal
facilities and that these facilities should
be required to obtain separate storm
water permits. Some commenters stated
that they have no Constitutional
authonty to regulate Federal facilities or
establish regulation for such facilities.
Some coinmentera indicated that
Federal facilities could not be inspected,
monitored, or subpected to enforcement
for national security and other
jurisdictional reasons. Some
commenters argued that without clearly
stated legal authority for the
municipality, such discharger. should be
required to obtain permits. One
-------
4IO Federal Register / Vol. 55 No. 222 I Friday, November 16, 1990 / Rules and Regulatione
mwdcipality pointed out that Federal
facilities within city limits ale exempted
from their Erosion and Sediment Control
Act and that permits for these facilities
should be required.
Under today’s rule. Federal facilities
which discharge storm water associated
with industrial activity through
municipal separate storm sewer systems
will be required to obtain NPDES permit
coverage under Federal or State law.
EPA believes this will cure the legal
authority problems at the local level
raised by the commenters. EPA notes
that this requirement is consistent with
section 313(a) of the CWA.
D. Preliminary Permitting Strategy for
Storm Water Discharges Associated
With Industrial Activity
Many of the comments received on
the December 7. 1988. proposal focused
on the difficulties that EPA Regions and
authorized NPDES States. with their
finite resources, will have in
Implementing an effective permitting
program for the large number of storm
water discharges associated with
industrial activity. Many commenters
noted that problems with implementing
permit programs are caused not only by
the large number of industrial facilities
subject to the program, but by the
difficulties associated with identifying
appropriate technologies for controlling
storm water at various sites and the
differences in the nature and extent of
storm water discharges from different
type. of industrial facilities.
EPA recognizes these concerns: and
based on a consideration of comments
from authorized NPDES States.
municipalities, industrial facilities and
environmental groups on the permitting
framework and permit application
requirements for storm water discharges
associated with industrial activity, EPA
Is In the process of developing a
preliminary strate t for permitting storm
water discharges associated with
Industrial activity. In developing this
strategy, EPA recognizes that the CWA
provides flexibility in the manner in
which NPDES permits are issued.’ EPA
‘Tb. as . , ,. in imnc . T, . n. 3N P.Svpp 1
(DO C. israp afl ’4 N1Z .. Cs.d.. ses F.Zd t
(DC Or. 1V71. have . nowImi ,4 ib.
iniatntIve basdee priced an the Apetcy by
ieq.Mn individual p.rmita tar • I., e numbe, at
itmas wit., ds .cba,pe.. Thee. s,t. hi..
veconii.d A’. d,.a .Iian to u aerials
edminiss i ,v. device.. ..di e. eve. pevunla cr
.uievsI puveft. so help uasage it. wosblnad . In
eddillast. the asusis have recapetied U.zlbdhly In
th. type of permit coudision, has at, a.sibItih,d.
‘ - “ -“- veq.he.ietia (as best .unag,mens
Intends to use this flexibility In
designing a workable arid reasonable
permitting system. In accordance with
these considerations, EPA intend, to
publish In the near future a dia ma.l of
its preliminary permitting strategy for
implementing the NPDES storm water
program.
The preliminary strategy is intended
to establish a framework for developing
permitting priorities, and includes a four
tier set of priorities for issuing permits to
be implemented over lime
Tier I—baseline pezmitting. One or
more general permits will be developed
to initially cover the majority of storm
water discharges associated with
industrial activity;
. Tier 11—watershed permittrng:
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
activity will be targeted for permitting.
• Tier 111—industry specific
permitting: Specific industry categories
will be targeted for individual or
industry-specific permits: and
Tier P/—facility specific
permitting: A variety of factors will be
used to target specific facilities for
individual permits.
Tier I—Baseline Permitting
EPA intends to issue general permits
that initially cover the majority of storm
water discharge. associated with
industrial activity in States without
authorized NPDES programs. These
permits will also serve as models for
States with authorized NPDES
programs.
The consolidation of many sources
under one permit will greatly reduc. the
otherwise overwhelming administrative
burden associated with permitting storm
water discharges associated with
industrial activity. This approach has a
number of additional advantages.
includ lng
• Requirement. will be established
for discharges covered by’ the permit
• Facilities whose discharges are
covered by the permit will have an
opportunity for substantial compliance
with the CWA
a The public, including municipal
operators of municipal separate . 1cm
sewers which may receive storm water
discharges associated with industrial
activity, will have access under section
308(b) of the CWA to monitoring data
and certain other information developed
by the permittam
• EPA will have the opportunity to
begin to collect and review data on
storm water discharge. from pnonty
industries, thereby supporting the
development of subsequent permitting
activities:
Applicable requirements of
municipal storm water management
programs established in permits for
discharge. from municipal separate
storm sewer systems will be enforceable
directly against non-complying
industrial facilities that generate the
discharges;
• The public will be given an
opportunity to comment on permitting
activities:
• The baseline permits will provide a
baBis for bringing selected enforcement
actions by eliminating many issues
which might otherwise arise in an
enforcement proceeding and
• Finally, the baseline permits will
provide a focus for public comment on
the development of subsequent phases
of the permitting strategy for storm
water discharges, including the
development of priorities for State storm
water management programs deveoped
under section 402(p)(6) of the CWA.
Initially, the coverage of the baseline
permits will be broad, but the coverage
is intended to shrink as other permits
are issued for storm water discharges
associated with industrial activities
pursuant to Tier II through IV activities.
2. Tier li—Watershed Permitting
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industnal
activity will be targeted for individual
and general permitting. This process can
be initiated by identifying receiving
waters (or segments of receiving waters)
where storm water discharges
associated with industrial activity have
been identified as a source of use
impairment or are suspected to be
contributing to use impairment.
3. Tier ill—industry Specific Permitting
Specific industry categories will be
targeted for individual or industry.
specific general permits. These permits
will allow permitting authorities to focus
attention and resources on industry
categories of particular concern and/or
industry categories where tailored
requirements are appropriate. EPA will
work with the States to coordinate the
development of model permits for
selected classes of industrial storm
water discharges. EPA is also working
to identify priority industrial categories
in the two reports to Congress required
under section 402 (p) 15) of the CWA. In
addition, group applications that are
received can be used to develop model
permits for the appropriate industries
-------
Federal Register I Vol. 55, No. 222 / Friday. November 18. 1990 I Rules and Regulations
48O
4. TIer IV Facillty Specific Permitting
Individual permits will be appropriate
for some storm water discharges in
addition to those Identified under Tier!!
and III activities. Individual permits
should be issued where warranted by:
the pollution potential of the discharge;
the need for individual control
mechanisms; and in cases where
reduced administrative burdens exist.
For example. individual NPDES permits
for facilities with process discharges
should be expanded during the normal
process of permit reissuance to cover
storm water discharges from the facility.
5. RelatIonship of Strategy to Permit
Applications Requirements
The preliminary lcng-term permitting
strategy described above identifies
several permit schemes that EPA
anticipates will be used In addressing
storm water discharges associated with
Industrial activity. One issue that arises
with this strategy is determining the
appropriate information needed to
develop and issue permits for these
discharges. The NPDES regulatory
scheme provides three ma jot options for
obtaining permit coverage for storm
water discharges associated with
Industrial acftvity (1) Individual permit
applications: (2) group applications: and
(3) case-by.case requirements developed
for general permit coverage.
a. mdi vidual permit opplicotion
requirements. Today’s notice
establishes requirements for individual
permit applications for storm watcr
discharges aisociated with industrial
activity. These application requirements
are applicable for all storm water
discharges associated with industrial
activity, except where the operator of
the discharge is participating in a group
application or a general permit is issued
to cover the discharge and the general
permit provides alternative means to
obtain permit coverage. Information in
Individual applications is intended to be
used in developing the site-specific
conditions generally associated with
Individual permits.
individual permit applications are
expected to play an important role in all
tiers of the Strategy, even where general
permits are used. Although general
permits may provide for notification
requirements that operate in lieu of the
requirement to submit individual permit
applications, the individual permit
applications may be needed undet
several circumstances. Examples
Include: where a general permit requires
the submission of a permit application
as the notice of intent to be covered by
the permit; where the owner or operator
authorized by a general permit requests
to be excluded from the coverage of the
general permit by applying for a permit
(see 40 CFR 122.28(b)(2)(iii) for EPA
issued general permits); and where the
Director requires an owner or operator
authorized by a general permit to apply
for an individual permit (see 40 CFR
122.28(b)(2)(ii) for EPA issued general
permits).
b. Group applications. Todays rule
also promulgates requirements for group
applications for storm water diacharges
associated with industrial activity.
These applications provide participants
of groups with sufficiently similar storm
water discharges an alternative
mechanism for applying 1 , permit
co erage.
The group application requirements
are primarily intended to provide
information for developing industry
specific general permits. (Group
applications can also be used to issue
individual permits in authorized NPDES
States without general permit authority
or whore otherwise appropriate). As
such, group application requirements
correlate well with the Tier UI
permitting activities identdied in the
long-term permitting Strategy.
c. Case.by.casc requirements. 40 CFR
322.21(a) excludes persons covered by
general permits from requirements to
submit individual permit applications.
Further, the general permit regulations
at 40 CFR 122.2$ do not address the
issue of how a potential permittee is to
apply to be covered under a general
permit. Rather, conditions for
notification of intent (NO!) to be
covered by the general permit are
established in the permits on a case-by-
case basis, and operate in lieu of permit
application requirements. Requirements
for submitting NOls to be covered by a
general permit can range from full
applications (this would be Form I and
Form 2? for most discharges composed
entirely of storm water discharges
associated with industrial activity), to
no notice. EPA recommends that the
NO! requirements established in a
general permit for storm water
discharges associated with industrial
activity be commensurate with the
needs of the permit writer in
establishing the permit and the permit
program. The baseline general permit
described in Tier 1 is intended to support
the development of controls for storm
water discharges associated with
industrial activity that can be supported
by the limited resources of the
permitting Agency. In this regard, the
burdens of receiving and reviewing
NOl’s from the large number of facilities
covered by the permit should also be
considered when developing NOi
requirements. In addition. NO!
requirements should be developed in
conjunction with permit conditions
establishing reporting requirements
during the term of the permit.
NO! requirements in general perniiti .
can establish a mechanism which can
be used to establish a clear accounting
of the number of permittees covered by
the general permit, the nature of
operations at the facility generating the
discharge. their identity and location.
The NO! can be used as an initial
screening tool to determine discharges
where individual permits are
appropriate. Also, the NOl can be used
to ident’fy classes of discharges
appropriate for more specific general
permits. as well as provide information
needed to notify such dischargers of the
issuance of a more specific general
permit. In addition, the NOl can provide
for the identification of the permittee to
provide a basis for enforcement and
compliance monitoring strategies. EPA
will further address this issue in the
context of specific general permits it
plans to issue an the near future.
Today’s rule requires that individual
permit applications For storm water
discharges associated with industrial
activity be submitted within one yeur
from the date of publication of this
notice. EPA is considering issuing
general permits for the majority of storm
water discharges associated with
industrial activity In those States and
territories that do not have authorized
State NPDES programs (MA. ME. NH,
FL LA. TX. OK. NM. SD. AZ. AK, ID,
District of Columbia, the
Commonwealth of Puerto Rico. Guam.
American Samoa. the Commonwealth of
the Northern Mañana islands, and the
Trust Temlory of the Pacific Islands)
before that date to enable industrial
diachargers of storm water to ascertain
whether they are eligible for coverage
under a general permit (and subject to
any alternative notification
requirements established by the general
permit In lieu of the individual permit
application requirements of today’s rule)
or whether they must submit an
individual permit application (or
participate in a group application)
before the regulatory deadlines for
submitting these applications passes.
Storm water application deadlines are
discussed in further detail below.
A’. Storm Water Discharge Sompiris 5
Storm water discharges are
intermittent by their nature, and
pollutant concentrations in storm water
discharges will be highly variable. Not
only will variability arise between given
events, but the flow and pollutant
-------
Ofl4 Federal Register / Vol. 5 No. 2 I Friday. November 16, 1 9O / Rules and Regulations
concentrations of such discharges will
vary with time during an event This
variability raises two technical
pro bknm hew best to chara t.rlae the
discharge assocasted with a single storm
event; and bow beet to tharactertze the
variability between discharges of
LlL t events that may be caused by
seasonal changes and changes in
material management practices, lot
exampis.
Prior to today’s rulemaking. 40 CFR
122.21(gJf7) required that applicants for
NPD permits submit quantitative data
based on one grab sample taken evety’
boor of the discharge for the first four
hours of discharge. EPA has modified
this requirement such that. instead of
collecting and analyzing four grab
samples individually, applicants for
permits addressing storm water
discharges associated with industrial
activity will provide data as indicators
of two sets of conditions: data collected
during the first minutes of discharge
and flow-weighted average storm event
concentrations. Large and medium
municipalities will provide data on flow-
weighted average storm event
concentrations only.
Data desaibing pollutants in a grab
sample taken during the first few
minutes of the discharge can often be
used as a screen for non-storm water
discharges to separate storm sewers
because such pollutants may be flushed
out of the system during the initial
portion of the discharge. In addition.
data from the first few minutes of a
discharge are useful because much of
the traditional structural technology
used to control storm water discharges.
including detention and retention
devices. may only provide controls for
the first portion of the discharge. with
relatively little or no control for the
remainder of the discharge. Data from
the first portion of the discharge will
give an indication of the potential
usefulness of these techniques to reduce
pollutants in storm waler discharges.
Also. such discharges may be primarily
responsible for pollutant shocks to the
ecosystem in receiving waters.
Studies such as NURP have shown
that flow-weighted average
concentrations of storm water
discharges are useful for estimating
pollutant loads.and for evaluating
certain concentration-based water
quality Impacts. The use of flow-
weighted composite samples are also
consistent with comments raised by
various industry representatives during
previous Agency rulemaking. that
continuous monitoring of discharges
from storm events is necesser ‘o
adequately characterize such
disckarge .
EPA requested comment on the
feasibility of the proposed modification
of sampling procedures at 12.21(g1f7)
and the ability to characterize pollutants
itt storm water discharges with an
average concentration from the first
portion of the discharge compared to
collecting and separately enalyw g four
grab samples. It was proposed thai an
event composite sample be collected, as
well as a grab sample collected during
the first 20 minutes of runoff. Comments
wee solicited as to whether or not this
sampling method would provide better
definition of the storm load for runoff
characterization than would the
requirement to collect and separately
analyze four grab samples.
Many commenters questioned the
ability to obtain a 20 minute sample in
the absence of automatic samplers.
Some believed that pollutants measured
by such a sample can be accounted for
in the event composite sample. Others
argued that this is an unwarranted
sampling effort if municipal storm water
management plans are to be geared to
achievrng annual pollutant load
reductions. Many commenters advised
that problems accessing sampling
stations and mobilizing sampling crews,
particularly after working hours. made
sampling dining the first 20 minutes
impractical. These comments were
made particularly with respect to
municipalities, where the geographical
areas could encompass several hundred
square miles. Several alternatives were
suggested including. the collection of a
sample in the first hour. and
representative grab sampling in the next
three hours, one per hotin or perform
time proportioned sampling for up to
four hours.
Because of the logistical problems
associated with collecting samples
during the first few minutes of discharge
from municipal systems. EPA will only
require such sampling from industrial
facilities. Municipal systems will be
spread out over many square miles with
sampling locations potentially several
miles from public works departments or
other responsible government agencies
Reaching such locations in order to
obtain samples during the first few
minutes of a storm event may prove
impossible. For essentially the same
reasons, the requirement has been
modified to encompass the fIrst 30
minutes of the discharge. instead of 20
minutes. for industrial discharges. The
rule also darifles that the sample should
be taken dunna the first 30 minutes or as
soon thereafter as practicable. Where
appropnate. charactenzation of this
portion of the discharge from selected
outfalls or samDling points may be a
condition to permits issued to
municipalities. With regard to protocols
for the collection of sample aliquots fo’
flow-weighted composite samples,
122.21(g 7) provides that municipal
applicants 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 or Regional
Administrator. In other words, the
period may be extended from 15 minutes
to 20 or 25 minutes between sample
aliquots, or decreased from 15 to 10 or 5
minutes.
Other comments raised issues that
apply both to the impact of runoff
characterization arid the first discharge
representation. These primarily
pertained to regions that have well
defined wet and dry seasons. Comments
questioned whether or not it is fair to
assume that the initial storm or two of a
wet season, which will have very high
pollutant concentrations, are actually
representative of the runoff
concentrations for the area.
In response. EPA believes that it is
important to represent the first part of
the discharge either separately or as a
part of the event composite samples.
This loading is made up primarily of the
mass of unattached fine particulate. and
readily soluble surface load that
accumulates between storms. This load
washes off of the basin’s directly
connected paved surfaces when the
runoff velocities reach the level required
for entrainment of the particulate load
into the surface flow. It should be noted
that for very fine particulate. and
solubles, this can occur very soon after
the storm begins and much sooner than
the peak flow. The first few minutes of
discharge represents a shock load to the
receiving water, in terms of
concentration of pollutants, because for
many constituents the highest
concentrations of the event will occur
during this initial penod. Due to the
need to properly quantify this load, it is
not necessary to represent the first
discharge from the upper reaches of the
outfall’s tributary area. In runoff
characterization basins, the assumption
is that the land use in the basin is
homogeneous, or nearly so. and that the
first discharge from the lower reaches
for all intents and purposes is
representative of the entire basin. If a
sample Is taken during the first 30
minutes of the runoff, it will be
composed primarily of first discharge I i
the sample is taken at the outfall an
hour into the event, it may contain
-------
F.d 1 .I inglater I VoL 55, PIn. V .2/ Priday, N 1 ber 16,11901 Rules and Regulations OO5
discharge from the remote portions of
the basin. It will not be . r , entatlve of
the th 1 because ft will also
contain later weshoff from the
reaches of the basin, resulting Ins low
estimation of the first discharge load of
most constituents. larger
suspended partienlales that normally
are not present in first discharge due to
Inadequate velocities will appear in this
later sampling omsaria because of the
Inflasono of hi er runoff rates in the
lower basin. Many commonly used
management practices are designed
based on their ability to treat a volume
c i water deliaqd by the first discharge
phenomenon. It Is important to
characterize the first discharge load
because most management practices
effectively treat only. or primarily, this
load.
It . hould be noted that first discharge
runoff Is sometimes contaminated by
non-storm water related pollutants. In
many urban catchments. contaminants
that result from Illicit connections and
iflegal dumping may be stored In the
system until hushed ” during the Initial
storm period, ibis does not negate the
need for information on the
characteristic first discharge load, but
does Indicate that the first phase field
screen results for Illicit connections
should be used to help define those
outfalls where this problem might exist
Several methods can be used to
develop an event average cenosutratlon.
Either automatic ar manual sampling
techniques can be used that sample the
entire bydrograph. or at lasat the first
four boom of IL that will result in
several samples and assoanted
flow rates that ie ., ent the various
flow regimes of an event These
procedures have tie potential for
providing either an event average
concentration, an event mean
concentration, or discrete definition of
the wasboff process Automatic
sampling prcc durea are also available
that collect a single composite sample.
either on a tlm..proportloaed or flow
proportioned bait .
W discrete samples are collected,
an event average composite sample can
be produced by the manual composite of
the discrete sample. In equal volumes.
Laboratory analysis of time
proportioned composite samples will
directly yield the event average
concentration. Mathematical averaging
of discrete sample analysis result, will
yield an event average concentration.
When discrete samples are collected.
a flow-weighted wrupe.ite sample can
be produced based on the discharge
remir L This is doiw by manually flow
proportioning the volumes of the
Individual samples. Laboratory analyst,
of flow wighted cuuiposlte samples will
directly yield an event mean
concentration. Mathematical integration
of the change In concentrations and
mem flux of the discharge fez dlmmt.
sample data can produce an event mean
concentration. This procedure was used
during the NURP program.
EPA wishes to emphasize that the
reason for sampling the type of storm
event Identified in 122.21(g)(7) Is to
provide Information that .wi sents
local conditions that will be used to
create sound storm water management
plans. Based on the method to be used
to generate system-wide estimates of
pollutant loads, either method. discrete
or event average concentrations. may be
preferable to the other. If simulation
models will be used to genemte loading
estimate,, analysis of discrete samples
will be more valuable so that calibration
of water quality and hydrology may be
performet On the other hand, simple
estimation methods based on event
average or event mean concentrations
may not Justify the additional cost of
discrete sample analysis.
EPA believe, that the first discharge
loading should be represented in the
permit application from lndusfrial
facilities and, if appropriate, permitting
authorities may require the same In the
discharge characterization component of
permits issued to municipalities. The
first discharge load should also be
represented as part of an event
composite sample. This requirement will
assist Industrie, In the development of
effective storm water management
plans.
EPA requested comments on the
appropriateness of the proposed rules
and of proposed amendments to the
rules regarding discharge sampling.
Comments were received which
addressed the appropriateness of
impoeing imifonn national guidelines.
Several commentate are concerned that
rmifoim national guidelines may not be
appropriate due to the .phIc
variations in meteorology. topography.
and pollutant sources. While some
assert that a uniform guideline will
provide consistency of the sample
results, others prefer a p m based
on . , . .al or State grildell nes. that more
specifically eddies, their situation.
Several commenteis. addressing
Industrial permit-epplication
requirements. piefened that the ownerf
operator be allowed to set an individual
sampling protocol with a , ,val of the
permit writer, Some comineuters were
concerned that one event may not be
sufficient to characterize runoff from a
basin ss this may resuit in gross over-
estimation or widemilinattuir of the
pollutant loads. Others Indicated
confusion with to sampling
procedures. lab . . .alyuls procedures.
and the purpose of lb. pr ’sm.
In response, todays regulations
establish certain ,u.inin.um requirement.
Municipalities and Industries may vary
from these requirements to the extent
that their implementation I. at least as
stringent as outlined in today’s rule.
EPA views today’s rule as a means to
provide asaw’ance as to the quality of
the data collected: and to this end. it is
Important that the minimum level of
sampling required be well defined.
In response to EPKs proposal that the
first discharge be induded in
representathn” storm sampling.
several commenters made their
concerns known about the possible
equipment necessary to meet this
requirement. Several commenters are
concerned that in order to get a first
discharge sample, automatic sampling
equipment will be required. Concerns
related to the need for this equipment
surfaced in the comments frequently
most advised that the equipment is
expensive and that the demand on
sampling equipment will be too large for
suppliers and manufacturers to meet.
Although equipment can be leased.
some “—‘ “tes maintained that not
enough rental equipment Is available to
make this a viable option In many
Instances.
EPA is not promoting or requiring the
use of automated equipment to satisfy
the sampling requirements. A
community may find that In the long run
ii would be more convenient to have
such equipment since sampling is
required not only during preparation of
the application, but also may be
required during the term of the permit to
ammo that the program goals are being
met. Discharge measurement is
necessary in order for the sample data
to have any meaning. If unattended
automatic sampling is to be performed.
then unattended flow measurement wIll
be required too.
EPA that equipment
availability is a legitimate concern.
However, there is no practical
rw — , ,’andation that can be made
relative to the availability of equipment.
U automatic sampling eqwpment is not
available, manual sampling is an
appropriate alternative.
? Storm Water’ Discharges A .sociotad
With !ndustrialAc(:vrtv
1. Permit Applicability
a. Sloim water discharges associated
with industrial activity to waters of the
United Slates. Under today’s nile
disobargera of storm water associated
-------
48009 Federal RegIster / Vol. 55, No. Z22 / Friday. November 10, 1990 I Rules and Regulations
with Industrial activity are required to
apply for an NPDES permit. Permits are
to be applied for In one of three ways
depending on the type of facility’.
Through the Individual permit
application pmcess through the group
application pIvcess or through a notice
of intent to be covered by general
permit.
Storm water disc iarges associated
with the industrial activities identified
under f 122.26(b)(14) of today’s rule may
avail themselves of general permits that
EPA Intends to propose and promulgate
in the near future. The general permit
will be available to be promulgated in
each non-NPDES State. following State
certification, and as a model for use by
NPDES States with general permit
authority. It Is envisioned that these
general permits will provide baseline
storm water management practices. For
certain categories of industries, specific
management practices will be
prescribed in addition to the baseline
management practices. As information
on specific types of industrial activities
Is developed, other. more industry.
specific general permits will be
developed.
Today’s rule requires facilities wich
existing NPDES permits for storm water
dtwharges to apply for individual
permits under the individual permit
application requirements found at
“ -‘ 5(c) 180 days before their current
permit expires. Facilities not eligible for
coverage under a general permit are
required to file an individual or group
permit application in accordanc with
today’s rule. The general permits to be
proposed and promulgated will indicate
what facilities are eligible for coverage
by the general permit.
b. Storm water discharges through
municipal storm sewers. As discussed
above, many operators of storm water
discharges associated with industrial
activity are not required to apply for an
Individual permit or participate in a
group application under 122.26(c) of
today’. rule if covered by a general
permit. Under the December?, 1988,
proposal, discharger. through large and
medium municipal separate storm sewer
system, were not required. as a general
rule, to apply for an individual Qeraut or
as a group applicant. Today’s rule is a
departure from that proposaL Today’s
nile requires all discharger. through
municipal separate storm sewer systems
to apply for an individual permit, apply
as part of. group application, or seek
coverage under a promulgated general
permit for storm water discharges
associated with industrial activity.
Municipal operators of large and
medium municipal separate storm sewer
system. are responsible for obtaining
system-wide or area permits for their
system’s dlscharges.l’bese permits are
expected to require that controls be
placed on storm water discharges
associated with industrial activity which
discharge through the municipal system.
It I . anticipated that general or
Individual permits covering Industrial
storm water discharger, to these
municipal separate storm sewer systems
will require industries to comply with
the terms of the permit issued to the
municipality, as well other terms
specific to the permittee.
C. Stone water discharges through
,ion .municipal storm sewers. Under
today’s rulemaking all operator. of
storm water discharges associated with
Industrial activity that discharge into a
privately or Federally owned storm
water conveyance (a storm water
conveyance that is not a municipal
separate storm sewer) will be required
to be covered by an NPDES permit (e.g.
an individual permit, general permit, or
as a co-permittee to a permit issued to
the operator of the portion of the system
that directly discharges to waters of the
United States). This is a departure from
the “either/or” approach that EPA
requested comments on in the December
7,1988. notice. The “either/or” approach
would have allowed either the system
discharges to be covered by a permit
Issued to the owner/operator of the
system segment that discharged to
wale;. of the United States, or by an
Individual permit issued to each
contributor to the non-municipal
conveyance.
EPA requested comments on the
advantages end disadvantages of
retaining the “either/or” approach for
non-municipal storm sewers. An
abundance of comment was received by
EPA on this particular part of the
program. A number of industrial
commenters and a smaller number of
municipalities favored retaining the
“either/or” approach as proposed, while
most municipal entitles, one industry,
and one trade association favored
requiring permit. for each discharger.
Two commenters stated that private
owners of conveyances may not have
the legal authority to implement controls
on discharges through their system and
would not want to be held responsible
for such controls. EPA agrees that this is
a potential problem. Therefore, today’s
rule will require permit coverage for
each .torm water discharge associated
with industrial activity.
One commenter supported the
concept of reqwring all the facilities that
discharge to a non-municipal
conveyance to be co.permittees. EPA
agrees that this type of permitting
scheme, along with other permit
schemes such as area or general
permits. is appropriate for discharges
from non-municipal sewers, as long as
each storm water discharge through the
system Is associated with Industrial
activity and thus currently subject to
NPDES permit coverage.
One State agency commented that in
the Interest of uniformity, all industries
that discharge to non-municipal
conveyances should be required to
conform to the application requirements.
One industry staled that the rules must
provide a way for the last discharger
before the waters of the U.S. to require
permits for facilities discharging into the
upper portions of the system. EPA
agrees with these comments. Today’s
rule provides that each discharger may
be covered under individual permits. as
co-permittees to a single permit, or by
general permit rather than holding the
last discharger to the waters of the
United States solely responsible.
In response to one commenter. the
term “non-municipal” has been clarified
to explain that the term refers to non-
publicly owned or Federally-owned
storm sewer systems.
Some commenters supporting the
approach as proposed, noted that
Industrial storm water discharger. into
such systems can take advantage of the
group application process. EPA agrees
that in appropriate circumstances, such
as when industrial facilities discharging
storm water to the same system are
sufficiently similar, group applications
can be used for discharges to non-
municipal conveyances. However. EPA
believes that it would be inappropnate
to approve group applications for those
facilities whose only similarity is that
tbey discharge storm water into the
same private conveyance system. The
efficacy of the group application
procedures is predicated on the
similarity of operations and other
factors. The fact that several industries
discharge storm water to the same non-
municipal sewer system alone may not
make these discharges sufficiently
similar for group application approval.
One commenter suggested that EPA
has not established any deadlines for
submission of permit applications for
storm water discharges associated with
industrial activity through non-
municipal separate storm sewer
systems. EPA wants to clarify that
Industrial storm water dischargers into
privately owned or Federally owned
storm water conveyances are required
to apply for permits in the same time
frame aa Individual or group applicants
(or as otherwise provtde.J for in a
general permit).
-------
Fatbeil Pa/ VoL 55. No V .2/ FrIday, November *10901 9ides adRegulatloiss 4 1117
a - -
th
d r sint oIteaystemhascontrol
and r°-” r _ - the - that
discharge into th..,a . by virti of
the ability to r sict discharges Into the
system. Tha . —‘--“er stated that
these f liI should be the entity
rdtoobia . .tt m ru iit I naU
cases. u .ii that this statement Is
b ie in ail . sp ’ 1s . the larger problem is
that en&s theoretical ability to restrict
discharges is net necessarily tied to the
rsallty of enforcing those restrictions or
even detecting problem discharges when
they exist. to a Vmilar vein one
commontor ged that a private operator
wlU not be in any wuree a position than
a mmJdp J entity to determine who is
the --of psUutian up-stream. EPA
agrees that from a hydrological
sto’idpoliut this may be true. However.
from the start point of detection
resources, police powers , enforcement
remedies, and other facets of municipal
power that maybe brought to bear upon
probl . , discharger,. private systems
are in a far more precarious position
with respect to controlling discharges
from other private sources.
In light of the comments received.
EPA has dedded that the eitberloz
approach u pro, sed I. inappropriate.
Operators of noui-rauaicipal systems will
generally be in a pw . position to gain
knowledge of poilotants In storm water
discharges and to impose controls on
storm water discharges train other
facilities than will municipal system
operators. in addition, best management
practices and o r site-specific controls
are often most appiop..ate far reducing
pollutants In storm water discharges
associated with ladusthal activity and
can of only he effectively addressed
In a regulatory s nw that holds each
Industrial facility operator directly
responsible. The eitherje, approadi as
proposed is sot conducive to
establishing thos. types of practices
unless . .th d nrger is discharging
under a permit. Also, some non-
mwtivlpal operators of stern water
Conveylenel. which uwielve storm water
ninoff rm indima al facilities. may not
be generating storm water discharges
a.”dated with Indeathal activity
themselves and, therefore, they would
otherwise net need to obtain a permit
prior to October 1. 1992, wiles.
specifically designated under section
40 p)(2KE) . A rdiagIy. EPA disagrees
with meisento that dusdiar ers to non-
municipal mm,eyamm, should ha ,, the
flexibility to be covered by their permit
or by permit .saued to the
operator of the outfall to waters to the
Untied Slates.
2. Sospe of ‘Associated with Industrial
Ac t ivity ’
The September21 19 L final
regulation divided thos, discharges that
met the regulatory definition of storm
water paint source into two groups. The
term Group I storm water discharges
was defined In an attempt to Identify
those storm water discharges which had
a higher potential to contribute
significantly to environmental Impacts.
Group I included those discharges that
contained storm water drained from an
industrial plant or plant associated
areas. Other storm waler discharges
(such as those train parking lots and
administrative buildings) located on
lands used for industrial activity were
classified as Group U discharges. ‘The
regulations deflned the term “plant
associated areas” by listing several
examples of areas that would be
associated with industrial activities.
however, the resulting definition led to
confusion n . qg the regulated
community regarding the distinctions
between the Group I and Group II
classifications.
In amending the CWA in 1987.
Congress did not explicitly adopt EPA’,
regulatory classification of Group I awl
Group U discharges. Rather. Congress
required EPA to address “storm water
discharges associated with industrial
activity” in the first round of storm
water permitting. In light of the adoption
cf the term “assoaa ted with industrial
activity’ in the CWA. and the ongoing
confusion surrounding the previous
regulatory definition. EPA has
eliminated the regulatory terms “Group I
storm water discharge” and U
storm water discharge” pursuant to the
December?. I9&’, Court remand and has
not revived It. in addition, todays notice
pro.”4g ’ites a definition of the term
“storm water discharge associated with
industrial activity”at 4 “-‘ (b)(14I end
clarified the scope of the term.
In describing the scope of the term
“auo i. ted with industrial activity”.
several members of Congreu explained
in the legislative history that the term
applied if a d4srk rge was “directly
related to manufacturing, processing or
raw materials storage areas at an
industrial plant.” (Vol. 132 Cong. flee.
H10932. 1410930 (daily ed October 15.
1980): Vol. 133 Cong. Rae. H170 (daily
ed. Januarya. 1087)), Several
commenters inted this language in
arguing for a more expanmve or less
expansive definition of “associated with
indt ial activity.” EPA believes that
the legislanve history supports the
deemon to exdade from the definition
of industrial activity, at 4 12L28(bJ(14 1
of today’. ruje. those famiities that are
generally dassilhed ender the Office of
Management and Budget Standard
Industrial Oautficatioes (SIC) as
wholesale. retail. service , or
activities.
Two . . .eiiters , - a,mmended that
all commercial enterprises should be
required to obtain e permit wider this
regulation. Another commenter
recommended that all the facilities hated
In the December?, 19 51 proposal.
including those listed in paragraphs (xi )
through (xvi) ott page 49432 of the
December?. 1980. proposaL should be
Included. EPA disagrees since the intent
of Copg,ess was to establish a phased
and tiered approach to storm water
permits, and that only those facilities
having discharges associated with
industrial activity should be included
Initially. The studies lobe conducted
pursuant to section 402(pfl5) will
examine sources of pollutants
associated with commerciaL retail, and
other light business activity. U
appropriate, additional regulations
addressing these sources can be
developed wider section 4O2(pM8) of the
CWA. As further dismissed below. EPA
believes that the facilities identified in
paragraphs (xi) through (xvi) are more
properly characterized a. commercial or
retail facilities, rather than indutrial
facilities.
Today’s rule cLrnfies the regulatory
definition of “associated with industrial
activity” by adopting the language used
in the legislative history and
supplenienthig it with s description of
various types of areas that are directly
related to an industnal process (e.g..
industriat plant yards. Immediate access
roads and rail lines, drainage ponds.
material handling rites. sites used for
the application or disposal of process
waters, sites used for the storage and
maintenance of material handling
equipment, and known site, that are
presently or have been used in the past
for residual treatment, storage or
disposal). ‘The agency has also
incorporated some of the suggestions
offered by the public in comments.
Three commenting suggested that the
permit application should focus only on
storm water with the potential to caine
into contact with industrial.ielated
pollutant sources, rather than focusing
on how plent areas are utilised. These
cominenters su 3 g sled that facilities
that are wholly enclosed or have their
operations entirely protected front the
elements should not be subject to permit
requiiern...ts wider today’s rule. EPA
agrees that these comments have merit
with regard to certain types of facilities.
Today’. nile defines the term “storm
water discharge ussociated with
-------
4100P F.deral Re stee / VoL 55, No. 222/ FrIday, November 10, 1990 I Rules and Regulations
Induefrial actlvfty to Include storm
water discharges from facilities -.
Identified In today’s rule at 40 CPR
12321(bXI4)(xI) (facilities classified as
St* ,wk#d Industrial ClassificatIons 20,
21 , 2 3,2 3 .24382 5 .26 5 ,2 57,27,283,285,
30.31 (except 311). 323,34 (except 3441).
35. 38 37 (except 373). 38. * 4221—25)
only It
areas where material h . .iflh ,ig equipment or
activities, raw materials. Intermediate
product., final products, waste materials, by-
products. or Industrial machinery at these
facilities are exposed to storm water. Such
areas Includn material h w.dling alien refuse
sft sites used for the application or
disposal of prucsu waste waters (a. defined
it 40 ‘R 401): sltss used for the storage and
maintenance of material hmwllbig equipment
sites used for residual freatutent storage or
disposak shipping and recalving areas,
manufacturing buildings, material storage
aria. for raw materials, and Intermediate
and fb.1 h.d products, and areas where
Industrial activity has taken place In the past
and significant material. remain and are
exposed to storm water,
The criti cal distinction between the
facilities Identified at 40 CFR
121.26(b)(14)(xl) and the facilities
Identified at 40 CFR 122.28(b)(14)(i)-(x)
ii that the former are not classified as
having “storm water discharge.
associated with Industrial activity”
unless certain materials or activities sin
exposed to storm water. Storm water
discharges from the latter set of
facilities are considered to be
“associated with industrial activity”
regardless of the actual exposure of
these same materials or activities to
storm water.
‘A believes this distinction is
appropriate because, when considered
as a class, most of the activity at the
facilities In I 122.28(b)(14)(xi) is
undertaken in bwlding emissions from
slacks will be minimal or non-existent
the use of unhoused manufacturing and
heavy Industrial equipment will be
minimak outside material storage,
disposal or handling generally will not
be a part of the manufacturing process,
and generating .igniflcant dust or
particulate. wouid be atypical. A. such,
these Industries are more akin or
comparable to businesses, such as retail.
commercial, or service industries, which
Congress did not contemplate regulating
before October 1. 1992. and storm water
discharges from these facilities are not
“associated with industrial actIvity.”
Thus. these industries will be required
to obtain a permit under todays rule
only when the manufacturing processes
undertaken at such facilities would
result in storm water contact with
industrial materials associated with the
facility.
• Industr4aLcat gor1es in .
122rR(b)(14)(x i) all tend to engage In
production activities In the nii,e
described In the paragraph above.
Facilities under SIC 20 process foods
Including meats. dairy food. fruit. and
flout. Facilities classified under SIC 21
make cigarettes, cigars, chewing tobacco
and related products. Under SIC 22,
facilities produce yarn, etc., and/or dye
and finish fabrics. Facilities under SIC
23 are In the business of producing
clothing by cutting and sewing
purchased woven or knitted textile
product.. Facilities under SIC 2434 and
23 are establishments engaged In
furniture m .kfr g SIC 265 and 287
address facilities that manufacture
paper board products. Facilities under
SIC 27 perform services such as
bookbinding, plate m k4ng and printing.
Facilities under SIC 283 manufacture
pharmaceuticals and facilities under 285
manufacture paints, varnishes, lacquers,
enamels, and allied products. Under SIC
30 establishments manufacture products
from plastics and rubber. Those
facilities under SIC 31 (except 311), 323,
34 (except 3441). 35,36. and 37 (except
373) manufacture Industrial and
commercial metal products. machinery,
equipment computers, electrical
equipment and transportation
equipment, and glass products made of
purchased glass. Facilities under SIC 38
manufacture scientific and electrical
Instruments and optical equipment.
Those under SIC 39 manufacture a
variety of Items such as jewelry.
silverware, musical Instruments, dolls,
toys. and athletic goods. SIC 4221—25 are
warehousing and storage activities.
In contrast, the facilities Identified by
SIC 24 (except and 2434). 26 (except 285
and 207), 28 (except 283 and 285). 29,
311.32 (except 323). 33, 3441, 373 when
taken as a group. are expected to have
one or many of the following activities,
processes occurring on-site: storing raw
materials. Intermediate products. final
products. by.products. waste products.
or chemicals outside: smelting: refining:
producing significant emissions from
stacks or air exhaust systems, loading or
unloading chemical or hazardous
substances, the use of unhou.ed
manufacturing and heavy Industrial
equipment and generating significant
dust or particulate.. Accordingly, theee
are classes of facilities which can be
viewed as generating storm water
discharges associated with industrial
activity requiring a permit.
Establishments identified under SIC 24
(except 2434) are engaged in operating
sawmills, planing mill. and other mill.
engaged In producing lumber and wood
basic materials. SIC 28 facIlities are
paper mills. Under SIC 28. fiicilities
prod lce%aslc chemical product. by
piedoTllinAntly chemical 1 uucesseL SIC
25 describes facilities that are engaged
in the petroleum Industry. Under SIC
311. facIlities are engaged in tna.ilng .
currying, and Ih iah4qg hides and .klns.
Such processes use chemicals such as
sulfuric addend sodium dlchromste.
and detergents. and a variety of raw and
Intermediate materials. SIC 32
manufacture glass. clay, stone and
conciete products form raw materials In
the form quarried and mined stone, clay,
and sand. SIC 33 Identifies facilities that
smelt, refine ferrous and nonferrous
metals from ore, pig or sorap. and
manufacturing related products. SIC
3441 Identifies facilities manufacturing
fabricated structural metal. Facilities
under SIC 373 engage in ship building
and repairing. The permit application
requirements for storm water discharges
from facilities In these categories are
unchanged from the proposal
Today’s rule clarifies that the
requirement to apply for a permit
applies to storm water discharge. from
plant arias that are no longer used for
Industrial activities (if significant
materials remain and are exposed to
storm water) as well as areas that are
currently being used for Industrial
activities. EPA would also clarify that
all discharges From these areas including
those that discharge through municipal
separate storm sewers are addressed by
this rulemaking.
One commenter questioned the use of
the word “or” Instead of the word “and”
to describe storm water “which Is
located at an Industrial plant ‘or’
directly related to manufacturing.
processing, or raw material storage
arias at an Industrial plant.” The
comment expressed the concern that
discharges from arias not located at an
Industrial plant would be subject to
permitting by this language and
questioned whether this was EPA’.
Intent. EPA agrees that this is a
potential source of confusion and ha.
modified this language to reflect the
conjunctive Instead of the alternatIve.
This change has been made to provide
consistency In the rule whereby some
areae at Industrial plants, such as
administrative i*arking lots which do not
have storm water discharges
commingled wtth discharges from
manufacturing areas, are not included
under this rulemaking.
Two commt.stere wanted clarification
of the term “or procees water.” in the
definition of discharge associated with
Industrial activity at I 122.28 (b)(14), This
rulemaking replaces this term with the
term “process waste water” which Is
defined at 40 CFR part 401.
-------
Padsial Register! VoL 55, No. 222/ FrIday. November 16, 1990 I Rules and Regulations
48009
One commentsr took Issue with the
decision to Include drainage ponds,
refuse sites. lit., for residual treatment.
storage, or disposaL as areas associated
with Industrial activity, because It was
the commenter’s view that such areas
ate unconnected with Industrial activity.
EPA disagrees with this comment If
refuse and other sites are used in
conjunction with manufacturing or the
by-products of manufacturing they are
clearly associated with Industrial
activity. As noted above, Congress
Intended to indude discharges directly
related to manufacturing and processing
at Industrial plants. EPA is convinced
that wastes, refuse. and residuals are
the direct result or consequence of
manufacturing and processing and.
when located or stored at the plant that
produces them, are directly related to
manufacturing and processing at that
plant Storm water drainage from such
areas. especially those areas exposed to
the elements (e.g. rainfall) has a high
potential for containing pollutants from
materials that were used in the
manufacturing process at that facility.
One commenter supported the inclusion
of these areas since many toxins
degrade very slowly and the mere
passage of time will not eliminate their
effects. EPA agrees and finalizes this
part of the definition as proposed. One
commenter requested clarification of the
term ‘iesidual” as used in this context
Residual can generally be defined to
Include material that Is remaining
subsequent to completion of an
industrial process. One commenter
noted that the current owner of a facility
may not know what areas or sites at a
facility were used In this manner in the
past. EPA has clarified the definition of
discharge associated with industrial
activity to include areas where
Industrial activity has taken place in the
past and significant materials remain
and are exposed to storm water. The
Agency believes that the current owner
will be in a position to establish these
facts.
One commenter suggested including
material shipping and receiving areas,
waste storage and processing areas,
manufacturing buildings, storage areas
for raw materials, supplies.
Intermediate ., and finished products.
and material handling facilities as
additional areas “associated with
industrial activity.” EPA agrees that this
would add clarification to the definition.
end has incorporated these areas into
the definition at 122.20(b)(14J.
One commenter stated that the
language “point source located at an
industrial plant’ would Include outfall.
located at the facility that are no, owned
or operated by the facility, but which
are municipal storm sewers on
easements granted to a municipality for
the conveyance of storm water. EPA
agrees that If the industry does not
operate the point source then that
facility Is not required to obtain a permit
for that dlscharie. A point source is a
conveyance that discharges pollutants
into the waters of the United States. U a
facility does not operate that point
source, then It would be the
responsibility of the municipality to
cover It under a permit Issued to them.
However. If contaminated storm water
associated with Industrial activity were
Introduced into that conveyance by that
facility, the facility would be subject to
permit application requirements as is all
industrial storm water discharged
through municipal sewers.
EPA disagrees with several comments
that road drainage or railroad drainage
within a facility should not be covered
by the definition. Access roads and rail
lines (even those i t used for loading
and unloading) ø . areas that are likely
to accumulate extraneous material from
raw materials. Intermediate products
and finished products that are used or
transported within, or to and from, the
facility. These areas will also be
repositories for pollutants such as oil
and grease from machinery or vehicles
using these areas. As such they are
related to the Industrial activity at
facilities. However, the language
describing these areas of Industrial
activity has been clarified to include
those access roads and rail lines that
are “used or traveled by carriers of raw
materials, manufactured products. waste
material, or by-products used or created
by the facility.” For the same reasons
haul roads (roads dedicated to
transportation of Industrial products at
facilities) and similar extensions are
required to be addressed in permit
applications. Two industries stated that
haul roads and similar extensions
should be covered by permits by rule.
EPA is not considering the use of a
permit by rule mechanism under this
regulation, however this issue will be
addressed In the section 402(pj(5)
reports to Congress and in general
permits to be proposed and promulgated
in the near future. EPA wouldnote
however that facilities with similar
operations and storm water concerns
that desire to limit administrative
burdens associated with permit
applications and obtaining permits may
want to avail themselves of the group
application and/or general permits.
In response to comments, EPA would
also like to clarify that it intends the
language “Immediate access roads’
(Induding haul roads) to refer to roads
which are exclusively or primarily
dedicated for use by the industrial
facility. EPA does not expect facilities to
submit permit applications for
discharges from public access roaas
such as state, county, or federal roads
such as highways or BLM roads which
happen to be used by the facility. Also.
some access roads are used to transport
bulk samples of raw materials or
products (such as prospecting samples
from potential mines) in small-scale
prior to Industrial production. EPA does
not Intend to require permit applications
for access roads to operations which are
not yet industrial activities.
EPA does agree with comments made
by several industries that undeveloped
areas, or areas that do not encompass
those described above, should generally
not be addressed in the permit
application, or a storm water permit. as
long as the storm water discharge from
these areas is segregated from the storm
water discharge associated with the
industrial activity at the facility.
Numerous commenters stated that
maintenance facilities, if covered.
should not be included in the definition.
EPA disagrees with this comment.
Maintenance facilities will invanably
have points of access and egress. and
frequently will have outside areas
where parts are stored or disposed of.
Such areas are locations where oil.
grease. solvents and other materials
associated with maintenance activities
will accumulate. In response to one
commenter. such areas are only
regulated in the context of those
facilities enumerated in the definition at
I 122.28(b)(14). and not similar areas of
retail or commercial facilities.
Another commenter requested that
“storage areas” be more clearly defined.
EPA disagrees that this term needs
further clarification in the context of this
section of the rule. However, in response
to one comment. tank farms at industrial
facilities are Included. Tank farms are in
existence to store products and
materials created or used by the facility.
Accordingly they are directly related to
manufacturing processes.
Regarding storage areas, one
comnienter stated that the regulations
should emphasize that only facilities
that are not totally enclosed are
required to submit permit applications.
EPA does not agree with this
interpretation since use of the generic
term storage area indicates no
exceptions for certain physical
characteristics. Thus discharges from
enclosed storaae areas are also covered
by today’s rule (except as discussed
above). EPA also disagrees with one
-------
48010 Federal Register I VoL 55 No. 222 I Friday. November 10, 1990/ Rules and Regulations
comment asserting that small outside
storage areas of finished products at
industrial facilities should be excluded
under the definition of associated with
industrial activity. EPA believes that
such areas are areas associated with
industrial activity which Congress
intended to be regulated under the
CWA. As noted above, the legislative
history refers to storage areas, without
reference to whether they are covered or
uncovered, or of a certain size.
The same language. in the legislative
history cited above, was careful to state
that the term “associated with industrial
activity” does not include storm water
“discharges associated with parking lots
and administrative and employee
buildings.” To accommodate legislative
intent, segregated storm water
discharges from these areas will not be
required to obtain a permit prior to
October 1. 1992. Many commenters
stated that this was an appropriate
method in which to limit the scope of
“associated with industrial activity.”
However, if a storm water discharge
from a parking lot at an industrial
facility is mixed with a storm water
discharge “associated with industrial
activity,” the combined discharge is
subject to permit application
requirements for storm water discharges
associated with industrial activity. EPA
disagrees with some commenters who
urged that office buildings and
administrative parking lots should be
covered if they are Located at the plant
site. EPA agrees with one cominenter
that inclusion of storm water discharge
from these areas would be overstepping
Congressional intent unless such are
commingled with storm water
discharges from the plant site. Several
commenters requested that language be
incorporated into the rule which
establishes that storm water discharges
from parking lots and administrative
areas not be included in the definition of
associated with industrial activity. EPA
agrees and has retained language used
in the proposal which addresses this
distinction,
Storm waler discharges from parking
lots and administrative buildings along
with other discharges from industrial
lands that do not meet the regulatory
definition of “associated with industrial
activity” and that are segregated from
such discharges may be reqwred to
obtain an NPDES permit prior to
October 1. 199 . under certain
conditions. For example, large parking
facilities, due to their impervious nature
may generate large amounts of runoff
which may contain significant amounts
of oil and grease and heavy metals
Iiiclu ray have adverse impacts on
receiving waters The MInimSITIIOc or
NPDES State has the authority wider
section 402(p)(2)(E) of the amended
CWA to require a permit prior to
October 1,1992. by designating storm
water discharges such as those from
parking lots that are significant
contributors of pol3utants or contribute
to a water quality standiird violation.
EPA will address storm water
discharges from lands used for
Industrial activity which do not meet the
regulatory definition of “associated with
industrial activity” in the section
402 (p)(5) study to determine the
appropriate manner to regulate such
discharges.
Several commenlers requested
clarification that the definition does not
include sheet flow or discharged storm
water from upstream adjacent facilities
that enters the land or coiningles with
discharge from a facility submitting a
permit application. EPA wishes to
clarify that operator. of facilities are
generally responsible for its discharge in
its entirety regardless of the initial
source of discharge. However, where an
upstream source can be identified and
permitted, the liability of a downstream
facility for other storm water entering
that facility may be minimized. Facilities
in such circumstances may be required
to develop management practices or
other run.on/run-ofl controls, which
segregates or otherwise prevents outside
runoff from comingling with its storm
water discharge. Some commenters
expressed concern about other
pollutants which may arrive on a
facility’s premises from rainfall. This
comment was made in reference to
runoff with a high or low pH. 11 an
applicant has reason to believe that
pollutants in its storm water discharge
are from such sources. then that needs
to be addressed in the permit
application and brought to the attention
of the permitting authority, which can
draft appropriate permit conditions to
reflect these circumstances.
EPA requested comments on
clarifying the types of facilities that
involve industrial activities and
generate storm water. EPA preferred
basing the clarification, in part. on the
use of Standard industrial Classification
(SIC) codes, which have been suggested
in comments to prior storm water
rulemakings because they are commonly
used and accepted and would provide
definitions of facilities involved in
industrial activity. Several commenter,
supported the use by EPA of Standard
Industrial Classifications for the same
reasons identified by EPA as a generally
used and understood form of
classification. It was also noted that
using such a & tien would allow
targeting for spinal notiflCatlo and
educational mailhnp Three
municipalities and three Slate
authorities commented that SIC. were
appropriate and endorsed their use as a
sound basis for determining which
Industries are covered.
One municipality questioned how SIC
classifications will be assigned to
particular industries. SICs have
descriptions of the type of industrial
activity that is engaged in by facilities.
Industrie, will need to assess for
themselves whether they are covered by
a listed SIC and submit an application
accordingly. Another commenter
questioned if Federal facilities that do
not have an SIC code identification are
required to file a permit application.
Federal facilities will be required to
submit a permit application if they are
engaged in an industrial activity that is
described under § 122 ,28(bJ(14). The
definition of industrial activity
incorporates language that requires
Federal facilities to submit permit
applications in such circumstances. The
language has been further clarified to
include Slate and municipal facilities.
EPA requested comments on the
scope of the definition (types of facilities
addressed) as well as the clarity of
regulation. EPA klentified the following
types of facilities in the proposed
regulation as those fecilities that would
be required to obtain permits for storm
water discharges associated with
industrial activity’.
(ii Facilities subject to s,omt water
effluent limitations guidelines, new
souive peirformance standard& or Lou Ic
pollutant effluent standards under iO
CFR subchapter N (except facilities
with toxic pollutant effluent standards
which ore also identified under category
(xi) of this pamgznph). One commenler
(a municipality) agreed with EPA that
these industrie, should be addressed in
this rulemaking. No other comments
were received on this category. EPA
agrees with this comment since these
facilities are those that Congress has
required EPA to examine and regulate
under the CWA with respect to process
water discharges. The industries in
these categories have generally been
identified by EPA as the most significant
discharger . of process wastewaters in
the country. As such, these facilities are
likely to have siorm water discharges
associated with industrial activity far
which permit applications should be
required.
One commenter stated that because
oil and gas producers are subtect to
effluent guidelines. EPA is disregurding
the intent of Congress to exclude
-------
Federal Register / Vol. 55, No. 222 / Friday, November 16 , 1990 / Rules and Regulation. 48011
facilities pursuant to sectIon 402 (1). EPA
disagrees with this comment. EPA I. not
prohibited from requiring permit
application. from Industrie, with storm
water diechaige auociated with
Industrial activity. EPA Is prohibited
only from requiring a permit for oil and
gas exploration, production. processing.
or treatment operations. or transmission
facilities that discharge storm water that
Is not contaminated by contact with or
has not come into contact with, any
overburden, raw material. Intermediate
products, finished products, byproducts
or waste product. located on the site of
such operations such discharges. In
keeping with this requirement. EPA is
requiring permit applications from oil
and gas exploration, production.
processing, or treatment operations, or
transmission facilities that fall into a
class of dlschargers as described in
• 122.28(c)(Ili).
(ii) Facilities classified as Standard
Industrial Clossificotions 24 (except
2434)28 (except 265 and 28 7). 28 (except
283 and 285). 28,311.32 (except 323). 33,
3411.373 and (xi). Facilities classified
as Standard Industrial Classifications
.20.21.32.23.2434. 25.263.287. 2Z 283.
285, 30, 31 (except 311). 323.34 (except
3 (41), 35, 36,37 (except 373). 38, 39.
4321—23 One large municipality and one
Industry agreed with EPA that facilities
covered by these SICs should be
covered by this rulemaking. Many
commenters. however, took exception to
Induding all or some of these industries.
However as noted elsewhere these
facilities are appropriate for permit
applications.
One commenter stated that within
certain SICs industries, such as textile
manufacturer. use few chemicals and
that there Is little chance of pollutants in
their storm water discharge. EPA agrees
that some industries In this category are
lees likely than others to have storm
water discharges that pose significant
risks to receiving water quality.
However, there aie many other
activities that are undertaken at these
facilities that may result In polluted
storm water. Further, the CWA is clear
In Its mandate to require permit
applications for discharges associated
wlth’lndustrlal activity. Excluding any of
the facilities under these categories.
except where the facility manufacturing
plant more closely resembles a
commercial or retail outlet would be
contrary to Congressional intent.
One State questioned the inclusion of
facilities Identified in SIC codes 20-39
because of their temporary and transient
nature or ownership. Agency disagrees
that simply because a facility may
transfer ownership that storm water
quality concerns should beignored. If
constant ownership was a condition
precedent to applying for and obtaining
a permit. few if any facilities would be
subject to this rulemaking.
One State estimated that the proposed
definition would lead to permits for
18.000 facilities In Its State.
Consequently this commenter
recommended that the facilities under
SIC 20-39 should be limited to those
facilities that have to report under
section 313 of title III. Superfund
Amendments and Reauthorization Act.
However, as noted by another
conunenter, limiting permit requirements
to these facilities would be contrary to
Congressional intent While use of
chemicals at a facility may be a source
of pollution in storm water discharges.
other every day activities at an
industrial site and associated pollutants
such as oil and grease, also contribute to
the discharge of pollutants that are to be
addressed by the CWA and these
regulations. WhIle the number of permit
applications may number in the
thousands. EPA intends for group
applications and general permits to be
employed to reduce the administrative
burdens as greatly as possible.
Two commenters felt the permit
applications should be limited to all
entities under SIC 20-39. EPA disagrees
that all the Industrial activities that need
to be addressed fall within these SICs.
Discharges from facilities under
paragraphs (I) through (xi) such as
POTWs. transportation facilities, and
hazardous waste facilities, are of an
industrial nature and clearly were
intended to be addressed before
October 1, 1992.
Two commenters stated that SIC 241
should be excluded in that logging is a
transitory operation which may occur on
a site for only 2—3 weeks once In a 20—30
year period. It was perceived that
delays In obtaining permits for such
operations could create problems jn
harvest schedule and mill demand. This
conunenter stated that runoff from such
operations should be controlled by
BMPs in effect for such industries and
that such a permit would not be
practical and would be cost prohibitive.
EPA agrees with the coinmenter that
this provision needs clarification. The
existing regulations at 40 CFR 122.27
currently define the scope of the NPDES
program with regard to silvicultural
activities. 40 CFR 122.27(b)(1) defines
the term “silvicultural point source” to
mean any discrete conveyance related
to rock crushing. gravel washing. log
sorting. or log storage facilities which
are operated in connection with
silvicultural activities and from wnich
pollutants are discharged Into waters of
the United States. Section 122.27 (b)(1)
also excludes certain sources. The
definition of discharge associated with
industrial activity does not Include
activities or facilities that are currently
exempt from permitting under NPDES.
EPA does not intend to change the scope
of 40 CFR 122.27 in this rulemaking.
Accordingly, the definition of “storm
water discharge associated with
Industrial activity” does not include
sources that may be included under SIC
24, but which are excluded under 40
CFR 122.27. Further, EPA Intends to
examine the scope of the NPDES
silvicultural regulations at 40 CFR 122.27
as it relates to storm water discharges in
the course of two studies of storm water
discharges required under sectIon
402(pJ(5) of the CWA.
In response to one comment. EPA
intends that the lIst of applicable SIC.
will define and Identify what industrial
facilities are required to apply. Facilities
that warehouse finished products under
the same code at a different facility from
the site of manufacturing are not
required to file a permit application.
unless otherwise covered by this
rulemaking.
(iii) Facilities classified as Standard
Industrial Classifications 10 through 14
(mineral industry) including active or
inactive mining operations (except for
areas of coo! mining operations no
longer meeting the definition of a
reclamation area under 40 CFR 434,11(1)
because the performance bond issued to
the facility by the oppropnote SMCRA
authority has been released, or except
for areas of non.coal mining operations
which hove been released from
applicable State or Federal reclamation
requirements after December17, 19w)
and oil and gas exploration, production.
processing. or treatment operations, or
transmission facilities that dischcr e
storm water contaminated by contact
with or that has come into contact with.
any overburden, raw material.
intermediate products, finished
products, byproducts or waste products
located on the site of such operations.
Several cominenters urged that
Congress intended to require permits or
permit applications only for the
manufacturing sector of the oil and gas
industry (or those activities that
designated in SIC 20 through 39). EPA
disagrees with this argument. The fact
that Congress used the language cited
above and not the appropnate the SIC
definition explicitly does not indicate
that a broader definition or less
exclusive definition was contemplated.
According to these comments, all storm
water discharges from oil and gas
-------
41112 F.daonl R. istsr I Vol. 55, No. 2 / Friday, November 19, 1990 Rules and Regulations
upI .flco and production facilities
would be exempt from tegulaff OIL
However, EPA Is convinced that a
facility that Is engaged In finding and
extracting mode oil and natural gee from
sub face formations, separathig the oil
and gsa from formation water. and
peepazing that erode oil for
transportation to a refinery for
manufacturing and processing into
refined products, will have discharges
directly relating to the processing or raw
material storage at an Industhal plant
and are therefore distharges associated
with Industrial activity.
For further clarification EPA is
Intending to focus oniy on those
facilities that are in SIC 10-14.
Furthermore, in response to several
comments, this rulemaking will require
permit applications for storm water
discharges from currently Inactive
petroleum related facilities within SIC
codes 10-14, if discharges from such
facilities meet the requirements as
described in section VLP.7.a. and
I 122.25(c)(1)(iii). Inactive facilities will
have storm water associated with
Industrial activity irrespective of
whether the activity is ongoing.
Congress drew no distinction between
active and inactive facilities in the
statute or in the legislative history.
(lvi Hazardous waste treatment,
storage, or dispose/facilities that we
operating under interim status or a
permit under Subtitle C of the Resource.
Conservation and Recovery’Act. One
conunenter believed that all RCRA and
Comprehensive Environmental
Response. Compensation, and Liability
Act (CERCLA) facilities should be
specifically identified using SIC codes
for further clarification. EPA considers
this to be unnecessarily redundant.
since the RCRA/CERCLA identification
is sufficient.
Several industries asserted that storm
water discharge from landfills, dumps.
and land application sites, properly
closed or otherwise subject to corrective
or remedial actions under RCRA. should
not be induded In the definition. One
commenter noted that the runoff from
these areas is like runoff from
undeveloped areas. One commenter also
concluded that landfills, dumps, and
land application sites should also be
excluded if they are properly maintained
under RCRA.
One commenter also rejected the idea
of requiring permits horn all active and
Inactive landfills and open dumps that
have received any industrial wastes.
and subtitle C facilities. This commenter
felt that these facilities were already
adequately covered under RCRA.
Two Industry commenters felt that it
would be redundant to have hazardous
waste facilities regulated by R( A and
the NPDnS storm water 5 .m. One
felt this was especially so If there are
current p trcatnteot standards.
The Agency disagrees that all
activities that may contribute to storm
water discharges at RCtA subtitle C
facilities are being fully controlled and
that requiring NPD permits for storm
water discharges at RC2tA subtitle C
facilities is red ,x A nL First, the vast
majority of permitted hazardous waste
management facilities are Industrial
facilities involved in the manufacture or
processing of products for distribution In
commerce. Their hazardous waste
management activities are incidental to
the production-related activities. While
RQ A subtitle C regulations Impose
controls in storm water runoff from
hazardous waste management units sod
require cleanup of releases of hazardous
wastes, they generally do not control
non-systematic spills or process. These
releases. from the process itself or the
storage of raw materials or finished
products are a potential source of storm
water contamination. In addition, RCRA
subtitle C (except via corrective action
authority) does not address management
of “non hazardous” industrial wastes,
which nevertheless could also
potentially con’ ”” te storm water
runoff.
Second. at commercial hazardous
waste management facilities, the RCRA
subtitle C permitting requirements and
management standards do not control
all releases of potentially toxic
materials. For example, some permitted
commercial treatment facilities may
store and use chemicals in the treatment
of RCRA hazardous wastes. Releases of
these treatment chemicals from storage
areas are a potential source of storm
water contamination.
Finally, many R RA subtitle C
facilities have inactive Solid Waste
Management Units (SWMU’s) on the
facility property. These SWMU’s may
contain areas on the land surface that
are contaminated with hazardous
constituents. RCRA requires that
hazardous waste management facilities
must Investigate these areas of potential
contamination, and then perform
corrective action to remedlate any
SWMU’s that are of concern. However,
the corrective action process at these
facilities will not be completed for a
number of years due to the complexity
of the cleanup decisions, and due to the
fact that many hazardous waste
management facilities do not yet have
RCRA permits. Until corrective action
has been completed at all such subtitle
C facilities. SWMU’s are a potential
source of storm water contamination
that should be addressed under the
NPDES pw ni . Finally, under section
1001(27) of RCRA. all point source
discharges. including those at RC A
regulated facilities, are to be regulated
by the NPDES program. Thus, there is no
concern of regulatory overlap, and to the
extent that the storm water regulations
aie effectively Implemented. It will help
address these units In a way that
alleviates the need for expensive
corrective action in the future.
(v) Landfills, land uppiicotion sides.
and open dumps that receive or hove
received industrial wastes mid that are
subject to regulation under subtitleD of
RCAA. EPA received numerous
comments supporting the regulation of
municipal landfills which receive
Industrial waste and we subject to
regulation under subtitle D of RCRA.
EPA agrees with these comments. These
Industries have significant potential for
storm water discharges that can
adversely affect receiving water.
Two States argued that landfills
should be addressed under the non-
point source program. EPA disagrees
that the non.point source program is
sufficient for addressing these facilities.
Further, addressing a class of facilities
under the non-point source program
does not exempt storm water discharges
from these facilities horn regulation
under NPDES. The CWA requires EPA
to promulgate regulations for controlling
point source discharges of storm water
from industrial facilities. Point sources
from landfills consisting of storm water
are such discharges requiring an NPDES
permit. Several commenters argued that
these discharges are adequately
addressed by RCR.A and that regulating
them under this storm water rule would
be redundant. However, as discussed
above. RCRA expressly does not
regulate point source discharges subject
to NPDES permits. Given the nature of
these facilities and of the material
stored or disposed. EPA believes storm
water permits are necessary. Similarly
EPA rejects the comment that storm
water discharges horn these facilities
are already adequately regulated by
State authority. Congress has mandated
that storm water discharges associated
with industrial activity have an NPD
permit.
One commen?er wanted EPA to define
by size what landfills are covered. In
response. it is the intent of these
regulations to require permit
applications from all landfills that
receive industrial waste. Storm water
discharges from such facilities are
addressed because of the nature of the
material with which the storm water
comes in contact. The size of facility
-------
! 14 Regl er Vol. 55, No. 222 / Friday, November l8 IPJO I Rules and Regulations
will set dietate what type of waste is
exposed to the elements.
One sn msaLer requested that the
Amf miaft of Industrial wastes be
claified. For the purpose of this rule,
Industrial waste consists of materials
delivered to the Landfill for disposal and
whose origin Is any of the facilities
described under f 122 .25(bX l4) of this
regulation.
(vi) Facilities involved in the
recycLing of materials. irscluding metal
sc,upywds, batter,r aeciaimers. salvage
yards. and autosnoôile jwikyai Js.
including but limited to those ciassilied
as Standard Industrial a sipcotion
5015 arid 5 One commenler
suggested that the recycling of materials
such as paper, glass, plastics. etc..
should not be classified asan industrial
activity. EPA disagrees that such
facilities should be excluded on that
basis. These facilities may be
considered industrial, as are facilities
that manufacture such products absent
recyding.
Other Facilities exhibit traits that
Indicate industrial activity. In Junkyards.
the condition of materials and junked
vehicles and the activities occumng on
the yard frequently result in significant
losses of fluids. which are sources of
toxic metals, oil and grease and
polychiorinated aromatic hydrocarbons.
Weathering of plated and non.plated
metal surfaces may result in
contributions of toxic metals to storm
water. Clearly such facilities cannot be
classified as commercial or retail.
One municipality felt that “significant
recydin( should be defined or darified.
EPA agree, that the proposed langnage
is ambiguous. It has been darifled to
require permit applications from
facilities involved in the recycling of
materials, including metal scrapyards.
battery reclaimers, salvage yards. and
automobile junkyards. induding but
limited to those classified as Standard
Industrial ClassificatIon 5013 and som.
These SiC codes describe facilities
engaged in dismantling, breaking up.
sorting. and wholesale distribution of
motor vehicle, end parts and a variety
of other materials. The Agency believes
these SiC codes clarify the term
slgr ni nt recycling.
One municipality stated that
regulation of thes. facilities under
NPDFS would be duplicative if they are
publicly owned facilities. One Slate
expressed the view that automobile
lunkerda. salvage yards could not
legitimately be considered Industrial
activity. As noted above. EPA disagrees
with these comments, Facilities that are
actively enga in the storage and
recycling of products ‘aduding mstala,
oil, rubber, and synthetics ass in the
business of storing and recycling
material. associated with or once used
In industrial activity. These activities
are not coinmemmel or retail because
they are engaged in the of
motors for distribution In wholesale or
retail, and the assembling. breaking up.
sorting. and wholesale distribution of
scrap and waste materials. which EPA
views as industrial activity. Further.
being a publicly owned facility does not
confer uon-industha) status.
(vii) Steam electric pa war generating
facilities. inciuding cool hoxidling sites,
and onsite and offs,te ancillary
transformer storage areas. Most of the
comments were against requiring permit
applications for onsite and offsite
ancillary transformer facilities. One
commenter stated that these
transformers did not leak in storage and
If there were leakage problems In
handling transformers, such leaks were
subject to Federal and State spill clean.
up procedures. The same commenter
suggested that If EPA required
applications from such facilities that it
exclude those that have regular
inspections, management practices in
place. or those that store 50
transformers at any one time.
EPA agrees that such facilities should
not be covered by today’s rule. As one
commenter noted, the Toxic Substances
Control Act (TSCA) addresses
pollutants associated with transformers
that may enter receiving water through
storm water discharges. EPA has
examined regulations under TSCA and
agrees that regulation of storm water
discharges from these facilities should
be the subject of the studies being
perforated under section 402(p)(5).
rather than regulations established by
today’s rule. Under TSCA. transformers
are required to be stored in a menner
that prevents rain water from reaching
the stored s or PCB items. 40 CFR
761.65(b)(1)(i). EPA considers
transformer storage to be mote akin to
retail or other light commercial
activities, where items are inventoried
in buildings for prolonged periods for
use or sale at some point in the future.
and where there is no ongoing
manufaclunng or other industrial
activity within the structure.
One commenier stated that this
category of industries should be
loosened so that all steam electric
facilities are addressed—oil fired and
nuclear. EPA believes that the language
55 p . . up .osed broadly defines the tyne of
industrial sctlvlty addressed without
specifying each mode of steam electric
production. One commenter sated that
the EPA has iso authority under the
CWA (Train v. CPLR. Inc. 420 us. I
(WOl to regulate the discharge of
source. special “ —“ and by-product
material. which are regulated under the
Atomic Energy Act, EPA agree. permil
applications may not address those
aspects of such £adhiiiez.. however the
facility in its entirety may not
necessarily be exempt. A permit
application will be appropriate for
discharges From non-exempt categories.
(viii) Tmnsportat on facilities
classified as Slondarvi Industrial
C/ossifications 40. 41. 42 (except 4221—
25). 43 44 45. end 5171 whithhove
vehicle maintenance shops. material
handling facilities. equipment cleaning
opera: ions or airport deicing operations.
Only those portions of the facility that
ore either involved in vehicle
maintenance (includ,ng vehicle
rehabilitation, mechanical repairs.
pointing, fueling. and lubrication).
equipment cleaning operations. or
which are identified in another
subcotegory of facilities under EPA s
definition of storm water dischai’yes
associated with industrial activity. One
commenter requested clarification of the
terms “vehicle maintenance” Vehicle
maintenance refers to the rchab;litation.
mechanical repairing. painting, fueling.
and lubricating of instrumentalities of
transportation located at the described
facilities. EPA is declining to write this
definition into the regulation however
since “vehicle maintenance” should not
cause confusion as a descriptive term.
One commenter wanted railroad tracks
where rail cars are set aside for minor
repairs excluded from regulation In
response. if the activity involves any of
the above activities then a permit
application is required. Train arrIs
where repairs are undertakcn arc
associated with industrial activity. Train
yards generally have trains wh;ch, in
and of themselves, can be classified as
heavy indusnel equi nent. Trains.
concentrated in train yatuis. a:e diesel
fueled, lubricated, and repaired in
volumes that connote industrial activity.
rather than retail or commercial activity.
One cominenier argued that if
gasoline stations are not ron idered for
permitting, then all transportation
facilities should be exempt. EPA
disagrees with the thrust of this
comment. Transportation facilities such
as bus depots, train yards. taiu stations.
and airports are generally Larger than
indi idual repair shops. and generaliy
engage in heavier more expansive forms
of industrial activity. In keeping with
Congressional intent to cover all
industrial facilities, permit appltcations
from such facilities are appropriate. in
contrast. EPA views gas stations as
retail commercial facilities not covered
-------
41014 Federal Register I Vol. 55, No. 222 / Friday, November 18. 1990 I Rules and Regulations
by thi, regulation. It should be noted
that SIC classifies gas stations as retail.
(ix) P07W lands used for land
application treatment technologyl
sludge disposal. handling orpracessing
areas, and chemical handling and
storage areas. One commenter wanted
more clarification of the term POTW
lands. Another commenter requested
danfication of the terms sludge
disposal, sludge handling areas, and
sludge processing areas. One State
recommended that a broader term than
POTW should be used. EPA notes that
on May 2, 1989, it promulgated NPDES
Sewage Sludge Permit Regulations: State
Sludge Management Program
Requirements at 40 CFR part 501. This
regulation identified those facilities that
are subject to section 405(fl of the CWA
as “treatment works treating domestic
sewage.”
In response to the above comments,
EPA has decided to use this language to
define what facilities are required to
apply for a storm water permit. Under
this rulemaking “treatment works
treating domestic sewage.” or any other
sewage sludge or wastewater treatment
device or system used in the storage
treatment, recycling, and reclamation of
municipal or domestic sewage. including
land dedicated to the disposal of sewage
sludge. with a design flow of 1.0 mgd or
more, or facilities required to have an
approved pretreatment program under
40 CFR part 403. will be required to
apply for a storm water permit.
However, permit applications will not
be required to address land where
sludge is beneficially reused such as
farm lands and home gardens or lands
used for sludge management that are not
physically located within the confines
(offsite facility) of the facility or where
sludge is beneficially reused in
compliance with section 405 of the
Clean Water Act (proposed rules were
published on February 0. 1989. at 54 FR
5748). EPA believes that such activity is
not “industrial” since it is agricultural or
domestic application (non.industnal)
unconnected to the facility generating
the material.
EPA received many comments on the
aecessity and appropriateness of
requiring permit applications for storm
water discharges from POTW lands. It
was anticipated by numerous
commenters that the above cited sludge
regulations would adequately address
storm water discharges from lands
where sludge is applied. However, the
sewage sludge regulations do not
directly address NPDES permit
requirements for storm water discharges
from P01W lands and related areas to
the extent required by today’s
rulemaklnç the regulations cover only
permits for use or disposal of sludge.
Also, the regulations propoetid on
February 4,1989, cover primarily the
technical standards for the composition
of sewage sludge which is to be used or
disposed. They do not indude detailed
permitting requirements for discharges
of storm water from lands where sludge
has been applied to the land. To that
extent. EPA is not persuaded by these
commentere that POTWs and P01W
lands should be excluded from these
storm water permit application
requirements.
Two comnienters noted that some
States already regulate sludge use or
disposal activities substantially and that
EPA should refrain from further
regulation. EPA disagrees that this is a
basis for excluding facilities from
Federal requirements. Notwithstanding
regulations in existence under State law.
EPA is required by the CWA to
promulgate regulations for permit
application for storm water associated
with industrial activity. Under the
NPDES program. States are able to
promulgate more rigorous requirements.
However a minimum level of control is
required under Federal law. One
commenter also indicated that a State’s
sludge land application sites must
follow a well defined plan to ensure
there is no sludge related runoff,
Notwithstanding that a State may
require storm water controls for sludge
land applications, as noted above, EPA
is required to promulgate regulations
requiring permit applications from
appropriate facilities. EPA views
facilities such as waste treatment plants
that engage in on.site sludge
composting. storage of chemicals such
as ferric chloride, alum, polymers. and
chlorine, and which may experience
spills and bubbleovers are suitable
candidates for storm water permits.
Facilities using such materials are not
characteristic of commercial or retail
activities. Use and storage of chemicals
and the production of material such as
sludge. with attendant heavy metals and
organics. is activity that is industrial in
nature. The size and scope of activities
at the facility will determine the extent
to which such activities are undertaken
and such materials used and produced
at the facility. Accordingly, EPA
believes limiting the facilities covered
under this category to those of 1.0 mgd
and those covered under the indusinal
pretreatment program is appropriate.
To the extent that permit applicants
are already required to employ certain
management practices regarding storm
water, these may be incorporated into
permits and permit conditions issued by
Federal and State pei’mlttlng authoritier
EPA has selected facilities identified
under 40 CFR part 501 (i.e. those with a
design flow of 1.0 mgd or more or those
required to have an approved
pretreatment program) since these
facilities will have largest contribution
of industrial process discharges. Sludge
from such Facilities will contain higher
concentrations of heavy metal and
organic pollutants.
One commenter stated that sludge
disposal is a public activity that should
be addressed in a public facility’s storm
water management program under a
municipal storm water management
program. EPA disagrees. Industrial
facilities, whether publicly owned or
not, are required to apply for and obtain
permits when they are designated as
industrial activity.
Another comment stated that a permit
should not be required for facilities that
collect all runoff on site and treat it at
the same P01W. EPA believes that a
permit application should be required
from such facilities. However, the above
practice can be incorporated as a permit
condition for such a facility. One
commenter stated storm water from
sludge and chemical handling areas can
be routed through the headworks of the
POTW. The agency agrees that this may
be an appropriate management practice
for POTWs as long as other NPDES
regulatory requirements are fulfilled
with regard to POTWs.
(x l Construction activities, including
clearing. grading and excovotion
activities except operations that result
in the disturbance of less than five acre
total land area which are not part of a
larger common plan of development or
sale. EPA addresses whether these
facilities should be covered by today’s
rule in section Vl.F.8.
The December 7. 1988. proposal also
requested comments on including the
following other categories of discharges
in the definition of industrial activities;
(xii) Automotive repair shops classified
as Standard Industrial aassthcatton 751
or 753: (xiii) Gasoline service stations
classified as Standard Industrial Code
5541; (xiv) Lands other than P01W
lands (ofisite facilities) used for sludge
management; (xv) Lumber and building
matenals retail facilities classified as
Standard Industrial Classification 5211;
(xvi) Landfills, land application sites.
and open dumps that do not receive
industrial wastes and that are subject to
regulation under subtitle D of RCRA:
(xvii) Facilities classified as Standard
Industrial Classification 48 (pipelines.
except natural gas). and 492 (gas
production and distribution): (xviii)
Major electrical powerline corridors.
-------
F 1 _ 1 R.gisterl VoL 55, No. flZ I Friday. November i6 19901 Rules and Regulations
1S
EPA romived n us comments on
whether to require permit applications
for these psrticalar facilities. The
Desember 7, i reflected
EPA’S intent not to requen permits fur
these facilities, bet rether to address
thes, facilities in the two s es
required by CWA sections 4O pN5) and
(6). After reviewing the comments on
this issue. EPA believes that these
facilities should be .dd . d under
these sections of the CWA. Most of
these facilities are classified as light
commercial and retail business
estabIsbments agricultural, facilities
where residential or domestic waste is
received, or Land see activities where
there is no manufacturing. It slxxild be
noted that although EPA is not requiring
the facilities Identified as categories (xiii
to (xviii). in the December7. 1988.
proposal to apply for a permit
aprlicaton under this rulemaking. such
facilities may be designated under
section 4O )(2J(E) of the CWA.
Three commenters recommended that
EPA dazify that non-exempt
Department of Er.argy arid Department
of Defense facilities should be covered
by the storm water regulation. The
regulation clearly states that Federal
Facilities that are engaged in industrial
activity Ii.e. those activities in
122 .2O bfl14J(iHxi)J are required to
submit permit applications. Those
applying for permits covering Federal
facilities should consult the Standard
industrial Classifications for furthrr
clarification.
One commenter questioned how EPA
intended Ia regulate municipal facilities
engaged in Industrial activities.
Municipal facilities that are engaged in
the type of industrial activity described
above mid which discharge into waters
of the United States or municipal
separate storm systems are
required to apply for permits. These
facilities will be ..red in the same
manner as other hith.strlal facilities. The
fact that they are municipally owned
does aol in any wsy exclude them from
needing permit applications under this
rulemaking.
One commenter suggested exempting
those facilities that have total annual
sales less than five million dollars or
occepy lass than fly 0 ames of land.
Another comuienler thought that all
Ininorpeiminees should be exempt. EPA
believes that the quality of storm water
and the tent to which rhwharpes
Impact receiving water U aol
necessarily related to tier ira of the
facility r n the dollar vuloe of its
business. What i i important in this
regard. is the t to which steps are
taken at facilities to cub the quantity
and type of material that may pollute
storm water discharges from these
facilities. Therefo . EPA baa not
exdiu#d facilities from permitting on
snob a basis. This same nemmeriter
stated that th. proposed rules should
not address facilities with multiple
functions (industrial earl retail). EPA
disagrees. If a facility engages in activity
that is defined In paragraphs (i) through
(xi) above, it is required to apply for a
permit regardless of the fact that it also
has a retail element. Such facilities need
only submit a permit application for the
industrial portion of the facility (as long
as s’orm water from the non-industrial
portion is segregated. as discossed
above). This cornmeoter also felt that
more studies needed to be undertaken to
determine the best way to regulate
industries. EPA agrees that storm water
problems need further study and for that
reason EPA has devoted substantial
manpower and resources to complete
comprehensive studies under section
402(p)(5J. while also addressing
industrial sources that need immediate
attention under this rulemaking.
One cornmenter requested that EPA
give examples of storm water discharges
from each of the facilities that haie
been designated for submitting permit
applications. Agency believes thai this
ii unnecessary and impractical since
every facility, regardless of the type of
industry, will have different terrain.
hydrology, weather patterns.
management practices and control
techniques. However. EPA intends to
issue guidance on filing permit
applications for storm water discharges
from industrial facilities which details
how an industry goes about filing an
industrial permit end dreling with storm
water discharges.
Today’s rulemaking for storm water
discharges associated with industrial
activity at 1 .26(cR1)(i) includes
special conditions for storm water
discharges originating from mining
operations, oil or gas operations
(I 122.28(c)(1)(iiifl. and from the
cunutruction operations listed above
( 1 .26(cfl1)(ii)). flare requirements
are discussed in more detail In section
VIP.? and section VI.F.9 of today’s
notice.
3. Individual Application Requirements
Today’s rule establishes individual
and weep permit application
requi . . ...wits for storm water discharges
associated with industrial activity.
These requirements will address
facilities precluded from coverage wider
the general permits to be p..,,.o..ed and
promulgated by EPA in the near future.
EPA considers It n ccsary to obtain the
information required in Individual
permit applications from orrtain
facilities because of the nature of their
industrial activity arid beceuse of
existing institutional mechanisms for
Issuing arid tradihig NIV permits.
Furthermore, some States will not have
general permitting authority Facilities
located in such States will be required
to submit individual applications or
participate in a group application. The
following response to comments
received on these requirements pertains
to these facilities.
Under the September 26. 1934.
regulation operators of Croup I storm
water discharges were required to
submit NPDES Form I and Form 2C
permit applications. In response to post.
reguiation comments received cii that
rule. EPA p posed new permit
application requirements (March 7. 1955.
(50 FR 38Z) and August 12, 1985. (50FF
32548)) which would have decreesed the
analytical sampling requirements of the
Form ZC and provided procedures for
group applications. Passage of the WQA
in 1987 gave the EPA additional time to
consider the appropriate permit
application requirements for storm
waler discharges. On December 7. 1958.
application requirements were proposed
and numerous comments were received.
Based upon these comments.
modifications and refinements have
been made to the industrial storm water
permit application.
Some commenters expressed the view
that the permit application requirements
are too burdensome, require too much
paperwork. are of dubious utility, and
focus too greatly on the colleclio!i of
quantitative data. EPA disagrees. In
comparison to prior approaches for’
permitting storm water discharges and
other existing permitting programs. EPA
has streamlined the permit application
process. limited the quantitative data
requirements. and required narrative
information that will be used to
determine permit conditions that relate
to the quality of storm water discharge.
To the extent that EPA needs non-
quantitative information to develop
appropnate permit conditions. EPA
disagrees with the view of some
commenters that the information
required is excessive, in response to
comments on earlier rulemakings and a
comment received on the December?,
1988. proposal (stressing that the
emphasis should be on site
management, rather than monitoring.
sampling, and reporting) EPA has
shifted the emphasis of the permit
application requirements for storm
water discharges associated with
industrial activity from the existing
requirements I a ’ ci’ltectton o’
-------
M016 F dera1 Register / Vol. 55 No. 222 / Friday._November ii 1990 I Rules and Retiuli Lions
quantitative data (sampling data) In
Form 2C toward. collection of less
quantitative data supplemented by
additional Information needed for
evaluation of the nature of the storm
water discharges.
The permit application requirements
proposed for storm water discharges
reduce the amount of quantitative data
required In the permit application and
exempt discharges which contain
entirely storm water (l.a contain no
other discharge that. without the storm
water component, would require an
NPDES permit), from certain reporting
requirements of Form 2C. The proposed
modifications also would exempt
applicants for discharges which contain
entirely storm water from several non.
quantitative information collection
provisions currently required in the
Form ZC. The proposed modifications
would rely more on descriptive
I nformation for assessing impacts of the
storm water discharge. One commenter
proposed that Information that the
applicant has submitted for other
permits be incorporated by reference
into the storm water permit application.
EPA disagrees that incorporation by
reference is appropriate. The permitting
authority will need to have this
information readily available for
evaluating permit application and permit
condition.. Furthermore. EPA feels that
the applicant is in the best position to
provide the information and verify its
iracy. However, if the applicant has
such information and It accurately
reflects current circumstances, then the
applicant can rely on the information for
meeting the information requirements of
the application. Another commenter
suggested that EPA should only require
the.information in I 122.26(c)(1) (A) and
(B ) (i.e.. the requirement for a
upographic map indicating drainage
anaa and estimate of impervious areas
and material management practices). As
miplained in greater detail below. EPA
a. convinced that some quantitative data
and the other narrative requirements are
necessary for developing appropriate
permit conditions.
Form ZF addressing permit
applications for storm water discharges
associated with industrial activity is
included in today’s final rule. A
complete permit application for
discharges composed entirely of storm
water, will be comprised of Form 2? and
Fbrm 1. Operators of discharge. which
are composed of both storm water and
nom.storm water will submit where
rei uzred, a Form 1, an entire Form 2C (or
F ozm 2DJ and Form 2? when applying. In
this case, the applicant will provide
q an’itative date describing the
discharge during a storm event in Form
2F and quantitative data desaibing the
discharge during nonstorm events In
Form ZC . Non .quantltatlve information
reported In the Form ZC will not have to
be reported again In the Form 2?.
Under today’s rule. Form 2F for storm
water discharges auociated with
Industrial activity would not require the
submittal of all of the quantitative
Information required In Form ZC. but
would require that quantitative data be
submitted for
• Any pollutant limited In an effluent
guideline for an Industrial applicant’s
subcategory
• Any pollutant listed in the facility’s
NPD permit for its process
wastewater
• Oil and pease. TSS. COD. pH.
BODS, total phosphorus, total Kjeldah.
nitrogen: nitrate plus nitrite nitrogen:
and
• Any information on the discharge
required under 40 CFR 122.21(g)(7) (iii)
and (iv).
In order to characterize the
discharge(s) sampled, applicants need to
submit information regarding the storm
event(s) that generated the sampled
discharge. including the date(s) the
sample was taken, flow measurements
or estimates of the duration of the storm
event(s) sampled, rainfall measurements
or estimates from the storm event(s)
which generated the sampled runoff.
and the duration between the storm
event sampled and the end of the
previous storm event. Information
regarding the storm event(s) sampled is
necessary to evaluate whether the
discharge(s) sampled was generally
representative of other discharges
expected to occur during storm events
and to characterize the amount and
nature of runoff discharges from the site.
One commenter stated that the
quantitative information should be
limited to those pollutants that are
expected to be known to the applicant.
EPA believes this would be
inappropriate since there will be no way
of determining Initially whether these
pollutants are present despite the
expectations of the applicant. Once the
data Is provided, permits can be drafted
which address specific pollutants. This
rulemaking requires that the applicant
test for oil and grease. COD. pH. BOOs.
TSS, total Kjeldahl nitrogen, nitrate plus
nitrite nitrogen and total phosphorus.
Oil and grease sod TSS are a common
component of storm water and can have
serious impacts on receiving waters.
Oxygen demand (COD and 80D5) will
help the permitting authority evaluate
the oxygen depletion potential of the
discharge. BOD5 is the most commonly
used Indicator of potential oxygen
demand. COD is considered a mote
inclusive Indicator of oxygen demand.
especially where metal. interfere with
the BOD5 test. The pH wIll provide the
permitting authority with Important
Information on the potential availability
of metals to the receiving flora, fauna
and sediment. Total ICjeldahl nitrogen.
nitrate plus nitrite nitrogen and total
phosphorus are measures of nutrients
which can impact water quality.
Because this data is useful in developing
appropriate permit conditions, EPA
disagrees with the argument made by
one commenter that quantitative data
requIrements should be a permit
condition and not part of the application
process.
In the proposed rule, the Agency used
total nitrogen as a parameter. This has
been changed to total JCjeldahl nitrogen
and nitrate plus nitrite nitrogen for
clarity.
Today’s rule defines sampling at
Industrial sites in terms of sampling for
those parameters that have effluent
limits in existing NPDES permits, as well
as for any other conventional or
nonconventional parameter that might
be expected to be found at the outfall.
Comments on the appropriateness of the
defined parameters were solicited by
the proposal. Numerous commenters
maintained that either the parameter list
be made industry specific, or that
pollutant categories not detected in the
initial screen be exempted from further
testing. Some suggested that only
conventional pollutants. inorganics. and
metals be sampled unless reason for
others is found.
In terms of specific water quality
parameters. it was recommended that
swfactants not be tested for unles. foam
is visible. One cominenter also
suggested that focal coliforin sampling is
inappropriate for industrial permits
applications. One commenter favored
testing for TOC instead of VOC. In
response. VOC has been eliminated
from the list of parameters because it
will not yield specific usable data. VOC
Is not specifically required in any
sampling in today’s nile, except where
priority pollutant scans are required.
Some recommended that procedures
be modified to facilitate quicker, lees
expensive lab analyses. Concern was
also raised that industry might be
required to collect its own rainfall data
if there is no nearby observation station.
Some comznenters stated that EPA
should not allow automatic sampling for
either biological or oil and grease
sampling due to the potential for
contamination in sampling equipment.
-------
Federal Register I Vol. 55 No. 222 / Friday. November 18, 1990 I Rule. and Regulations
48017
In response, EPA believes that the
sampling requirements for Industry In
todays rule ate reasonable and not
burdensome. These requirements
addres, parameters that have effluent
limits In existing NPDES permits, as well
as for any other conventional or
nonconventlonal parameter that might
be expected to be found at the
applicants outfall. Under this procedure
both Industry-specific and site-specific
contaminants are already identified in
the existing permit. Whether all these
parameters need to be made a part of
any discharge characterization plans.
under the terms of the permit, will be a
case-by-case determination for the
permitting authority. EPA maintains that
the test for surfactants (if in effluent
guidelines or in the facility’s NPDES
permit for process water) is justifiable
even when a foam Is not obvious at the
outfall. The presence of detergents in
storm water may be indicated by foam.
but the absence of foam does not
indicate that detergents are not present.
EPA requested comments on fecal
coliform as a parameter. Fecal coliform
was included on the list as an indicator
of the presence of sanitary sewage. In
large concentrations, fecal coliform may
be an effective indicator of sanitary
sewage as opposed to other animal
wastes. EPA believes that sanitary cross
connections will also be found at
industrial facilities. Furthermore, the
test for fecal coliforni is an inexpensive
test and its inclusion or exclusion
should make little impact financially on
the individual application costs.
Sampling for volatile organic carbon
shall be accomplished when required. as
it is an appropriate indicator of
industrial solvents and organic wastes.
in response to comments. EPA
acknowledges that there are certain
pollutants that are capable of leaving
residues in automatic sampling devices
that will potentially contaminate
subsequent samples. In these cases.
such as for biological monitoring, if such
a problem is perceived to exist and it is
expected that the contaminant will
render the subsequent samples
unusable, manual grab samples may be
needed. This would include grab
samples for pH. temperature, cyanide,
total phenols, residual chlorine. o l and
grease, fecal coliform. and lecal
streptococcus. EPA is not disallowing
the use of automatic sampling because
of possible contamination, as this type
of sampling may be the best method for
obtaining the necessary samples from a
selected storm events.
In addition to the convenlional
pollutants listed above, this final rule
requires applicants, when appropriate.
to sample other pollutants based one
consideration of site-specific factors.
These parameter, account for pollutante
associated with materials used for
production and maintenance. nIshed
products. waste products and non-
process materials such as fertilizers and
pesticides that may be present at a
facility. Applicants must sample for any
pollutant limited in an effluent guideline
applicable to the facility or limited In the
facility’s NPDES permit. These
pollutants will generally be associated
with the facility’s manufacturing process
or wastes. Other process and non-
process related pollutants, will be
addressed by complying with the
requirements of 40 CPR 122.21(g)(71 (iii)
and (iv).
Section 122.Z1(g)(7)(iii) requires
applicants to indicate whether they
Jusow or have reason to believe that any
pollutant listed in Table IV
(conventional and ncqconventlonal
pollutants) of appene x D to 40 CFR part
122 is discharged. It such a pollutant is
either directly limited or indirectly
limited by the terms of the applicant’s
existing NPDES permit through
limitations on an indicator parameter.
the applicant must report quantitative
data. For pollutants that are not
contained in an effluent limitations
guideline, the applicant must either
report quantitative data or describe the
reasons the pollutant is expected to be
discharged. With regard to pollutants
listed in Table II (organic pollutants) or
Table ill (metals, cyanide and total
phenol) of appendix 0. the applicant
must indicate whether they know or
have reason to’believe such pollutants
are discharged from each outfall and, if
they are discharged in amounts greater
than 10 parts per billion (ppb). the
applicant must report quantitative data.
An applicant qualifying as a small
business under 40 CFR 122.21(g)(8). (e.g..
coal mines with a probable total annual
production of less than 100.000 tons per
year or. for all other applicants, gross
total annual sales averaging less than
$100,000 per year (in second quarter
1980 dollar .)), is not required to analyze
for pollutants listed in Table II of
appendix 0 (the organic toxic
pollutants).
Section 122.21(g)(7)(iv) require.
applicants to indicate whether they
know or have reason to believe that any
pollutant in Table V of appendix 0 to 40
CFR part 122 (certain hazardous
substances) is discharged. For every
pollutant expected to be discharged. the
applicant must briefly describe the
reasons the pollutant is expected to be
discharged and report any existing
quantitative data it ha. for the pollutant.
When collecting data for permit
applications, applicants may make use
of 40 CFR 122.2l(g)(7). which provides
that “when an applicant has two or
more outfall. with substantially
Identical effluents, the Director may
allow the applicant to test only one
outfall and report that the quantitative
data also applies to the substantially
identical outfall..” Where the facility
has availed Itself of this provision, an
explanation of why the untested outfall.
are “substantially identical” to tested
outfalls must be provided in the
application. Where the amount of flow
associated with the outfalls with
substantially identical effluent differs.
measurements or estimates of the total
flow of each of the outfalls must be
provided. Several commenters stated
that the time and expense associated
with sampling and analysis would be
saved if the applicant was able to pick
substantially identical outfall. without
prior approval of the permitting
authonty. EPA disagrees that this would
be an appropriate devolution of
authority to the permit applicant. The
permitting authority needs to ensure that
these outfall. have been grouped
according to appropriate criteria (for
example do the outfall. serve similar
drainage areas at the facility).
Furthermore, EPA is not requiring that
the permit applicant engage in sampling
to demonstrate that the outfall. are
indeed substantially identical. because
that would of course defeat the purpose
of § 122.21(g)(7). The procedure for
establishing identical outfall. is not thHi
onerous and provides a means for
industry to save substantially on time
and resources for sampling.
EPA proposed and requested
comment on a requirement that the
facility must sample a storm event that
is typical for the area in terms of
duration and severity The storm event
must be greater than 0.1 inches arid must
be at least 96 hours from the previously
measurable (greater than 0.1 inch
rainfall) storm event. In general.
variance of the parameters (such as the
duration of the event and the total
rainfall of the event) should no exceed
50 percent from the parameters of the
average rainfall event in that area. EPA
also requested comments on addressing
snow melt events under this definition.
Commenters stated that’ median or
average rainfall is not an acceptable
approach. the minimum depth and
duration of rainfall must be specified.
the allowable 50% variation is
questionable: the total depth of the
storm is irrelevant: and the storm should
be viewed based on the average
intensity of the storm. One commenter
-------
IJIIS Federal Regist.rI Vol. 55, No. 222 / Friday, November 16 1990( Rules end Re vlatfons
suggested that using the median rainfall
event would be a better approach than
the average rainfall event.
Others Insisted that “iepresentative
or typical storms do not exist In semi-
arid climates and that representative
rainfall must be site-specific (regional)
and seasonal. Several commenters
contended that the requirement for 96
dry hours between events is not
acceptable. with 48 and 72 hours
Identified as possible alternatives.
One cominenter believed that a
typical standard design storm, such as
the 1-year. 24-hour. or lO.year. 1-hour,
would be preferable. Another
coinmenter Felt that the storm event
should be based on the rainfall required
to generate a minimum discharge level.
One commenter questioned whether the
storm is to be sampled at all sites
simultaneously.
To darify its decision on what storm
event should be sampled. EPA notes
that Its selection of the storm event
considers both regional and seasonal
variation of precipitation. This is
evidenced in the rule with regard to
sites in the municipal application (three
events sampled), and in the
requirements for industrial group
applications (a minimum of two
applicants. or one applicant in groups of
less than 10. to be represented in each
precipitation zone (see section Vl.F.4
below).
The definition of a 0.1 inch minimum
was determined by NURP and other
studies to be the minimum rainfall depth
capable of producing the rainfall/runoff
characteristics necessary to generate a
sufficient volume of runoff for
meaningful sample analysis. EPA
believes by requiring the average storm
to be used as the basis for sampling that
depth. duration, and therefore average
rainfall intensity are being regionally
defined. The Agency has also added the
option of using the mediar rainfall event
instead of the average. The potential for
monitoring events that may not meet
this specification should be minimized
by allowing the proposed 50 percent
variation in rainfall depth and/or
duration from event statistics. However.
the 50 percent variation need only be
met when possible. Further, there is
flexibility in the rule where the Director
may allow or establish site specific
requirements such as the minimum
duration between the previous
measurable storm event and the storm
event sampled, the amount of
precipitation from the storm event to be
sampled, and the rorm of precipitation
sampled (snowmelt or rainfall) if data is
obtained from a rain event that does not
meet the criteria above, the Director has
the discretion to accept th. data as
valid.
The December?. 198& proposal called
for a 96.hour period between evenis of
measurable rainfall, here defined as 0.1
Inch, which provided a four day
minimum for the accumulation of
pollutants on the surface of the outfalls’
tributary areas. The key word in the
definition is “measurable”, which means
that the 96-hour period did not
necessarily have to be dry, only that no
cleansing rainfall (i.e. 0.1 inch rain
event) has occurred. However, after
reviewing comments on this Issue EPA
has decided to change the period to 72
hours. Many commenters indicated that
96 hours is too restrictive and that
securing a sample under such
circumstances would be unnecessarily
difficult. EPA agrees that the quality or
representativeness of the sample would
not be adversely affected by this
change.
EPA doe. not agree with comments
that the requirement of a particular
“design” storm would be appropriate.
Many commenters have expressed
concern that they might sample an event
not meeting the requirements for
industrial group applications as defined.
Because there is no way to know with
sufficient certainty beforehand that an
upcoming event will approximate a oneS
year. twenty-four hour storm, many
events would be unnecessarily sampled
before this event is realized.
EPA does not intend that a
municipality or industry be required to
sample all required outfalls for a single
storm, This would represent a
unmanageable investment in equipment
and manpower In some areas, it may be
necessary to sample multiple sites for a
single event due to the irregularity of
rainfall, but not all sites.
EPA described parameters for
selecting storm events for sampling of
municipal and Industrial outfalls in the
December 7. 1988. proposal. EPA has
received several comments regarding
the problems that rainfall measurement
in general presents. A recurring
comment relative to reporting rainfall.
and in verifying that the storm itself is
representative, deals with the spatial
distribution of rainfall. The rainfall
measured at an airport does not always
represent rainfall at the site, particularly
in summer months when thunderstorms
are prevalent. One commenter slated
that it would be easier to base the
selected storm on either a minimum
discharge. or on a discharge duration
other than on the total precipitat,cn.
because these parameters are easily
measured at the site and are not
dependent on th airport gauges
receiving the same rainfall as the site. A
few commenters questioned how to
determine typical storm characteristics.
One commenter advised that NOAA
rainfall reporting stations provide data
that represent only daily rainfall totals,
not storm event data. One coanmenter
pointed out that the time frame of the
sampling requirement does not consider
that a particular region may be in the
midst of a multi-year drought cycle, and
that what little rainfall occurs may have
uncharacteristically high levels of
pollutants.
The type of rain event sampled is an
important parameter in any attempt to
characterize system-wide loads based
on the sampling results. Rainfall gauges
that report only event total depth will
provide the information necessary to
characterize most events, provided that
a reasonable estimate of the event
duration can be made. If simulation
models are to be used in estimating
system-wide loads, rainfall
measurement based on time and depth
of rainfall will be needed. If the
recording stations are not believed to
accurately reflect this distribution, then
the data will need to be collected by the
applicant at a location central to the
tributary area of the outfall.
The rainfall data collected by NOAA
are in most cases available in the form
of hourly rainfall depths. This
information can be analyzed to develop
characteristic storm depths and
durations. In some cases, this
information has already been analyred
for many long term reporting stations by
various municipalities, states, and
universities The results of these
investigations should be available to the
applicants.
EPA realizes that prolonged rainless
penods occur for both semi-arid areas
and areas experiencing droughts and
that the lirsi storm after a prolonged dry
period may well not be representative of
“normal” runoff conditions. In order ror
the appropriate system-wide
characterization of loads to be made.
data must be collected. With regard to
the municipal permit application.
todays rule states that runoff
characterization data will be collected
during three events at from five to ten
sites. The rule gives the Director the
flexibility of modifying these
requirements
EPA has defined the parameters for
selecting the storm event to be samp!i’J
such that at the discretion of the
Director seasonal, including winter.
sampling might iii’ requ’ri’d EPA has
recei ed several comments regarding
the problems that snov melt sampling
may present Sc’vrral commt’nt,.fc
-------
Federal Register I VoL 55 No. 222 I Friday, November 16. 1990 I Rules and Regulations
48019
opposed to monitoring of snowmelt
events. The reasons cited include
equipment problems and the
unreasonableness of expecting this
sampling, because of temperatures and
the time required for personnel to be
waiting for events. A few comments
addressed the issues of snow pack
depth, ambient temperature. and solar
radiation levels, and that the snow pack
may filter suspended solids or refreeze
such that final melting is
uncharacteristically over-polluted
relative to normal conditions. Another
commenter contended that It Is
Impossible to manage the melting
pieces. and therefore unreasonable to
expect controls to be implemented
relative to snowmelt. In essence, ills
contended that there Is no first
discharge unless the snow pack depth is
low and melts quickly.
A few commenters favor monitoring
snowmelt. for precisely the same reason
that most oppose ft that the runoff from
snowmelt Is the most polluted runoff
generated In some areas on an annual
basis. Where this is the case, sampling
snowmelt should be undertaken in order
to accurately assess impacts to receiving
streams. EPA is confident that in areas
where automated sampling cannot be
railed upon, grab sampling can probably
be performed because the nature of the
snowmelt process tends to make the
timing of samples less of a problem
when compared to typical rainfall
events. EPA disagrees that management
practices. either at industrial facilities or
with regard to municipalities, cannot
address snowmelt. Some areas may
need to reassess their salt application
procedures. In addition retention and
detention devices may address
snowmeli, as well as erosion controls at
construction sites. Thus. obtaining
samples of snowmeli is appropriate to
allow development of such permit
conditions.
Today’s rule also modifies the Form
2C requirements by exempting
applicants from the requirements at
I 122.21(g)(2) (line drawings). (g)(4)
(Intermittent flows). (g)(7) (ii. (ii). and (v)
(various sampling requirements to
characterize discharges) if the discharge
covered by the application is composed
entirely of storm water. Permit
applications for discharges containing
storm water associated with industrial
activity would require applicants to
provide other non-quantitative
information which will aid permit
writers to identify which storm water
alscharges are associated with
Industrial actibity and to characterize
the nature of ih discharge.
Numerous comments were received
regarding the requirement to submit a
topographic map and site drainage map.
Many of these comments offered
alternatives to EPA’s proposaL Two
commenters suggested that a simple
sketch of the st(e would be sufficient.
Two commenters slated that one or the
other should be adequate. One
commenter believed that the drainage
map was a good idea, but that the
topographic map should be optionaL
Several commenters submitted that a
topographic map was sufficient and that
only SPCC plans or SARA submittals
should supplement that. Another
cornmenter argued that information
relating to the location of the nearest
surface water or drinking wells would
be sufficient Other commenters
believed that a drainage map alone
would indicate all relevant site specific
information. Numerous commenters
expressed concern that the drainage
area map would be too detailed and that
one which depicts the general direction
of flow should be sufficient.
Clariflcalion was requested on whether
the final rule would require the location
of any drinking water wells. One
commenter stated that a U.S.G.S. 7.5
quadrangle map will not Illustrate
drainage systems In all cases, and that
therefore the requirement should be
optionaL
Several commenters agreed with
EPA’s proposaL One com.menter
maintained that drainage maps should
be required from developments greater
than three acres and from all individual
applicants. Several commenters agreed
with EPA’s proposal that both maps
should be provided, with arrows
Indicating site drainage and entering
and leaving points. It was advised that
drainage maps are useful in locating
sources of storm water contamination.
and It Is useful to identify areas and
activities which require source controls
or remedial action. One commenter
recommended that the map should
extend far enough offsite to demonstrate
how the privately owned system
connects to the publicly owned system.
After considering the merits of all the
comments and the reasons supporting
EPA’s proposaL EPA is convinced that a
topographic mapand a site diarnsge
map are necessary components of the
industrial application. Existing permit
application regulations at 40 CFR
12231(0(7) require all permit applicants
to submit as part of Form 1 a
topographic map extending one mile
beyond the property boundaries of the
source depicting: the facility and each
intake and discharge structure: each
hazardous waste treatment, storage, or
disposal facility each well where fluids
from the facility are injected
underground: and those wells, springs.
other surface water bodies, and drinking
water wells listed in the map area in
public records or otherwise known to
the applicant within one-quarter mile of
the facility property boundary. (See 47
FR 15304, April 8. 1982.) However, as
indicated by the comments the
information provided under
I 122.21(fl(7) is generally not sufficient
by Itself for evaluating the nature of
storm water dIscharges associated with
industrial activity.
As stated in comments, a drainage
map can provide more important site
specific information for evaluating the
nature of the storm water discharge in
comparison to existing requirements.
which require a larger map with only
general information. The volume of
storm water discharge and me
pollutants associated with it will depend
on the configuration and activities
occurring at the industrial site. One
commenter suggested that it would be
appropriate to submit an aerial
photograph of the site with all the
topographic and drainage information
superimposed on the photograph. EPA
agrees that this may be an appropriate
method of providing this information.
EPA is not requiring a specific format for
submitting this information.
EPA is also requiring that a narrative
description be submitted to accompany
the drainage map. The narrative will
provide a description of on-site features
including: existing structures (buildings
which cover materials and other
material covers: dikes: diversion ditches.
etc.) and non-structural controls
(employee training, visual inspections.
preventive maintenance, and
housekeeping measures) that are used to
prevent or minimize the potential for
release of toxic and hazardous
pollutants; a description of significant
materials that are currently or in the
past have been treated, stored or
disposed outside: and the method of
treatment, storage or disposal used. The
narrative will also include: a description
of activities at materials loading and
unloading areas: the location, manner
and frequency in which pesticides.
herbicides. .oil conditioners and
fertilizers are applied: a description of
the soil; and a description of the areas
which are predominately responsible for
first flush runoff. This requirement is
unchanged from the proposal.
Some commenters believed that
information on pesticides. herbicides.
and fertilizers and similar products is
irrelevant, incidental to the facility’s
production activities. and should not be
-------
aua F.Jor.l bgister! VoL 55. No. fl2 I Prldey, November 16 1900/ Rules and Regulations
addressed by this mlecnakhtg. EPA
disagrees. As these materials are
applied outside and hence sublect to
storm events, they ate significant
sources of poiletants hi storm water
discharge. whether applied In
residential or Industrial settings. By
providing this information In the permit
application the permit writer will be
able to determine whether such activity
Is associated with Industrial activity and
the subject of appropriate permit
conditions. Nominal or Incidental
application of these materials at
Industrial facilities and non ‘detects In
sampling of storm water discharges for
the permit application will result, in
most cases. in these materials not being
addressed specifically in storm water
permits.
Today’s rule also requires that permit
applicants for storm water discharges
associated with Industrial activity
certify that all of the outfalls covered in
the permit application have been tested
or evaluated for non-storm water
discharges which are not covered by an
NPDES permit. (The applicant need not
test for nonstorm water if the
certification of the plant storm water
discharges can be evaluated through the
use of schematics or other adequate
method). Section 405 of the WQA added
section 402(p)(3)(Bllii) to the CWA to
require that permits for municipal
separate storm sewers effectively
prohibit non-storm water discharges to
the storm sewer system. As discussed in
part VLF.7.b of today’s preamble.
untreated non-storm water discharges to
storm sewers can create severe, wide.
spread contamination problems and
removing such discharges presents
opportunities for dramatic
improvements in the quality of such
discharges. Although section
402(p)(3flB)(ii) specifically addresses
municipal separate storm sewers. EPA
believes that illicit non-storm water
discharges are as likely to be mixed
with storm water at a facility that
discharges directly to the waters of the
United States as it is at a facility that
discharges to a municipal storm sewer.
Accordingly, EPA feels that It is
appropriate to consider potential non-
storm water discharges in permit
applications for storm water discharges
associated with industrial activity. The
certification requirement would not
apply to outfall. where storm water is
intentionaliy mixed with process waste
water streams which are already
identified in end ciivered by a permit.
This rulemaking requires applicants
for individual permits to submit known
information regarding the history of
significant spills at the facility. Several
commenters Indicated that the extent to
which this Information I . required
should be modified, One commenter
stated that the requirement should be
limited to those spi 11 s that resulted he a
complaint or enforcement action. EPA
disagrees. EPA believe, that significant
spills at a facility should generally
include releases of oil or hazardous
substances4n excess of reportable
quantities under section 311 of the Clean
Water Act (see 40 CFR 110.10 and 40
CFR 117.21) or sectIon 102 of CLA
(see 40 CFR 302.4), Such a requirement is
consistent with these regulations and
the perception that suck spills are
significant enough to mandate the
reporting of their oc -iu ce . Some
commenters stated that Indvstries have
already submitted this Information In
other contexts and should not be
required to have to dolt again. For the
same reason another commenter felt
that submittal of this information
represents a waste of manpower and
resources. EPA disagrees that requiring
this information is unduly burdensome.
If this information has already been
provided for another purpose it follows
that it is readily available to the
industrial applicant. Thus, the burden of
providing this Information cannot be
considered undue. Furthermore, the
permit authority will need to have this
available in order to determine which
drainage areas are likely to generate
storm water discharge. associated with
industrial activity, evaluate pollutants of
concern, and develop appropriate permit
conditions. However, to keep this
information requirement within
reasonable limits and limited to
information already available to
individual facilities. EPA has declined to
expand the reporting requirements to
spills of other materials, such as food as
one commenter has su88ested. However.
EPA has decided to add raw materials
used in food processing or production to
the list of significant materials.
Materials such as these may find their
way into storm water discharges in such
quantities that serious water quality
impacts occur. These materials may find
there way into storm water from
transportation vehides carrying
materials into the facility, loading docks.
processing areas, storage areas, and
disposal sites.
One commenter urged that any
information requested should be limited
to a period of three years, which is the
general NPDES records retention
requirement under 40 CFR 122.21(p) and
40 CFR 112,7(dfta). EPA agrees with this
comment and has limited historical
information requiremerns to the 3 year.
prior to the date the application Is
submitted. In this meemer this regulation
will be consistent with records keeping
practices under the NPD and Oil Spill
Prevention program,, except sludge
programs.
The December 7. 1988. proposal
required the applicant to submit a
description of each past or present area
used for outdoor storage or disposal of
significant materials. One commenter
felt that the definition of significant
material was too imprecise. EPA
disagrees that the language should be
made more precise by delineating every
conceivable material that may add
pollutants to storm water. Rather the
definition is broad, to encourage permit
applicants to list those materials that
have the potential to cause water
quality impacts. Stating what materials
are addressed in meticulous detail may
result in potentially harmful materials
remaining unconsidered in permits.
However, EPA has decided to add
“fertilizer,. pesticides, and raw
materials used in the production or
processing of food” to the definition in
response to the comment of one State
authority that such materials need to be
accounted for due to their potential
danger to storm water discharge quality.
This same commenter recommended
that “hazardous chemicals” should be
added. EPA agrees, and will delineate
those chemicals as hazardous
substances” which are designated under
section 101(14J of CERCLA. Further
clarification has been added by
requiring the listing of any chemical the
facility is required to report pursuant to
section 313 of title Ill of SARA.
Another commenter felt that EPA
should not require information of past
storage of significant materials. EPA
agrees that this proposed requirement is
overbroad and has limited the time
frame to those materials that were
stored in areas 3 years or fewer from the
date of the permit application. The 3-
year limit is consistent with other
Agency reporting requirements as
discussed above.
One commenter questioned EPA’s
proposal not to provide for a waiver
from the requirement to submit
quantitative data if the applicant can
deisioii ,trate that it is unnecessary for
permit issuance. Another commenter
said that a waiver is inappropnate. EPA
believes relevant quantitative data are
essential to the process. but in this
rulemaking the number of pollutants
that must be sampled and analyzed is
reduced compared to previous
regulations, The proposed requirements
for quantItative data are limited to
pollutants that are appropriate for given
-------
Federal Register I VoL 55 No. 222 / Friday, November 16, 1990 / Rules and P gulations 46 1
slte.speclflc operations. thereby making
a waiver unnecessary.
Although the concept of a waiver Is
attractive because of the perceived
potential reduction In burdens for
applicants. EPA believes that because
the storm water discharge testing
requirements have already been
streamlined, a waiver would not in
practice provide significant reductions
In burden for either applicants or permit
Issuing authorities. Requirements to
provide and verify data demonstrating
that a waiver Is appropriate for a storm
water discharge may prove to be more
of a burden to the applicant and the
permitting authorities. Establishing such
a waiver procedure would be
administratively complex and time-
consuming for both EPA and the
applicants, without any justifiable
benefit Therefore. this rulemaking does
not Include a waiver provision.
In response to one commenter. EPA
wishes to emphasize that if a facility has
zero storm water discharge because It Is
discharging to a detention pond only. a
permit application is not required. Only
those discharges to the waters of the
United States or municipal systems need
submit notifications. Individual or group
permit applications, or notice, of intent
where applicable. However. If the
detention pond overflows or the
discharger anticipates that It may
overflow, then a permit application
should be submitted.
Two commenters agreed with EPA.
proposed requirement to have a
description of past and present material
management practices and controls.
EPA believes that this Is important
information directly relating to the
quality of storm water that can be
expected at a particular facility and this
requirement is retained in today’s rule.
However, as with other historical
Information requirements, EPA is
limiting past practices to those that
occurred within three year. of the data
that the application is submitted. One
commenter argued that past practices
should not be considered unless there Is
evidence that past practices cause
current storm water quality problems.
EPA anticipates that the information
submitted by the applicant will be used
to make this determination and that
appropriate permit conditions can be
developed accordingly.
One commenter requested
darificatlon on the certification
requirement that the data and
Information In the application Is true
and complete to the best of the
.ertIfying officer’s knowledge. This is a
fundamental and integral part of all
.‘JPDES permit applications. It
essentially requires the signatory to
assure the permit writer, based upon his
or her personal knowledge. that the
Information has been submitted without
a negligent. reckless. or purposeful
mIsrepresentatIon. EPA Intends to
Interpret this requirement In the same
manner for storm water applications as
other applications.
4. Group Applications
Today’. final rule provides some
industries with the option of
partldpatlng In a group application, in
lieu of submitting individual permits.
There are several reasons for the group
application. First, the group application
procedure provides adequate
Information for issuing permits for
certain classes of storm water
discharges associated with industrial
activity. Second. numerous commenters
supported the concept of the group
application as a way to reduce the costs
and administrative burdens associated
with storm water permit applications.
Third. group applications will reduce the
burden on the regulated community by
requiring the submission of quantitative
data from only selected members of the
group. Fourth. the group application
process will reduce the burden on the
permit Issuing authority by
consolidating information for reviewing
permit applications and for developing
general permits suited to certain
industrial groups. Where general permits
are not appropriate or cannot be Issued.
a group application can be used to
develop model individual permits, which
can significantly reduce the burden of
preparing indIvidual permits.
As noted above in today’s preamble,
EPA Intends to promulgate a general
permit that will cover many types of
industrial actIvity. Industrial dischargers
eligible for such permits will genetally
be required to seek coverage by
submittal of a notice of intent Facilities
that are ineligible for coverage under the
general permit will be required to submit
an Individual permit application or
submit a group application. The group
application process promulgated today
will serve as an important component to
Implement Tier Ill of EPA’. industrial
storm water permitting strategy
discussed above, The general permit
which EPA Intends to promulgate in the
near future shall set forth what types of
facilities are eligible for coverage.
Some commenters criticized the group
application procedure as an abdication
of EPA’s responsibility to effectively
deal with pollutants in storm water
discharges. One commenter stated that
every facility subject to these
regulations should be required to submit
quantitative data. In response EPA
believes, as do numerous conunenters,
that theg copApp 1 i th procedure Is a
legitimate and effective way of dasllng
with a large volume of currently
uncontrollad discharges. The oniy
difference between the eiç
application procedure and issuing
individual permits based on individual
applications is that the quantitative data
requirements from individual facilitIes
will be less If certain procedures are
followed. EPA Is convinced that marked
Improvements In the process of iuuing
permits will be achieved when these
procedures are followed. Where the
storm water discharge from a particular
facility Is identified as posing a special
environmental risk. It can be required to
submit individual applications and
therefore separate quantitative data. It
should also be noted that submittal of a
group application does not exempt a
facility from submitting quantitative
data on Its storm water discharge during
the term of the permit
The final rule refines and clarifies
some of the requirements of the group
application approach set forth in the
December 7, 1988 proposaL Several
commenterl requested that EPA add a
provision which would allow a facility
that becomes subject to the regulations
to “add on” to a group application after
that group application has already been
submitted. One commenter indicated
that some trade associations are
prohibited from engaging in an activity
which would not apply to all its
members, and that an “add on”
provision was needed in the event such
a prohibition was invoked. Another
commenter noted that where a group is
particularly large, for example one that
consists of several thousand members,
that it would be a logistical feat to
ensure that all facilities eligible as
members of the group are properly
Identified and listed on the application
within the 120 day deadline for
submitting part 1A of the application.
EPA believes that a group applicant
should have a limited ability to add
facilities to the group after part IA has
been submitted and that a provision
which allows a group or group
representative an unbridled ability to
“add on” Is impractical for a number of
reasons. First. 10% of the facilities must
submit quantitative data, Adding
facilities after the group has been
formed and approved would change the
number of facilities that have to submit
quantitative data on bebaU of th. group.
This would result in an unwarranted
administrative burden on the reviewing
authority, which is In the position of
having to examine the quantitative data
and determine the appropriateness of
group members (and those that are
-------
‘ 6I Federal Re*ister I Vo. 55, No. 222 Friday, November 16, 1990 I Rules and Regulations
required to submit quantitative data)
withIn 2 month. of receiving part I of
the group applicatlon. Further, during
the permit application process
permitting authorities will be developing
permit conditions for an Identified and
pre ’determined group of facilities.
Allowing potentially significant numbers
of permit applicants to suddenly inject
themselves into a group application
could unnecessarily hamper or disrupt
the timely development of general and
model permits. In addition, if a facility
were “added on” the number of facilities
having to submit quantitative data may
drop below 10%. Thua the facility
desiring to “add on” may be put in the
position of having to submit the
quantitative data themselves, which
would clearly defeat the purpose of
being a part of the group application.
Nevertheless. EPA has added a
provision to 122.26(e) which enables
facilities to add on to a group
application at the discretion of the
EPA’s Office of Water Enforcement and
Permits, and upon a showing of good
cause by the group applicant. For the
reasons noted above. EPA anticipates
this provision will be invoked only in
limited cases where good cause is
shown. Facilities not properly identified
in the group application, and which
cannot meet the good cause test will be
required to submit individual permit
applications. EPA will advise such
facilities within 30 days of receiving the
request as to whether the facility may
add on.
However, the “add on” facility must
meet the following requirements: The
application for the additional facility is
made within 15 months of the final rule:
and the addition of the facility does not
reduce the percentage of the facilities
that are required to submit quantitative
data to below 10% unless there are over
100 facilities that are submitting
quantitative data. Approval to become
part of a group application is obtained
from the group or the trade association
and is certified by a representative of
the group approval for adding on to a
group is obtained from the Office of
Water Enforcement and Permits.
Several commenters stated that the
application requirements for groups are
so burdensome that the advantages of
the process are undermined. These
concerns are addressed in greater detail
below. Among the requirements which
commenters objected are the
requirement! to lisi every group
member’, company by name and
address. EPA is convinced that a
condition precedent to approving a
group application is at least identifying
the ‘,tembers of the group. Without such
information it would be Impossible to
determine if all the facilities are
sufficiently similar. EPA disagrees that
industries will be dissuaded from using
the group application process because
the advantages of the process are
undermined. Although commenters
perceived many burdens associated
with individual permit applications, by
far the most significant burden
Identified by the comments is the
requirement for obtaining and
submitting quantitative data. The group
application significantly reduces this
burden by requiring onlylo% of the
facilities to submit quantitative data if
the number in the group is over 100. If
the number in the group is over 1000,
then only 100 of the facilities need
submit quantitative information. If group
applicants develop cost sharing
procedures to reduce the financial and
administrative burdens of submitting
quantitative data, it is evident that
utilizing the group application could
save industries as much as 90% on the
most economically burdensome aspect
of the application.
Several commenters perceived that
the group application procedure did not
offer them significant savings because
under the proposal their particular
industry would only be required to test
for COD, BOD5. pH. TSS. oil and grease.
nitrogen, and phosphorous. These
commenters stated that sampling for
these pollutants is not particularly
expensive. EPA believes that even if a
group is required only to submit minimal
quantitative data on particular
pollutants, substantial savingscan
accrue to a particular industry if the
group has many members. This is
particularly true when the number of
outfalls to be sampled. the information
on storm events, and flow
measurements are factored into the coat
analysis, An additional benefit for
members of the group as well as for
permit issuing agencies is that the
process of developing a permit.
including drafting and responding to
public comments on the permit, is
consolidated by the group application
process. Accordingly. it is less resource
intensive for the group to work with
permit issuance authonties to develop
well founded permit conditions.
One commenter raised a concern
about the situation where one of the
facilities that is designated for
submitting quantitative data drops out
of the group. II this happened, then
another Facility would have to submit
quantitative data. In response. EPA
notes that one approach would be for
the group to have one or two more
facilities submit quantitative data than
needed to avoid problems from such a
departure or to account for new
additions to the group. Certainly this
issue goes directly to the facility
selection process which Is a critical
component of the group application: the
facilities need to be carefully selected
and reviewed by the group to prevent
such difficulties.
Several comments indicated a
confusion over what facilities are
eligible to take advantage of the group
application procedure. Any industry or
facility that is required to submit a
storm water permit application under
these regulations is eligible to
participate in a group application.
However, whether a facility can obtain
a storm water permit under a group
application procedure will depend upon
whether that facility is a member of the
same effluent guideline subcategory. or
is sufficiently similar to other members
of the group to be appropriate for a
general permit or individual permit
issued pursuant to the group application
Accordingly, group appiications are not
limited to national trade associations.
The agency believes that the language in
* 122.26(c)(2J adequately addresses
these concerns. The process does not
prohibit a particular company with
multiple facilities from filing a group
application as long as those facilities are
sufficiently similar.
One commenter expressed concern
that a single company would not be able
to take advantage of the group
application benefits unless the company
had more than ten facilities. Under such
circumstances the company would have
to become integrated with a larger group
of facilities owned by other companies
in order to take advantage of the
benefits afforded by the group
application procedure. In response. the
Agency is providing for a group
application of between four and ten
members. however at least half the
facilities must submit data. One
commenter slated that the number of
facilities required to submit quantitative
data should be determined on a case by
case basis. EPA believes that 10 percent
for groups with over ten members will
be easiest to implement for both
industry and EPA. and will ensure that
adequate representative quantitative
data are obtained so that meaningful
determinations of facility similarity can
be made and appropriate permit
conditions in general or model permits
can be developed.
Another commenter suggested that
one facility with a multitude of storm
waler discharge points should be able to
use the group permit application to
reduce the amount of quantitative data
-------
Federal Register / Vol. 55. No. 222 I Friday. November 18 1990/ Rules and Regulations
affects storm water quality would not
provide applicants with sufficient
guidance as to the appropriateness 01
Individual Industries for group
sppllcadons and would not provide
Informadon needed to draft appropriate
model permit conditions for potentially
different types of industries. industrial
processes, and material management
practices.
However. EPA recognizes that the
subcategory designations may not
alway, be available or an effective
methodology for grouping applicants.
Also. there are sitijations where
processes that are subject to different
subcategories are combined. EPA agrees
that the group application option should
be flexible enough to allow groups to be
nested where subcategories are too
rigid or otherwise inappropriate for
developing group applications or where
facilities are integrated or overlap into
other subcategories. For these reasons.
this rulem Ikir1C does not limit the
submission to EPA subcategories alone.
but rather allows groups to be formed
where facilities are similar enough to be
appropriate for general permit coverage.
In determining whether a group is
appropriate for general permit coverage.
EPA intends that the group applicant
use the factors set forth in 40 CFR
1Z.8(a)(Z)(li). the current regulations
governing general permits, as a guide. U
facilities all Involve the same or similar
types of operations. discharge the same
types of wastes, have the same effluent
limitatIon and same or similar
monitoring requirements. where
appucable, they would probably be
appropriate for a group application. To
that extent, facilities that attempt to
form groups where the constituent
makeup of its process wastewater is
dissimilar may run the risk of not being
accepted for purposes of a group
application.
Sonic cominenter. expressed the view
that categories formed using general
permit factors are too broad or that the
language is too vague. One commenter
expressed the view that the standard is
too subjective and that permit writers
will be evaluating the similarity of
discharge too subjectively, while othei
commenters felt that the criteria should
be broad and flexible. Other
commenters stated that the effluent
guideline subcategory or general permit
coverage factors are not related to store
water d ischarges. because much of the
criteria are based upon what is
occurring inside the plant, rather thac
activities outside of the plant. EPA
believes that these criteria are
reasonable for defiiung the scope of a
group application. EPA disagrees that
the procedure, which I. adequate for the
issuance of general permits. is
Inadequate for the development of a
group application. EPA believes that the
activities Inside a facility will generally
correspond to activities outsid, of the
plant that are exposed to storm events.
including slack emissions, material
storage, and waste products.
Furthermore, If facilities are able to
demonstrate their storm water discharge
has similar characteristica, that is one
element in the analysis needed for
establishing that the group Is
appropriate. EPA disagrees that the
criteria are too vague. If facilities are
concerned that general permit criteria is
insufficient guidance. then subcategories
under 40 CFR subchapter N should be
used. EPA believes that the program wifl
function best if flexibility for creating
groups is maintained.
If a NPDES approved State feels that a
tighter grouping of applicants is
appropriate individual permit
applications can be requested from
those permit applicants. One commenter
indicated that it was not clear whether
the group application procedure could
be used for all NPDES requirements
EPA would clarify that the group
application is designed only to cover
storm water discharges from the
Industrial facilities Identified in
I 122,28(b)( 14).
As noted above. EPA wishes to clarif)
that facilities with existing individual
NPDES permits for storm water are not
eligible to participa’e in the group
application process. From an
administrative s:andpoir.t EPA is not
prepared to create an entirely different
mechanism for permitting industries
which already have such permits.
c. Group Application Requiremen .
The group application, as proposed.
included the Following requirements in
three separate parts. Part IA of a group
application included: (A) Identification
of the participants in the group
application by flume and location; (8) a
narrative description summarizing the
industrial activities of participants: (C) a
list of significant materials stored
outside by participants; and (0)
identification of 10 percent of the
discharger, participating in the group
application for submitting quantitative
data. A proposed part lB of ths group
application included the following
information from each participant in the
group application. (A) A site map
showing topography (or indicating the
out line of drainage areas served by the
outfall(s) and related information: (B) ar
estimate of the area of impervious
surfaces (including paved area. and
budding roofs) and the total area
drained by each outfall and a narrative
description of significant materials: (C) a
certification that all outfall. that should
contain storm water discharges
associated with industrial activity have
been tested For the presence of non-
storm water discharges; (0) existing
information regarding significant leaks
or spills of toxic or hazardous pollutants
at the facility’. (E) a narrative description
of industrial activitie, at the facility that
are different from or that are in addition
to the activities described under part
IA; and (F) a list of all constituents that
are addressed in a NPDES permit issued
to the facility For any of non-storm water
discharge. Part 2 of a group application
required quantitative data from 10
percent of the facilities identified.
Some commenters felt that spill
histories, drainage maps. material
management practices, and information
on significant materials stored outside
are too burdensome or meaningless for
evaluating similarity of discharges
among group applicants. Several
commenters stated that such
requirements where the group may
consist of several thousand f&icil.ties
were impractical and would not sesisi
EPA in developing model permits. Man
cornmenters insisted that the
requirements imposed in part lB would
effectively discourage use of the group
application procedure. EPA agrees in
larRe part with these comments. After
reevdluating the components cf part 18.
and the entire rationale fur instituting
the group application procedure. FPA
has decided to excise part 18 frnni the
requirements. and rely on part 1.’ and
pan 2 for developing appropriate permit
condition. Where appropriate. EPA may
require facilities to submit the
information, formerly in part 18. during
the term of the permit. In other cases.
EPA will establish which facilities must
submit individual permit appl!cataons
where more site specific permits are
appropriate.
Under the revised part I and part 2.
EPA will receive information pertaining
to the types of industrial activity
engaged in by the group. materials used
by the facilities, and representative
quantitative data. EPA can use such
information to develop management
practices that address pollutants in
storm water disc iarges from such
facilities. For most Facilities, general
good housekeeping or management
practices will eliminate pollutants in
storm water. Such requirements can be
further refined by determining the
nature of a group’s industnal activity
and by obtaining information on
material used at the facility and
representative quantitative data ‘ram a
-------
48 B Federal Register I Vol. 55, No. 222 I Friday. November 18 1990 I Rules and Regulations
percentage of the facilities. Thus. EPA I .
confident that model permits and
general permits can be developed from
the Information to be submitted under
pan 1 and part 2.
One commenter felt that more
guidance on what makes a facility
representative for sampling as part of a
group is needed. In response. the
Agency believes the rule as currently
drafted provides adequate notice.
Another ccmmenter asked how much
sampling needed to be done and how
much monitoring will transpire over the
life of the permit for members of a
group. This will vary from permit to
permit and will be determined in permit
proceedings. This rulemaking only
covers the quantitative data that is to be
submitted in the context of the group
permit application.
One commenter indicated that
because of the amount of diversity in the
operations of a particular industry.
obtaining a sample that could be
considered representative would be
extremely difficult. EPA recognizes that
obtaining representative quantitative
data through the group application
process will prove to be difficult:
h’ wever. EPA has sought to minimize
these perceived problems. Under the
group application concept, industries
must be sufficiently similar to qualify.
Industries which have significantly
different operations from the rest of the
group that affects the quality of their
storm water discharge may be required
to obtain an individual permit. Use of
the nine precipitation zones will enable
the data in the permit application to be
more easily analyzed and patterns
observed on the basis of hydrology and
other regional factors. How EPA will
evaluate the representativeness of the
sample is discussed below.
• Several commenters asked why the
precipitation zone of group members is
relevant to the application. The need to
identify precipitation zones arises
because the amount of rainfall is likely
to have a significant impact on the
quality of the receiving water.
According to an EPA study
(Methodology for Analysis of Detention
Basins for Control of Urban Runoff
Quality-. Office of Water, Nonpoint
Source Branch. Sept. 1986) the United
States can be divided into nine general
precipitation zones. These zones are
characterized by differences in
precipitation volume, precipitation
intensity, precipitation duration, and
precipitation intervals. Industrial
facilities that seek general permits via
the group application option may show
significantly different loading rates as a
result of these regional precipitation
difference.. As an example.
precipitation in Seattle. Washington.
located in Zône 7. approaches the mean
annual storm Intensity of .024 inche./
hour with a mean annual storm duration
of 20 hours for that Zone. In contrast,
precipitation in Atlanta. Georgia.
located in Zone 3 appreache. the mean
annual storm intensity of .102 inches/
hour and a mean storm duration of 6.2
hours for that Zone. Atlanta, receives on
the average four times more
precipitation per hour with storms
lasting one-third as long. As a result of
these differences, if identical facilities
within a group application were situated
in each of these areas, their storm water
discharges would likely exhibit different
pollutant characteristics. Accordingly,
data should be submitted from facilities
in each zone.
One commenter felt that the EPA
should abandon or modify its rainfall
zone concept. because storm water
quality will depend more on what
materials are used at the facility than
rainfall. EPA disagrees. Because storm
water loading rates may differ
significantly as a result of regional
precipitation difference,, it is necessary
that for each precipitation zone
containing representatives of a group
application, the group must provide
samples from some of those
representatives. In comments to
previous rulemakings it was argued that
the amount of rainfall will affect the
degree of impact a storm water
discharge may have on the receiving
stream.
One commenter stated that the
precipitation zones illustrated in
appendix E of the proposed rulemaking
do not adequately reflect regional
differences in precipitation and that in
some cases the zones cut through cities
where there are concentrations of
industries without differences in their
precipitation patterns. The rainfall zone
map us a general guide to determining
what areas of the country need to be
addressed when determining
representative rainfall events and
quantitative data. When dealing with
rainfall on a national scale, it is near
impossible to make generalized
statements with s great deal of
accuracy. In the case of rainfall zones,
rainfall patterns may be similar for
facilities in close proximity to each
other but none the less in different
rainfall zones. In response. EPA has
crested these zones to reflect regional
rainfall patterns as accuiately as
possible. Because of the variable nature
of rainfall such circumstances are sure
to arise. However, in order to obtain a
degree of representativeness EPA is
convinced that the use of these rainfall
zones as described is appropriate for the
submittal of group applications and the
quantitative data therein.
The second and third requirements of
part I of the group application Instruct
the applicant to describe the Industrial
activity (processes) and the significant
materials used by the group. For the
significant materials listed, the applicant
is to discuss the materials management
practices employed by members of the
group. For example, the applicant should
identify whether such materials are
commonly covered. contained, or
enclosed, and whether storm water
runoff from materials storage areas is
collected in settling ponds prior to
discharge or diverted away from such
areas to minimize the likelihood of
contamination. Also. the approximate
percentage of facilities in the group with
no practices in place to minimize
materials stored outside is to be
identified.
EPA considers that the processes and
materials used at a particular facility
may have a bearing on the quality of the
storm water. Thus, if there are different
processes and materials used by
members of the group. the application
must identify those facilities utilizing the
different processes and materials, with
an explanation as to why these facilities
‘should still be considered similar.
One cominenter felt that a facility
should be able to describe in its permit
application the possibility of Individual
materials entering receiving waters. EPA
supports the applicant adding site
specific information which will assist
the permit writer making an informed
decision about the nature of the facility.
the quality of its storm water discharge.
and appropriate permit conditions,
The fourth element of part I of the
group application is a commitment to
submit quantitative data from ten
percent of the facilities listed. EPA
proposed that there must be a minimum
of ten and a maximum of one hundred
facilities within a group that submit
data. Comments reflected some
dissatisfaction with this requirement.
Some conunenters asserted that ten
percent was too high a number and
would discourage group applications.
while one commenter suggested a lesser
percentage would be appropriate where
the group can certify that facilities are
representative. One commenser
suggested that EPA have the discretion
to allow for a smaller percentage.
Several commeriters argued that EPA
should be satisfied with fewer than ten
percent because EPA often relies on
data from less than ten percent of the
plants in a subcategory when
promulgating efluent guidelines and that
EPA should rely on data collection goals
-------
F.Assil R. 6 _ I VoL 55. No. 222/ Friday. November 18. 1990/ Rules and Re u1atIoni
that It I. required to sebinil. ThIs lean
accurate observation but only to the
extent that the facility combines with
several other facilities to form a group.
in which case only 10% of the facilities
iieed submit quantitative data. The
group application procedure in today’s
rule is designed for use by multiple
facilities only. However, if an individual
facility has 10 outfall. with ten
substantially identical effluents the
discharger may petition the Director to
sample only one of the outfall., with
that data applying to the remaining
outfall.. See I 122.21(gfl?). flue.
existing authority already allows for a
“group-like” process for sampling a
subset of storm water outfalla at a single
facility.
Concern was expressed that the spill
reporting requirement from each facility
in part lB would preclude any group
from demonstrating that the facilities
sampled are “representative,” because
the incidence of past spills is very site-
specific. EPA notes that since it has
dropped the part 18 requirements for
other reasons discussed below, this
comment is now moot.
Numerous commenters noted that if a
facility is part of a group application and
is subsequently rejected as a group
applicant, such an entity would not have
a full year to submit an individual
permit application. EPA agrees that this
is a significant concern. Accordingly.
those facilities that apply as a member
of a group application will be afforded a
full year from the time they are notified
of their re)ection as a member of the
group to file an individual application.
EPA notes that it intends to act on group
application requests within 60 days of
receipt thus this approach will only
provide facilities that are rejected from
a group application a short extension of
the deadline for other individual
applications.
One commenter complained that the
cost of defending a group’s choice of
representative facilities may exceed the
cost of submitting an individual permit
application, thereby reducing the
incentive to apply as group. The agency
anticipates that the selection process
will be one open to negotiation between
the affected parties and one that will
end in a mutually satisfactory group of
facilities. It is the intent of EPA to
reduce the costs of submitting a permit
application as much as possible, while
providing adequate information to
support permitting activities.
Another commenter argued that the
use of model permits wiil create a
digincentive for participating in a group
because model permits may be used by
the permit iasoinu authority to issue
individual permits for discharges from
similar facilities that did not tiorticipate
in the oup application. EPA doe. not
agree. The benefit of applying as a group
applicant is to take advantage of
reduced representative quantitative data
requirement.. This incentive will exist
regardless of whether or how model
permits are used. Furtber, technology
transfer can occur during the
development of permits based on
individual applications as well as those
based on group applications.
One commenler suggested moving
sante of the facility specific information
requirements of part 1 of the group
application to part 2 of the group
application in order to provide more
incentive to apply as a group. EPA has
considered this and believes such a
change would be inappropriate. Part I
information will be used to make an
informed decision about whether
individual facilities are appropriate as
group members and appropriate for
submitting representative quantitative
data. Furthermore, information burdens
from providing site specific factors in
part I is relatively minimal, and the
information requirements in the
proposed part lB application have been
eliminated.
One commenter suggested that trade
associations develop model permits
since they have the most knowledge
about the characteristics of the
industries they represent. As noted
above, EPA expects that the industries
and trade associations will have input.
through the permit application process.
as to how permit conditions for storm
water discharges are developed While
the applicant can submit proposed
permit conditions with any type of
application. EPA however cannot
delegate the drafting of model permits to
the perinittees. EPA is developing and
publishing guidance in conjunction with
this rulemaking for developing permit
conditions.
One commenter suggested that new
dischargers should be able to take
advantage of general permits developed
pursuant to group applications. As with
other general permits. EPA anticipates
that such discharges will be able to fall
within the scope of a general permit
based on a group application where
appropriate.
One commenier stated thai the group
application does not benefit
municipalities since there is no
requirement for industrial discharges
through municipal sewers to apply for a
permit. As noted in a previous
discussion, industrial discharges through
municipal sewers must be covered by an
rJPDES permit. Such facilities nsy avail
themselves of the group application
procedure. Also, municipalities are not
precluded from d J . ., .ng a group
application procedure under their
management plan for industries that
discharge into their municipal system, in
order to streamline developing controls
for such industries.
One industry wanted clarification that
facilities located within a municipality
wouLd be eligible to participate in a
group application. All industrial
activities required to submit an
individual permit are entitled to submit
as part of group application, except
those with existing NPDES permits
covering storm water. Those Facilities
that discharge through a municipal
separate storm sewer systems required
to submit an individual application
(because they do not fall within a
general permit) are not precluded from
using the group application procedure if
appropriate.
Other municipalities expressed
confusion over the industrial group
application concept. The following
responds to these comments. First.
municipalities are not eligible for
participation in a group application
because the group application process •s
des:gned for industrial activities.
Sampling requirements for municipal
permit applications are already limited
to a small subset of the outfalls from the
system, as discussed below.
Furthermore, permits for municipal
separate storm sewer systems will be
issued on a system.wtde or jurisdiction-
wide basis, rather than individually for
each ot tralL Thus, today’s regulation
already incorporates a “groiiplike’
permit application process for
municipalities. Furthermore. it is highly
unlikely that various municipal storm
sewer systems would be “substantial!y
similar” enough to justify Rroup
treatment in the same way .iS indijitrial
facilities. In response to another
comment, this regulation does not
directly give the municipality
enforcement power over members of an
industrial group who may be discharging
through its system. Only the permitting
authority and private citizen; and
organizations (including the
municipality acting in such a capacityl
will have enforcrment puwer over
members of the group once permits are
issued to those members
One commenier believed that the
Stales with author.zed NPDES program’
rather than EPA should establish permit
terms for permits based on group
applications. In response to this
comment. EPA wishes to clarify its role
in the group application process. Group
applications will be submitted to EPA
headquarters where they will be
reviewed and summarized. The
-------
4& 4 Federal Register I Vol. 55, No. 222 / Friday, November 10, 1090 I Rules and Regulations
summaries of the group application will
be distributed to authorized NPDES
States. EPA wishes to emphasize that
NPDES States are not bound by draft
model permits developed by EPA. States
may adopt model permit, for use in their
particular area, making adjustments for
local water quality standards and other
regional characteristics. Where general
permit coverage is believed to be
inappropriate, facilities may be required
to apply for individual permits. One
commenter objected to the group
application procedure because it is not
consistent with existing Federal
permitting procedures, which will lead
to confusion in the regulated community.
The agency disagrees with this
assessment. The group application is a
departure from established NPDES
program procedures. However, the
comments, when viewed in their
entirety. reflect widespread support
from the regulated community for a
group application procedure. Further.
the comments reflect that those affected
by this rulemaking understand the
components of the group application and
the procedures under which permits will
be obtained pursuant to the group
application.
One commenter expressed concern
regarding how BAT limits for groups of
similar industries will be developed.
Technology based limits will be
developed based on the informalion
received from the group applicants. If
the group applicants possess similar
characteristics in terms of their
discharge. BAT/BCT limitations and
controls will be developed accordingly
for those members of the group. If the
discharge charactenstics are not similar
then applying industries are not
appropriate fi r the group.
One commenter has suggested that
t e proposed group application is too
complex with regard to the part IA. part
lB. and part 2 group application
requirements and that EPA should
repropose these provisions. As
discussed ! elow. EPA has simplified the
industrial group application
requirements by eliminating the part lB
application. Thus. reproposal is
unnecessary.
One commenter criticized the group
application concept as not achieving
any type of reduction in a ministrative
burden for NPDES States. EPA disagrees
with this assessment. If industries take
advantage of the group application
procedure. EPA will have an opportunity
to review information describing a large
number of discharger. in an organized
manner. EPA will perform much of the
initial review and analysis of the group
application, and provide NPDES States
with summaries of the applications
thereby reducing the burden on the
States. Furthermore, the procedure
encourages a potentially large number of
facilities to be covered by a general
permit. which will clearly reduce the
administrative burden of Issuing
individual permits.
The final rule establishes a regulatory
procedure whereby a representative
entity, such as a trade association. may
submit a group application to the Office
of Water Enforcement and Permits
(OWEP) at EPA headquarters. in which
quantitative data from certain
representative members of a group of
Industrial facilities is supplied.
Information received in the group
application will be used by EPA
headquarters to develop models for
individual permits or general permits.
These model permits are not issued
permits, but rather they will be used by
EPA Regions and the NPDES States to
issue individual or general permits for
participating facilities in the State. In
developing such permits, the Region or
NPDES State will, where necessary,
adapt the model permits to take into
account the hydrological conditions and
receiving water quality in their area.
One commenter expressed the view that
having this procedure managed by EPA
headquarters would cause delays and it
should be delegated to the States and
Regions. EPA disagrees that delay will
ensue using this procedure. Furthermore.
consistency in development of model
and general permits can be achieved if
application review is coordinated at
EPA headquarters.
a. Facililies Covered. Under this rule
the group application is submitted for
only the facilities specifically listed in
the application and not necessanly for
an entire industry. The facilities in the
group application selected to do
sampling must be represent.,iti e of the
group. not necessarily of the industry.
Facilities that are sufficiently similar
to those covered in a general permit
(issued pursuant to a group application)
that commence discharging after the
general permit has been issued. must
refer to the provisions of that general
permit to determine if they are eligible
for coverage. Facilities that have
already been issued an individual
permit for storm water discharges will
not be eligible for participation in a
group application. Several commenters
believed that this restriction is
inequitable since they have experienced
the administrative burden of submitting
a permit application. EPA disagrees.
Industries that have already obtained a
permit for storm water discharges have
developed a storm water management
program. engaged In the collection of
quantitative data, and possess
familiarity and experience with
submitting storm water permit
applications. The Agency sees no point
to instituting an entirely new permit
application process for facilities that
have storm water permits issued
individually. It makes little sense for
these industries to be involved with
submitting another permit application
before their current permit expires.
As noted above, once a general permit
has been issued to a group of
discharger., a new facility may request
that they be covered by the general
permit. The permitting authonty can
then examine the request in light of the
general permit applicability
requirements and determine whether the
facility is suitable or not.
b. Scope of ‘Group Applicolions.
Numerous comments were received on
how facilities should be evaluated as
members of a group application. Several
commenters stated that effluent
limitation guideline subcategories are
riot relevant to pollutants found in storm
water, but rather to the Facility.
everyday activities, and therefore
similarity should be based on each
facility’s discharge or the similarity of
pollutants expected to be found in a
facility’s discharge. Other commenters
felt that similarity of operations at
facilities should be the criteria. Others.
believed that an examination of the
fdcility’s impact on storm water quality
should be the applied criteria. Other
commenters suggested that EPA provide
more guidance as to how broadly groups
can be defined arid that a failure to do so
would discourage facilities from going to
the trouble and expense of entering into
the group application process. Some
commenters were concerned that
facilities would be repected as a group
because of variations in processes and
process wastewater characteristics.
EPA does not agree that effluent
limitation guideline subcategories are
inappropriate as a method for
determining group applications. EPA
guideline subcategones are functidnal
classifications, breaking down facilities
into groups. for purposes of setting
effluent limitations guidelines. The use
of EPA subcategories will save time For
both applicants and permitting
authorities in determining whether a
particular group us appropriate for a
group application. Furthermore. EPA
believes that this method of grouping
provides adequate guidance for
determining what facilities are grouped
together. Establishing groups on the
extent to which a facility’s discharge
-------
Federal Register / VoL 55, No. 222/Friday. November lB. 1990 I Rules and Regulations
with affected group. as was done In the
2905 storm water proposal. Other
commenters ,oInted out that an
anomalous situation could arise where
the group was small and facilities were
scattered throughout the precipitation
zones. For example, If a group consisted
of 20 members where a minimum of ten
facilities had to submit samples, and
two or more members were In each
precipitation zone a total of 18 facilities
(90% of the group) would have to submit
quantitative data. EPA believes that
there must be a sufficient number of
facilities submitting data for any
patterns and trends to be detectable.
However, In light of these comments
EPA has decided to modify the language
In § 122.28(c) to allow I discharger in
each precipitation zone to submit
quantitative data where 10 or fewer of
the group members are located in a
particular precipitation zone. EPA
believes, however, that one hundred
facilities would in most cases be
sufficient to characterize the nature of
the runoff and thus 100 should remain
the maximum. If the data are
Insufficient. EPA has the authority to
request more sampling under section 308
of the CWA.
One commenter suggested that the ten
facility cutoff was unreasonable, and
that instead of cutting off the group at
ten, allow a smaller number in the group
and allow the facilities to sample ten
percent of their outfall. instead. EPA
agrees. in part, and will allow groups of
between four and ten to submit a group
application. However, the ten percent
rule would not be effective in such
cases. Therefore, at least half the
facilities in a group of four to ten will be
required to provide quantitative data
from at least one outfall, with each
precipitation zone represented by at
least one facility.
For any group application, in addition
to selecting a sufficient number of
facilities from each precipitation zone,
facilities selected to do the sampling
should be representative of the group as
a whole in terms of those character*sticr
Identifying the group which were
described in the narrative, i.e.. number
and range of facilities, types of
processes used, and any other relevant
factors. If there is some vanation in the
processes used by the group (40 percen’
of the group of food processors are
canners and 60 percent are canners and
freezers, for example), the different
processes are to be represented. Also.
samples are to be provided from
tacilities utilizing the materials
management practices identified.
including those facilities which use no
materials management practices. The
representation of these different factors.
to the extent feasible, Is to be roughly
equivalent to their proportion In the
group.
EPA wishes to emphasize that the
provision that ten percent of the
facilities need to submit quantitative
data only applies to the permit
application process. The general or
Individual permit itself may require
quantitative data from each facility.
Submittal of Part 2 of the Group
Application. As with part 1. part 2 of the
Group Application would be submitted
to the Office of Water Enforcement and
Permits, in Washington. DC. If the
information Is incomplete, or simply is
found to be an inadequate basis for
estsbliahing model permit limits. EPA
has the authority under section 308 of
the Clean Water Act to require that
more information be submitted, which
may include sampling from facilities that
were part of the group application but
did not provide data with the initial
submission. If the group application is
used by a Region or NPDES State to
issue a general permit. the general
permit should specify procedures for
additional coverage under the permit.
If a part 2 is unacceptable or
insufficient. EPA has the option to
request additional information or to
require that the facilities that
participated in the group application
submit complete individual applications
(e.g. facilities that have submitted Form
I with the group application may be
required to submit Form 2F. or facilities
which have submittea complete Form I
and Form 2F information in the group
application generally would not have to
submit additional information).
Once the group applications are
reviewed and accepted. EPA will use
the information to establish draft peimit
terms and conditions for models lot
individual and general permits. NPDES
approved States and EPA regional
offices will continue to be the permit.
Issuing authority for storm water
discharges. The NPDES approved States
accepting the group application
approach and the EPA Regions may then
take the model permits and adapt them
for their particular area, making
adjustments for local water quality
standards and other localized
characteristics, and making
determinations as to the need for an
individual storm water permit where
general permit coverage is felt to be
inappropnate. Permits would be
proposed by the Region or NPDES
approved State in accordance with
current regulations for publi: comment
before becoming final In NPDES States
w’thout general permit authority. or
where an individual permIt Is deemed
appropriate, the model permit can serve
as the basis for issuing an Individual
permit.
The group application Is an NPDES
permit application just like any other
and. as such, would be handled through
normal permitting procedures. subject to
the regulatory provisions applicable to
permit issuance. Incomplete or
otherwise inadequate submissions
would be handled in the same manner
as any other inadequate permit
application. The permit issuing authority
would retain the right to require
submission of Form 1. Form 2C and
Form ZF from any individual discharger
it designates.
Some comm nters offered other
procedures for developing a group
application procedure: however, these
were frequently entirely different
approaches or so novel that a
reproposal would be required. One
commenter suggested that those
industries that are identified as being
likely to pollute should be required to
submit quantitative data. Numerous
comnier.ters contended that a generic
approach for meeting the required
information requirements for group
applications would allow EPA to
develop adequate general permits. EPA
does not view these approaches as
appropriate.
5. Group Application: Applicability in
NPDES States
Many commeriters expressed concern
about how the group application
procedure will work within the
framework of an NPDES approved State.
The relationship between EPA and the
States that are authorized to administer
the NPDES program. including
implementation of the storm water
program. is a complicated aspect of this
rulemaking. Approved States (t’lere are
38 States and one territory so approved)
must have requirements that are at least
as stringent as the Federal program: they
may be more stringent if they choose.
Authonty to issue general permits is
optional with NPDES States.
EPA has determined that ten percent
of the facilities must provide
quantitative data in the permit
application as noted above.
Furthermore, these applications are
submitted 10 EPA headquarters.
Consequently Slates, whether NPDES
approved or not, are not in a position to
relect or modify this requirement. Such
States may determine the amount of
sampling to be done pursuant to permit
conditions If they choos2 to issue
general permits they may include such
authority in their NPDES program and.
-------
S FederaiRagister I Vol. 55, No. 222 / Friday, November 1, lgOQ I Rules and Regulations
upon approval of the program by EPA.
may then issue general permits. Within
the context of the NPDES provisions of
the CWA. If States do not have general
permitting authority, then general
permits are not available in those
States.
En response to one comment. EPA
does not have authority to issue general
or individual permits to facilities in
NPDES approved states. Today’s rule
provides a means for affected industries
to be covered by general permits
developed via the group application
procedure as well as from general
permits developed independently of the
group application process. Accordingly.
today’s rule anticipates that most
NPDES States will seek general permit
issuance authority to implement the
storm water program in the most
efficient and economical way. Without
general permit issuance authority
NPDES States will be required to issue
individual permits covering storm water
discharges to potentially thousands of
industrial facilities.
One commenter recommended that
States with approved NPDES programs
should be involved in determining what
industries are representative for
submitting quantitative data. EPA
recognizes that States will have an
interest in this determination and may
possess insight as to the
appropriateness of using some facilities.
However. EPA may be managing
hundreds of group applications and
approving or disapproving them as
expeditiously as possible. EPA believes
that involving the States in this already
administratively complex and time
consuming undertaking would be
counterproductive. In any event, NPDES
approved States are not bound by the
determinations of EPA as to the
appropriateness of groups or the
issuance of permits based on model
permits or individual permits. However,
States will be encouraged to use model
permits that are developed by EPA. EPA
will endeavor to design general and
model permits that are effective while
also adaptable to the concerns of
different States. Again. States are able
to develop more stringent standards
ijhere they deem It to be appropriate.
There are currently seventeen States
that have authority to issue general
permits: Arkansas, Colorado. Illinois.
Kentucky, Minnesota. Missouri.
Montana. New Jersey, North Dakota.
Oregon. Rhode Island. Utah.
Washington, West Virginia and
Wisconsin. As suggested in the
comments. EPA is encouraging more
Sistes to develop general permit issuin.
authority in order to facilitate the
permitting process.
One commenter advised that the rules
should state that a NPDES approved
State may accept a group application or
require additional Information. EPA haa
decided not to explicitly state this in the
rule. However, this comment does raise
some points that need to be addressed.
Because the group application option is
a modification of existing NPDES permit
application requirements, the State Is
free to adopt this option. but is not
required to. If the State chooses to adopt
the group application and It does not
have general permit authority, the group
application can be used to issue
individual permits. If an approved
NPDES State chooses to not issue
permits based on the group application.
facilities that discharge storm water
associated with industrial activity that
are located In that State must submit
individual applications to the State
permitting authority. Before submitting a
group application, facilities should
ascertain from the State permitting
authority whether that State intends to
issue permits based upon a group
application approved by EPA for the
purpose of developing general permits.
For facilities that discharge storm water
i*ssociated with Industrial activity which
are named in a group application, the
Director may require an individual
facility to submit an Individual
application where he or she determines
that general permit coverage would be
inappropriate for the particular facility.
One commenter stressed that EPA
should streamline the procedure for
States desiring to obtain general permit
coverage. EPA has, over the last year,
streamlined this procedure and
encourages States to take advantage of
this procedure. EPA recommends that
States consider obtaining general permit
authority as a means to efficiently issue
permits for storm water discharges.
These States should contact the Office
of Water Enforcement and Permits at
EPA Headquarters as soon as possible.
6. Group Application: Procedural
Concerns
One commenter claimed tnat the
proposed group application process and
procedures violated federal law. This
commenter claimed that EPA was
abrogating its responsibility by allowing
a trade association to design a data
collection plan in lieu of completing an
NPDES application form designed by
EPA. thus violating the Federal
Advisory Committee Act. The
coinmenter stated that EPA would be
improperly influenced by special
interests if trade associations were able
to desigi their own storm water data
gathering plans. The cmuimenter further
asserted that any decisions by EPA on
the content of specific group
applications would be nilemaklngs and
thus subject to the provisions of the
Administrative Procedure Act.
EPA disagrees with the comment that
the group application violates the
Federal Advisory Committee Act
(FACA). FACA governs only those
groups that are established or “utilized”
by an agency for the purpose of
obtaining “advice” or
“recommendations.” The group
application option does not solicit or
involve any “advice’ or
“recommendations.” it simply allows
submission of data by certain members
of a group in accordance with specific
regulatory criteria for determining which
facilities are “representative” of a group.
As such, the group application is merely
a submission in accordance and in
compliance with specific regulatory
requirements and does not contain
discretionary uncircumacribed “advice”
or “recommendations” as to which
facilities are representative of a group.
Thus, the determination of which
facilities should submit testing data in
accordance with regulatory criteria is
little different from many other
regulatory requirements where an
applicant must submit information in
accordance with certain criteria. For
example, under 40 CFR 122.21 all
outfalls must be tested except where
two or more have “substantially
identical” effluents, Similarly,
quantitative data for certain pollutants
are to be provided where the applicant
knows or “has reason to believe” such
pollutants are discharged. Both of these
provisions allow the applicant to
exercise discretion in making certain
judgments but such action is
circumscribed by regulatory standards.
EPA further has authority to require
these facilities to submit individual
applications. In’ none of these instancec
are “recommendations” or “advice”
Involved, EPA also notes that it is
questionable whether, in providing for
group applications, it is “soliciting”
advice or recommendations from groups
or that such groups are being “utilized”
by EPA as a “preferred source” of
advice, See 48 FR 19324 (April 28. 1983).
Furthermore, this data collection effort
may be supplemented by EPA if. after
review of the data. EPA determines
additional data is necessary for permit
issuance. Other information gathering
may act as a check on the group
applications received.
EPA also does not agree with thib
commenter’s claim that the group
application scheme represents an
-------
Federal Register I VoL 55 No. 222 I Friday. November 16 1990 / Rules and Regulations 4l 9
Inip mtsi1ble delegatlou,qfiht
Mi th htrator’s function in violation of
the CWA regarding data gathering. The
#hnIiI.tt ’ito, has the broadest
discretion In determining what
Information Is needed for permit
developments. well as the manner In
which such information will be
collected. The CWA does not require
eveiy discharger required to obtain a
permit to file an application. Nor does
the CWA require that the Administrator
obtain data on which a permit Is to be
based through a formal application
process (see 40 CFR I 2121) . For year.
‘applicatlons” have not been required
from discharger. covered by general
permits. EPA currently obtains much
Information beyond that provided In
applications pursuant to section 308 of
the CWA. This Is especially true with
respect to general permit and effluent
limitations guidelines development. The
group application option Is simply
another means of data gathering. The
Administrator may always collect more
data should he determine It necessary
upon review of a groups’ data
submission. And. he may obtain such
additional data by whatever means
permissible under the Statute that he
deems appropriate. Thus, it can hardly
be said that by this Initial data gathering
effort the Administrator has delegated
his data gathering responsIbIlities. In
addition, since groups are required to
select “representative’ facilities, etc.. In
accordance with specific regulatory
requirements established by the
Administrator and because EPA will
scrutinize part I of the group
applications and either accept or reject
the group as appropriate for a group
application, no impermissible delegation
has occurred. EPA will make an
Independent determinatiod of the
acceptability of a group application in
view of the information required to be
submitted by the group applicant, other
information available to EPA (such as
Information on industrial subcategories
obtained in developing effluent
limitations guidelines as well as
Individual storm water applications
received as a result of today’s rule) and
any further information EPA may
request to supplement part I pursuant to
section 308 of the CWA. Moreover, any
concerns that a gcneral permit may be
based upon biased data can be dealt
with in the public permit issuance
process.
Finally, EPA also does not agree that
the group application option violates the
Administrative Procedures Act. Again,
the group application scheme is simply.
data gathering device. EPA could very
well have determined to gather data
Infeimally via specific requests pursuant
to section 308 of the CWA. In fact,
general permit and effluent limitations
guideline development proceed along
these lines. It would make little sense If
the latter Informal data gathering
process were somehow illegal simply
because It 1. set forth In a rule that
allows applicants some relief upon
certain showings. In this respect, several
of EPA’s existing regulations similarly
allow an applicant to be relieved from
certain data submission requirements
upon appropriate demonstrations. For
example, testing for certain pollutants
and or certain outfalls may be waived
under certain circumstances. Most
Important ly. the operative action of
concern that Impacts on the public Is
Individual or general permit issuance
based upon data obtained. As
previously stated, ample opportunity for
public participation is provided in the
permit Issuance proceeding.
7. PermIt Applicability and Applications
for Oil and Gas and Mining Operations
Oil, gas and mining facilities are
among those industrial sites that are
likely to discharge storm water runoff
that is contaminated by process wastes,
toxic pollutants, hazardous substances.
or oil and grease. Such contamination
can include disturbed soils and process
wastes containing heavy metals or
suspended or dissolved solids, salts.
suifactants, or solvents used or
produced In oil and gas operations.
Because they have the potential for
serious water quality impacts. Congress
recognized, throughout the development
of the storm water provisions of the
Water Quality Act of 1987. the need to
control storm water discharges from oil,
gas, and mining operations, as well as
those associated with other industrial
activities.
However. Congress also recognized
that there are numerous situations in the
mining and oil and gas Industries where
storm water Is channeled around plants
and operations through a series of
ditches and other structural devices In
order to prevent pollution of the storm
water by harmful contaminants. From
the standpoint of resource drain on both
EPA as the permitting agency and
potential permit applicants, the
conclusion was that operators that use
good management practices and make
expenditures to prevent contamination
must not be burdened with the
requirement to obtain a permit. Hence,
section 402(1)(2) creates a statutory
exemption from storm water permitting
requirements for uncontaminated runoff
from these facilities.
To implement section 402(1 )(2). EPA
intends to require permits for
con’ ffii” ted storm water discharges
from oIL gas and mining operations.
Storm water discharges that are not
cons minAted by contact with any
overburden, raw materiaL intermediate
products. finished product. byproduct or
waste products located on the site of
such operations will not be required to
obtain a storm water discharge permit.
The regulated discharge associated
with Industrial activity is the discharge
from any conveyance used for collectin?
and conveying storm water located at
an industrial plant or directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. Industrial plants include facilities
dassified as Standard Industrial
Classifications (SIC) 10 through 14 (the
mining industry), including oil and gas
exploration, production. processing. and
treatment operations, as well as
transmission facilities. See 40 CFR
12220(b)(14)(iii). This also includes
plant areas that are no longer used for
such activities, as well as areas that are
currently being used for Industrial
processes.
a. Oil and Gas Operations. In
determining whether storm water
discharges from oil and gas facilities are
“contaminated”, the legislative history
reflects that the EPA should consider
whether oil. grease, or hazardous
materials are present in storm watar
runoff from the sites described above in
exce s of reportable quantities (RQsJ
under section 311 of the Clean Water
Act or section 102 of the Comprehensive
Environmental Response.
Compensation. and Liability Act of 1980
(CERCLA). (Vol. 132 Cong. Rec. H10574
(daily ed. October IS, 1988) Conference
Report).
Many of the comments received by
EPA regarding this exemption focused
on the concern that EPA’s test for
requiring a permit is and would subject
an unnecessarily large number of oil and
gas facilities to permit application
requirements. Specific comments made
In support of this concern are addressed
below.
A primary issue raised by commenters
centered on how to determine when a
storm water discharge from an oil or gas
facilIty Is “contaminated”, and therefore
subject to the permitting program under
section 402 of the CWA. Many of the
comments received from industry
representatives objected to the Agency’s
intent as expressed in the proposal to
use past discharges as a trigger for
submitting permit applications.
The proposed rule provided that the
notification requirements for releases in
excess of RQs established under the
CWA and CERCL,A would serve as a
-------
48030 FederaL Register I VoL 55, No. 222 / Friday, November 10, 1990 / Rules and Regulations
basis for triggering the submittal of
permit applications for storm water
discharges from oil and gas facilities. As
described In the proposal, oil and gas
operations that have been required to
notify authorities of the release of either
oil or a hazardous substance via a storm
water route would be required to submit
a permit application. In other words, any
facility required to provide notification
of the release of an RQ of oil or a
hazardous substance in storm water in
the pest would be required to apply for a
storm water permit under the current
rule. In addition, any facility required to
• provide notification regarding a release
occurring from the effective date âf
today’s rule forward would be required
toapply for a storm water permit.
Commentera maintained that the use
of historical discharges to require permit
applications is inconsistent with the
language and intent of section 402(1)(2)
of the CWA. and relevant legislative
history, both of which focus on present
contamination. Requiring storm water
permits based solely on the occurrence
of past contaminated discharges. even
where no present contamination is
evident, would go beyond the statutory
requirement that EPA not issue a permit
absent a finding present contamination.
Commenters also noted that the
proposal did not take into account the
fact that past problems leading to such
releases may have been corrected, and
that requiring an NPDES permit may no
longer be necessary. The result of such a
requirement. commenters maintained.
would be an excessive number of
unnecessary permit applications being
submitted, at significant cost and
minimal benefit to both regulated
facililiesjnd regulating authorities.
Commenters also indicated that using
the release of reportable quantities of
oil, grease or hazardous substances as a
permit trigger would identify discharges
of an isolated nature, rather than the
continuous discharges. which should be
the focus of the NPDES permit program
under section 402. Such an approach.
commenters maintained, is inconsistent
with existing regulations under section
311 of the CWA. and would result in
permit applications from facilities that
are more appropriately regulated under
section 311.
Despite these criticisms, many
commenters recognized that the Agency
is left with the task of determining when
discharges from oil and gas facilities are
contaminated, in order to regulate them
under section 402111(2). It was suggested
by numerous coinmenters that the EPA
adopt an approach similar to that used
under section 311 of the-CWA for Spill
Prevention Control and Countermeasure
(SPCC) Plans. Under SPCC, facilities
that are likely to discharge oil into
waters of the United States are required
to maintain a SPCC plan, in the event
the facility has a spill of 1,000 gallons or
2 or more reportable quantities of oil in
a12 month period, the facility is
required to submiLits SPCC plan to the
Agency. The triggering events proposed
by the commentera for storm water
permits for oil and gas operations are
six reportable sheens or discharges of
hazardous substances (other than oil) in
excess of section 311 or sectIon 102
reportable quantities via a storm water
point source route over any thirty-six
month period. It was suggested that if
this threshold is reached, an operator
would then file a permit application (or
join a group application) based upon the
presumption that its current storm water
discharges are contaminated.
In response to these comments. the
Agency believes that past releases that
are reportable quantities can be a valid
Indicator of the potential for present
contamination of discharges. The
legislative history as cited above
supports this conclusion. EPA would
note that the existence of a RQ release
would serve only as a triggering
mechanism for a permit application.
Under the proposed rule, evidence of
past contamination would merely
require submission of a permit
application and would not be used as
conclusive evidence of current
contamination. The determination as to
whether a permit would be actually
required due to current contaminated
discharge would be made by the
permitting authority after reviewing the
permit application. The fact of a past RQ
release does not necessarily Imply a
conclusive finding of contamination,
only that sufficient potential for
contamination exists to warrant a
permit application or the collection of
other further information. Today’s rule
does not change the proposed approach
in this respect. Thus. EPA does not
believe that today’s rule exceeds the
authority of section 402(11(2).
EPA believes that there is no legal
impediment to using past RQ discharges
as a trigger for requiring a storm water
permit application. EPA notes that, as
mentioned above, even those
commenters who objected to the
proposed test on legal authority grounds
merely offered an alternate test that
requires more releases to have occurred
within a shorter period of time before a
permit application is required.
Therefore, the only disagreement that
remains is over what constitutes a
reasonable test that will identify
facilities with the potential for storm
neither the statute north. legislative
history provides any guidance on this
question. Furthermore. EPA disagrees
with the commenters who suggeeted that
S releases in the past 3 years or 2
releases in the pest year are necessarily
more valid measures of the potential for
current contamination than EPA’s
proposed test. There is no statistical or
other basis for preferring one test to the
other. However, EPA does agree with
those commeaters that suggest that a
single release in the distant past may
not accurately reflect current conditions
and the current potential for
contamination.
EPA has therefore amended today’s
rule to provide that only oil and gas
facilities which have had a release of an
RQ of oil or hazardous substances in
storm water in the past three years will
be required to submit a permit
application. EPA believes that limiting
the permit trigger to events of the past
three years will address commenters’
concerns regarding the use of “stale
history” in determining whether an
application is required. EPA notes that
the three year cutoff is consistent with
the requirement for industrial facilities
to report significant leaks or spills at the
facility in their storm water permit
applications. See 40 R
122.26(c)(1](i)(D).
Commenters asserted that EPA and
the States must have some reasonable
basis for concluding that a storm water
discharge is contaminated before
requiring permit applications or permits.
Commenters believed that
* 122.28(c)(lfliiiflB) as proposed implied
that the Agency’s authority in this
respect is unrestricted. In response, EPA
may collect such data by whatever
appropriatemèans the statute allows, in
order to obtain information that a permit
is required. Usually, the most practical
tool for doing so is the permit
application itself. However. if necessary
to supplement the information made
available to the Agency. EPA has broad
authority to obtain information
necessary to determine whether or not a
permit is required, under section 308 of
the Clean Water Act. Given the plain
language of the CWA and the
Congressional intent as manifested in
the legislative history, the Agency is
convinced that the approach desaibeo
above is appropriate. Yet, as further
discussed below. EPA has also deleted
as redundant * 1Z2..25(dlllflhii)(B).
Regarding the types of facilities
included in the storm water regulation, a
number of commenters suggested that
the Agency has misconstrued the
meaning of facilities “associated with
-------
Federal Register / Vol 55 No. 222/ Friday. November 16. 1990 / Riales and Regulations 49031
Industrial activity”, and has proposed an
overly broad definition of such facilities
in the oil and gas Industry. Specifically.
cornmenters suggested that only the
manufacturing sector of the oil and gas
Industry should be subject to storm
water permit application requirements.
and that exploration and production
activities, gas stations, terminals, and
bulk plants should all be exempted from
storm water permitting requirements.
Commenters maintain that this broad
Interpretation would subject many oil
and gas facilities to the storm water
permit requirements, when these were
not Intended by Congress to be so
regulated. As a second point related to
this issue, some comntenters felt that
transmission facilities were not Intended
to be regulated under the storm water
provisions, and should be exempted
from permit requirements. This would be
consistent, it was argued, with
legislative history which concluded that
transmission facilities do not
significantly contribute to the
contamination of water.
The Agency disagrees that these
facilities do not fall under the storm
water permitting requirements as
envisioned by Congress. SIC 13. which
is relied upon by EPA to identify these
oil and gas operations, describes oil and
gas extraction industries as Including
facilities related to crude oil and natural
gas. natural gas liquids, drilling oil and
gas wells, oil and gas exploration and
field services. Moreover, legislative
history as it applies to industrial
activities, and thus to oil and gas
(mining) operations, expressly includes
exploration, production, processing.
transmission, and treatment operations
within the purview of storm water
permitting requirements and
exemptions. EPA’s intent is for storm
water permit requirements (and the
exemption at hand) to apply to the
activities listed above (exploration,
production, processing, treatment, and
transmission) as they relate to the
categories listed in SIC 13.
Commenters requested clarification
from the Agency that storm water
discharges from oil and gas facilities
require a permit or the filing of a permit
application only when they are
contaminated at the point of discharge
into waters of the United Stales.
Commenters noted that large amounts of
potentially contaminated siormwater
may not enter waters of the United
States, or may enter at a point once the
discharge Is no longer “contaminated”.
In these cases, it should be clear that no
permit or permit application is required.
EPA agrees that oil and gas
exploration, production, processing, or
treatment operations or transmission
facilities must only obtain a storm waler
pennlt’when a discharge to waters of
the US ’ (Including those discharges
through municipal separate storm
sewers) Is nfiui .l . . ted . A permit
application will be required when any
discharge in the past’three years or
henceforth meets the test discussed
above.
Under the proposed rule, the Agency
stated at 122.20(dlll)(iii)(8) that the
Director may require on a case.by.case
basis the operator of an existing or new
storm water discharge from an oil or gas
exploration. production. processing, or
treatment operation, or transmission
facility to submit an individual permit
application. The Agency has removed
this section since CWA section 402(11(2).
as codified in 122iE(c)(1)(jjj)(A).
adequately addresses every situation
where a permit should be required for
these facilities.
b. Use of Reportable Quantities to
Determine if a Storm Water Discharge
from on Oil or Gas Operotion is
Contaminated. Section 311(b)(5) of the
CWA requires reporting of certain
discharges of oil or a hazardous
substance Into waters of the United
Slates (see 44 FR 50700 (August .
1979)). Section 301(b)(4) of the Act
requires that notification levels for oil
and hazardous substances be set at
quantities which may be harmful to the
public health or welfare of the United
States, including but not limited to fish,
shellfish, wildlife, and public or private
property, shorelines and beaches.
Facilities which discharge oil or a
hazardous substance in quantities equal
to or in excess of an RQ, with certain
exceptions, are required to notify the
National Response Center (NRC).
Section 202 of CERCLA extended the
reporting requirement for releases equal
to or exceeding an RQ of a hazardous
substance by adding chemicals to the
list of hazardous substances, and by
extending the reporting requirement
(with certain exceptions) to any releases
to the environment, not just those to
waters of the United Slates.
Pursuant to section 311 of the CWA.
EPA determined reportabLe quantities
for discharges by correlating aquatic
animal toxicity ranges with S reporting
quantities. i.e.. 1-, 10’. 100’, 1000.. and
5000. pounds per zs hour period levels.
Reportable quantity adjustments made
under CERCLA rely on a different
methodology. The strategy for adjusting
reportable quantities begins with an
evaluation of the intrinsic physical,
chemical, and toxicological properties of
each designated hazardous snbst ””ce-
The intrinsic properties examined.
called “primary uritaris.” are aquatic
toxicity, mammalian tmocity (oral,
dermal. and Inhalation). igmtability.
reactivity, and chronic toxicity. In
addition, substances that were
Identified as potential carcinogens have
been evaluated for their relative activity
as potential carcinogens. Each intrinsic
property La ranked on a five-tier scale.
associating a specific range of vahies on
each scale with a particular reportable
quantity value. Alter the primary criteria
reportable quantities are assigned. the
hazardous substances are further
evaluated for their susceptibility to
certain extrinsic degradation processes
(secondary criteria). Secondary criteria
consider whether a substance degrades
relatively rapidly to a less harmful
compound, and can be used to raise the
primary criteria reportable quantity one
leveL
Also pursuant to section 311, EPA has
developed a reportable quantity for oil
and associated reporting requirements
at 40 CFR part 110. These requirements.
known as the oil sheen regulation.
define the RQ for oil to be the amount of
oil that violates applicable water quality
standards or causes a Film or sheen
upon or discoloration of the surface of
the water or adjoining shorelines or
causes a sludge or emulsion to be
deposited.
Reportable quantities developed
under the CWA and CERCLA were not
developed as effluent guideline
limitations which establish allowable
limits for pollutant discharges to surface
waters. Rather, a major purpose of the
notification requirements is to alert
government officials to releases of
hazardous substances that may require
rapid response to protect public health.
welfare, and the environment.
Notification based on reportable
quantities serves as a trigger for
informing the government of a release so
that the need for response can be
evaluated and any necessary response
undertaken in a timely fashion. The
reportable quantities do not themselves
represent any determination that
releases of a particular quantity are
actually harmful to public health.
welfare, or the environment.
EPA requested comment on the use of
RQs for determining contamination in
discharges from oil and gas facilities. As
noted above numerous comnienters
supported the concept of using
reportable quantitIes under certain
circumstances. Comments on the
measurement of oil sheen for the
purpose of triggering a permit
application were divided. Some
commented that It is much too stringent
because the amount of oil creating a
-------
48032 Federal Register /Vol. 55, No.222 I Friday . November 18,1990 I Rules and Regulations
sheen may be a relatively small amount.
Others viewed the test as a quick. easy.
practical method that has been effective
in the past.
in relying on the reporting
requirements associated with releases in
excess of RQs for oil or hazardous
substances to trigger the submittal of
permit applications for oil and gas
operations, the Agency believes that the
use of the reporting requirements for oil
will be particularly useful. The Agency
believes that the release of oil to a storm
water discharge In amounts that cause
an oil sheen is a good indicator of the
potential for water quality impacts from
storm water releases from oil and gas
operations. In addition, given the
extremely high number of such
operations (the Agency estimates that
there are over 750.000 oil wells alone In
the United Slates), relying on the oil
sheen test to determine if storm water
discharges from such sites are
“contaminated” will be a far easier test
for operators to determine whether to
file a storm water permit application
than a test based on sampling. The
detection of a sheen does not require
sophisticated instrumentation since a
sheen is easily perceived by visual
observation. EPA agrees with those
comments calling the oil sheen test an
appropriate measure for triggering a
storm water permit application. In
adopting this approach. EPA recognizes.
as pointed Out by many comnienters that
an oil sheen can be created with a
relatively small amount of oil.
One commenter suggested that
contamination must be caused by
contact with on-site material before
being subject to permit application
requirements. The Agency agrees with
this comment. Those facilities that have
had releases in excess of reportable
quantities will generally have
;ontamination from contact with on.site
material as described in the CWA. Thus.
ise of the RQ test Is an appropriate
rigger. As discussed above.
ieternunation of whether contamination
s present to warrant issuance of a
?ermit will be made in the context of the
ermit proceeding.
One cominenter believed that the usa
f RQs Is inappropriate because “the
itatute intended to exempt only oil and
as runoff that is not contaminated at
all.” The Agency wishes to clarify that
reportable quantities are being used to
determine what facilities need to file
permit applications and to describe
what is meant by the term
“contaminated.” The Director may
require a permit for any discharges of
storm water runoff contaminated by
contact with any overburden, raw
material, intermediate product, finished
product, by product or waste product at
the site of such operations. The use of
RQs Is solely a mechanism for
identifying the facilities most likely to
need a storm water permit consistent
with the le islatlve history of section
402(l)(2).
c. Mining Opewiions. The December
7, 1988 proposal would establish
background levels as the standard used
to define when a storm water discharge
from a mining operation is
contaminated. When a storm water
discharge from a mining site was found
to contain pollutants at levels that
exceed background levels, the owner or
operator of the site was required to
submit a permit application for that
operation. The proposal was founded
upon language in the legislative history
stating that the determination of
whether storm water is contaminated by
Contact with overburden, raw material,
intermediate product. finished product,
byproduct, or waste products “shall take
into consideration whether these
materials are present in such
stormwater runoff. . . above natural
background levels”. (Vol. 132 Cong. Rec.
H10574 (daily ed. Oct. 15, 1986)
Conference Report).
Comments received on this
component of the rule suggested that
background levels of pollutants would
be very difficult to calculate due to the
complex topography frequently
encountered in alpine mining regions.
For example, if a mine Is located in a
mountain valley surrounded on all sides
by hills, the site will have innumerable
slopes feeding flow towards it. Under
such circumstances, determining how
the background level is set would prove
impractical. Commenters indicated that
it is very difficult to measure or
determine background levels at sites
where mining has occurred for
prolonged periods. In many instances.
data on original background levels may
not be available due to long-term site
activity. As a result, any background
level established will vary based on the
type and level of previous activity. In
addition, mining sites typically have
background levels that are naturally
distinct from the surrounding areas. This
Is due to the geologic characteristics
that makes them valuable as mining
sites to begin with. This also makes it
diFficult to establish accurate
background levels,
Because of these concerns EPA has
decided to drop the use of background
levels as a measure For determining
whether a permit application is required.
Accordingly, a permit application will
be required when discharges of storm
water runoff from mining operations
come Into contact with any overburden,
raw material. Intermediate produci.
finished product. byproduct, or waste
product located on the site. Similar to
the RQ test for oil and gas operations.
EPA intends to use the “contact” test
solely as a permit application trigger.
The determination of whether a mining
operation’s runoff is contaminated will
be made in the context of the permit
Issuance proceedings.
If the owner or operator determines
that no storm water runoff comes into
contact with overburden, raw material,
intermediate product, finished product,
byproduct. or waste products, then there
Is no obligation to file a permit
application. This framework is
consistent with the statutory provisions
of section 402(1)(2) and is intended to
encourage each mining site to adopt the
best possible management controls to
prevent such contact.
Several coinmenters stated that EPA’s
use of total pollutant loadings for
determining permit applicability is not
consistent with the general framework
of the NPDES program. Their concern is
that such evaluation criteria depart from
how the NPDES program has been
administered In the past. based on
concentration limits. In addition.
commenters requested that EPA clarify
that Information on mass loading will be
used for determining the need for a
permit only. Since the analysis of
natural background levels as a basis for
a permit application has been dropped
from this rulemaking. these issues are
moot.
Commenters noted that the proposed
rule did not specify what impact this
rulemaking has on the storm water
exemptions in 40 CFR 440.131. The
commenters recommended not changing
any of these provisions. Some
commenters indicated that mining
facilities that have NPDES permits
should not be subject to additional
permitting under the storm water rule.
EPA does not intend that today’s rule
have any effect on the conditional
exemptions in 40 CFR 440.131. Where a
facility his an overflow or excess
discharge of process.related effluent due
to stormwater runoff. the conditional
exemptions in 40 CFR 440.131 remain
available.
Several commenters note that the
term overburden, as used in the context
of the proposed storm water rule, is not
defined and recommended that this term
should be defined to delineate the scope
of the regulation. EPA agrees that the
term overburden should be defined to
help properly define the scope the storm
water rule. in today’s rule, the terai
-------
Federal Register / VoL 55, No. 2 I FrIday. November 10, 1990 F Rules and Regulations 49 3
overberden has been clarified to mean
any material of any nature overlying a
mineral deposit that Is removed to gain
s ss to that deposit. excluding topsoil
or similar naturelly-occurring surface
materials that are not disturbed by
mining operations. This definition Is
patterned after the overburden
definition In SMCRA. and is designed to
exclude undisturbed lands from permit
coverage as industrial activity.
However, the definition provided In this
regulation may be revised at a later
date, to achieve consistency wIth the
promulgation of RCRA Subtitle D mining
waste regulation. In the future.
Numerous commenters raised Issues
pertaining to the Inclusion of Inactive
mining areas as subject to the
stormwater rule. Some commenters
Indicated that including inactive mine
operations in the rule would create an
unreasonable hardship on the industry.
EPA has included inactive mining areas
in today’s rule because some mining
sites represent a significant source of
contaminated stormwater runoff. EPA
has clarified that inactive mining sites
arc those that are no longer being
actively mined, but which have an
Identifiable owner/operator. The rule
also clarifies that active and inactive
mining sites do not include sites where
mining rum . are being maintained
prior to disturbances associated with
the extraction, beneficiation. or
processing of mined materials, nor sites
where minimal activities required for
the sole purpose of maintaining the
mining claim are undertaken. The
Agency would clarify that claim. on
land where there has been past
extraction, beneficia (Ion, or processing
of mizunp materials, but there is
currently no active mining are
considered inactive sites. However, in
such cases the exclusion discussed
above for uncontaminated discharges
will still apply.
EPA’s definition of active and inactive
mining operations also excludes those
areas which have been reclaimed under
SMCRA or. for non-coal mining
operation ., under similar applicable
State or Federal laws. EPA believes
that, as a general matter, areas which
have undergone reclamation pursuant to
such laws have concluded ill industrial
ictivity in such a way as to minimize
contact with overburden. mine products.
etc. EPA and NPDES States, of course,
retain the authority to designate
particular reclaimeo areas for permit
coverage under section 402(pJ(2J(E).
The proposed rule had included an
exemption for areas which have been
reclaimed under SMCRA, although the
I’nguage of the proposed rule
Inadvertently Identified the wrong
universe of coal mining areas. The final
rule language has been revised to clarify
that areas which have been reclaimed
underSMCRA (and thus are no longer
subject to 40 CFR part 434 subpart E) are
not subject to today’s rule. Today’s rule
thus Is consistent with the coal mining
effluent guideline in Its treatment of
areas reclaimed under SMCRA.
In response to comments. EPA has
also expanded this concept to exclude
from coverage as industrial activity non-
coal which are released from
similar State or Federal reclamation
requirements on or after the effective
date of this rule. EPA believes it Is
appropriate, however, to require permit
coverage for contaminated runoff from
inactive non-coal mines which may have
been subject to reclamation regulations.
but which have been released from
those requirements prior to today’s nile.
EPA doss not have sufficient evidence
to suggest that each State iprevious
reclamation rules and/or - ederal
requirements. if applicable, were
necessarily effective in controlling
future storm water contamination.
8. Application Requirements for
Construction Activities
As discussed above, EPA has
Included storm water discharges from
activities Involving construction
operations that result in the disturbance
of five acres total land in the regulatory
definition of storm water discharges
associated with Industrial activity.
This isa departure from the proposed
rule which required permit applications
for discharges from activities involving
construction operations that result in the
disturbance of less than one acre total
land area and (which are not part of a
larger common plan of development or
sale or operations that are for single
family residential projects, including
duplexes. triplexes, or quadruplexes.
that result in the disturbance of less
than five acre total land areas and
which are not part of a larger common
plan of development or sale). The
reasons for this change ass noted below.
Many commenters representing
municipalities. Stales. and industry
requested that dearing. grading. and
excavation activities not be included In
the definition of storm water discharges
associated with industrial activity. It
was suggested that EPA delay Including
construction activities until after the
studies m.ndnted in section 402(p) 5) of
the CWA are completed. Other
nmn e.1ters felt that NPDES permits are
not appropriate for construction
discharges due to their short term.
intermediate and seasonal nature.
Another commenter felt that only the
construction activities on th. sites of the
industrial facilities identified in the
other subsections of the definition of
“associated with Industrial activity’
should be indudad .
EPA believes that storm water permits
are appropriate for the construction
Industry for several reasons.
Construction activity at a high level of
intensity Is comparable to other activity
that Is traditionally viewed as industriaL
such as natural resource extraction.
Construction that disturbs large tracts ci
land will Involve the use of heavy
equipment such as bulldozers, cranes.
and dump trucks. Construction activity
frequently employs dynamite and/or
other equipment to eliminate trees,
bedrock. rockwork. and to fill or level
land. Such activities also engage in the
installation of haul roads, drainage
systems. and holding ponds that are
t)pical of the industrial activity
identified in 122.26(bl(14 1(i-x). EPA
cannot reasonably place such activity in
the same category as light commercial
or retail business.
Further, the runoff eneratcd wh;Ie
construction activities are occurring has
potential for serious water quality
impacts and reflects a’i activity that is
industrial in nature. Where cunstruction
activitie, are intensive, the localized
impacts of water quality may be severe
because of high unit loads of pollutants.
primarily sediments. Construction sites
can also generate other po lutants such
as phosphorus. nitrogen and nutrients
from fertilizer. pesticides, petroleum
products. construction chemicals and
solid wastes. Thebe mateiiuls cdt% be
toxic to aquatic organisms and degrade
water for drinking and waer.contact
recreation. Sediment runoff rates from
Construction sites are typica y 10 to 20
times that of agricultural lands, with
runoff rates as high as 100 times that of
agricultural lands, and 1.000 to 2.000
times that of forest lands. Even small
construction sites may have a sigr.iflcant
negative impact on water quality in
localized areas. Over a short period of
time, construction sites can contribute
more sediment to streams than wag
previously deposited over several
decades.
EPA is convinced that because of the
impacts of construction discharges that
are directly to waters of the United
States, such discharges should be
addressed by permits issued by Federal
or NPDES State permitting authorities. It
is evident from numerous studies and
reports submitted under section 319 of
the CWA that discharges from
construction sites continue to be a major
source of water quality problems and
water quality standard violation..
-------
34 Federal Register / Vol. 55. No. 222 I Friday, November 10. 1990 / Rules and Regulations
Accordingly EPA is compelled to
address these source under these
regulation. and thereby regulate these
seurces under a nationally consistent
pro 5 r.m with an appropriate level of
enforcement and oversight.
Techniques to prevent or control
pollutants in storm water discharges
from construction are well developed
and understood. A primary control
technique is good site planning. A
combination of nonstructural and
structural best management practices
are typically used on construction sites.
Relatively inexpensive nonstructural
vegetative controls, such as seeding and
mulching, are effective control
techniques. In some cases, more
expensive structural controls may be
necessary, such as detention basins or
diversions. The most efficient controls
result when a comprehensive storm
water management system is in place.
Another reason that EPA has decided to
address this class of discharges is that it
is part of the Agency’s recent emphasis
on pollution prevention. Studies such as
NtJRP indicate that it is much more cost
effective to develop measures to prevent
or reduce pollutants in storm water
during new development than it is to
correct there problems later on. Many of
these prevention and control practices,
which can take the form of grading
patterns as well as other controls.
generally remain In place after the
r.u trtiction activities are completed.
a Permit Application Requirements.
D today’s rulemaking. EPA has set forth
distinct permit application requirements
fm these construction activities, at
!i22.Z8(c)(1)(ii). to be used where
, naral permits to be developed and
r roimdgated by EPA are inapplicable.
Such facilities will be required to
provide a map indicating the site’s
[ bcation and the name of the receiving
water and a narrative description of:
The nature of the construction
.‘ The total area of the site and the
area of the site that is expected to
undarga excavation during the life of the
permit
• Ptnposed measures, including best
management practices, to control
pollutants in storm water discharges
during construction. induding a
dkscriplion of applicable Federal
reqpirements and Slate or local erosion
and sediment control requirements;
• Ptoposed measures to control
pdl’tit rits in storm water discharges
thait will occur after construction
ztions have been completed.
urdtzthng a description of applicable
State or local requirements, and
• An estimate of the runoff coefficient
(fraction of total rainfall that will appear
as runoff) of the site and the increase in
impervious area after the construction
addressed in ;he permit application is
completed. a description of the nature of
fill material and existing data describing
the soil or the quality of the discharge.
Permit application requirements for
construction activities do not include the
submission of quantitative data. EPA
believes that the changing nature of
construction activities at a site to be
covered by the permit application
requirements generally would not be
adequately described by quantitative
data. The comments received by EPA
support this determination. One State
commented that a program they
instituted has been based on
quantitative data for the past 10 years
and has proven to be very awkward.
even unworkable.
Twenty commenters responded to the
issue of appropriate construction site
application deadlines including: Three
towns (<100,000 population); one
medium municipality; one large
municipality: one agency associated
with a large municipality: three agencies
associated counties: three agencies
associated with States: two industries;
five industrial associations: and one
private organization representing
industry. The commenters primarily
focused on actual deadlines and
permitting authority response time.
Applicants for permits to discharge
storm water into the waters of the
United States from a construction site
would normally be required to submit
permits in the same time frame as new
sources and new discharges. This
rulemaking requires permit applications
from such sources to be submitted at
least 180 days prior to the date on which
the discharge is to commence. Four
comnienters agreed with the application
deadline of 180 days prior to
commencement of discharge. Three
commenters felt it would be difficult to
apply 180 days prior to when the
discharge was to begin. Three
commenters recommended shortening
the time period to 90 days. Numerous
other commenters were concerned over
delays during the permitting authority’s
review of the permit application. The
commenters requested that a maximum
response time be set in the regulation.
Suggested maximum response times
were 90 and 30 days.
In response to these comments, EPA
has changed the application deadline for
construction permits from at least 180
days prior to discharge to at least 90
days prior to the date when construction
is to commence. This change reflects
EPA’s recognition of the nature of
construction operations in that
developers/builders may not be aware
of projects 180 days before they are
scheduled to begin.
Numerous commenters expressed
concern over who should be responsible
for applying for the permit. Two
commenters felt the owner ehould be
responsible so that construction bid
documents can include the storm water
management requirements and to avoid
confusion among multiple
subcontractors. One commenter thought
that either the owner/developer, or
general contractor should be
responsible. Another commenter
suggested that the designer should
obtain the permit which would allow all
necessary erosion controls to be part of
the project plan. Several commenters
requested that the responsibility simply
be more dearly defined.
In response to these comments. EPA
would clarify that the operator will
generally be responsible for submitting
the permit application. Under existing
regulations at 122.21(b), when a
facility is owned by one person but
operated by another. then it is the duly
of the operator to apply for the permit
Due to the temporary nature of
construction activities. EPA believes
that the operator is the most appropriate
person to be responsible for both shori
and long term best management
practices included on the site. EPA
considers the term “operator” to include
a general contractor, who would
generally be familiar enough with the
site to prepare the application or to
ensure that the site would be in
compliance with the permit
requirements. Gerneral contractors, in
many cases. will often be on site
coordinating the operation among his/
her staff and any subcontractors
Furthermore, the operator/general
contractor would be much more familiar
with construction site operations than
the owner and ahould be involved in the
site planning from its initial stages. The
application requirements in today’s rule
are designed to provide flexibility in
developing controls to reduce pollutants
in storm water discharges from
construction sites. A significant aspect
to this is the role of State and local
authorities in control of construction
storm water discharges. Sixty-three
commenters addressed the question of
what the role of State ann local
authorities should be. Mc st of these
commenters supported local government
control of construction discharges and
that qualified State programs should
satisfy Federal requirements.
Many commenters representing
municipalities. Stales, and industry, felt
that local government should have full
control over constructic,n storm water
-------
Federal Register! Vo’. 55. No . fl2 I Friday. November 18. 1990 I Rules and Regulations
discharges. either under existing
programs or those required by their
municipal permit. EPA agrees with these
comments u I ., .. discharges through
municipal storm sewers ore concerned
Is requiring municipalities that are
required to submit municipal permit
applications under this regulation to
describe their program for controlling
storm water discharges from
construction activities Into their
separate stoiTh sewers. it is envisioned
that municipalities will have primary
responsibility over these discharges
through NPDES municipal storm water
permit.. However. EPA also plans to
cover such discharges under general
permits to be promulgated in the near
future. -
In response to several comments that
the regulation should provide flexibility
for qualified Slate programs to satisfy
Federal requirements, the application
requirements recognize that many States
have Implemented erosion and sediment
control programs. The permit
application requires a brief description
of these programs. T1 1 is is intended to
ensure consistency between NPDES
permit requirements and other Slate
control.. Permit applicants will be in the
best position to pass on this site.epecific
information to the permitting authority.
States or Federal NPDES authorities will
have the ability to exercise authority
over these discharges as will other State
and local authorities responsible for
construction. EPA envisions NPDES
permitting efforts will be coordinated
with any existing programs.
The proposed nile requested
comments on appropriate madsures to
reduce pollutants in construction site
runoff. Numerous commenters
representing municipalities. Slates, and
industiy responded. Some cominenters
recommended specific best management
practices (BMPa) whereas others
suggested ways in which the measures
should be incorporated into the program.
One cominenter suggested that EPA
establish design and performance
standards for appropriate BMPs. One
State commenter recommended
requiting a schedule or sequence for use
of UMPs. A municipality suggested
developing guidance on erosion control
it construction sites and disseminating
the guid t ., to educate contractors and
construction workers in proper erosion
control techniques. The Agency I.
continuing to review these
recommendations for the purposes of
permit development and issuance.
Another coasienter suggested that
further research be done to determine
the effectiveness of particular 8MPg in
reducing pothiLunts is coesinicilca site
runoff. WA agrees that more research
and studies can be undertaken to
develop methodologies fur more
effective storm water controls and will
continue to lookat these concerns
pursuant to section 402(p)(5) studies.
However, EPA is convinced that enough
information, technology, and proven
BMP’s are available to address these
discharges in this regulation.
Specific BMPs suggested by the
cotnmenlers include: wheel washing:
locked exit roadways. street deaning
methods which exclude sheet washing:
clearing and grading codes; conslruc:ton
standard.: riparian corridors: solids
retention basins; soil erosion barriers;
selected excavation: adequate collection
systems: vegetate disturbed areas:
proper applicatIon of fertilizera proper
equipment storage: use of straw baLes
and filter fabrics: and use of diversions
to reduce effecthe length of slopes. EPA
is continuing to evaluate these
suggestions for developing appropriate
permit conditions for conatruct on
activity.
b. Admi,iistrotsve Bun/ens. Many
commenters representing municipalities.
States, and industry commented on the
administrative burdens of individ. ally
permitting each construction site
discharging to waters of the United
Stiates. The extensive use of general
permits for storm water discharges from
construction activities that are subject
to NPDES requirements is anticipated to
minimize administrative delays
associated with permit issuance. Many
commenters strongly endorsed
extensive use of general permits. In
addition the Agency will provide as
much assistance as possible fur
developing appropriate permit
conditions.
Many commenters responded to the
use of acreage limits in4etermining
which construction sites are required to
submit a permit application, including
several cities, counties and States. Some
commenters generally supported the use
of an acre limit. Many comm.nters
suggested increasing the acreage limit.
Several suggested using a five acre limit
for both residential and nonresidential
development. Others suggested greater
acreage as the cutoff. Two commenters
concurred with the proposed lunit of one
acre/five acres and one commenter
suggested lowering the residential limit
to one acre.
Other factors were suggested as a
means to creete a cutoff (or requiring
permit applications. Several commenteru
suggested exempting construction that
would be completed with a certain time
frame, such as construction of less than
2 months. EPA believes that this is
inappropriate because some
construction can be intensive and
expansive. but nonetheless take place
over a short period of lime, such as a
parking lot. One commenter suggested
basing tbe limit on the quantity of soil
moved. i.e., cubic yards. In response.
this approach would not be particularly
helpful since removal of soil will not
necessarily relate to the amount of land
surface disturbed and exposed to the
elements. Another commenter suggested
that where there is single family
detached housing construction that
should trigger applications as well as
the proposed acreage limit. This would
not be appropriate since EPA is
attempting to focu. only on those
construction activities that resemble
industrial activity. After considering
these and similar comments EPA has
limited the definition of “storm waler
discharge associated ith industrial
activity” by exempting from the
definition those construction operations
that result in the disturbance of less
than five acres of total land area which
are not part of a larger common plan of
development or sale. In considering the
appropriate scope of the definition of
storm waler discharge associated with
industrial activity as it relates to
construction activities. EPA recognized
that a wide variety of fdctore can affer t
the waler quality impacts associated
with construction site runoff. inciudinb
the quality of receiving waters, the size
of the area disturbed. scil conditions.
seasonal rainfall patterns, the slope of
area disturbed, and the intensity of
construction activities. These fdciors
will be considered by the permit writer
when issuing the permit. However, as
noted above, EPA views such s;te.
specific factors to be too difficult to
define in a regulatory framework that is
national in scope. For example.
attempting to adjust permit application
triggers based upon a myriad of regional
rainfdll patterns is not a practical
solution. However, permit conditions
adjusted for specific geographical areas
may be appropriate.
Under the December 7, 198& proposal
the definition of industrial activity
exempted construction operations that
resulted in the disturbance of less than
one acre tidal land area which was not
part of. larger common plan of
development or sale: or operations for’
single family residential protects.
inchiding duplexes. tnplexes. or
quedruplexes. that result in the
disturbance of Less than five acre total
land areas which were.not part of a
larger common plan of development or
sale. EPA distinguished between single
family residential development and
-------
48 8 FedsmI Register I Vol. 55, No. 222 I FrIday. November 16. 1990 / Rules and Regulations
other commercial development because
nUier commercial development is more
likely to occur In more densely
developed areas. Also. it was reasoned
that other commercial development
provides a more complete opportunity to
develop controls that remain in place
after the construction activity is
completed, since continued maintenance
after the permit has expired, is more
feasible.
Howevei ’iEPA has decided to depart
from the proposal and use an
unqualified five acre area In today’s
final rule. This limit has been selected.
In part. because of administrative
concerns. EPA recognizes that State and
local sediment and erosion controls may
address construction activities
disturbing less five acres for residential
development; the five acre limit in
today’s rule is not intended to supersede
more stringent State or local sediment
and erosion controls. In light of the
comments. EPA Is convinced that the
acreage limit is appropriate for
identifying sites that are amount to
industrial activity. Several comments
suggested higher acreage limits without
giving a supporting rationale except
administrative concerns. Several
commenters agreed that the five acre
limit is suitable, but again without
specifying why they agreed. EPA is
convinced, however, that the acreage
limits as finalized in today’s rule reflect
an earth disturbance and/or removal
effort that is industrial in magnitude.
Disturbances on large tracts of land will
employ more heavy machinery and
industrial equipment for removing
vegetation arid bedrock,
For construction facilities that are not
included in the definition of storm water
discharge associated with industrial
activity. EPA will consider the
dppropriate procedures and methods to
reduce pollutants in construction site
runoff under the studies authorized by
section 402fp)(5) of the CWA. EPA will
also consider under section 4 02(p)(5)
appropriate procedures and methods
during poatconstruction for maintaining
structural controls developed pursuant
to NPDES permits issued for storm
water discharges associated with
industrial activity from construction
sites.
Numerous commentere requested
clarification as to whether permits for
storm water discharges from
construction activities at an industrial
facility are required. EPA is requinng
permits for all storm water discharges
from construction activities where the
land disturbed meets the requirements
established in § 122.28(b)(14)(x) and
which discharge into waters of the
United States. The location of the
construction activity or the ultimate
land use at the site does not factor Into
the analysis.
C. Municipal Separate Storm Sewer
Systems
1. MunIcipal Separate Storm Sewers
Today’s rule defines “municipal
separate storm sewer” at 122.26(b)(8)
to include any conveyance or system of
conveyances that Is owned or operated
by a State or local government entity
and Is designed for collecting and
conveying storm water which ii not part
of a Publicly Owned Treatment Works
(POTW) as defined at 40 CFR 122.2. It is
important to note that today’s permit
application requirements for discharges
from municipal separate storm sewer
systems serving a population of 100.000
or more do not apply to discharges from
combined sewer, (systems designed as
both a sanitary sewer and a storm
sewer). For purposes of calculating
whether a municipal separate storm
sewer system meets the large or medium
population criteria, a municipality may
petition to have the population served
by a combined sewer deducted from the
total population. Section 122.28(f) of
today’s rule describes this procedure.
EPA requested comments on whether
different language for the definition of
municipal separate storaf sewer would
danfy responsibility under the NPDES
permit system. Comments were also
requeated on whether the definition
needed to be clarified by explicitly
stating that municipal streets and roads
with drainage systems (curb and gutter.
ditches. etc.) are part of the municipal
storm sewer system. and that the
owners or operators of such i’oads are
responsible for such discharges.
Numerous comments were received by
EPA on this issue. Some commenters
questioned whether road culveris and
road ditches were municipal separate
storm sewers, while others specifically
recommended that further clarifying
language should be added so that
owners and operators of roads and
streets understand that they are covered
by this regulation. In light of these
comments, EPA has clarified that
municipal streets, catch basins, curbs.
gutters. ditches, man-made channels, or
storm drains that discharge into the
waters of the United State. are
municipal separate storm sewers. One
commenter asked if “other wastes’ in
the proposed definition of municipal
separate storm sewer (40 CFR 122.26
(b)(8)(i)) included storm water. In
response. EPA has added “storm water”
to this definition in order to clarify that
the rule addresses such systems.
EPA requested comments on whether
legal classifications such as “storm
sewers that are not private (e.g. public.
district or Joint district sewersr would
provide a clearer definition of municipal
separate storm sewer than an owner or
operator criterion, especially for the
purpose of determining responsibility
under the NPDES program. Most
commenters agreed that the owner/
operator concept. and the additional
language noted above, is sufficient for
this purpose. EPA also requested
comments on to what extent the owner!
operator concept should apply to
municipal governments with land-use
authority over lands which contribute
storm water runoff to the municipal
storm sewer system. and how the
responsibility should be clarified. In
response to comments on this point.
EPA has addressed these concerns in
the context of clarifying what municipal
entities are responsible for applying for
a permit covering storm water
discharges from municipal systems in
section Vl.H. below.
One commenter expressed a desire for
clarification as to whether conveyances
that were once used for the conveyance
of storm water, but are no longer used in
that manner, are covered by the
definition. EPA emphasizes that this
rulemaking only addresses conveyances
that are part of a separate storm sewer
system that discharges storm water into
waters of the United States.
One commenter stated that if EPA
intends to regulate roadside collection
systems then EPA must reprupose since
these were not considered by the public.
EPA disagrees with this comment since
one of the options specifically addressed
the inclusion of roadside drainage
systems and roads in the definition of
municipal separate storm sewer system.
In addition, the public recognized the
issue in comments on the proposal. EPA
would note that several commenters
specifically endorsed EPA’s inclusion of
these conveyances.
2. Effective Prohibition on Non-Storm
Waler Discharges
Section 402(pH3llB)(ii) of the amended
CWA requires that permits for
discharges from municipal storm sewers
shall include a requirement to
effectively prohibit non-storm water
discharges into the storm sewers. Based
on the legislative history of section 405
of the WQA. EPA does not interpret the
effective prohibition on non-storm water
discharges to municipal separate storm
sewers to apply to discharges that are
not composed entirely of storm water.
as long as such discharge has been
issued a separate NPDES permit. Rather.
-------
Fndsral RegIster / VoL 55. No. 222 I Friday, November 11 1990 I Rules and Regulations 48037
an Neffectlve prohlbltion would require
separate NPDES permits for non-storm
water discharges to municipal storm
sewers. In many cases in the past.
applicants for NPDES permits for
process wastewaters and other non.
storm water discharges have been
granted approval to discharge into
municipal separate storm sewers.
provided that the permit conditions for
the discharge are met at the point where
the discharge enters into the separate
storm sewer. Permits for such discharges
must meet applicable technology-based
and water-quality based requirements of
Sections 402 and 301 of the CWA. If the
permit for a non-storm water discharge
to a municipal separate storm sewer
contains water-quality based
limitations. then such limitations should
generally be based on meeting
applicable wa:er quality standards at
the boundary of a State established
mixing zone (for States with mixing
zones) located in the receiving waters of
the United Slates.
All options will be considered when
an applicant applies for a NPDES permit
for a non-storm water discharge to a
municipal separate storm sewer. In
some cases, permits will be denied for
discharges to storm sewers that are
causing water quality problems in
receiving waters. However, not all
discharges present such problems: and
In these cases EPA or State permit
writers may allow such discharges to
municipal separate storm sewers within
appropriate permit limits.
Today’s rule has two permit
application requirements that are
designed to begin implementation of the
effective prohibition. The first
requirement discussed in VLH.8.a..
below, addresses a screening analysis
which is intended to provide sufficient
Information to develop priorities for a
program to detect and remove illicit
discharges. The second provision.
discussed in VLH.7.b ,. requires
municipal applicants to develop a
recommended site-specific management
plan to detect and remove illicit
discharges (or ensure they are covered
by an NPDES permit) and to control
improper disposal to municipal separate
storm sewer systems.
Several cømmenters suggested that
either the definition of “storm water”
should include some additional dasses
of nonprecipitation sources, or that
municipalities should not be held
responsible for “effectively prohibiting”
some classes of nonstorni water
discharges into their municipal storm
sewers, The various types of discharges
addressed by these comments include
detention and retention reservoir
releases, water line fluihing fire
hydrant flushing, runoff from fire
fighting, swimming pool dralnaqe and
dlschugs, landscape Irrigation, diverted
stream flows, uncontaminated pumped
ground water, rising ground water,
discharges from potable water sources,
uncontaminated waters from cooling
towers, foundation drains, non-contact
cooling water (such as heating,
ventilation, air conditioning (HVAC)
water that POTWs require to be
discharged to separate storm sewers
rather than sanitary sewers), irrigation
water, springs. roofdrains. water from
crawl space pumps, fooling drains, lawn
watering, individual car washing, flows
from riparian habitats and wetlands.
Most of these comments were made
with regard to the concern that these
were commonly occurring discharges
which did not pose significant
environmental problems.
EPA disagrees that the above
described flows will not pose. in every
case, significant environmental
problems. At the same time, it is
unlikely Congress intended to require
municipalities to effectively prohibit
individual car washing or discharges
resulting from efforts to extinguish a
building fire and other seemingly
innocent flows that are characteristic of
human existence In urban environments
and which discharge to municipal
separate storm sewers. It should be
noted that the legislative history is
essentially silent on this point.
Accordingly. EPA is clarifying that
section 402(p)(3)(B) of the CWA (which
requires permits for municipal separate
storm sewers to ‘effectively’ prohibit
non-storm water discharges) dqes not
require permits for municipalities to
prohibit certain discharges or flows of
nonstorm water to waters of the United
States through municipal separate storm
sewers in all cases. Accordingly.
122 ,26(d)(2Xiv)(B)(1) states that the
proposed management program shall
indude: “A description of a program.
Including inspections, to implement and
enforce an ordinance, orders or similar
means to prevent illicit discharges to the
municipal separate storm sewer system;
the program description shall address
the following categories of non-storm
water discharges or flows only where
such discharges are identified by the
municipality as sources of pollutants to
waters of the United States: Water line
flushing. landscape imgation. diverted
stream flows, rising ground waters,
uncontaminated ground water
infiltration (as defined at 40 CFR
35.2005(30)) to separate storm sewers.
uncontaminated pumped ground water
discharges from potable water sources.
foundation drains. air conditioning
condensation, Irrigation water, springs.
water from craw} space pumps, footing
drains, lawn watering. individual
residential car waNhin 5 , flows from
riparian habitats and wetlands.
dechlorinated swimming pool
discharges. and street wash waters.
Program descriptions shall address
discharges from fire fighting only wh3re
such discharges or flows are identified
as significant sources of pollutants to
waters of the United States.” -
However, the Director may include
permit conditions that either require
municipalities to prohibit or otherwise
control any of these types of discharges
where appropriate. In the case of fire
fighting it is not the intention of these
rules to prohibit in any circumstances
the protection of life and public or
private property through the use of
water or other fire retardants that flow
into separate storm sewers. However.
there may be instances where specified
management practices are appropriate
where these flows do occur (controlled
blazes are one example).
Conveyances which continue to
accept other “non-storm water”
discharges (e.g. discharges without an
NPDES permit) with the exceptions
noted above do not meet the definition
of municipal separate storm sewer and
are not subject to section 402(p)(3)(B) of
the CWA unless the non-storm water
discharges are issued separate NPDES
permits. Instead, conveyances which
continue to accept non-storm water
discharges which have not been issued
separate NPDES permits are subject to
sections 301 and 402 of the CWA. For
example. combined sewers which
convey storm water and sanitary
sewage are not separate storm sewers
and must comply with permit
application requirements at 40 CFR
12L21 as well as other regulatory
criteria for combined sewers.
3. Site-Specific Storm Water Quality
Management Programs for Municipal
Systems
Section 402(p)(3)(iii) of the CWA
mandates that permits for discharges
from municipal separate storm sewers
shall require controls to reduce the
discharge of pollutants to the maximum
extent practicable (MEP), including
management practices, control
techniques and systems. design and
engineering methods, and such other
provisions as the Director determines
appropriate for the control of such
pollutants.
When enacting this provision,
Conaress was aware of the difficulties in
regulating discharges from municipal
-------
41038 Federal Register I Vol 55, No . 222 / Friday, November 18. 1990 / Rules and Regulations
separate storm sewers solely through
traditional end-of-pipe treatment and
Intended for EPA and NPDES States to
develop permit requirements that were
much broader In nature than
requirements which are traditionally
found in NPDES permits for Industrial
process discharges or POTWs. The
legislative history indicates, municipal
storm sewer system “permits will not
necessarily be like Industrial discharge
permits. Often, an end-of-the-pipe
treatment technology is not appropriate
for this type of discharge.’ IVol. 132
Cong. Rec. S16425 (daily ed. Oct. 16.
1988)1.
A shift towards comprehensive storm
water quality management programs to
reduce the discharge of pollutants from
municipal separate storm sewer systems
is appropriate for a number of reasons.
First, discharges from municipal storm
sewers are highly intermittent, and are
usually characterized by very high flows
occurring over relatively short time
intervals. For this reason, municipal
storm sewer systems are usually
designed with an extremely high number
of outfalls within a given mumcipahty to
reduce potential flooding. Traditional
end-of-pipe controls are limited by the
materials management problems that
arise with high volume, intermittent
flows occurring at a large number of
outfalls. Second, the nature and extent
of pollutants in discharges from
municipal systems will depend on the
activities occurring on the lands which
contribute runoff to the system.
Municipal separate storm sewers tend to
discharge runoff drained from lands
used for a wide variety of activities.
Given the material management
problems associated with end-of.pipe
controls, management programs that are
directed at pollutant sources are often
more practical than relying solely on
end-of-pipe controls.
In past rulemakings. much of the
rziticism of the concept of subjecting
discharges from municipal separate
storm sewers to the NPDES permit
program focused on the perception that
the ngid regulatory program applied to
industrial process waters and effluents
from publicly owned treatment works
was not appropriate for the site-specific
nature of the sources which are
responsible For the discharge of
pollutants from municipal storm sewers.
The water quality impacts of
discharges from municipal separate
storm sewer systems depend on a wide
range of factors including: The
magnitude and duration of rainfall
events, the time period between events,
soil conditions, the Fraction of land that
is impervious to rainfall, land use
activities, the presence of illicit
connections, and the ratio of the storm
water discharge to receiving water flow.
In enacting section 405 of the WQ .
Congress recognized that permit
requirements for municipal separate
storm sewer systems should be
developed in a flexible manner to allow
site-specific permit conditions to reflect
the wide range of impacts that can be
associated with these discharges. The
legislative history accompanying the
provision explained that “(pjerinits for
discharges from municipal separate
stormwater systems • must include
a requirement to effectively prohibit
non-stormwater discharges into storm
sewers and controls to reduce the
discharge of pollutants to the maximum
extent practicable. ‘ These
controls may be different in different
permits. All types of controls listed in
subsection Up)(3)(C)1 are not required to
be incorporated into each permit” (Vol.
132 Cong. Rec. 1-110576 (daily ed. October
15. 1986) Conference Report). Consistent
with the intentof Congress, this rule sets
out permit application requirements that
are sufficiently flexible to allow the
development of site-specific permit
conditions.
Several commenters agreed with this
approach. One municipality
recommended that there be as much
flexibility as possible so that the
permitting authority can work with each
municipality in developing meaningful
long-term goals with plans for improving
storm water quality. This conunenter
noted that too many specific regulations
that apply nationwide do not take into
consideration the climatic and
governmental difference, within the
Slates. EPA agrees that as much
flexibility as possible should be
incorporated into the program. However.
flexibility should not be built into the
program to such an extent that all
municipalities do not face essentially
the same responsibilities and
commitment for achieving the goals of
the CWA. EPA believes that these final
regulations build in substantial
flexibility in designing programs that
meet particular needs, without
abandoning a nationally consistent
structure designed to create storm water
control programs.
4. Large and Medium Municipal Storm
Sewer Systems
During the 1987 reauthorization of the
CWA, Congress established a
framework for EPA to implement a
permit program for municipal separate
storm sewers and establishing phased
deadline, for its implementation. The
amended CWA establishes pnorities for
EPA to develop permit application
requirements and Issue permits for
discharges from three classe, of
municipal separate storm sewer
systems. The CWA requires that NPDES
permits be issued for discharges from
large municipal separate storm sewer
systems (systems serving a population
of more than 250.000) by no later than
February 4. 1991. Permit. for discharges
from medium municipal separate storm
sewer systems (systems serving a
population of more than 100.000. but less
than 250,000) must be issued by
February 4.1992. After October 1, 1992.
the requirements of sections 301 and 402
of the CWA are restored for all other
discharges from municipal separate
storm sewers.
The priorities established in the Act
are based on the size of the population
served by the system. Municipal
operators of these systems are generally
thought to be more capable of initiating
storm water programs and discharges
from municipal separate storm sewers
serving larger populations are thought to
present a higher potential for
contributing to adverse water quality
impacts. NURP and other studies have
verified that the event mean
concentration of pollutants in urban
runoff from residential and commercial
areas remains relatively constant from
one area to another, indicating that
pollutant loads from urban runoff
strongly depend on the total area and
imperviousness of developed land.
which in turn is related to population.
The term ‘municipal separate storm
sewer system” is not defined by the Act
By not defining the term, Congress
intended to provide EPA discretion to
define the scope of municipal systems
consistent with the objective, of
developing site-specific management
programs in NPDES permits. EPA
considered two key issues in defining
the scope of municipal separate storm
sewer system: (1) What is a reasonable
definition of the term “system.” and (2)
how to determine the number of people
“served” by a storm sewer system. EPA
found these two issues to be
intertwined, Different approaches to
defining the scope of a system allowed
for greater or lesser certainty in
detenning the population served by the
system.
In the December 7. 1988, proposal,
EPA described seven options for
defining ‘ municipal separate storm
sewer system.” In developing these
options the EPA considered:
• The inter-Iurisdiction complexities
associated with municipal governments;
• The fact that many municipal storm
water management programs have
traditionally focused on water quantity
-------
Federal Register I VoL 5L No. 222/ Friday, November 16. 1990 I Rules and Regulations
48039
concerns, and have not evaluated water
quality Impacts of system discharges or
developed measures to reduce
pollutants In such discharges:
• The advantages of developing
system-wide storm water management
programs for municipal systems;
• The geographic basis necessary for
planning of comprehensive management
programs to reduce pollutants in
discharges from municipal separate
storm sewers to the maximum extent
practicable;
• The geographic basis necessary to
provide flexibility to target controls on
areas where water quality impacts
associated with discharges from
municipal systems are the greatest and
to provide an opportunity to develop
cost effective controls:
• The need to establish a reasonable
number of permits for municipal systems
during the initial phases of program
development that wilt provide an
adequate basis for a storm water quality
management program for over 13,000
municipalities after the October 1. 1992
general prohibition on storm water
permits expires: and
• Congressional intent to allow the
development of jurisdiction-wide.
comprehensive storm water
management programs with priorities
given to the most heavily populated
areas of the country.
a. Overview of Proposed Options end
Comments. The December 7. 1988.
proposal requested comment on seven
options for defining large and medium
municipal separate storm sewer system.
With the addition of a watershed-based
approach suggested by certain
commenters. eight options or
approaches were addressed by the over
200 commenters on this issum Option
1—systems owned or operated by
incorporated places augmented by
integrated discharges: Option 2—
systems owned or operated by
Incorporated places augmented with
significant other municipal discharges:
Option 3—systems owned or operated
by counties; Option 4—systems owned
and operated by States or State
departments of transportation; Option
5—systems within the boundaries of an
Incorporated place Option 0—systems
within the boundarie, of counties:
Option 7-systems in census designated
urbanized areas: and Option 5—systems
defined by watershed boundaries.
Generally. these options can be
classified into two categories. The first
category of options. Options 1. 2 and 3.
define municipal systems In terms of the
municipal entity which owns or operates
storm sewers within municipal
boundaries of the requisite population.
The second c9Ie9ory of options would
define municipal systems on a
geographic basis. Under Options 4, 5.6.
7 and 8 all municipal separate storm
sewers Within the specified geographic
area would be part of the municipal
system. regardless of which municipal
entity owns or operates the storm sewer.
EPA did not.propose to define the scope
of a municipal separate storm sewer
system in engineering terms because of
practical problems determining the
boundaries of and the populations
served by “systems” defined in such a
manner. In addition an engineering
approach based on physical
interconnections of storm sewer pipes
by itself does not provide a rational
basis for developing a storm water
program to improve water quality where
a large number of individual storm
water catchments are found within a
municipality.
In the December 7. 1988. proposal.
EPA favored those options that relied
primarily on the municipal entity which
owns or operates or otherwise has
jurisdiction over storm sewers. These
options were preferred because it was
anticipated that the administrative
complexities of developing the permit
programs would be reduced by
decreasing the number of affected
municipal entitles. However, most
commenters were not satisfied that such
an approach would reduce
administrative burdens or complexities.
The diversity of arguments and
rationales offered in comments
justifying the selection of particular
option. or combinations thereof. were
generally a function of geographic.
climatic, and institutional differences
around the country. As such, there was
little substantive agreement with how
this program should be implemented as
far as defining large and medium
municipal separate storm sewer
systems. Of all the options. Option I
generally received the most favorable
comment. However, the overwhelming
majority of comments suggested
different options or other alternatives.
Having reviewed the comments at
length. EPA is convinced that the
definition of municipal separate storm
sewers should possess elements of
several of the options enumerated above
and a mechanism that enables States or
EPA Regions to define a system that
beat suits their various political and
geographical conditions.
The following comments were the
most pervasive, and represent those
issues and concerns of greatest
importance to the public: (1) The
approach chosen initially must be
realistic and achievable
administratively: (2) the definition must
be flexible enough to accommodate
development of the program on a
watershed basis, and Incorporate
elements of exIsting programs and
frameworks and regional differences in
climate, geography. and political
InstitutIons: (3) permittees must have
legal authority and control over land
use: (4) discharges from State highways.
identified as a significant source of
runoff and pollutants, should be
included in the program and combined
in some manner with one or more of the
other options: (5) the definition should
address how the inclusion of
interrelated discharges into the
municipal separate storm sewer system
are timed, decided upon. dealt with. etc.:
(6) any approach must address the
major sources of pollutants: (7)
development of co-permittee
management plans must be coordinated
or developed on a regional basis and in
the same time frame—fragmented or
balkanized programs must be avoided:
(8) municipalities should be regulated as
equitabI i-as possible: (9) flood control
districts should be addressed as a
system or part of a system: (10) the
definition must conform to the legal
requirements of the Clean Water Act.
and (Il) the definition should limit the
number of co-permittees as much as
possible.
b. Definition of Jorge and medium
municipal separate storm sewer system.
A combination of the options outlined in
the 1988 proposal would address most of
these concerns, while achieving a
realistic and environmentally beneficial
storm water program. Accordingly, EPA
has adopted the following definition of
large and medium municipal separate
storm sewer systems. Large and medium
separate storm sewer systems are
municipal separate storm sewers that:
(i) Are located in an incorporated
place with a population of 100.000 or
more or 250.000 or more as determined
by the latest Decennial Census by the
Bureau of Census (see appendices F and
C of part 122 for a list of these places
based on the 1980 Census):
(ii) Are located within counties having
areas that are designated as urbanized
areas by latest decennial Bureau of
Census estimates and where the
population of such areas exceeds
100,000. after the population in the
incorporated places, townships or towns
within such counties is excluded (see
appendices H and I for a listing of these
counties based on the 1980 census)
(incorporated places, towns, and
townships within these counties are
excluded from permit application
requirements unless they fall under
paragraph (i) or are designated under
paragraph (iii)). or (iii) are owned or
-------
4 1090 Federal Register I Vol. 55. No. 222 I Friday. November 16 1990 I Rides and Regulations
operated by a manldpalfty other than
those described in paragraph (I) or(ii)
that are designated by the Director as
put 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
paragraphs (I) or(li). In making this
determination the Director may consider
the following factors:
(A) Physical interconnections
between the municipal separate storm
sewers:
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharges from
municipal separate storm sewers
described in subparagraph (i):
(C) The quantity and nature of
pollutants discharged to waters of the
United States;
(D) The nature of the receiving waters;
or
(E) Other relevant factors.
(iv) The Director may. upon petition.
designate as a system, any municipal
separate storm sewers located within
the boundaries of a region defined by a
storm water management regional
authority based on a jurisdictional.
watershed, or other appropriate basis
that includes one or more of the system
described in paragraphs (i). (ii). and (iii).
Under today’s rule at 122.26(a)(3)(iii)
the regional authority shall be
responsible for submitting a permit
application under the following
guidelines: The regional authority
together with co-applicants shall have
authority over a storm water
management program that is in
existence, or shall be in existence at the
time part l’of the application is due: the
permit applicant or co-applicants shall
establish their ability to make a timely
su’amiuion of part I and part 2 of the
municipal application: each of the
operators of municipal separate storm
systems described in paragraphs
122.a(b) (4) (i). (ii), and (iii) and (7)(i),
(ii). and (iii). that are under the purview
of the designated regional authority.
shall comply with the application
requirements of 1 122.26(d).
As noted above, the finalized
definition of large and medium
municipal separate storm sewer system
is combination of the approaches as
proposed. (In the following discussion
“paragraph (i)” refers to §* 122.28
(bl(4lli) and (bH?)(i); “paragraph (ii) ”
refers to 122.281b 1(4)(iij and (bfl7)(ii);
“paragraph (iii)” refers to H 122.28
(bfl4 lfiii) and (bl(7)(iii); and “paragraph
(iv)” refers to *4 122.26 (b114)(iv) and
(bfl7Miv)). Paragraph (i) originates from
proposed Option 5 (boundaries of
Incorporated places) paragraph (Ii)
originates from Option 6 (boundaries of
counties) aàd Option 7 (urbanized
areas); paragraph (iii) originates from
Options 1 and 5; and paragraph (iv) is an
outgrowth of comments on all options.
especially Option 4 (State owned
systems/Slate highways) and Option 8
(watersheds).
This definition creates a system by
virtue of the fact that storm sewers
within defined geographical and
political areas, and the owner/operators
of separate storm sewers in those areas.
are addressed or required to obtain
permit.. Although within these systems.
different segments and discharges of
storm water conveyances may be
owned or operated by different public
entities. EPA is convinced by comments
that discharges from such conveyances
are interrelated to such an extent that
all of these conveyance. may be
properly considered a “system,” These
comments are identified and discussed
in greater detail below.
c. Response to comment& Many
commenters urged that the approach
taken must be administratively
achievable. Option 5 of the proposal
(boundaries of incorporated places).
which can be equated to paragraphs (I)
and (iii)-above. was identified by
several commenters as the most
workable of all the options. Many
commenters stated that Option I
(systems owned or operated by
incorporated places) was inappropriate
because of special districts and other
owners of systems within the
incorporated area: and although EPA
proposed a designation provision for
interrelated discharges in Option I,
commenters advised that it would be
impossible to identify these systems.
account for their discharges, and
exclude or include them in a timely
manner if Option I was selected (Option
I only addresses those systems owned
or operated by the incorporated place).
The final rule would obviate these
concerns. since all the publicly owned
sewers within the boundaries of the
municipality will be required to be
covered by a permit.
Other commenters noted that cities
sometimes have storm water
conveyances owned or operated by
numerous entities. One municipality
commented that these problems could
be more easily resolved using a unified
permit/district wide approach, which
the final approach outlined above can
accomplish. One county stated that
Option I of the proposal would result in
a permanent balkanization of
stormwater programs and that a
regional approach focusing on the entire
system should be established. Another
municipality r..”ommended that all the
systems of conveyances within the
incorporated city boundaries be Issued a
permit. In rejecting Option I of the
proposal. one municipality stated that
program inefficiencies would result from
implementing a piecemeal program in a
contiguous urban environment with
different owners and operators. One
State conveyed similar concerns. Using
a geographical approach, as described in
paragraph (i) of the final definition, will
best address all of these concerns.
One commenter criticized proposed
Option I as being contrary to the legal
requirements of the WQA. and a further
example of EPA’s continuing attempt to
minimize the scope of a national storm
water program. it was noted that the
legislative history regarding
requirements for large and medium
municipal separate storm sewer systems
in section 402(p) of the CWA generally
does not reference incorporated cities or
towns, As a result, the commenter
recommended that the term “municipal”
in municipal separate storm sewer
system refer to separate storm sewers
operated by municipal entities meeting
the definition of “municipality” in
section 502 of the CWA and that the
scope of the term “municipal separate
storm sewer system” be defined as
broadly as possible, This approach
would result in defining large and
medium municipal separate storm sewer
systems to include all municipal
separate storm sewers within the 410
counties with a population of 100.000 or
more. EPA has adopted the commenter ’s
recommendation to extend the scope of
the program to the extent that today’s
rule covers all municipal separate storm
sewers within certain areas rather than
only those operated by an incorporated
place. EPA disagrees however that it
must define the term “system’ to
include sewers within any municipal
boundary of sufficient population with
reference to section 502(4). By not
providing explicit definitions. section
402(p)(3)(B) of the CWA gives EPA
discretion to define how municipal
separate storm sewer systems are
defined. There is no indication in the
language of the CWA or the legislative
history that Congress intended that the
scope of “municipality” and the scope of
“municipal separate storm sewer
system” to be identical, particularly
since the latter term is not defined in the
statute,’Furthermore. for the reasons
discussed elsewhere in this section. EPA
believes that today’s definition is a
reasonable accommodation of the many
conflicting concerns surrounding the
proper way to delineate the extent of a
-------
Fedensi Register I Vol. 53 No. 222 I Friday, November 16, 1990 I Rules and Regulations 41061
municipal separate storm sewer system
serving over 100Mm ) people.
Several commenters concluded that
EPA should be flexible enough to allow
the permitting authority broad discretion
to establish system wide permits, with
flood control districts and/or counties
acting as copermittees with the various
incorporated cities within the district
boundaries. Cninmenters expressed
concern that Option I would not allow
for such flexibility.
Arguments that were advanced by
conunenters in support of proposed
Option I are equally applicable to
paragraph (i). above. Like proposed
Option 1, the approach outlined above
targets major cities. However, it also has
the advantage of addressing municipal
separate storm sewer systems which
may be interrelated to those owned by
the city. a benefit recognized by one
municipality that endorsed the selection
of proposed Option 5. This will also give
the permitting authority more discretion
to establish co .perinittee relationships.
Paragraph (ii) of the final definition
also uses a geographical approach to the
definition of municipal storm sewer
systems to include municipal storm
sewers within urbanized counties. Thus.
it closely resembles Option 7 of the
proposal. The counties Identified in
paragraph (ii) have, based on the 1980
Census, a population of 100.000 or more
in urbanized, 5 unincorporated portions
of the county. In the unincorporated
areas of these counties (or In the 20
States where the Census recognizes
minor civil divisions, unincorporated
county areas outside of towns pr
townships), the county is the primary
local government entity. In these cases.
the county performs many of the same
functions as incorporated cities with a
population of 100.000. and is generally
expected to have the necessary legal
and land use authority in these areas to
begin to implement storm water
management programs. Due to the
urbanized nature of their population,
discharges from the municipal separate
storm sewers in these counties will have
many similarities to discharges from
municipal systems in incorporated cities
with a population of 100.000 or more.
Addressing these counties in this
fashion will not adversely affect small
municipalities (Incorporated places,
‘Th. Bweau of Census defln.s uib .nizad artu
to peovud. • desalption of high.dsn.,ty
d.vslapm s tlL Urhintaid am.. am onmpns.d of.
c,ntmi city br at”.I with. swIvwidin closely
ssliied .i .a.Th. pop.l.tmu of ii, . stub. urbsniz.d
am. must hi 5,es, i, thin 5O. pemons. and iii .
closely s . f led ems out .id. of h . niy. th. udisa
frene, must p t .Ily have. population d.naity
pietur than ion pomona per .quar , ml ’ blust over
1.3 ps ,uoi%s PS? amu to b . uiclud .d
towns end townships) within the cowity.
as municipal separate storm sewers that
are located In the small incorporated
places, townships or towns within these
counties are not automatically included
as part of the system.
EPA has focused on the
unincorporated areas because permit
applications cannot be required from
systems that serve a population less
than 100,000, unless designated. EPA
received the comment that if the sewers
in incorporated places within such
counties were included as part of the
system for that county, there would be
the potential for systems serving a
population less than 100,000 to be
improperly subject to permit
requirements. EPA agrees with the
comment, except that EPA reserves the
authority to designate sewers In small
Incorporated places as part of the
system subject to permitting, pursuant to
paragraph (iii) of the final definition.
Incorporated areas Within the identified
counties will be required to file permit
applications if the population served by
the municipal separate storm sewer
system is 100,000 or more.
As one commenter noted, the counties
addressed by the definition will
generally be areas of high growth with a
growing tax base that can finance a
storm water management program.
Numerous counties affected by
paragraph (Ii) commented on the
proposal. Several of these indicated a
preference for the county government as
the perniittee. Others indicated that
their county had the ability to perform
the functions of the permit applicant and
permittee. One county brought to EPA’s
attention that the county had laid plans
for a storm water utility scheduled to be
in operation in 1989. Several of the
counties supported the use of
watersheds, or flexible regional
approaches. as the basis for the
definition of municipal separate storm
sewer systems. The modified definition
should satisfy these concerns.
EPA recognizes that some of the
counties addressed by todays rule have,
in addition to areas with high
unincorporated urbanized populations,
areas that are essentially rural or
uninhabited and may not bethe subject
of planned development. While permits
issued for these municipal systems will
cover municipal system discharges in
unincorporated portions of the county, it
is the intent of EPA that management
plans and other components of the
programs focus on the urbanized and
developing areas of the county.
Undeveloped lands of the county are not
expected to have many, if any.
municipal separate storm sewers.
Paragraphs (I) and (II) above will help
resolve the páblems associated with
permittees not having adequate land use
controls, the legal authority to
Implement controls. and the ownership
of the conveyances. This factor was
mentioned by nwnerous coinmenters on
the proposed options. especially county
governments. Under paragraphs (i) and
(ii). all publicly owned separate storm
sewers within the appropriate municipal
boundaries will be defined as part of the
municipal system. In many cases, a
number of municipal operators of these
storm sewers will be responsible for
discharges from these systems. Since a
number of co.permittees may be
addressed in the permits for these
discharges. problems associated with
the ability to control pollutants that are
contributed from interrelated discharges
will be minimized. State highways or
flood control districts, which may have
no land use authority in incorporated
cities, will be co-permilteee with the city
which doçs possess land use authority.
EPA envisions that permit conditions for
these systems will be written to
establish duties that are commensurate
with the legal authorities of a Co.
permittee. For example, under a permit.
a flood control district may be
responsible for the maintenance of
drainage channels that they have
lurisdiction over, while a city is
responsible for implementing a sedmeni
and erosion ordinance for construction
sites which relates to discharges to the
drainage channel. Confusion over
ownership of conveyances or systems.
at least for the purposes of determining
whether they require a permit, will be
minimized since all conveyances will be
covered. Similarly. under paragraph (ii).
the affected counties are expected to
have the necessary legal and land use
authority to implement programs and
controls in unincorporated, urbanized
areas because the county government is
the primary political or governing entity
hi these geographical areas.
Many commenters from all levels of
State and local government expressed
concern about controlling pollutants
from State highways. Paragraphs (i) and
(ii) will result in discharges from
separate storm sewers serving State
highways and other highways through
storm sewers that are located within
incorporated places with the
appropriate population or highways in
unincorporated portions of specified
counties being included as part of the
larpu or medium municipal separate
storm sewer system. since all municipal
separate storm sewers within the
boundaries of these political entities are
included. Paragraph (iv) can facilitate
-------
41041 Federal Register I VoL 55 No. 222 I Friday, November 18, 1990 I Rules and Regulations
the submission of a permit application
for storm sçwers operated as part Of an
entire State highway system. Paragraph
(iv) would allow an entire system In a
geographical region under the purview
of a State agency (such as a State
Department of Transportation) to be
designated, where all the permit
application requirements and
tequirements established under
* 122.28(a)(iii)(C) can be met.
Paragraphs (I) and (ii) can effectively
deal with many of the major sources of
pollutants. One municipality noted that
OptIon 5 (paragraph (i)) would require
all systems in the Incorporated
boundaries to obtain permits and
Institute control measures, rather than
just the few owned or operated by
Incorporated cities. Mother
municipality noted that this approach
could deal with many of the regional
variations in sources of pollution. Many
commenters, including environmental
groups, believed that proposed Option 3
(systems owned or operated by
counties). Option a (systems within the
boundaries of counties), and Option 7
(system in urbanized areas) were good
approaches because more sources of
pollution would be addressed. It was
also maintained that Options 3. Sand 7
could incorporate watershed planning
which, in the view of some commenter,,
Is the only effective way to address
pollutants in storm water.
Commenters noted that addressing
counties and urbanized areas would
focus attention on developing areas
which wuuld otherwise be left out in the
initial phases of permitting. One
commenter noted that moat new
development in large urbanized areas
occurs outside of core cities
(incorporated cities with a population of
100.000 or more). Newly developing
areas provide opportunities for installing
pollutant controls cost effectively. EPA
agrees with these comments and notes
that paragraph (ii) addresses a
significant number of counties with
highly developed or developing areas.
However. EPA is convinced that
addressing all counties or urbanized
areas in the initial phases of the storm
water program is ill-advised.
Cominenters noted that some counties
have inappropriate or nonexistent
governmental structures, and that a
program that addressed all counties in
the country with a population of 100.000
or more would be unmanageable.
because too many municipal entities
nationwide would be involved in the
program initially. Commenters advised
that defining municipal storm sewer
systems solely in terms of the
boundaries of census urbanized areas
(Option?) would result In systems
which did not correspond to
juristhctloas that a in a position to
implement a etorm water programs.
Thus. EPA has modified Option? and
combined It with OptionS to create
paragraph (ii) above.
Paragraph (Iii) incorporates a
designation authority such that
municipalities that own or operate
discharges from separate storm sewers
systems other than those described In
paragraph (I) or ( II) may be designated
by the Director as part of the large or
medium municipal separate storm sewer
system due to the interrelationship
between the other discharges of the
designated storm sewer and the
discharges from the large or medium
municipal separate storm sewers. In
making this determination the physical
interconnections between the municipal
separate storm sewers, the location of
discharges from the designated
municipal separate storm sewer relative
to discharges from large or medium
municipal separate storm sewers, the
quantity and nature of pollutants
discharged to waters of the United
States, the nature of the receiving
waters, or other relevant factors may be
considered.
Comments indicated that the
designation authority as proposed and
described above should be retained.
One State noted that this approach gives
the most flexibility in making the case-
by.case designations, while also
delineating in sufficient detail what
criteria are used to make the
determination. This commenter was
concerned about being able to regulate
many of the interrelated discharges from
counties surrounding incorporated
cities.
Paragraph (iv) of the final definition
allows the permitting authority. upon
petition, to designate as a medium or
large municipal separate storm sewer
system, municipal separate storm
sewers located within the boundaries of
a region defined by a storm water
management regional authority based
on a jurisdictional, watershed, or other
appropriate basis that includes one or
more of the systems described in
paragraphs (I). (ii). (iii ).
Paragraph (iv) was added to the final
defimtions to respond to a variety of
concerns of commenters. One of the
prime concerns of commenters was that
the definition of large and medium
municipal separate storm sewer systems
must be flexible enough to
accommodate: Programs on a watershed
basis, existing storm water programs
and frameworks and regional
differences in climate, geography, and
political institutions. Some States were
particularly expressive regarding this
concern. One State maintained that an
inflexible program could totally disrupt
ongoing State efforts. Other commenters
urged that the regulation encourage the
establishment of regional storm water
authorities or other mechanisms that
can deal with storm water quality on a
watershed basis. One State proposed
defining the municipal separate storm
sewer system to include all municipal
separate storm sewers within a core
incorporated place of 100,000 or more.
and all swvounding incorporated places
within the State defined watershed. One
of the State water districts advised that
the regulations should be flexible
enough to allow regional water quality
boards to apply the regulations
geographically. One national association
expressed concern that existing
institutional arrangements for flood
control and drainage would be ignored.
while another warned against fostering
a proliferation of inconsistent
patchwork programs based on arbitrary
definitions and jurisdictions which bear
no relationship to water quality.
EPA is convinced that the mechanism
described in paragraph (iv) provides a
means whereby the mechanisms and
concepts identified above can be
utilized or created in appropriate
circumstances. In addition. 122.25(fl(4)
provides a means for State or local
government agencies to petition the
Director for the designation of regional
authorities responsible for a portion of
the storm water program. For example.
some States or counties may currently
or in the near future have regional storm
water management authorities that have
the ability to apply for permits under
today’s rule and carry out the terms of
the permit. Some of these authorities
may encompass within their jurisdiction
large or medium municipal separate
storm sewer systems as defined in
today’s rule. EPA wishes to encourage
such entities to assume the role as
permittee under today’s rule. flat is the
purpose of paragraph (iv). Such
authorities may petition the Director to
assume euch a role.
Many commenters expressed the view
that municipal management plans must
be coordinated or developed among Co.
permittees on a regional basis and in the
same timeframe. Paragraphs (i). (iii) and
(iv) would bring in all appropriate
municipal entities with jurisdiction over
a specified geographical area in the
same timeframe. Several commenters.
including one State. noted proposed
Option I would lead to fragmented. ill’
coordinated programs. Paragraphs (i).
(lii ). and (iv) do not suffer this drawback
-------
Fq d nI Register 1 VoL 55, No. 222 I Friday. November 18, 1990/ Rules and Regulations
to the same extent since all the
municipal separate storm sewers are
addressed within the incorporated
place. instead of only those owned or
operated by the incorporated place.
Equal treatment of municipalities
within a watershed or other specified
ares was a major subject of cn,nment.
Many cammenters urged that a degree
of fairness could be achieved by
requiring permit applications, and the
concomitant expenditure of municipal
dollars and resources, from all
municipalities within an entire urban
area that contributes to storm water
pollution, rather than from a discrete
system within an arbitrary political
boundary. Paragraph (I). especially
when coupled with paragraphs (ii), (iii),
and (iv ). can best accomplish a more
equitable approach, because all owners
and operators of municipal separate
storm sewers within a system have
responsibilities. In addition, some of the
areas outside the incorporated city
limits which are engaged in expansive
urban or suburban development will be
brought into the program. Paragraph (iv)
will provide a means for State or’
regional authorities to use existing or
emerging mechanisms to set up storm
water management programs, and
would require multiple agencies either
to become regional co-permittees or to
be subject to a regional permit.
Paragraphs (I), (ii). (iii), and (iv) could
also require flood control districts to be
co-per inittees, which was a major
concern of counties and numerous cities.
One municipality stated that the
inclusion of flood control districts would
greatly reduce the adnwustrative burden
required to prepare a single inter-city
discharge agreement and would
establish a common legal authority to
implement the program. Numerous
county agencies believed it imperative
that flood control districts be brought
into a system-wide permit strategy.
Paragraphs Ii) and (iii) may not
accommodate the concern of several
commentere that the number of co-
pernuttees be kept to a minimum. The
fact that all the municipal separate
storm sewers within the boundaries of
the appropriate incorporated places will
be addressed dictates that some permits
will have several co-permittees. This is
a major concern since it goes directly to
achieving an effective initial storm
water program. There is concern about
being able to bring all the co.permittees
together under intra-municipal
agreements or contracts within
regulatory deadlines. This problem
would be resolved in the short term by
selecting Option 1. However. Option I
may still require inter-municipal
agreements because of the designation
authority under § i22 (b)(4)(ii) and
(b)(7111i) of the proposaL in addition,
such inter-jurisdIctional problems Will
arise after October 1. 1992 when the
moratorium on requiring NPDES permits
for discharges from other municipal
separate storm sewers ends. Under the
permitting goals established by the
CWA, multi-jurisdictional storm water
programs and agreements cannot be
avoided. Despite interest in limiting the
number of co-permittees. EPA decided
not to adopt Option I for the reasons
already stated.
Section 402(p)(3)(B)(i) of the amended
CWA provides that permits for
municipal discharges from municipal
storm sewers may be issued on a
system-wide or jurisdiction-wide basis.
This provision is an important
mechanism for developing the
comprehensive storm water
management programs envisioned by
the Act.
Under the permit application
requirements of todays rule, If the
appropriate co-applicants are identified,
one permit application may be
submitted for a large or medium
municipal separate storm sewer system
(see section VI.G.4 above). System-wide
permit applications can in turn be used
to issue system-wide permits which
could cover all discharges in the system.
Where several municipal entities are
responsible for obtaining a permit for
various discharges within a single
system, EPA will encourage system-
wide permit applications involving the
several municipal entities for a number
of reasons. The system-wide approach
not only provides an appropriate basis
for planning activities and coordinating
development, but also provides
municipal entities participating in a
system-wide application the means to
spread the resource burden of
monitoring, evaluating water quality
impacts, and developing and
implementing controls.
The system-wide approach provided
in todays rule recognizes differences
between individual municipalities with
responsibilities for discharges from the
municipal system. Today’s applic tion
rule req ulres information to be
submitted that enables the permit
issuing authorities to develop tailored
programs for each permittee with
responsibility for certain components.
segments. or portions of the municipal
separate storm sewer system. The
permit application requirement. allow
individual municipal entities.
participating in system-wide
applications, to submit site specific
information regarding storm water
quality management programs to reduce
pollutants in system discharges as a
whole, or from specific points within the
system,
In some cases, It may be’undeeirable
for all municipal entities with storm
water responsibility Within a municipal
system to be co-perinittees wider one
system-wide permit. The permit
application requirements in today’s rule
allow individual municipal entities
within the system to submit permit
applications and obtain a permit for that
portion of the storm sewer system for
which they are responsible. Thus,
several permits may be issued to cover
various subdivisions of a single
municipal system.
In summary. EPA believes that the
definition of municipal storm sewer
system adopted in today’s rule has
several distinct advantages that were
identified in comments:
• The definition adopts features of
several options:
• The definition targets areas that
have the necessary police powers and
land use authority to implement the
program:
• The definition can utilize
watersheds or accommodate existing
adinimstrative frameworks and storm
water programs:
• The definition provides that alt
systems within a geographical area
including highways and flood control
districts will be covered, thereby
avoiding fragmented and ill-coordinated
programs;
• The definition has flexible
designation authority; and
• The definition addresses major
sources of pollutants without being
overly broad.
H. Permit Application Reqwrement.s for
Large and Medium Municipal Systems
I. Implementing the Permit Program
Given the differing nature of
discharges from municipal separate
storm sewer systems in different parts
of the country and the varying water
quality impacts of municipal storm
sewer discharges on receiving waters.
today’s permit application requirements
are designed to lead to the development
of site-specific storm water management
programs. In order to effectively
implement this goal. EPA intends to
retain the overall structure of the
municipal permit application as
proposed in the December 7. 1988.
proposal.
2. Structure of the Permit Application
EPA proposed a two-par’ permit
application designed to meet the goal of
-------
48004 Federal Register I VoL 55 No. 222 / Friday. November 10, 1990 I Rules and Regulations
developing ails-specific storm water
quality management programs in NPDES
permits. In response to a request for
comments on this aspect of the proposal.
numerous comments were received.
After reviewing these comments, EPA
has decided to retain the two-part
permit application. Many commenters
agreed that the approach as proposed Is
appropriate for phasing in and
developing site specific storm water
management programs. One large
municipality strongly endorsed the two-
part application, stating that it would
facilitate the identification of water
quality problem areas and the
development of priorities for control
measures, thereby allowing for more
cost-effective program development.
Two State agencies expressed the same
view, and noted that the two-part
approach is reasonable and well
structured for efficient development of
programs. One large municipality noted
it would allow the permit authority and
the permit applicant the tilne needed to
gain the knowledge and data to develop
site-specific permits. A medium
municipality expressed similar views.
Numerous cominenters submitted
endorsements of a proposal offered by
one of the national municipal
associations. This approach responded
to EPA’s request for comments on
alternatives to a two-part application
process. These comments recommended
having permit applicants submit
information regarding their existing legal
authority, prepare source identification
information, describe existing
management plans, provide discharge
characterization information based on
existing data, and prepare a monitoring.
characterization and illicit discharge
and removal plan in a one-part
application. The remaining requirements
such as: implementing plans to remove
illicit connections, obtaining legal
authority, morntoring and
characterization, plans for structural
controls, preparation of control
assessments, preparation of fiscal
analysis, and management plait
implementation would be part of the
permit and take place during the
compliance period of the permit. It was
argued that this would result in a more
orderly development of etormwater
management programs while allowing
for quick implementation of efforts to
eliminate illicit discharges and initiate
some BMPs.
After careful review and
consideration of these comments, EPA Is
convinced that this approach would not
meet the goals and requirements of
section 402 of the Clean Water Act.
Section 402(p)(3)(BJ of the CWA requires
that permits effectively prohibit non.
storm water discharges into storm
sewers and incorporate controls that
reduce the discharge of pollutants to the
maximum extent practicable, including
management practices. control
techniques, and system design and
engineering methods. The above
comments suggesting an alternative for
achieving this goal are not entirely
compatible with these requirements In
light of the language in the statute,
permit conditions should do more than
plan for controls during the term of the
permit. A strong effort to have the
necessary police powers and controls
based on pollutant data should be
undertaken before permits are issued. In
short, the one-part application described
by these comments would result in
permits that would focus too much on
preparation and not enough cn
implementing controls for pollutants.
In comparison, EPA’s approach
requires municipalities to submit a two-
part application over a two year period.
Part one of the application would
require information regarding existing
programs and the means available to the
municipality to control pollutants in its
storm water discharges. In addition. psrt
one would require field screening of
major outfalls to detect illicit
connections. Part two of the permit
application would require a limited
amount of representative quantitative
data and a description of proposed
storm water management plans. The
purpose of the two-part application
process is to develop information. in a
reasonable time frame. that would build
successful municipal storm water
management programs and allow the
permit writer to make informed
decisions with regard to developing
permit conditions. This will include
initiating efforts to effectively prohibit
non-storm water discharges into storm
sewers, and initially implementing
controls that reduce the discharge of
pollutants to the maximum extent
practicable. Including management
practices and control techniques during
the term of the permit. Such an approach
dearly meets the statutory mandate of
section 402(pll3llB).
a. Part I Application. Part 1 of the
permit application is intended to provide
an adequate basis for identifying
sources of pollutants to the municipal
storm sewer system. to preliminarily
identify discharges of storm water that
are appropriate for individual permits.
and to formulate a strategy for
characterizing the discharges from
municipal separate storm sewer
systems. Several commenters supported
retaining these components of the
application process . The component. of
part I of the permit application Include:
• General information regarding the
permit applicant or co-applicants
(I 122.26(dfllfli)):
• A description of the existing legal
authority of the applicant(s) to control
pollutants in storm water discharges
and a plan to augment legal authority
where necessary ( 122.26(d)(1)(ii));
• Source identification information
including: a topographic map.
description of the historic use of
ordinances or other controls which
limited the discharge of non-storm water
discharges to municipal separate storm
sewer systems. the location of known
municipal separate storm sewer outfalls,
projected growth. location of structural
controls, and locatipn of waste disposal
facilities (I 122.25(d)(1)(iii)):
• Information characterizing the
nature of system discharges including
existing quantitative data, the results of
a field screening analysis to detect illicit
discharges and illegal dumping to the
municipal system, an identification of
receiving waters with known water
quality impacts associated with storm
water discharges. a proposed plan to
characterize discharges from the
municipal storm sewer system by
estimating pollutant loads and the
concentration of representative
discharges, and a plan to obtain
representative data (I 122.26(d)(1)(iv));
and
• A description of existing structural
and non-structural controls to reduce the
discharge of pollutants from the
municipal storm sewer
(I 122.26(d)(lllv)).
One commenter disagreed that source
identification should be made part of the
permit application process beyond the
identification of major municipal Storm
sewer outfalls. In reply. EPA 4s
convinced that the other elements of the
source identification are critical for
identifying sources of pollutants and
creating a base of knowledge from
which informed decisions about permit
conditions and further data
requirements can be determined. One
county stated that it already had
engaged in extensive monitoring and
modeling of watersheda and that its
programs should be substituted for
EPA’s. In response. EPA anticipates that
information collected under various
State. county or city programs that
matches the information requirements in
this rulemaking may be used by the
applicants in submissions under this
rulemaking where the requirements of
the rule are met. However, because of
the divergence in data collection
technique, and information collected by
-------
Federal Register I Vol. 55. No. 222 / Friday, November 16. 1990 I Rules and Regulations
o’S
these programs, EPA disagrees that It
would be appropriate to accept a
substitution In Its entirety without
tailoring such a program to today’s
specific information requirements. One
municipality noted that municipal
systems are not well documented and
responsibility for them is in question. In
response. EPA notes that the source
Identification procedure is designed, In
part, to address such shortcomings.
Several muniqipalities suggested that
legal authority could be demonstrated
by providing EPA with copies of
appropriate local ordinances to
demonstrate their legal authority and a
statement from the city attorney. EPA
agrees that these methods are
appropriate for making this
demonstration.
Several commenters noted that there
was adequate existing municipal legal
authority to carry out the program
requirements or such authority could be
obtained by the municipality. Other
commenters stated that municipalities
possess some authority over certain
activities but may not have authority
over discharges from roads and
construction. Numerous comnienters.
however, claimed that certain
municipalities had no existing legal
authority to carry out the permit
requirements and that obtaining all the
necessary legal authority could take
several years due to cumbersome
legislative and political processes. In
response, part I of the permit
application will establish a schedule for
the development of legal authority that
will be needed to accomplish the goals
of the permit application and permits.
Some municipalities will have more
advanced storm water programs with
appropriate legal authority or the ability
to establish necessary ordinances.
Providing an appropriate schedule will
not present difficulties in these
circumstances. EPA also notes that the
definitions of large and medium
municipal separate storm sewer systems
finalized In today’s rule will in many
cases result in a number of co .
applicants participating in a system
wide application. it is anticipated that
the development of adequate inter.
jurisdictional agreements specifying the
various responsibilities of the co-
perinittees may in some cases be very
complex, thereby justifying the
development of a schedule to complete
the task. For example, clarifying the
authority over discharges from roads
may present difficulties where a number
of municipal entities operate different
roads in a given junsdiction. in other
limited case., the MEP standard for
municipal permits may translate into
permit conditions that extend the
schedule for obtaining necessary legal
authority Into the term of the permit.
These situations will be evaluated on a
case-by-case basis by permit Issuing
authorities.
Numerous commenters supported the
field screening analysis as proposed.
Comments from three municipalities
noted that it would be a cost effective
means of identifying problem areas. One
municipality noted that illicit
connections can be reliably detected by
the screening method proposed. in view
of these comments EPA has decided to
retain this portion of the regulation.
However many commenters expressed
concern over how the proposed
approach would work given the
particular circumstances under which
some municipal storm water systems are
arranged. Several commenters
questioned the effectiveness of thy
weather monitoring for several reasons,
Including the shallow depth of some
cities’ water tables. Accordingly. an
alternative approach may be utilized by
the municipal permittee. and this is
discussed later in section Vl.H.3.
Some comments suggested that if any
field screening is required that it be
done during the term of the permit. EPA
believes that field screening should not
be done during the term of the permit
exclusively. Unless a field screening is
accomplished during the permit
application phase there will be scant
knowledge, if any, upon which illicit
connection programs can be established
for the term of the permits. EPA views
field screening during the application
process as an appropriate means of
beginning to meet the CWAs
requirement of effectively prohibiting
non•storm water discharges into
municipal separate storm sewers.
The submittal of part I of the permit
application will allow EPA. or approved
NPDES States, to adjust part 2 permit
application requirements to assure
flexibility for submitting information
under part 2. given the site specific
charactenstics of each municipal storm
sewer system.
EPA agrees with the concerns of
commenters regarding the estimate of
the reduction of pollutant loads from
existing management programs. EPA
agrees that sufficient data may not be
available to establish meaningful
estimates. Therefore this component of
the proposed part I is not a requirement
of todays rule.
b. Part 2 Apphcatson. Part 2 of the
proposed permit application is designed
to supplement information found in part
I and to provide municipalities with the
opportunity of proposing a
comprehensive program of structural
and non-structural control measures that
will control the discharge of pollutants.
to the maximum extent practicable, from
municipal storm sewers. The
components of the proposed part 2 of
the permit application included:
• A demonstration that the legal
authority of the permit applicant
satisfies regulatory criteria
( 122.28(dll2lli)):
• Supplementation of the source
Identification information submitted in
part I of the application to assure the
Identification of all major outfalls and
land use activities (I 122.25(dJ(2)(ii):
• Information to characterize
discharges from the municipal system:
• A proposed management program
to control the discharge of pollutants to
the maximum extent practicable. from
municipal storm sewers
(I 122.26(d)(2)(ivfl:
• Assessment of the performance of
proposed controls (I 122,Z8(d)(2)(vll:
• A financial analysis estimating the
cost of implementing the proposed
management programs along with
identifying sources of revenue
I 122.26(d)(2)(vi);
• A description of the roles and
responsibilities of co-applicants
(* 122.26(dH2flviill.
One municipality agreed that the
assessment of the performance of
controls was a critical component.of
establishing a viable program and one
that could be accomplished within the
time frame of the permit application
deadlines. One commenter suggested
that the applicant describe what
financial resources are currently
available. In response. EPA will require
applicants to describe the municipality’s
existing budget for storm water
programs in part I of the permit
application requirements. This
information will be useful to evaluate
the municipality’s ability to prepare and
implement management plans. In
response to other comments, this
information will also include an
overview of the municipality’s financial
resources and a description of the
municipality’s budget, including overall
indebtedness and assets.
EPA has retained the financial
analysis in this portion of the rule on the
advice of two municipal commenters.
who agreed that this was an important
component of establishing a viable
program and one that could be
accomplished within the time frame ol
the permit application deadlines.
Another commenter noted tbat this
requirement is appropriate to justify a
municipality’s proposed management
plan.
-------
4e048 Federal Register / VoL 55, No. 222 I Friday, November 10, 1990 I Rules aisd Regulations
3. Major Outfalla
In past rulemakings. a controversial
iuize has been the appropriate sampling
requirements for municipal separate
storm sewer systems. Earlier storm
water rulemakings have been based
primarily on the principle that all
discharges to waters of the United
States from municipal separate storm
sewers located in urban areas must be
covered by an individual permit. This
approach requires that individual permit
applications contain quentitative data to
be submitted for all such discharges.
This approach was criticized because of
a potentially unmanageable number of
outfalls in some municipal separate
storm sewer systems. Most ir.corporated
cities with a population of 100.000 or
more do not know the exact number of
outfalls from their municip.l systems:
but based on the comments, the number
ranges from 500 Ia 8.01)0 or mcre.
In light of the increased flexibility
provided by the WQA and the
development of EPA ’s system-wide
approach for regulating municipal
separate storm sewer discharges.
today’s rule will not require submittal 0 r
individual permit applications with
quantitative data for each outfall of a
municipal system. Rather today’. rule
will encourage system-wide permit
applications to provide information
suitable for developing effective storm
water management programs. Under this
approach, not all outfdlls of the
municipal system will be sampled. but
rather more specific and accurate
models for esluu. .ting pollutant loads
and discharge concent:aliuns will be
used. The use of these models will
require the idcniificatiun of sources
which are responci .lc icr disi.harging
pollutants into municipal separate storm
sewers and wili no: require as much
data to calibrate dt.e to the source-
specific nature cf the modeL A number
of standard and localized models have
been developed for eatima:ing pollutant
loads from storm c.ater discharges.
Several commenters support the use
of models for developing management
plans and estimating pollutant loadings
and concentrations. EPA encourages
their use where applicable to pariicular
systems.
By adopting an approach that
incorporates source Identification
measures, the amount of quantitative
data required to characterize discharges
from the municipal system will be
reduced because of the increased
accuracy of the site-specific models
which can be used. Consistent with a
system-wide permit application
approach. EPA proposed to focus source
identification measures on “major
outfalls.” 1he,proposed definition of
major outfalls includes any municipal
separate storm sewer outfall that
discharges from a pipe with a diameter
of more than 36 Inches or Its equivalent
(discharges from a drainage area of
more than 50 acres), or for municipal
separate storm sewers that receive
storm water from lands zoned for
industrial activities, an outfall that
discharges from a pipe with a diameter
of more than 12 inches or its equivalent
(discharges from a drair.age area of 2
acres or more).
Numerous entities offered comments
on this definition. Several commenters
concurrad with this proposed definition.
One commenter maintained that the
data collected at such outfalls would be
sufficient to estimate pollutant loads as
well as concentrations using well
cailibratezi models. Another municipality
stated that 50 acres w s an excellent
approximahon for the average drainage
area snrved by a 30-inch storm sewer.
Two States and one co.inty supported
the definition as proposed. One la.-ge
mcaicipal entity s”ppo ed the
definition, stating that screening major
outfalls could be accomplished with
available staff ove a three month
pertod. In light of these comments. EPA
has decided to retain. in part, the
definition as proposed.
Numerous commenters suggested
alternative definitions or otherwise
disagreed with the proposed defloition.
Most of these cumments expressed
concern about the number of outfalls
th .t would have to be tested or screencJ
if the definition was retained. For this
reason EPA has decided to lim.t the
total ,iumbcr of major outfalls or
equivalent sampling points that have to
be iested to 2 0 or 500 fcr medium or’
large systems respectively. This change
is discussed in further detail below.
The following are examples of
comments that opposed the definition of
a ‘major outfall” as proposed. Several
conimenters stated that, in the
southwest. 6 to 12 foot outfalls are the
norm, and that smaller outfalls should
not be addressed unless there is a
compelling reason to suspect illicit
connections. One commenter suggested
a size of 54 Inches and 50 acres, while
another commenter suggested that 48
inches would be appropriate. One
commenter suggested that the diameter
for industrial pipes should be 18 inches,
while another commenter suggested that
50 acres should be the only criterion.
One commenter noted that pipe size
will vary according to rainfall patterns
and that a single approach would not
work universally. This comment. and
other similar points of view as noted
herein. convinces that Agency that a
more flexible approach is needed to
identify field screening and sampling
locations. However, EPA I. also
convinced that a universal standard is
necessary for purposes of identifying
drainage areas within the municipal
system and discrete areas of land use
that are drained by certain sized
outfalls. This Information is criliciil
since these conveyances, and lands they
drain. are sources of pollutants to
waters of the United States from
niunicipal systems and are properly the
sub ject of appropriate permit conditions.
Many commenters suggested placing a
limit on the number of major outfalls
addressed during the field screening
phase of the permit application. Two
municipalities stated that the proposeu
definition of major outfall. in ternis to
the pipe diameter was too smell aim
that too many outfall. would be
covered. One municipality stated that
wider the proposed definition, it would
have over 4700 “major outfalls.” a
number viewed as being unacceptably
large. Several municipalities argued that
they would be penalized for o%cr’design
of their storm drain system. One
municipality stated field screening of
outfall. slLould be limited to 200 for
mediam cities and 500 for large cities.
Some c. mmenters suggested EPA set a
perccntage of major outfalls for
screening, because all pipes in some
mur.icip.ilities meet the definition of
major outfall. One coramenter suggested
th t a sliding scale be used to delermine
the number of outfalls tested: those with
50 test all, those with 100—ZOO teat 50%,
etc. Other commenlers suggested a flat
percentage of outfalls or flat number
such as 100.
4. Field Screening Program
EPA also received several cunimcn ls
in response to the proposed field
screening methodology. Among the
major concerns were; End of pipe
sampling may not be practical and the
more appropriate and accessible
location is likely to be the nearest
upstream manhole’, the t3pe of discharge
should be Ihe criterion for selecting
sampling points as opposed to pipe size:
a system wide evaluation is more
appropriate than checking each outfall.
within some systems. mapor outfall. or
pipe size will not reflect discharges from
suspect or old land use areas; efforts
should be focused on locations where
illicit connections are expected; sites
should be determined by looking at sites
within drainage basin areas based on
land use within those basins: land use
and hydrology of the watershed should
be the criteria for selecting points:
-------
Federal Register / Vol. 55, No. 222 / Friday , November 16, 1990 I Rules and Regulations
48047
screening should be performed at
locations that will allow for the location
of upstream discharges: the focus should
hi’ exclusively on drainage areas rather
than pipe size, since pipe size will vary
with slope; a prescribed percentage of
total flow may be more appropriate:
state water quality standards should be
utilized along with focusing on actual
qt’ality in the reaches of a stream.
EPA Is convinced by these comments
that today’s rule should allow applicants
to either field screen all major outfalls
as proposed (first procedure) or use a
second procedure to provide for the
strategic location of sampling points to
pinpoint illicit connections. EPA agrees
with comments that the size of the
outfall will not always reflect the
chance of uncovering illicit connections
or discharges. and that field screening
points should be easily accessible.
This second procedure is as follows:
field screening points and/or outfails
are randomly located throughout the
storm sewer system by placing a grid
over a drainage system map and
identifying those cells of the grid which
contain a major outfall or segment of the
storm sewer system. The grid shall be
established using the following
guidelines and criteria:
(1) A grid system consisting of
perpendicular north-south and east-west
lines spaced 1/4 mile apart shall be
overlaid on a map of the municipal
storm sewer system. creating a series of
cells
(2) All cells that contain a segment of
the storm sewer system shall be
identified: one field screening point shall
be selected in each cell; major outfalls
may be used as field screening points;
(3) Field screening points or major
outfalls should be located downstream
of any sources of suspected illegal or
illicit activity;
(4) Field screening points shall be
located to the degree practicable at the
farthest manhole or other accessible
location downstream in the system.
within each cell: however, safety of
personnel and accessibility of the
location should be considered in making
this determination;
(5) The assessment and selection of
cells shall use the following criteria:
Hydrological conditions: total drainage
area of the site: population density of
the site, traffic density; age of the
structures or buildings in the area:
history of the area: land use types;
(6) For medium municipal separate
storm sewer systems, no more than 250
cells need have identified field screening
points: in large municipal separate storm
sewer systems, no more than 500 cells
need to have identified field screening
points for detecting illicit connections;
cells established by the grid that contain
no storm sewer segments will be
eliminated from consideration; If fewer
than 250 cells In medium municipal
sewers are created, and fewer than 500
in large systems are created by the
overlay on the municipal sewer map.
then all those cells which contain a
segment of the sewer system shall be
subject to field screening (unless access
to the separate storm sewer system is
impossible);
(7) Large or medium municipal
separate storm sewer systems which are
unable to utilize the procedures
described in paragraphs (1) through (B)
above, because a sufficiently detailed
map of the separate storm sewer
systems is unavailable, shall field
screen at least 250 or 500 major outfalls
respectively using the following method:
the applicant shall establish a grid
system consisting of north-south and
east-west lines spaced 1/4 mile apart
overlaid on a map of the boundaries of a
large or medium municipal entity
described at § 122.26(b), thereby
creating a series of cells; major outfalls
in as many different cells as possible
shall be selected until 500 major outfalls
(large municipalities) or 250 mapor
outfalls (medium municipalities) are
selectedi a field screening analysis shall
be undertaken at t)iese major outfalls.
The methodology outlined above is in
response to public comments which
indicated that the field screening and
sampling of major outfalls as proposed
would lead to insurmountable logstical
problems in some municipal systems.
EPA believes that the above is an
effective approach to pinpointing
suspected problem points along a given
trunkline or segment of separate storm
sewer system. Jurisdictions with no
extensive or p. evious history of
monitoring, or lack of an intensive
monitoring program can utilize the
methods described in establishing a
program. Furthermore, the approach will
allow for the prioritization of outfalls.
sampling points, or areas within the
municipality where there are suspected
illicit connections or discharges. or other
circumstances creating higher
concentrations and loadings of
pollutants.
Paragraph (7) enables municipalities
to select major u .itf5lls without regard to
the municipal sewer system map that is
required for using the procedure
described in paragraphs (1) through (6)
However, the applicant must still select
outfalls within the cells created by
overlaying a 1/4 mile grid over a map of
the boundaries of the large or medium
municipal entity defined under
I 122.26(b). and select major outlalls
within as many of those cells as
possible. up to 501 (large municipal
systems) or 250 (medium municipal
systems). In this manner, as many
different areas and land uses within the
municipal system will be covered by the
field screening component of the
municipal application.
In order to keep the costs of the
program within the anticipated limits of
the proposed regulation, the number of
outfalls or sampling locations using the
grid system is to be limited to 500 for
large municipal separate storm sewer
systems and 250 for medium municipal
separate storm sewer systems.
In response to several comments, EPA
has clarified the definition of major
outfalls with regard to the words. “pipe
with an inside diameter of 36 inches or
more or its equivalent” and ‘a pipe with
an inside diameter of 12 inches or more
or its equivalent.” This definition has
been modified to specify that single
pipes or single conveyances with the
appropriate diameter or equivalent are
covered.
EPA’s proposal requi;ed municipal
permit applicants to submit a fiscal
analysis of expenditures that will be
required in order to implement the
proposed management plans requ:red in
part 2 of the application. The description
of fiscal resources should irn.lude a
description of the source of the funds.
Some commanters felt that a fiscal
analysis should only be required during
the term of the permit, in response. EPA
believes that during the two years of
permit application developme it, the
permit applicant should be in a position
to submit information on the ability and
means for financ:ng storm water
management pro ams durrig the term
of the permit EPA ‘views this
information as an imp’,r:ant means of
evaluating the scope of prngram an
whether the permi;tee will be devoting
adequate resources to implementing the
program before that program is mapped
out in the permit itself.
5. Source Identification
The identification of sources nicn
contribute pollutants to municip.il
separate storm seWers is a critical step
in characterizing the nature and extent
of pollutants in discharges and in
developing appropriate control
measures. Source identification can be
useful for prov.ding an analysis of
pollutant source contribution arid for
identifying the relationship between
pollutant sources and recei ing water
quality problems In cases whvre end-of-
pipe controls alone are not practicable
ii is essential to identify the source of
pollutants into the munit,ip..l a:.Jrm
-------
4104S Federal RegIster I Vol. 55. No. 222 / Frida). November 16. 1990 I Rule. and Regulations
sewer systems to rapport a targeted
approach to control pollutant sources.
The relative contribution of pollutants
from various sources will beliighly site-
specific. The first step In developing a
targeted approach for controlling
pollutants In discharges from municipal
storm sewer systems Is identifying the
various sources in each drainage basin
that wiU contribute pollutants to the
muni pal storm sewer system.
This rulemaking phases in the seurce
identification requirements of the permit
program by establishing minimum
objectives in part 1 of the application
and by requiring applicants to submit a
source identification plan in part 2 of the
application to provide additional
information during the term of the
permit. The minimum source
identification requirements of part I of
the application have been designed to
provide sufficient information to provide
an initial characterization of pollutants
in the discharge. from the municipal
storm sewer system. EPA realizes that
with many large. complex municipal
storm sewer systems. It may be difficult
to identify all outfall. during the permit
application process. Accordingly. EPA L
requiring that known oulfalls be
reported in part 1 of the application. Par
1 of the application will also include: A
description of procedures and a
proposed program to identify additional
major outfall.: the Identification of the
drainage area associated with known
outfalls a description of major land use
classifications in each drainage area.
descriptions of soils, the location of
industrial facilities, open dumps.
landfills or RCRA hazardous waste
facilities which discharge storm water ti
the municipal storm sewer system; and
ten year pl’opcctions of populiation
growth and development activities
(population data and development
projections will be useful for future
predictions of loadings to receiving
waters from municipal storm sewer
systems, arid capacities required for
treatment systems). In general.
population pro;ections should reflect
various scenarios of development (high.
medium, low relative to recent trendil.
Part 2 of the application will
supplement the information reported In
part I of the application so that, at a
minimum, all major outfall. are
identified.
Under today’s rule, municipal or
public entities responsible for applying
for and obtaining an NPDES permit will
be required to identify the location of an
open dump. sanitary landfill, municipal
incinerator or hazardous waste
treatment. storage. and disposal facility
under RCRA which may discharge storm
water to the system as well as all
facilities which discharge storm water
associated with industrial activity Into a
large or medium municipal separate
storm sewer system.
Requiring these source identification
measures is supported by the legislative
history of sectIon 405 of the WQA.
which instrucis that Nli)n writing any
permit for a municipal separate storm
sewer, EPA or the State should pay
particular attention to the nature and
uses of the drainage area and the
location of any industrial facility, open
dump. landfill, or hazardous waste
treatment, storage, or disposal facility
which may contribute pollutants to the
discharge.” (emphasis added) (Vol 133
Cong. Eec. S752 (daily ed. Jan. 14. 1987).
One municipality questioned the
purpose of the topographic map and
commented that the scale of the
topographic map is too large to indicate
any of the required outfalL drainage.
industrial or structural control
Information, hi response, the purpose of
the topographic map is to identify
receiving waters, major storm water
sewer lines that contribute discharges to
these waters, and potential sources of
storm water pollution. EPA disagrees
that a USCS 7.5 scale map Is
inappropriate for identifying these
features within a municipal system. The
scale afforded by such a map provides
sufficient detail to allow specified
delineation of outfalls. while not
requiring an overly burdensome map in
terms of size. Numerous commenters
noted the value of source identification
information and generally supported
submitting this Information in the permit
application.
Many commenters questioned the
value of the source identification
information for the purpose of
characterizing pollutant loads and
concentrations. Conversely, one
coinmenter opined that the requirement
would provide sufficient information to
estimate pollutant loadings from each
outfall using loading models to estimate
loadings by watershed. In response, the
source Identification information serves
several purposes. It is the first step for
identifying potential sources of
pollutants from which more in depth
analysis can be accomplished, under the
discharge characterization component of
the application. Also, where
appropriate. it may be used in
conjunction with models to estimate
loadings and concentrations. EPA has
also taken note of the many comments
that question or dismiss the concept of
determining pollutant loads and
concentrations solely from sourr.e
identification. Accordingly. EPA is
convinced that at least some of the
sampling requirements as ropo.ed are
necessary to facilitate more accurate
system specific estimates of pollutant
concentrations and loadings. These are
discussed below, in the discharge
characterization section.
One coaunenter suggested that aerial
photos be submitted in lieu of
topographic maps. EPA agrees that an
aerial photograph of the appropriate
scale that communicates the same
information as a topographic map may
be substituted, Today’s final rule
reflects this flexibility.
The source identification cumponent
of the municipal application also
requires that municipal applicants
identify the industrial activity within the
drainage area associated with each
major outfall, One commenter stated
that where multiple storm sewers
outfalls discharge to a stream reach.
municipalities should be allowed to
delineate a single sewer.shed for
identifying sources of industrial activity.
In response, the rule does not delimit an
applicant’s ability to identify industries
in groups according to a common series
of storm sewer outfall., if that is an
easier or more appropriate methodology
for that particular applicant. However,
EPA would view this as appropriate
only where the land use is of one type.
such as industriaL Where land use is
mixed within the drainage area
associated with each major outfall, such
differences need to be identified.
In response to comments, to the extent
that EPA is requesting that applicanLs
identify the types of industrial facilities
operating within the municipality, the
municipality is free to use Standard
Industrial Classification (SIC) or other
systems which identify the principal
products or services of the facility. One
commenter disagreed with EPA’s
decision to require a list of water bodies
that are listed under CWA sections
304 (1), 319(a). 314(a). and 320. because
the States already have this information
and that requesting it from permittees
could result in “omissions.
misunderstandings. and mistakes.” EPA
believes that these water. should be
identified in the application so that
appropriate permit conditions can be
developed that address storm water
discharges that are adversely effecting
such waters. EPA believes that having
th:s information immediately at the
disposal of the municipality and the
permit writer will speed the process and
alert the municipality of storm water
discharges to listed wuter bodies and
potentially polluted storm water
discharges to those waters.
-------
Federal Register I Vol. 55, No. 222 / Friday, November 18, 1990 / Rules and Regulations
48049
0. CharacterizatIon of Discharges
The characterization plan and data
collection required In today’s rule as
elements of Part-one and Part-two of the
municipal permit application Is
comprised of several major components:
• A screening analysis to provide
information to develop a program for
detecting and controlling illicit
connections and illegal dumping to the
municipal separate storm sewer system:
• Initial quantitative data to allow the
development of a representative
sampling program to be incorporated as
a permit condition:
• System-wide estimates of annual
pollutant loadings and the mean
concentration of pollutants in storm
water discharges. and a schedule to
provide estimates during the term of the
permit for each major outfall of the
seasonal pollutant loadings and the
event mean concentration of pollutants
In storm water discharges: and
• An identification of receiving
waters with known water quality
impacts associated with storm water
discharges.
Several commentere noted the
Importance of developing and targeting
management programs based on
discharge charactenzation data and
monitoring. Numerous other commenters
stressed the importance of a program to
identify and eliminate illicit connections
and improper disposal. EPA agrees that
discharge characterization is an
important component of developing
management programs. Most of the
discharge characterization components
of the municipal application procedure
have been retained as proposed.
However some changes and
clarifications have been made, and
these are noted below.
a. Screening analysis for illicit
discharges (part 1 of opphcation). Illicit
thscharges (non-storm water discharges
without a NPDES permit), and illegal
dumping to municipal separate storm
sewer systems occur in a relatively
haphazard manner. Due to the
unpredictability of such discharges.
today’s permit applications require a
field analysis for the development of
priorities for detecting and controlling
such d scharges. A field screening
approach will provide a means of
detecting high levels of pollutants in dry
weather flows, which is one indicator of
illicit connections. Results of a field test
of such discharges will provide further
information about the nature of the
discharge to determine if further
investigation is warranted. Visual
observation of dry weather flows has
been shown to be one the mns’ effective
means for tracking down illicit
connections and improper disposaL
As discussed In greater detail in
section Vl.H.7.b of today’s preamble,
EPA Ii proposing to require that
municipal applicants submit a
comprehensive plan to develop a
program to detect and control illicit
connections and Illegal dumping. In
order to develop appropriate priorities
for these programs, applicants shall
submit the results of a screening
analysis to be performed on major
outfall. or “field screening points” in the
systems to detect the presence of illicit
hookups and illegal dumping, The
results of the screening analysis,
referred to as the field screen, would be
reported in part I of the permit
application.
Under the requirements for a field
screen, the applicant or co-applicants
will submit a description of
observations of dry weather discharges
from major outfall. or “field screening
points” identified In part 1 of the
application. At a minimum, the field
screen would include a description of
visual observations made during a dry
weather period. If any flow is observed
during a dry weather period. two grab
samples will be collected during a 24
hour period with a minimum period of
four hours between samples. For all
such samples, a description of the color.
odor, turbidity, the presence of an oil
sheen or surface scum as well as any
other relevant observation regarding the
potential presence of non.storni water
discharges or illegal dumping would be
provided. In addition, the applicant
should provide the results of a field
screen which includes on-site estimates
of pH. total chlorine, total copper. total
phenol, detergents (or surfacants) along
with a description of the flow. EPA is
not requiring analytical methods
approved under 40 CFR part 136 be used
exclusively in the field screen. Rather.
the use of inexpensive field sampling
techniques such as the use of
colormetric detection methods is
anticipated. Where the field screen does
not involve analytical methods
approved under 40 CFR part 136. the
applicant is required to provide a
description of the method used which
includes the name of the manufacturer
of the test method, including the range
and accuracy of the test. Appropriate
field techniques for a field screen of dry
weather discharges are discussed in
EPA guidance for municipal storm water
discharge permit applications.
It should be clarified that data from
the field screen is generally not
appropriate for comprehensive
evaluation of water quality impacts, or
estimating pollutant loadings. Rather.
the Information front the field screen In
part I of the application will be used
along with other information, such as
the age of development and degree of
Industrial activity in the drainage basin,
to Identify areas or outfall. which are
appropriate targets for management
programs and for investigations directed
at identifying and controlling non-storm
water discharges to separate storm
sewers during the term of the permit.
In the December 7, 1988, proposal.
EPA proposed a second phase of the
screening analysis requiring that wet-
weather and dry-weather samples be
collected and analyzed in accordance
with analytical methods approved under
40 CFR part 136 from designated major
outfall. for a larger set of pollutants
Identified with illicit connections.
Comments essentially viewed this
proposal as too ambitious for the permit
application. One commenter
recommended that this procedure could
best be accomplished during the term of
the permit. Some comments maintained
that the collection of analytical samples
as a follow up to an initial field screen
analysis was not the most cost-effective.
practicable or efficient method for
pinpointing illicit connections. EPA
recognizes that several municipal
programs to detect and control illicit
connections and other non-storm water
discharges have been successfully
developed and implemented without the
use of extensive analytical sampling (for
example, programs in Fort Worth. TX
and Washtenaw County. MI). After
identifying and analyzing the comments
on this aspect of the proposal EPA has
withdrawn this element of the proposal
from todays rule. EPA believes that a
follow-up phase to the initial field
screening is more appropriate during the
term of the permit. Thus. EPA has
dropped the field screening requirement
proposed for Part 2 of the application.
b. Representative data (Part 2 of -
application). The NURP study showed
that pollutant concentrations in urban
runoff can exhibit significant variation.
Pollutant concentrations in such
discharges vary during storm events and
from storm event to storm event. Given
the complex. variable nature of storm
water discharges from municipal
systems. EPA favors a permit scheme
where the collection of representative
data is primarily a task that will be
accomplished through monitoring
programs during the term of the permit.
Permit wnters have the necessary
flexibility to develop monitoring
requirements that more accurately
reflect the true nature of highly variable
and complex discharges
-------
48050 Federal RegIster I Vol. 55. No. 222 I Friday, November 10, 1990 / Rules and Regulations
Today’s rule provide, for an Initial
assessment of the quality of discharges
from munici pal separate storm sewers
based primarily on source identification
measures and existing information
received In the permit application. This
Information will be used to begin to
characterize system discharges. The
analysis developed under this approach
will not rely soley on sampling data
collected during the application process.
but will also Incorporate existing data
bases such as the one developed under
the NURP study. Today’s rule requires
that some quantitative data will be
collected to ensure the system
discharges can be appropriately
represented by the various existing data
bases and to provide a basis for
developing a monitoring plan to be
implemented as a permit condition.
Today’s rule requires that quantitative
data be submitted for discharges from
selected storm events at between 5 and
20 outfall. or field screening points. The
municipality will recommend and the
Director will then designate the outfalla
or field screening points as
representative of the conunercial.
residential and Industrial land use
activities of the drainage area
contributing to the system, on the basis
of information received in pa Tti of the
application. The applicant will be
required to coUect samples of a storm
discharge from three storm events
occurring one month apart for each
designated outfall or field screening
point. This is a modification to the
December 7. 1988. proposal wherein
only one of the 5 to 10 outfall. was to be
sampled dining three storm events, and
the remaining sampled only once. This
requirement may be modified by the
Director if the type and frequency of
storm events require different sampling.
The Director may require samples of
discharge- to be collected during snow
melts or during specified seasons. The
Director may also require additional
testing during a single event if it is
unlikely that there will be three storm
events suitable for sampling during the
year. Furthermore, the Director may
allow exemptions to the three storm
event requirement when climatic
conditions create good cause for such
exemptions: for example, arid regions or
areas experiencing drought conditions
during the period when applications are
developed could be exempted.
EPA has added requirements to
sample more storm events in respcnse to
comments that the sampling procejure
proposed would not necessarily yield
representative data. Commenters
indicated that: rain events of different
in.ensity may yield different levels and
types of pollutants a rain event after a
dry spell of several months will not be
representative when compared to rain
events occurring closer together. due to
the build up of atltuents oná sample
may reflect short term effects such as
improper disposal rather than long term
effects; and that rain events axe
generally too variable to rely on the
limited sampling as proposed. Clearly
the data collected from sampling storm
water discharges has a tendency to vary
greatly. The more sampling that is
accomplished, the greater extent to
which this variability may be accounted
for and appropriate management
programs developed.
In selecting the amount of data to be
collected during the permit application
process. EPA has attempted to balance
the usefulness of this data against the
economic and logistical constraints in
actually obtaining It. In some cases the
data obtained will support Initial
loading and concentration estimates
obtained using various modeling
techniques, from which appropriate
permit conditions can be developed.
Data obtained may be supplemented
with further data collection during the
term of the permit.
EPA believes that the requirement
that selected major municipal outfall. or
“field screening points” be sampled for
more than one event will provide
verification that the characterization of
discharge is valid. Where an ongoing
sampling program is defined for the term
of the permit, samples taken during the
fIrst few years of this period can be used
to verify the application results. If a
municipality or an industry questions
the conclusii. ,ns drawn from the
characterization sampling, it may at its
discretion choose to perform additional
sampling to either confirm or dispel
these concerns.
All samples collected will be analyzed
for all pollutants listed in Table U.
(organic pollutants). and Table UI. (toxic
metals, cyanide and total phenol) of
appendix D of 40 CFR part 222, and for
the pollutants listed in Table M—i
below:
Table M—1
Total .u.pend.d .oUda Total dissolved solidi.
COO Soc..
Oil sed esss F.cal soWot .
Focal sttep”’• p
Dissolved phoiphonia
Total .nlmanta plus Total pho.pboni..
oisrnc oltfoso.
Total a 1 sIdsbl olu ao..... Nieot. — wu41..
A portion of the NURP progran.
involved monitoring 120 priority
pollutants in storm water discharges
from lands used for residential.
conusercial and light industrial
activities. The NURP pru am excluded
testing for asbestos and i4i vem Results
for seven other organic priority
pollutanti were not considered valid
due to changes in, or constraints on test
methods. Seventy.aeven priority
pollutants were detected in samples of
storm water discharges from lands used
for residential, commercial and light
Industries taken during the NUEP study
Including 14 inorganic and 83 organic
pollutants. Table M—2 shows the priority
pollutants which were detected in at
least ten percent of the discharge
samples which were sampled for
priority pollutants.
Tse&s M-2.—PRIoarTv PoU.uT wrs DC.
TECTED IN AT LEAST 10% oc NURP
SAMPLES
(lnp .. . . .iu3
I saiah Wld ror9ar s
:
Antimcny.._....
‘3
Aiienc.... .. ...
52
._......._.
Inan_.__.._.
Ovo nia it
12
48
58
91
23
94
43
11
94
20
19
Copper. --
Oyamoes
Ld.._. ___ ...
P4ictisI -
saie ___
Zinc......_......._.____
Pegtiødes:
p.hexa 1oocycIohesmis.._
AIpr .er osiMan .__________
chlwdane
Laidan. .........._._
I?
is
Plalopensied aIipl’aljcx
MeSians.
11
Pnsnoi. aVid a IOlL
Ph en oI.....___________
Pflsnoi. ps,ia iloro. —
Phsn l. 4o........ .. ... _.....
Pheistats esters.
‘4
19
10
PitSialats, 52.lnp1t 1).__...._.
23
PJ ctc omsic t, , .,..iuona.
ctvyaan._.___...
10
1 5
12
The NURP data also showed a
significant number of these samples
exceeded vanous freshwater water
quality criteria. The exceedence of
water quality criteria does not
necessarily imply that an actual
violation of standards will exist in the
receiving water body in question.
Rather, the enumeration of exceedences
serves as a screening function to
identify those constituents whose
presence in urban storm water runoff
may warrant high priority for further
evaluation.
Members of this group represent all of
the major organic chemical fractions
-------
Feàral Register I VoL 55, No. 222 / Friday, November 16, 1900 I Rules and RegulatIons 41051
found In Table U of appendix D of 40
OR part 122 (volatlles, acid compounds,
baselneutrals, pesticide.). Todays rule
requite. testing foi all organic
constituents In Table 11 rather than
limiting the sampling requirements to
the 24 toxIc constituents found in the
NURP study because they will provide a
better description of the discharge at
essentially the same coat. (The cost of
analyzing samples for organic chemicals
strongly depends on the number of
major organic chemical fractions tested).
The NURP study focused on
characterizing storm water discharges
from lands used for residential,
commercial and light industrial
activities. In general, the NURP study
did not focus on other sources of
pollutants to municipal separate storm
sawer systems and, therefore, does not
reflect all potential pollutants that may
be present in discharges from municipal
separate storm sewer systems.
The sampling requirements for the
permit application address a limited
number of sampling locations but
require analysis for a wide range of
pollutants. Sampling for a wide range of
pollutants as a permit application
requirement should provide permit
writers with appropriate data to target
more specific pollutants when
developing requirements for a
monitoring program during ie term of
the permit.
Numerous commenters stated that
monitoring far all priority pollutants
seemed excessive. However, EPA is
convinced that it is more appropriate for
permit conditions to focus on and
prioritize particular pollutant problems
after data covering a broad spectrum of
pollutants are developed. As noted
above. NURP identified 77 priority
pollutants In urban runoff, but only from
residential. commerciaL and light
industrial (e.g. industrial parks) areas.
One municipal entity stated that this
approach Is a reasonable and realistic
means of providing some useful baseline
data, while other, recommended
sampling a variety of parameters that
are included in Tables M—l and M—2.
Another municipal entity stated that
characterization of outfall discharge
quality during storm events is necessary
as a means of targeting source control
activities.
EPA is working with the United States
Geological Survey (USGS) to evaluate
the availability of USGS technical
assistance to municipalities through
cooperative funding programs to aid in
collecting representative quantitative
data of storm water discharges from
municipal systems.
USGS data collection programs with
municipalities typically include storm
water discharge samples obtained at
various times during a storm hydrograph
event. Various USGS field procedure.
canbe used toobtaludincharge data for
pipes, culvert,, etc., typically found in
urban areas. Pollutant models can be
calibrated with data and long-term
rainfall record, to simulate the quality
of system discharges and compared to
other storm water models.
In addition, EPA recognizes that many
urwiicipalities have participated in
studies, such as NURP, that involve
sampling of urban runoff as well as
other components of discharges from
municipal separate storm sewer
systems. All existing storm water
sampling data along with relevant water
quality data. sediment data, fish tissue
data or biosurvey data taken over the
last ten years is considered relevant
and, under todays rule, must be
submitted with part 1 of the application.
Sampling data that is submitted must be
accompanied with a narrative
description of the drainage area served
by the outfall monitored, a description
of the sampling and quality control
program, and the location of receiving
water monitoring.
EPA requested comments on the use
of existing data, such as that generated
under the NURP study, to satisfy the
requirement of providing representative
sampling data. Commenters did not
agree on the value of NURP results as an
indicator of representative data. Several
commenters expressed the view that
existing data could be used to satisfy in
whole or In part the representative
sampling requirements of the storm
water permit application. Howei,er.
commenters generally did not offer
suggested criteria that could be used to
verify the validity of existing data. One
commenter believed that intensive
sampling over a period of ten years in 12
basins, when combined with NURP
data, would be adequate.
One comnienter supported the use of
data, such as that obtained from the
NURP study, to target sampling
programs. EPA supports such a
methodology and has retained this
portion of the proposed discharge
characterization component. EPA
received strong support from an
nvironrnentai group for retaining this
Information requirement In part I of the
applIcation.
In light of these comments EPA
believes It is appropriate to retain the
representative sampling requirements
without resorting to the use of existing
data exclusively. Because of the
inherent variability in reliability and
applicability of existing data. EPA is
convinced that a nationally consistent
methodology for collecting data is
appropriate. This data can then be used
In conjunction with other existing data
and models to develop appropriate site
specific management giems and
more generalized management program
strategies. Where existing data and data
collected under today’s rule varies or
does not match, further sampling under
the term of the permit will be
accomplished to more accurately assess
the discharge of pollutants.
Loading and Concentmlion
Estimates (part 2 of application). The
assessment of the water quality impacts
of discharges from municipal separate
storm sewer systems on receiving
waters requires the analysis of both
pollutant loadings and concentrations of
pollutants in discharges.
The loading and concentration
estimates In today’, rule will be used to
evaluate two types of water quality
impacts: (1) Short-term Impacts: and (2)
long-term impacts. Specifically, the
regulation requires estimates of the
annual pollutant load of the cumulative
discharges to waters of the United
States from municipal outfalls and the
event mean concentration of the
cumulative discharges to waters of the
United States municipal outfalls during
a storm event for DOD 5 , COD. TSS,
dissolved solids, total nitrogen, total
ammonia plus organic nitrogen. total
phosphorus, dissolved phosphorus.
cadmium, copper, lead, and zinc.
Estimates shall be accompanied by a
description of the procedures for
estimating constituent loads and
concentrations, including any modelling.
data analysis, and calculation methods.
Municipalities have options in the use of
methodologies, including those
presented In NURP for calculating loada.
Short term impacts from discharges
from municipal separate storm sewers
involve change. in water quality that
occur during and shortly after storm
events. Examples of short-term impacts
that can lead to impairments include
periodic dissolved oxygen depression
due to the oxidation of contaminants,
high bacteria levels, fish kills, acute
effects of toxic pollutants, contact
recreation impairments and lose of
submerged macrophytes.
Characterization of instream pollutant
concentrations based on estimated
pollutant concentrations in system
discharges are important for evaluating
these types of impact..
Long-term water quality impacts from
discharges from municipal separate
storm sewers may be caused by
contaminants associated with
suspended solids that settle in receiving
water sediments and by nutrients which
enter receiving water systems v ith long
-------
41062 Federal R.glat.r/ Vol. 55. No. 222 1 Friday. November 10 1990 I Rules and RegUlatiOns
retention times. Pollutant loading data
ase important for evaIuatl9n of
impairments *uch as lou of storage
capacity In attEams. estuaries.
reservoir ,, lakes and bays, lake
eutrophication caused by high nutrient
loadings. and destruction of benthic
habitat. Other examples of the long.terin
water quality impacts include depressed
dissolved oxygen caused by the
oxidation of organics in bottom
sediments and biological accumulation
of tonics as a result of uptake by
organisms in the food chain. An
estimate of annual pollutant loading
associated with discharges from
municipal storm water sewer systems is
necessary to evaluate the magnitude
and severity of the environmental
impacts of such discharges and to
evaluate the effectiveness of controls
which are imposed at a later time.
Municipal storm water sewer systems
generally handle runoff from large
drainage areas and the sources of
pollution are usually very diffuse. The
concentrations of many pollutants in
discharges from these systems are often
low relative to many industrial process
and POTW discharges. The water
quality impacts of low concentration
pollution discharges tend to be
cumulative and need to be evaluated in
terms of aggregate loadings as well as
pollutant concentrations. A site-specific
loading analysis can be used to evaluate
the relative contribution of various
pollutant sources.
7. Storm Water Quality Management
Plans
Today’s rule facilitates the
development of sate-specific permit
conditions by requiring large and
medium municipal permit applicants to
submit. along with other Information, a
description of existing structural and
non-structural prevention and control
measures on discharges of pollutants
from municipal stoma sewers in part I of
the permit application. Section
122 ,26(d)(2)(iv) requires the applicant to
identify in part 2 of the application, to
the degree necessary to meet the MEP
standard, additional prevention or
control measures which will be
implemented during the life of the
permit. Although. in many cases, it will
not be possible to identify all prevention
and control measures that are
appropnate as permit conditions. EPA
believes that the process of identifying
components of a comprehensive
prevention and/or control program
should begin early and that applicants
should be given the opportunity to
identify and propose the components of
the program that they believe are
appropriate for first preventing or
controlling discharges of pollutants:
As noted eerier, EPA recognizes that
problems associated with storm water.
combined sewer overflows (CSOs) and
infiltration and Inflow (I&IJ ate all biter-
related even though they are treated
somewhat differently under the law
EPA believes that it is important to
begin linking these programs and
activities and, because of the potential
cost to local governments, to investigat..
the use of innovative, nontraditional
approaches to reducing or preventing
contamination of stoma water. The
application process for developing
municipal stoma water management
plans provides an ideal opportunity
between steps I and 2 for considering
the full range of nontraditional,
preventive approaches.
The permit application requirements
in today’s rule require the applicant or
co-applicants to develop management
programs for four types of pollutant
sources which discharge to large and
medium municipal storm sewer systems.
Discharges from large and medium
municipal stoma sewer systems are
usually expected to be composed
primarily of: (1) Runoff from commercial
‘end residential areas; (2) storm water
runoff from Industrial areas. (3) runoff
from construction sites: and (4) non-
stoma water discharges. Part 2 of the
permit application has been designed to
allow the applicant the opportunity to
propose MEP control measures for each
of these components of the discharge.
Discharges from some municipal
systems may also contain pollutants
from other sources, such as runoff from
land disposal activities (leaking septic
tanks, landfills and land application of
sewage sludge). Where other sources,
such as land disposal. contribute
significant amounts of pollutants to a
municipal storm sewer system,
appropriate control measures should be
included on a site-specific basis.
Proposed management programs will
then be evaluated in the development of
permit conditions.
There is some overlap in the manner
In which these pollutant sources are
characterized and their sources
Identified. For instance, improper
disposal of oil into storm drains is often
associated with do-it-yourself
automobile oil changes in residential
areas, or improper application or over-
use of herbicides and pesticides in
residential areas can also occur in
industrial areas. Also, some control
measures will reduce pollutant loads for
multiple components of the municipal
storm sewer discharge. These measures
should be identified under all
appropriate places in the applicatios: as
dl ussed below. however, double
countingof pollutant remov*l must be
avoided when the total assessment of
control measures Is performed.
Although many land use programs
have multiple purposes. including the
reduction of pollutants in discharges
from municipal separate storm sewer
systems, the proposed management
programs in today’s rule are intended to
address only those controls which can
be implemented by the permit applicant
or co-applicants. EPA cannot abrogate
its responsibilities under the CWA to
implement the NPDE$ permit program
by relying on pollution control programs
that are outside the NPDES program. For
example, municipal permit management
programs may not rely exclusively on
erosion or sediment control laws for
implementing that portion of
management programs that address
discharges from construction sites,
unless such laws implement NPDES
permit program requirements entirely
and that such implementation is a part
of the permit.
EPA anticipates that storm water
management programs will evolve and
mature over time. The permits for
discharges from municipal separate
storm sewer systems will be written to
reflect changing conditions that result
from program development and
implementation and corresponding
improvements in water quality. The
proposed permit applications will
require applicants to provide a
description of the range of control
measures considered for implementation
during the term of the permit. Flexibilii
in developing permit conditions will be
encouraged by providing applicants an
opportunity to identify in the permit
application priority controls appropriate
for the initial implementation of
management programs. Many
commenters endorsed the flexible site’
specific stoma water program approach
as proposed as a method for addressing
regional water quality control programs
In a cost effective manner. To this
extent, EPA agrees with one
municipality that management programs
should focus on more serious problems
and sources of pollutants identified in
the municipal system. However. EPA
believes that to implement section
402(p)(3). comprehensive storm water
management programs which address a
number of major sources of pollutants tu
a system are necessary. Municipal
programs should not be focused solely
on a single source of pollution. such as
illicit connections.
One comznenter maintained that
management program development
-------
Federal Register / Vol. 55. No.222 I Friday , November 16, 1990 / Rules and Regulations
should be flexible enough to allow for
consideration of what is attainable
based on the area’s climate, vegetation.
hydrology, and land uses. EPA agrees
with this comment. Some strategies for
reducing pollutants In the northeast will
not be practical in the southwest. such
as management programs for deicing
activities. The permit application
process will determine what strategies
are appropriate in different locations.
Several commenters supported
addressing storm water pollutant
problems through management practices
or programs rather than end of pipe
controls or treatment. EPA agrees with
this comment to the extent that storm
water management practices are a
general theme of this rulemaking with
regard to municipal permits. However,
there will be cases where such
discharges are best addressed through
technology such as retention, detention
or infiltration ponds.
One commenter reacted unfavorably
to the flexible site.specific management
plan approach stating that there is no
hard criteria upon which to judge the
adequacy of programs. Another
commenter felt that there should be a
BAT standard for municipal permits.
Another coininenter stated that the rule
should contain specific BMPs that the
permittee must comply with. EPA
disagrees with these comments. The
Clean Water Act requires municipalities
to apply for permits that will reduce
pollutants in discharges to the maximum
extent practicable and sets out the types
of controls that are contemplated to deal
with storm water discharges from
municipalities. The language of CWA
section 402(p)(3) contemplates that.
because of the fundamentally different
characteristics of many municipalities.
municipalities will have permits tailored
to meet particular geographical.
hydrological, and climatic conditions.
Management practices and programs
may be incorporated into the terms of
the permit where appropriate. Permit
conditions, which require that storm
water management programs be
developed and implemented or require
specific practices, are enforceable in
accordance with the terms of the permit.
EPA disagrees with the notion that this
regulation, which addressed permit
application requirements, should create
mandatory permit requirements which
may have no legitimate application to a
particular municipality. The whole point
of the permit scheme for these
discharges is to avoid Inflexibility in the
types and levels of control. Further, to
the degree that such mandatory
requirements may be appropriate, these
requirements should be established
under the authority of section 402(p)(6)
of the CW4 and not in thi, rulemaking.
which addresses permit application
requirements.
Some commenters suggested that
management programs should be
developed as part of the permit
conditions and not as part of the permit
application. EPA agrees that
management programs and their ongoing
development should be part of the
permit term. However. EPA Is
convinced, and many cominenters agree.
that the permit application should
contain information on what the
permittee has done to date and what it
proposes and plans to do during the
permit term based upon its discharge
characterization and source
identification data. This is a reasonable
arid logical approach and one that meets
the intent and letter of section 402(p)(3)
of thc CWA. As stated above, this
would be an appropriate method for
implementing storm water management
programs that should mature and evolve
over time.
Applicants will propose priorities
based on a consideration of appropriate
controls including, but not limited to.
consideration of controls that address:
reducing pollutants to municipal
separate storm sewer system discharges
that are associated with storm water
from commercial and residential areas
( 122.26(d)(2)(iv)(A)); illicit discharges
and illegal disposal
(* 12Z.26(d)(2)(iv)(B)): storm water from
industrial areas ( 122.28(d)(2)tiv)(C));
and runoff from construction sites
(g 1Z2.26(d)(2)(iv)(D)). Permits for
different municipalities will place
different emphasis on controlling
various components of discharges from
municipal storm sewers. For example.
the potential for cross.connections (such
as municipal sewage or industrial
process wastewater discharges to a
municipal separate storm sewer) is
generally expected to be greater in
municipalities with older developed
areas. On the other hand, municipalities
with larger areas of new development
will have a greater opportunity to focus
controls to reduce pollutants in storm
water generated by the area after t is
developed. discharges from construction
sites, and other planning activities.
EPA requested comments on the
process and methods for developing
appropriate priorities in management
programs proposed in applications and
how the development of these priorities
can be coordinated with controls on
other discharges to ensure the
achievement of water quality standards
and the goals of the CWA.
Discharges from diffuse sources in
residential areas was recogiuzed by
several commenters as a significant
source of pollutants. Accordingly, these
elements of the management plans have
been retained. In conjunction with the
Importance of developing programs for
illicit connections, numerous
commenters stated that education
programs are a priority. Mother
cominenter emphasized that ordinances
prohibiting such discharges and their
enforcement is a crucial means of a
successful program in this regard. EPA
agrees with these comments and
consequently will retain those portions
of management program development
that include a description of a program
for educational activities such as public
information for the proper disposal of oil
and toxic materials and the use of
herbicides, pesticides and fertilizers.
Some commenters noted that
discharge characterization is necessary
for development of appropriate
management plans. EPA agrees with
these comments and has retained the
discharge characterization components
in this rulemaking However. EPA
disagrees that the results of all
discharge charactenzation procedures
(i.e.. part 1 and part 2) are necessary to
describe and propose a program as
required in part 2 of the application. The
application of various models is
available to permit applicants, where
needed, to develop appropriate
management programs. All available
site specific discharge characterization
data should be available to the permit
writer to draft appropriate conditions lot
the term of the permit.
One commenter noted that an
important aspect of developing
management plans is establishing the
necessary legal authority 10 improve
water quality. EPA agrees with this
comment and has retained those aspects
of the regulation which call for
development and attainment of
adequate legal authority in both parts of
the municipal application.
One commenter stated that programs
should address previously identified
water quality problems in other
programs that ore required by section
304(1) of the CWA. EPA agrees that
identified water quality problems need
to be addressed by management
programs. and the municipal permit
application will call for an identification
of these waters. However, EPA does not
endorse addressing these waters to the
exclusion of all others within the
boundaries of the municipal separate
storm sewer system. Some waters mdy
experience substantial degradation after
rain events and still not be listed under
-------
48054 Federal Register I Vol. 55. No. 222 I Friday, November 18, 1990 I Rules and Regulations
section 304(1). Further, water quality
impacts in listed waters may not be
related to storm water discharges, while
nther non-listed waters do have water
quality Impacts from storm water
discharges. Similarly. EPA agrees with
one comnienter that it may be desirable
to focus attention and resources on
certain problem watersheds within a
municipality, and controls may be
imposed and programs prioritized on
that basis. However, such a focus
should not be to the exclusion of other
waters and watersheds that have water
quality problems (although less
troublesome) traceable to storm water
discharges. The CWA requires that
permits address discharges to waters of
the United States, not just waters
previously targeted under special
programs.
Some cornatenters e prcssed concern
that the permit application requires the
design of management programs before
knowing what will be in the permits.
EPA disagrees with the thrust of this
comment, that is that the order of
requn’ements is inappropriate. The
permit applwant will have two years to
develop proposed plans which can be
considered by permit writers in the
development of the permit. Based upon
a consideration of the management
program proposed by the municipality
and other relevant information, permits
can be tailored for individual programs.
One commenter stated that the
cornerstone of management programs
are inspection and enforcement
programs. EPA agrees that these two
elements are important components.
Without inspection and enforcement
mechanisms the programs.will
undoubtedly falter. Accordingly these
requirements in the description of
management programs in the permit
application have been retained. In a
similar vein, one commenter emphasized
the Importance of developing legal
authority. financial capability, and
administrative infrastructure. EPA
agrees with this comment and has
retained those aspects of the regulation
that call for a description of applicants
plans and resources in these areas.
One commenter stressed that control
of discharges into the municipal system
from industries is an important goal of
municipal storm water management
program.. EPA agrees with this
comment and has retained the proposed
description of management programs to
address discharges from industrial
sources. Other commenters identified
Industries as the principal contnbutor’i
of pollutants to municimil separate
storm ‘ewer sys’ems.
in addition. EPA will continue to
evaluate procedures and methods to
control storm water discharges to the
extent necessary to mitigate Impacts on
water quality in the studies required
under section 402(p)(5) of the CWA. One
purpose of these studies will be to
evaluate the costs and water quality
benefits associated with Implementing
these procedures and methods. This
evaluation will address a number of
factors which impact the
implementation costs associated with
these programs. such as the extent to
which similar municipal ordinances are
currently being implemented, the degree
to which existing municipal programs
(such as flood management programs or
construction site inspections) can be
expanded to address water quality
concerns, the resource intensiveness of
the control. and whether the control
program will involve public or private
expenditures. This information, along
with information gained during permit
implementation will aid in the dynamic
long-term development of municipal
storm water management programs.
a. Measures to reduce pollutants in
runoff from commercial and residential
areas. The NURP program evaluated
runoff from lands primarily dedicated to
residential and commercial activities.
The areas evaluated in the study reflect
some other activities, such as light
industry, which are commonly dispersed
among residential and commercidl
areas. The NURP study selec Lcd
sampling locations that were thought to
be relatively free of illicit discharges
and storm water from heavy industrial
sites including storm water runoff from
heavy construction sites. Of course, in a
study such as NURP it was impossible
to totally isolate various contributions to
the runoff. In develop ng the permit
application requirements in today’s rule
EPA has, in general. relied on the NURP
definition of urban runoff—runoff from
lands used for residential, commercial
and light industrial activities.
NURP and numerous other studies
have shown that runoff from residential
and commercial areas washes a number
of pollutants into receiving waters. Of
equal importance is the volume of s’orm
water runoff leaving urban areas during
storm events. Large intermittent
volumes of runoff can destroy aquatic
habitat. As the percentage of paved
surfaces increases, the volume and rate
of runoff and the corresponding
pollutant loads also increase. Thus, the
smount of storm water runoff from
commercial and residential areas and
the pollutant loadings associated with
storm water runoff increases a
development progresses: and they
remain at an elevated level for the
lifetime of the development.
Proposed I 122.20(d)(2)(lv)(A) requires
municipal storm sewer system
applicants to provide in part 2 of the
application a description of a proposed
management program that will describe
priorities for implementing management
programs based on a consideration of
appropriate controls including:
• A description of maintenance
activities and a maintenance schedule
for structural controls:
• A description of planning
procedures including a comprehensive
master plan to control after construction
is completed, the discharge of pollutants
from municipal separate storm sewers
which receive discharges from new
development and significant
redevelopment after construction is
completed (in response to comment thir
contemplates an engineering policy and
procedure strategy with long term
planning);
• A description of practices for
operating and maintaining public
highways and procedures for reducing
the Impact on receiving waters of such
discharges from municipal storm sewer
systcrn;
• A description of procedures to
assure that flood management projects
assess the impacts on the water quality
of receiving water bodies; and
• A description of a program to
reduce to the maximum extent
practicable. pollutants in discharges
from municipal separate storm sewers
associated wuh the application of
pesticides, herbicides and fertilizer
which will include, as appropriate.
controls such as educational activities
and other measures for commercial
applicators and distributors, and
controls for application in public right.
of.ways and at municipal facihties.
Water quality problems caused by
municipal storm sewer discharges will
generally be most acute in heavily
developed areas. Prevention measures
may be desirable and cost effective.
However, structural control measures
may also be effective, although
opportunities for implementing these
measures may be limited in previously
developed areas. Commonly used
structural technologies include a wide
variety of treatment techniques.
including first flush diversion systems.
detention/infiltration basins, retention
basins, extended detention basins.
infiltration trenches, porous pavement.
oil/grit separators, grass swales. and
swirl concentrators. A major problem
associated with sound storm water
management is the need for operating
-------
Federal Regtater I Vol. 55. No. 222 I Friday. November 16, 1990 / Rules and Regulations
48055
and maintaining the system for Its
expected life.
The unavailability of lend in highly
developed areas often makes the use of
structural controls infeasible for
modifying many existing system.. Non.
structural practices can play a more
important role. Non-structural practices
can include erosion control, streambank
management techniques, street cleaning
operations, vegetation/lawn
maintenance controls, debris removal,
road salt application management and
public awareness programs.
As noted above, the first component
of the proposed program to reduce
pollutants in storm water from
commercial and residential areas which
discharge to municipal storm sewer
systems is to describe maintenance
activities and schedule. The second
component of the proposed program to
reduce pollutants in storm water from
commercial and residential areas which
discharge to municipal storm sewer
systems provides that applicants
describe the planning procedures and a
comprehensive master plan that will
assure that increases of pollutant
loading associated with newly
developed areas are, to the maximum
extent practicable, limited. These
measures should address storm water
from commercial and residential areas
which discharge to the municipal storm
sewer that occur after the construction
phase of development is completed.
Controls for construction activities are
addressed later in today’s rule. One
commenter noted the feasibility of
developing management plans for n,ewly
developing areas. EPA agrees with this
comment and has retained that portion
of the regulation that deals with a
description of controls for areas of new
development. Similarly, one
municipality stressed the importance
and achievabihty of addressing storm
water discharges from construction
sites.
As urban development occurs, the
volume of storm water and its rate of
discharge increases. These increases are
caused when pavement and structures
cover soils and destroy vegetation
which otherwise would slow and absorb
runoff. Development also accelerates
erosion through alteration of the land
surface. Areas that are in the process of
development offer the greatest potential
for utilizing the full range of structural
and non-structural best management
practices. If these measures are to
provide controls to reduce pollutant
discharges after the area has been
developed, comprehensive planning
must be used to incorporate these
measures as the area is in the process of
developing. These measures offer an
important opportunity to limit Increases
In pollutant loads.
The third component of
S 122.26(dJ(2)(IvJ(A) provides a
description of practices for operating
and maintaining public roads and
highways and procedures for reducing
the impact on receiving waters of
discharges from municipal storm sewer
systems. General guidelines
recommended for managing highway
storm water runoff include litter control.
pesticide/herbicide use management.
reducing direct discharges, reducing
runoff velocity, grassed channels, curb
elimination, catchbasin maintenance,
appropriate streetdeanlng. establishing
and maintaining vegetation,
development of management controls
for salt storage facilities, education and
calibration practices for deicing
application, infiltration practices, and
detention/retention practices.
The fourth component of
S 122.28(d)(2)(iv)(A) provides that
applicants identify procedures that
enable flood management agencies to
consider the impact of flood
management projects on the water
quality of receiving streams. A well-
developed storm water management
program can reduce the amount of
pollutants in storm water discharges as
well as benefit flood control objectives.
As discussed above, increased
development can increase both the
quantity of runoff from commercial and
residential areas and the pollutant load
associated with such discharges.
Disturbing the land cover, altering
natural drainage patterns, and
increasing impervious area all increase
the quantity and rate of runoff, thereby
increasing both erosion and flooding
potential. An integrated planning
approach helps planners make the best
decisions to benefit both flood control
and water quality objectives.
The fifth component of
S 122.28(d)(2J(iv)(A) would provide that
municipal applicants submit a
description of a program to reduce, to
the maximum extent practicable.
pollutants in discharges from municipal
separate storm sewers associated with
the application of pesticides, herbicides
and fertilizer. Such a program may
include controls such as educational
activities and other measures for
commercial applicators and distributors
and controls for application in public
rights-of.way and at municipal facilities.
Discharges of these materials to
municipal storm sewer systems can be
controlled by proper application of these
materials. Some commenters noted that
insecticides used in residential areas are
a probable source of pollutants in storm
water discharges from residential areas.
as well as salting and other de-icing
activities. In response to this comment,
part of a community management plan
may include controls or education
programs to limit the impacts of these
sources of pollutants. One commenter
noted that many communities already
have household toxic disposal programs.
Where appropriate these can be
incorporated into municipal
management programs.
Some cominenters suggested
substituting the management program
description for residential and
commercial areas with a simple
identification of applicable management
practices. EPA agrees that identification
of appropriate management practices is
a critical component of a program
description for these areas. In essence.
this is what the program description Is
designed to achieve, However, for thu.
reasons discussed In greater detail
above, EPA is convinced that an
appropriate program must address all of
the components of the management
program for residential and commercial
areas that are outlined in today’s rule.
Further, for the purposes of writing a
permit with enforceable conditions, the
application should identify a schedule to
implement management practices. The
applicant sh uld be able to estimate the
reduction In pollutant loads as a result
of the development of certain
management practices and programs
(5 122.26(dfl2)(v). A program may also
include public education programs.
which are not necessarily viewed as
traditional BMPs.
b. Measures for illicit discharges and
improper disposal. The CWA requires
that NPDES permits for discharges from
municipal storm sewers “shall include a
requirement to effectively prohibit non-
stormwater discharges into the storm
sewers.” In today’s rule. EPA will begin
to Implement this statutory mandate by
focusing on two types of discharges to
large and medium municipal separate
storm sewer systems. See
§ 122.28(d)(1)(iv)(D) and (dJ(2)(iv)(B).
One type of non-storm water discharges
are Illicit discharges which are plumbed
into the system or that result from
leakage of sanitary sewage system. The
other class of non-storm water
discharges result from the improper
disposal of materials such as used oil
and other toxic materials.
Illicit discharges. In some
municipalities, illicit connections of
sanitary, commercial arid industrial
discharges to storm sewer systems have
had a significant impact on the water
quality of receiving waters Although th
-------
Federal RegIster I VoL 55. No. 222 / Friday. November 18. 1990 / Rules and Regulations
NURP study did not emphasize
Identifying Illicit connections to storm
sewers other than to assure that
monitoring sites used in the study were
free from sanitary sewage
contamination, the study concluded that
illicit connections can result in high
bacterial counts and dangers to public
health. The study also noted that
removing such discharges presented
opportunities for dramatic
improvements in the quality of urban
storm water discharges.
Other studies have shown that illicit
connections to storm sewers can create
severe, wide-spread contamination
problems. For example, the Huron River
Pollution Abatement Progiam Inspected
680 busInesses, homes and other
buildings located in Weshtenaw County.
Michigan and Identified 14% of the
buiidings as having improper storm
drain connections. Illicit discharges
were detected at a higher rate of 60% for
automobile related businesses, including
service stations, automobile dealerships.
car washes, body shops and light
industrial facilities. While some of the
prulilems discovered in this study were
tue result of improper plumbing or i!lcgal
ccsr,nections. a majority were approved
cn’inections at the time they were built.
Many commenters emphasized the
identification and elimination of illicit
connections as a priority. inr.!uding
Irakage from sanitary sewers. EPA
agrees with these comments and intends
to etjin th s portlo i of the program
without modification.
A wide variety of tei.hnulugies exist
fur detecting illicit disch.irges. The
effe. tiveness of these measures largely
dt- 1 —’i.ds upon the sile-specilic design of
the system. Under Ioday s rule, permit
applicants would develop a description
ot a proposed manag .ment program,
m i 1 .ding priorities fur implcmenting the
pmgrani and a schedule to implement a
pri.gram to identify illicit discharges to
the municipal storm sewer system Thia
rulemakung sill require the initial
prior;tmes for analyzing vunous portluns
of ‘he system and the appropriate
detection techniques to be used.
Improper disposal. The permit
appbuilion requiremcnts fur municipal
storm sewer systems include a
rem uirement that the municipal permit
applicant describe a program to assist
and facilii.jte in the proper management
of used oil and toxic mdtLrials. Improper
management of used oil can Icad to
disc.harges to municipal storm sewers
that in turn may have a significant
impact on receiving waler bodies. EPA
estimates that. annualy. 207 million
gallcrns of used oil. iucluding 135 million
gallons of used oil rrum do.il.yourself
automobile oil changes. are disposed of
improperly. An additional 70 mWion
gallons of used oil, most coming from
service stationsand repair shops. are
used for road oiling. Many cosnmenters
emphasized the elimination of
discharges composed of improperly
disposed of oil and toxic material. One
commenter identified motor oil as the
major source of oil contamination and
that EPA needs to encourage proper
disposal of used oil. Several other
commenters emphasized the importance
of recyding programs for oil. EPA agrees
with these comments and intends to
retain this portion of the program
without modification. One commentcr
identified public awareness and timely
reporting of illegal dumping as critical
components of this portion of the
program. EPA agrees with this comment
and intends for management programs
to deal with this problem.
c. Measures to reduce pollutants in
storm a uter discharges throuph
municipal separate storm sewers from
municipal landfills, hazardous waste
Sir cEment, disposal and racereiy
facilities that are subject to section 313
of title Ill of SARA. As discussed in
section Vl.C of today’s preamble.
indu trlal facilities that discharge storm
water through a large or medium
municipal separate storm sewer system
are required to apply for a permit under
{ 122.29(c) or seek coverage under a
promulgated general permit. Today’s
role also requires the municipal storm
sewer porminee to describe a program
to address industrial dischargers that
are covered under the municipal storm
sewer permit. Today’s rule requires the
municipal applicant to identify SUCh
discharges (5ee source identification
requirements under 122.28(d112)(ii)).
provide a description of a program to
monitor pollutants in runoff from certain
Industrial facilities that discharge to the
municipal separate storm sewer system.
idi ntify priorities and procedures for
inspections, and establish and
implement control measures for sucn
discharges. Should a municipality
suspect that an individual discharger is
discharging pollutants in storm water
above acceptable limits, and the owner!
operator of the system has no authority
over the discharge. the municipality
should contact the NPDES permitting
authority for appropriate action. Two
example of possible action are: if the
facility already has an individual permit.
the permit may be reopened and further
controls imposed: or if the facility is
co ered by a promulgated generai
permit. then an individual site ’specific
permit application may be required.
In the December 7.1988. proposal.
EPA requested comments concerning
what storm water discharges from
industrial facilities through municipal
systems should be monitored. One of the
proposed approaches was to require
data on portions of the municipal system
which receive storm water from
facilities which are listed in the
proposed regulatory definition at
122.26(b)(14J of “storm water
discharge associated with industrial
activity’ (with the exception of
construction actirities and
uncontaminated storm water from oil
and gas operations) which discharge
through the municipal system. However.
given the large number of facilities
meeting this definition that discharge
through municipal systems, a monitorir.j
program that requires the submission of
quantitative data regarding portions of
the municipal systems receiving storm
water from such facilities may not be
practicable. Such a requirement could,
for some systems. potentially become
the most resource intensive
requirements in the municipal permit.
Therefore. EPA proposed various ways
to develop appropriate targeting for
monitoring programs.
EPA requested comments on a
requirement thaL at a minimum.
monitoring programs address discharge’,
from municipal separate storm sewer
outfalls that contain storm water
dscharges from municipal landfills.
hazardous waste treatment. d:sposal
and recovery facilities, and runoff from
industrial facilities that are subject to
se iion 313 of title Ill of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA). Section 313 of tide 111
requires that operators or certain
facilities that manufacture, iniport.
process, or otherwise use cerlain toMe
chemicals report annually their releases
of those chemicals to any environmental
media. Sect;on 313(b) of title Ill speciflu s
that a facility is covered for the
purposes of reporting if it meets all c i
the following criteria.
• The facility has ten or mure full’
time employees:
• The facility is in Standard Industrial
Classification (SIC) codes through 39:
• The facility’manufactured (induding
quantities imported), processed. or
otherwise used a listed chemical in
amounts that exceed certain threshold
quantities during the calendar year fur
which reporting is required.
Listed chemicals include 329 toxic
chemicals listed at 40 CFR 372.45. After
1989. the threshold quantities of listed
chemical, that the facility must
manuf3cture. import or process (in order
to tnraer the submission of a release
-------
Federal Register / Vol. 55, No. 222 I Friday. November 18, 1990 / Rules and Regulations
report) Ii 25,000 pounds per year. The
threshold for a use other than
manufacturing, importing or processing
of Hated toxic chemicals is 10.000
pounds per year. EPA promulgated a
final regulation clarifying these
reporting requirements on February 18.
1988. (53 FR 4500).
EPA received numerous comments
regarding limiting the types of facilities
that are initially subject to monitoring
and municipal management programs.
Numerous municipalities agreed that
focusing on the above facilities is an
appropriate means for letting priorities
for the development of control measures
to eliminate or reduce pollutants
associated with industrial facilities.
Commenters agreed that the potential
for toxic materials in discharges is high
because of the high volume of such
materials at these facilities and that
Information regarding discharges and
material management practices will be
available through section 313 of SARA.
One commenter noted that building on
an established program will contribute
to establishing an effective storm water
program. Accordingly. EPA has
specified at 122.25(d)(2)(ii)(C) that the
municipal applicant must describe a
program that identifies priorities and
procedures for inspections and
establishing and implementing cor.trol
measures for these facilities.
Several commenters suggested that
these facilities should not be singled out
because the presence of the threshold
amounts of SARA 313 chemicals does
not indicate that significant quantities of
those chemicals are likely to enter the
facility’s storm water runoff. Instead it
was suggested that municipalitit s
should monitor storm sewers as a whole
to determine what chemicals are present
and therefore what facilities are
responsible. EPA disagrees with these
comments. The object of these
requirements is initially to set priorities
for monitoring requirements. Then, if the
situation requires, controls can be
developed and instituted. lEa facility is
a member of this class of facilities and
does not discharge excessive quantities
of SARA 313 chemicals, then it may not
be subjected to further monitoring and
controls. As noted above, the selection
of facilities is only a means of setting
priorities for facilities for the
development of municipal plans.
EPA agrees. however, that there will
be other facilities that are significant
sources of pollutants and should be
addressed by municipalities as soon as
possible under managemen programs.
Accordingly. those industrial facilities
that the municipal permit applican’
determines to be contributing a
substantial pollutant loading to the
municipal storm sewer system shall be
addressed in this portion of the
municipal management program.
EPA also requested comments on
monitoring programs for municipal
discharges including the submission of
quantitative data on the following
constituents:
• Any pollutants limited in an effluent
guidelines for the industry
subcategories, where applicable:
• Any pollutant listed in a discharging
facility’s NPDES permits for process
wastewater. where applicable:
• Oil and grease, pH. BODS. COD.
TSS, total phosphorus. total Kjeldahl
nitrogen, and nitrate plus nitrite
nitrogen:
• Any Information on discharges
required under 40 CFR 122.21 (g)(7)(iii)
end (iv).
These are the same constituents that are
to be addressed in individual permit
applicants for stort water discharges
associated with industrial activity.
Several industries and municipalities
submitted comments on this issue. Some
commenters agreed that these are
appropriate parameters. Some
commeolers advised that the ability of
municipalities to implement this aspect
of the program depended on industries
submitting this data. Several industnes
provided comments suggesting that the
approach should allow the permittee
flexibility in determining which
parameters are chosen because of the
burdens of monitoring and the
comple, ity of materials and flows in
municipal systems.
In light of these comments. EPA has
retained I 122. 6(d)(2)(iv)(C) as
proposed requiring municipalities to
describe a monitoring program which
utilizes the above parameters.
Monitoring for these parameters
provides consistency with the individual
application requirements for industries.
provides uniformity in municipal
applications, and will narrow the,
parameters to conform to the types of
industries discharging into thc miirncipal
systems. Monitoring programs may
consist of programs undertaken by the
municipality exclusively or requirements
imposed on industry by the
municipality, or a combination of
approaches. Appropnate procedures are
discussed in municipal permit
application guidance.
EPA requested comments on
appropriate means for municipalities to
determine what facilities are
contributing pollutants to municipal
systems. Many commenters responded
with numerous methodologies. Some of
these have been addressed in guidance.
Municipalities will have options in
selecting the most appropriate
methodology given their circumstances
as described in their permit
applications.
EPA initially favors establishing
monitoring requirements to be applied to
those outfalls that directly discharge to
waters of the United States. EPA
received one comment from a
municipality with regard to this issue
which agreed that this was the most
logical approach. Monitoring of outfalls
close to the point of discharge to waters
of the United States is generally
preferable when attempting to identify
priorities for developing pollutant
control programs. However, under
certain circumstances, it may be
preferable to monitor at the point where
the runoff from the industrial facility
discharges to the municipal system. For
example. if many facilities discharge
substantially similar storm water to a
municipal system it may be more
practicable to monitor discharges from
representative facilities in order to
characterize pollutants in the discharge.
As noted by numerous industries, if
municipal characterization plans reveal
problems from certain industrial
dischargers. then such facilities may be
required to provide further data from
their own monitoring. As noted above.
EPA envisions that this data could then
be used to develop appropriate control
practices or techniques and/or require
individual permit applications if a
general permit covering the facility
proves inadequate.
Comments were also solicited as to
whether end’of.pipe treatment gencr lly
was more appropriate than source
controls for storm water from industrial
facilities which discharge to municipal
systems. Many commenters. including
both municipalities and industries.
stated that source controls are the only
practical and feasible means of
controlling pollutants in storm water
runoff, and specifically opposed the
concept of end-of.pipe treatment or
other controls. Some commenters
maintained that, from an economic and
environmental standpoint. end.o(.pipe
treatment may be the only effective
means. One advised that the prompt
cleanup of spills. controlled wash down
of process areas. co ering of material
loading areas, storm water runoff
diversion, covered storage areas.
detention basins or other such
mechanisms would prevent storm w.iier
From mixing with pollutants and
possibly discharging them into receiving
waters. Another noted that in the urban
areas. them is little potential for
treatment, consequently. ii would seem
-------
A ) 5 Federal Register / VoL 55 No 222 I Friday. November 16 1990 Rules and Regulations
that controls and/or retrofitting existing
facilities would be necessary when
violations are found and that citizens
will be better served by source controls
apprupriate to the individual problem.
EPA agrees with these comments to
the extent that source control, and
management programs are the general
thrust of these regulations. However, in
some situations end-of-pipe treatment.
suck as holding ponds. may be the only
reasonable alternative. EPA disagrees
with one industrial commenter that the
municipalities should be almost entirely
responsible for treating municipal
discharge. at the end of-the-pipe
without reliance on source controls by
industrial discharger.. Municipal
programs may require controls on
industrial sources demonstrated
storm water discharge problems. One
industrial association noted that its
member companie, already have
incentive to properly handle thefr
materials and facilities because of other
environmental programs with spill and
erosion controls.
Numerous commenters stated that the
program addressing industrial
disdiargers through municipal systems
needs to be clearly defined in order to
eliminate, as much as possible, potential
conflicts between the system operator
and discharger.. EPA has provided a
framework for development of
management plans to control pollutants
from these particular sources. However.
because of the differences in municipal
systems and hydrology nationwide. EPA
is not convinced that program specificity
is an appropriate approach. The concept
of the management program is to
provide flexibility to the permit
applicants to develop regional site
specific control programs.
One commenter suggested that
required controls should be limited to a
facility’s proportional cor.tnbution
(based on concentration) of pollutants.
EPA disagrees. Most Facilities
discharging through a municipal
separate storm sewer will need to be
covered by a general or individual
permit. These permits will control the
introduction of pollutants from that
facility through the municipal storm
sewer to the waters of the U.S. Any
additional controls plar. on the facility
by the municipality will be at the
discretion of the municipality. EPA Is
not requiring municipalities to adopt a
particular level of controls on industrial
facilities as suggested by the
commenter.
One commenter questioned how
discharger. thai discharged both into
the waters of the United States and
through a municipal system will be
eddreseed and whether there is a
potential for inconsistent requirements.
Industries that discharge storm water
associated with industrial activity Into
the waters of the United States are
required to be covered by individual
permits or general permits for such
discharges. Diachargers of storm water
associated with industrial activity
through municipal separate storm sewer
systems will be subject to municipal
management programs that address
such discharges as well as to an
Individual or general NPDES permit for
those discharges. EPA does not believe
there is a significant risk of inconsistent
requirements. since each industrial
facility must meet BAT/BCT-level
controls in its NPDES permit. EPA
doubts that municipalities will impose
much more stringent controls.
Many commenters stated that if cities
and municipalities are to be responsible
for industrial storm water discharges
through their system, then municipalities
should have authority to make
determinations as to what industries
should be regulated. how they are
regulated. and when enforcement
actions are undertaken. In response.
EPA note. that the proposal has been
changed and that municipalities will not
be solely responsible for industries
discharging through their system.
Nonetheless, municipalities will be
required to meet the terms of their
permits related to industrial discharger..
Municipalities may undertake programs
that go beyond the threshold
requirements of the permit. Some
municipal entities stated that municipal
permittees should be able to require
permit applications from industries in
the same manner thai EPA does and
also require permits. In response. if
operator, of large and medium
municipal separate storm sewer s . stems
wish to employ such a program, then
this portion of the managcment program
may incorporate such practices.
d. Measures to reduce pollutants in
runoff/rem construction sites into
municipal systems. Section VLF .8 of
today’s rule discusses f .M’s proposal to
define the term “storm water discharge
associated with industrial activity” to
include runoff from construction sites.
including preconstruction activities
except operations that result In the
disturbance of less than 5 acres total
land area which are not part of a larger
common plan of development or sale.
Under todays rule. Facilities that
discharge runoff from construction sites
that meet this definition will be required
to submit permit applications unless
they are to be covered by another
individual or general NPDES permit
Permit application requirements For suca
discharge. are at 40 CFR 122.264cK1 )(ii).
Section 122.26(d)(2)(IvRD) of today’s
rule requires applicants for a permit for
large or medium municipal separate
storm sewer systems to submit a
description of a proposed management
program to control pollutants In
construction site runoff that discharges
to municipal systems. Under this
provision, municipal applicants will
submit a description of a program for
implementing and maintaining structural
and non-structural best management
practices for controlling storm water
runoff at construction sites. The program
will address procedures for site
planning, enforceable requirements for
nonstructural and structural best
management practices. procedures for
inspecting sites and enforcing control
measures, and educational and training
measures. Generally. construction site
ordinances are effective when they are
Implemented. However, in many areas.
even though ordinances exist, they have
limited effectiveness because they are
not adequately implemented.
Maintaining best management practices
also presents problems. Retention and
infiltration basins fill up and silt fences
may break or be overtopped. Weak
inspection and enforcement point to the
need for more emphasis on training and
education to complement regulatory
pro rams. Permits issued to
municipalities will address these
concerns
8. Ass,:ssment of Controls
EPA proposed that municipal
eppiicants provide an initial assessment
ci the effectiveness of the control
method for structural or non-structural
controls which have been proposed in
the management program. Some
commenters stated that the assesbmcrn
of controls should be left to the term of
the permit because the effectiveness of
controls will be hard to establish. F.PA
believes that an initial estimate or
assessment is needed because the
performance of appropna e m nagemeni
controls is highly dependent on site-
specific factors. The assessment will be
used in conjunction with the
development of pollutant loading and
concentration estimates (see VIit&c)
and the evaluation of water quality
benefits associated wiuh implementirg
controls. Such assessments do not have
to be verified with quant;tative data, b.,t
can be based on accepted enganeenng
design practices Further more precise
assessments based upon quantitative
data can be undertaken during the term
of the permit.
-------
Federal Register I Vol. 55, No. 222 I Friday. November 16, 1990 / Rules and Regulations
48059
I. Annual Reports
An discussed earlier in today’s
preamble EPA has provided for
proposed flexible permit application
requirements to facilitate the
development of site-specific programs to
control the discharge of pollutants from
large and medium municipal separate
storm sewer systems. Many
municipalities are in the early stages of
the complex task of developing a
program suitable for controlling
pollutants in discharges under a NPDES
permit, while other municipalities have
relatively sophisticated programs in
place. In order to ensure that such site-
specific programs are developed in a
timely manner. EPA proposed to require
permittees of municipal separate storm
sewer systems to submit status reports
every year which reflect the
development of their control programs.
The reports will be used by the
permitting authority to aid In evaluating
compliance with permit conditions and
where necessary, modify permit
conditions to address changed
conditions. EPA requested comments on
the appropriate content of the annual
reports. Based on these comments EPA
has added the following in these reports:
an analysis of data. Including monitoring
data, that Is accumulated throughout the
year. new outfalls or discharges; annual
expenditures; identification of water
quality Improvements or degradation on
watershed basis: budget for year
following each annual report; and
administrative information including
enforcement activities, inspections. and
public education programs. EPA views
this information as important for
evaluating the municipal program.
Annual monitoring data and identified
water quality improvements are
important for evaluating the success of
management programs in reducing
pollutants. if new outfalls come into
existence during the term of the permit,
these may be sources of pollutants and
appropriate permit conditions will be
developed. Annual reports should reflect
the level of enforcement activity and
inspections undertaken to ensure that
the legal authority developed by the
municipality is properly exercised.
Many of the management programs
depend upon an ongoing high level of
public education. Accordingly. the
undertaking of these programs on an
annual basis should be documented.
J. Application Deadlines
The CWA provided a statutory time
frame for implementing the storm water
permit application process and issuance
and compliance with permits.
The CWA requires EPA to promulgate
permit application requirements for
storm water discharges associated with
industrial activity and for large
municipal separate storm sewer systems
by “no later than two years” after the
date of enactment (ie. no later than
February 4, 1989). In conjunction with
this requirement. .ihe Act requires that
permit applications for these classes of
discharges be submitted within one year
after the statutory date by which EPA is
to promulgate permit application
requirements by providing that such
applications “shall be filed no later than
three years” after the date of enactment
of the WQA (i.e.. no later than February
4, 1990).
The CWA also requires EPA to
promulgate final regulations governing
storm water permit application
requirements for discharges from
municipal separate storm sewer systems
serving a population of 100.000 or more
but less than 250,000 by “no later than
four years” after enactment (i.e. no later
than February 4. 1991). Permit
applications for medium municipal
separate storm sewer systems “shall be
filed no later than five years” after the
date of enactment of the CWA (i.e.. no
later than February 4, 1992). The CWA
did not establish the tUne period
between designation and permit
application submittal for case-by-case
designations under section 402(p)(2J(E).
Comments on earlier rulemakings
involving storm water application
deadlines have established that
applicants need adequate time to obtain
“representative” storm water samples.
Many commenters have indicated that
at least one full year is needed to obtain
such samples. This is because many
discharges are located in areas where
testing during dry seasons or winter
would not be feasible. The intermittent
and unpredictable nature of storm water
discharges can result in difficult and
time-consuming data gathering.
Moreover, some operators of municipal
separate storm sewer systems have
many storm water discharges associated
with industrial activity, which can
require considerable time Ia identify,
analyze. and submit applications. This
creates a tremendous practical problem
for the extremely high number of
unpermitted storm water discharges.
The public’s interest in s sound storm
water program and the development of a
useful storm water data base is best
served by establishing an application
deadline which will allow sufficient time
to gather. analyze. and prepare
meaningful applications. Based on a
consideration of these factors. EPA
proposed that individual permit
applications for storm water discharges
associated with industrial activity
which currently are not covered b a
permit and that are required to obtuin a
permit, be submitted one year after the
final rule is promulgated.
EPA received numerous comments
from industries on the one year
requirement for submitting applications.
Several commenters supported the
proposed deadline as realistic, while
others believed more time was needed
to meet the information and quantitative
requirement.
EPA rejects the assertion by some
commenters that a year is too short a
period of time to obtain the required
quantitative data, Today’s rule generally
requires applications for storm waler
discharges associated with industrial
activity to be submitted on or before
November 18, 1991. Operators of storm
water discharges associated with
Industrial activity which discharge
through a municipal separate storm
sewer are subject to the same
application deadline as other storm
water discharges associated with
industrial activity. Since final regulation
at 122.21(g)(7) provides considerable
latitude for selecting rain events for
quantitative data, EPA is convinced that
In most cases data can be obtained
during the one year time frame. If data
cannot be collected during the one year
time frame because of anomalous
weathei (e.g. drought conditions), then
permitting authorities may grant
additional time for submitting that data
on a case-by-case basis. See
122.21(g)(7).
Operators of storm water discharges
which are currently covered by a permit
will not be required to submit a permit
application until their existing permit
expires. In recognition of the time
required to collect storm water
discharge data. EPA will allow facilities
which currently have a NPDES permit
for a storm water discharge and which
must reapply for permit renewal during
the first year following promulgation of
today’s permit application requirements
the option of applying in accordance
with existing Form I and Form 2C
requirements (in lieu of applying in
accordance with the revised application
requirements).
As discussed in section VI.D.4 and
section VI.F.8 of today’s preamble, EPA
has established a two part permit
application both for both group
applications for sufficiently similar
facilities that discharge storm water
associated with industrial activity and
for operators of large or medium
municipal separate storm sewer
systems. The deadlines for submitti g
-------
48080 Federal Register, VoL 55 No. 222 I Friday. November 16. 1990 I Rules and Regulations
permit applications In today’s rule
provide adequate time for (1)
Applicants to prepare Part 1 of the
appllcation (2) EPA or an approved
Slate to adequately review applications;
and (3) applicant. to prepare the
contents of the part 2 applicatIon.
Part I of the group application for
storm water discharges associated with
industrial activity must be submitted
within 120 days from the publication of
these final permit application
regulations. This time is necessary to
form groups and for individual members
of the group to prepare the non-
quantitative information required In part
I of the application. Part I of the group
application will be submitted to EPA
Headquarters In Washington. DC and
reviewed within 60 days after being
received. Port 2 of the application would
then be submitted within one year after
the part I application is approved. It
should be noted that many facilities
located in States in which general
permits can be issued, will be eligible
for coverage by a storm water general
permit to be promulgated in the near
future. Such facilities may either seek
coverage under such general permits or
participate in the group application.
Several comments were received by
EPA that indicated that a period of 120
days was too short a period for groups
to be formed. EPA disagrees with these
comments. The information that EPA ia
requiring to be submitted by the group
or group representative is information
that is generally available such as the
location of the facility, its industrial
activity, and material management
practices. EPA believes that 120 days is
sufficient to gather and submit this
information along s iIh an idcntiEcation
of 10 & of the facilities which will submit
quantitative data. To ameliorate any
difficulties for applicants. EPA has
provided a means fur late facilities to
“add on” where appropriate, on a case-
by-case basis, as discussed in section
Vi.F.4. above.
‘Several comments were received with
regard to the requirement that new
discharger. submit an application at
least iao days before the date on which
the discharge is to commence. One
commenter noted that it will be difficult
for a facility to know when a storm
water’discharge is to commence since
precipitation and runoff cannot be
predicted to any degree of accuracy. In
response, new discharger. must apply
for a storm water permit application 180
day . before that facility commences
‘nanufactunng. processing. or raw
‘natenal storage operations which may
result in the discharge of poliatant. from
storm water runoff, and 90 days for new
construction sites.
For large municipal separate storm
sewer systems (systems serving a
population of more than 250,000) , EPA
proposed that patti of the permit
application be submitted within one
year of the date of the final regulations,
with approval oi’.disapproval by the
permit issuing authority of the
provisions of the part I permit
application within 90 days after
receiving part I of the application. The
Part 2 portion of the application was to
be submitted within two year. of the
date of promulgation.
For medium municipal separate storm
sewer systems (systems serving a
population of more than 100.000. but less
than 250,000). EPA proposed that permit
applications would be required nine
months after the date of theRmal rule.
with approval or disapproval of the
provisions of the part I permit
application within 90 days after
receiving the part I application. The part
2 portion of the application would then
be submitted no later than one year
after the part I application has been
approved.
Numerous comments were received
by EPA from municipalities on these
proposed deadlines. Many of these
comments reflect the sentiment that the
deadlines are too tight and that the
required information would not be
available for submission within the
required time frame. Some commenters
suggested deadlines that would add
over three year. to the permit
application process. Other commenters
suggested a revamped application
process and a shorter deadline of 18
months. Some commenters explained,
that additional time would be needed to
obtain adequate legal authority, while
another stated that an inventory of
outfalls required more time. One
commeffler maintained that
intergovernmental agreements will
require more time to prepare. and other.
expressed the view that more time was
needed for the review of part 1 of the
application by permitting authorities.
Others felt more time was needed for
collecting data, or hiring additional staff
to accomplish the work. Most of these
commenlers did not provide specific
details regarding what would be an
appropriate amount of time and why.
After reviewing these comments EPA
has decided to modify some of the
deadlines as proposed. EPA is
convinced that to properly achieve the
goals of the CWA. the permit
application requirements as discussed In
previous sections are appropriate: but
that the deadlines for medium municipal
separate storm sewer systems should be
adjusted so that the program’s goals can
be properly accomplished. After
reviewing comments. EPA believes that
medium municipalities will have fewer
resources and existing Institutional
arrangements than large cities and
therefore more time should be granted to
these cities for submitting parts I and 2
of the application.
Accordingly EPA will inquire large
municpal systems to submit part I of
the permit application no later than
November 18. 1991. Part 1 will be
reviewed and approved or disapproved
by the Director within 90 days. Part 2 of
the application will then be submitted
November 16,1992. Medium municipal
systems will submit part I of the
application on May 18. 1992. Approval
or disapproval by the Director will be
accomplished within 90 days. Part 2 of
the application will be submitted by
May 17. 1993. These deadlines will give
large systems two years to complete the
application process, and medium
systems 2 years and 0 months to submit
applications. EPA is convinced that the
permit application schedule is
warranted and should provide adequate
time to prepare the application.
In establishing these regulatory
deadlines EPA is fully aware that thcy
are not synchronized with the statutory
deadlines as established by Congress.
One cemmenter argued that the
deadlines as proposed were contrary to
the deadlines established by Congress
and that EPA had no authority to extend
these deadlines. (For large municipal
separate storm sewer systems and storm
water discharges associated with
industrial activity. Congress established
a deadline of February 4. 1990, for
submission of permit applications; for
medium municipal separate storm sewer
systems, the deadline is February 4,
1992.) In response, this regulation
provides .ertain deadlines for meeting
the substantive requirements of this
rulemaking—requirements which EPA is
convinced are necessary for the
development of enforceable and sound
storm water permits. EPA believes it is
important to give applicants sufficient
time to reasonably comply with the
permit application requirements set out
today. EPA will therefore accept
applications for storm water discharge
permits up to the dates specified in
ioday’s rule. By establishing these
regulatory deadlines, however. EPA is
not attempting to waive or revoke the
statutory deadlines established in
Section 402(p) of the CWA and does not
assert the authority to do so. The
statutory permit application deadline.
-------
Vderal Register / Vol. 55 , No. 222/ FrIday, NovenbeT 16, 1990 I Rules and Regulations
46081
continue to be enforceable
requirements.
EPA was not able to promulgate the
final application regulations for storm
water discharges before the February 4.
1990. deadline for industrial and large
municipal diachargers despite Its best
efforts. Further, as noted above, EPA is
not able to waive the statutory deadline.
Dlschazgers concerned with complying
with the statutory deadline should
submit a permit application as required
under this rulemaking as expeditiously
as possible.
Operators of storm water discharges
that are not specifically required to file a
permit application under today’s rule
may be required to obtain a permit for
their discharge on the basis of a case-
by-case designation by the
Administrator or the NPDES State.
The Administrator or NPDES State
may also designate storm water
discharges (except agricultural storm
water discharges), that contribute to a
violation of a water quality standard or
•hat are significant contributors of
pollutants to water, of the United States
for a permit. Prior to a case.by-case
determination that an individual permit
is required for a storm water discharge.
the Administrator or NPDES State may
require the operator of the discharge to
submit a permit application. 40 CFR
124.52(c) requires the operator of
designated storm water discharges to
submit a permit application within 60
days of notice, unless permission for a
later date is granted. The 60-day
deadline Is consistent with the
procedures for designating other
discharges for, NPDES permit on a
case.by-case basis found at 40 CPR
124.52. The 60-day deadline recognizes
that case-by-case designations often
require an expedited response, however.
flexibility exists to allow for case-by.
case extensions.
The December 7. 1988. proposal also
proposed Part 504 Slate Storm Water
Management Programs. The Agency has
not included this component in today’s
rule. The Agency believes this program
element is appropriate for addressing in
regulations promulgated under section
402(p)(6) of the CWA.
VII. Economic Impact
EPA has prepared an information
Collection Request for the purpose of
estimating the information collection
burden imposed on Federal. State and
local governments and industry for
revisions to NPDES permit application
requirements for storm waler discharges
codified in 40 CFR part 122. EPA is
promulgating these revisions in response
to Section 402(p)(4) of the Clean Water
Act, as amended b) thc Water Quality
Act of 19W (WQA). The revisions would
apply tar Storm water discharges
associated with industrial activity
discharges from municipal separate
storm sewer systems serving a
population of 250000 or more and
discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more, but less
than 250.000.
The estimated annual cost of applying
for NPDES permits for discharges from
municipal separate storm sewer systems
is $4.2 million. EPA estimates that an
average permit application for a large
municipality will cost $76,681 and
require 4,534 hours to prepare. The
average application for a medium
municipality will cost $49,249 (2,912
hour,) to prepare. The annual
respondent coat for NPDES permit
applications, notices of intent, and
notifications for facilities with
discharges associated with industrial
activity is estimated to be $9.5 million
(271,248 hours). EPA estimates that the
average preparation cost of an
individual industrial permit application
would be $1,007 (28.6 hours). Average
Group application will cost $74.00 per
facility (2.1 hours). The average cost of
the notification and notice of intent to
be covered by general permit is $170.0
(0.5 hours).
The annual cost to the Federal
Government and approved States for
administration of the program is
estimated to be $588603. The total cost
for municipalities. industry, and State
and Federal authorities is estimated to
be $14.5 million annually.
In general, the cost estimates provided
in the ICR focus primarily on the costs
associated with developing, submitting
and reviewing the permit applications
associated wflh today’s rule. EPA will
continue to evaluate procedures and
methods to control storm water
discharges to the extent necessary to
mitigate impacts on water quality in the
studie, required under section 402(p)(5)
of the CWA. Executive Order 12291
requires EPA and other agencies to
perform regulatory analyses of major
regulations. Major rules aie those which
Impose a cost on the economy of $100
million or more annually or have certain
other economic impacts. Today’s
proposed amendments would generally
make the NPDES permit application
regulations more flexible and less
burdensome for the regulated
community. These regulations do not,
satisfy any of the criteria specified in
section 1(b) of the Executive Order and.
as such. do not constitute a major rule.
This regulation was submitted to the
OlTice of Management and Budget
(0MB) for review.
VUL Pap&. mk Rsductloe Act
The Information collection
requirements in this rule have been
submitted for approval to the Office of
Management and Budget (0MB) under
provision of the Paperwork Reduction
Act. 44 US.C. 3501 el seq. and have
been assigned 0MB control number -
2940 088.
Public reporting burden for permit
applications for storm water discharges
associated with industrial activity (other
than from construction facilities) is
estimated to average 28.6 hours per
individual permit application, 0.5 hours
per notice of intent to be covered by
general permit, and 2.1 hours per group
applicanL The public reporting burden
for permit applications for storm water
discharges associated with industrial
activity from construction activities
submitting individual applications is
estimated to average 4.5 hours per
response. The public reporting burden
for facilities which discharge storm
water associated with industrial activity
to municipal separate storm sewers
serving a population over 100.000 to
notify the operator of the municipal
separate storm sewer system is
estimated to average 0.5 hours per
response.
The reporting burden for system-wide
permit applications for discharges from
municipal separate storm sewer systems
serving a population of 250.000 or more
is estimated to average 4.534 hours per
response. The reporting burden for
system-wide permit applications for
discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more, but less
than 250.000 is estimated to average
2.912 hours per response. Estimates of
reporting burden include time for
reviewing instructions, searching
existing data sources. gathenng and
maintaining the data needed, and
completing and reviewing the collection
of information.
IX. Regulatory flexibility Act
Under the Regulatory Flexibility Act. 5
U.S.C. 601 et seq.. EPA is reqwred to
prepare a Regulatory Flexibility
Analysis to assess the impact of rules on
small entities. No Regulatory Flexibility
Analysis is required. however, where
the heed of the agency certifies that the
rule will not have a significant economic
impact on a substantial number of small
entities.
Today’s amendments to the
regulations would generally make the
NPDES permit applications regulations
more flexible and less burdensome for
perinittees. Accordingly. 1 hereby
-------
48002 Federal Register I Vol. 55. No. 222 / Friday, November 16, 1990 I Rules and Regulations
certify, pursuant to 5 U.S.C. 605(b). that
these amendments do not, have a
significant Impact on a substantial
number of small entities.
Ust of Subjects In 40 CFR Parts 122, 123.
and 124
Administrative practice and
procedure. Environmental protection.
Reporting and recordkeeping
requirements. Waler pollution control.
Autbotity Clean Water Act. 33 USC. 1251
at seq.
Dated: October 31. 1990.
William K. Reilly,
Administretor.
For the reasons stated in the
preamble, parts 122. 123. and 124 of title
40 of the Code of Federal Regulations
are amended as follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS; ThE NATIONAL
POLLUTANT DISCHARGE
EUMINAT1ON SYSTEM
Subpart B—Permit Application and
Special NPDES Program Requirements
1. The authority citation for part 122
continues to read as follows:
Authmtty Clean Water Act. 33 U.S.C. 1251
et seq.
2. Section 122.1 is amended by
revising paragraph (b)(2)(iv) to read as
follows:
* 122.1 Purpose and Scope.
• . . . .
(b)
(2) ‘ ‘
(iv) Discharges of storm water as set
forth in § 122.26: and
• . I I I
3. Section 122.21 is amended by
revising paragraph (c)(1). by removing
the last sentence of paragraph (f)(7). by
removing paragraph (fl(s). by adding
two sentences at the end of paragraph
(g)(3). by revising paragraph (g)(7)
introductory text. by removing and
reserving paragraph (g)(10) and by
revising the introductory text of
paragraph (k) to read as follows:
§ 122.21 ApplicatIon for. prmlt
(appNcabts to Stats programs. 5..
I S • • S
(c) Time to appiy. (1) Any person
proposing a new discharge. shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Facilities proposing a new discharge of
storm water associated with industrial
activity shall submit an application iao
days before that facility commences
Industrial activity which may result In a
discharge of storm water associated
with that industrial activity. Facilities
described under § 122.26(b)(14)(x) shall
submit applications at least 90 days
before the date on which construction is
to commence. Different submittal dates
may be required under the terms of
applicable general permits. Persons
proposing a new discharge are
encouraged to submit their applications
well in advance of the 90 or 180 day
requirements to avoid delay. See also
paragraph (k) of this section and
f 122.26 (c)(lJ(l)(C) and (c)(1)(li).
(8) ••
(3) • The average flow of point
sources composed of storm water may
be estimated. The basis for the rainfall
event and the method of estimation must
be indicated.
S S S S S
(7) Effluent characteristics.
Information on the discharge of
pollutants specified in this paragraph
(except information on storm water
discharges which is to be provided as
specified in § 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 40 CFR part
136. 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 outfalls. The
requirements in paragraphs (g)(7) (iii)
and (iv) 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 p11. 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 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. 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
taken4n 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 § 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
watir 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 ahquots 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 § 122.26(c)(1). For
all storm water permit applicants taking
flow-weighted composites, quantitative
data must be reported for all pollutants
specified in § 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 fo collecting
samples under 40 CFR part 136. and
additional time for submilting dai&i on a
-------
Federal Register! Vol. 55. No. 222 I Friday, November 18 1990 I Rules and Regulations
48063
case-by-case basis. An applicant is
expected to “know or have reason to
believe” theta 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.)
• . I I I
(k) Application requirements for new
sources and new discharges. New
manufacturing, commercial, mining and
silvicultural dischargers applying for
NPDES permits (except for new
discharges of facilities subiect to the
requirements of paragraph (h) of this
section or new discharges of storm
water associated with industrial activity
which are subject to the requirements of
§ 1 S (C)( ) and this section (except as
provided by * 122.28(c)(1)(ii)) shall
provide the following information to the
Director, using the application forms
provided by the Director
4. Section 122.22(b) introductory text
is revised to read as follows:
122.22 SIgnatories to permit applications
end rupoil . (applIcable to Stats programs,
see * 123.25k
. — . I
(bJ All reports required by permits.
and other information requested by the
Director shall be signed by a person
descri bed in paragraph (a) of this
section. or by a duly authonzed
representative of that person. A person
is a duly authorized representative only
ii.
5. Section 122.26 is revised to read as
Follows:
§ 122.26 Storm water discharges
(applicable to Stats NPOES programs, see
§ 12325).
(a) Permit requirement. (1) Prior to
I )ctober 1. 1992. discharges composed
entirely of storm water shall not be
required to obtain a NPDES permit
except:
(i) A discharge with respect to which
a permit has been issued prior to
February 4. 1987:
(ii) A discharge associated with
industrial activity (see § 122.26(a) (4)):
(iii) A discharge from a large
municipal separate storm sewer system:
(iv) A discharge from a medium
municipal separate storm sewer system:
(v) A discharge which the Director, or
in States with approved NPDES
programs. either the Director or the EPA
Regional Administrator, determines to
contribute to a violation of waler
quality standard or is a significant
contributor of pollutants to waters of the
United States. Thu designation may
include a discharge from any
conveyance or system of conveyances
used for collecting and conveying storm
water runoff or a system of discharges
from municipal separate storm qewers,
except for those discharges from
conveyances which do not require a
permit under paragraph (a)(2) of this
section or agricultural storm water
runoff which Is exempted from the
definition of point source at § 122,2.
The Director may designate discharges
from municipal separate storm sewers
on a system-wide or jurisdiction-wide
basis. In making this determination the
Director may consider the following
factors:
(A) The location of the discharge with
respect to waters of the United Slates as
defined at 40 CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the
pollutants discharged to waters of the
United States; and
(D) Other relevant factors.
(2) The Director may not require a
permit for discharges of storm water
runoff from mining operations or oil and
gas exploration, production, processing
or treatment operations or transmission
facilities, composed entirely of flows
which are from conveyances or systems
of conveyances (including but not
limited to pipes. conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and
which are not contaminated by contact
with or that has not come into contact
with, any overburden, raw matenal.
intermediate products. finished product.
byproduct or waste products located on
the site of such operations.
(3) Large and medium municipal
separate storm sewer systems (i)
Permits must be obtained for all
discharges from large and medium
municipal separate storm sewer
systems.
(ii) The Director may either issue one
system.wide permit covering all
discharges from municipal separate
storm sewers within a large or medium
municipal storm sewer system or issue
distinct permits for appropriate
categor.es of discharges within a large
or medium municipal separate storm
sewer system induding. but not limited
to: all discharges owned or operated by
the same municipality: located within
the same jurisdiction: all discharges
within a system that discharge to the
same watershed, discharges within a
system that are similar in nature: or (or
individual discharges From municipal
separate storm sewers within the
system
(iii) The operator of a discharge from
a municipal separate storm sewer which
is part of a large or medium murncipal
separate storm sewer system must
either.
(A) Participate in a permit application
(to be a permittee or a co-permitlee)
with one or more other operators of
discharges From the large or medium
municipal storm sewer system which
covers all, or a portion of all, discharges
from the municipal separate storm
sewer system;
(B) Submit a distinct permit
application which only covers
discharges from the municipal separate
storm sewers for which the operator is
responsible; or
(C) A regional authority may be
responsible for submitting a permit
application under the following
guidelines:
(1) The regional authority together
with co-applicants shall have authority
over a storm water management
program that is in existence, or shall be
in existence at the time part I of the
application is due.
(2) The permit applicant or co-
applicants shall establish their ab:lity to
make a timely submission of part I and
part 2 of the municipal application;
(3) Each of the operators of municipal
separate storm sewers within the
systems described in paragraphs (bJ(4)
(i). (ii). and (iii) or (b)(7) (i) (ii). and (iii)
of this section. that are under the
purview of the designated regionzil
authority, shall comply with the
application requirements of paragraph
(d) of this section.
(iv) One permit application may be
submitted for all or a portion of all
municipal separate storm sewers within
adjacent or interconnected large or
medium municipal separate storm sewer
systems. The Director may issue one
system.wide permit covering all, or a
portion of all municipal separate storm
sewers in adjacent or interconnected
large or medium municipal separate
storm sewer systems.
(v) Permits for all or a portion of aU
discharges From large or medium
municipal separate storm sewer systems
that are issued on a sysiem.wide.
jurisdiction.wide. watershed or other
basis may specify different conditions
relating to different discharges co ered
by the permit, including different
management programs for di1fe ent
drainage areas hich contribuic storn
water to the s stem.
(vi) Co.permiitees need only comply
with permit conditions relating to
discharges from the municipal separate
storm sewers for which they are
opera iors
-------
18064 Federal Register / Vol. 55, No. 222 I Friday. November 10. 1990 I Rules and Regulations
(4) Discharges thrtn h large and
medium municipal separate storm sewer
systema In addition to meeting the
requirements of paragraph (c) of this
section. an operator of a storm water
discharge associated with industrial
activity which discharges through a
large or medium municipal separate
storm sewer system shall submit, to the
operator of the municipal separate storm
sewer system receiving the discharge no
later than May15. 1991. or 180 days
prior to commencing such discharge: the
name of the facility; a contact person
and phone number the location of the
discharge; a description, including
Standard Industrial Classification.
which best reflects the principal
products or services provided by each
facility; and any existing NPDES permit
number.
(5) Other municipal separate storm
sewers. The Director may issue permits
for municipal separate storm sewers
that are designated under paragraph
(a)(1)(v) of this section on a system-wide
basis, jurisdiction-wide basis.
watershed basis or other appropriate
basis, or may issue permits for
individual discharges.
(6) Non-municipal separate storm
sewers. For storm water discharges
associated with industrial activity from
point sources which discharge through a
non-municipal or non-publidy owned
separate storm sewer system, the
Director, in his discretion. may issue: a
single NPDES pennit, with each
discharger a co-permittee to a permit
issued to the operator of the portion of
the system that discharges into waters
of the United Slates: or. individual
permits to each discharger of storm
water associated with industrial activity
through the non-municipal conveyance
system.
(I) All storm water discharges
associated with industrial activity that
discharge through a storm water
discharge system th-at is not a municipal
separate storm sewer must be covered
by an individual permit, or a permit
issued to the operator of the portion of
the system that discharges to waters of
the United States, with each discharger
to the non-municipal conveyance a co-
permittee to that permit.
(ii) Where there is more than one
operator of a single system of such
conveyances, all operators of storm
water discharges associated with
industrial activity must submit
applications.
(iii) Any permit covering more than
one operator shell identify the effluent
limitations, or other permit conditions, if
any. that apply to each operator.
(7) Combined sewer systems.
Conveyances that dischsrge storm
water runoff combined with municipal
sewage are point sources that must
obtain NPDES permits in accordance
with the procedures of 122.21 and are
not subject to the provisions of this
section.
(8) Whether a discharge from a
municipal separate storm sewer is or is
not subject to regulation under this
section shall have no bearing on
whether the owner or operator of the
discharge is eligible for funding under
title U, title ill or title VI of the Clean
Water Act. See 40 CFR part 35, subpart
I. appendix A(b)H.2.j.
(b) Definitions. (1) Co-permittee
means a permljtee to a NPDES permit
that is only responsible for permit
conditions relating to the discharge for
which it Is operator.
(2) Illicit discharge means any
discharge to a municipal separate storm
sewer that is not composed entirely of
storm water except discharges pursuant
to a NPDES permit (other than the
NPDES permit for discharges from thr
municipal separate storm sewer) and
discharges resulting from fire fighting
activities.
(3) Incorporated place means the
District of Columbia. or a city, town.
township, or village that Is incorporated
under the laws of the State in which it is
located.
(4) Large municipal separate storm
sewer system means all municipal
separate storm sewers that are eithen
(i) Located in an incorporated place
with a population of 250,000 or more as
deterrn ned by the latest Decennial
Census by the Bureau of Census
(appendix F): or
(ii) Located in the counties listed in
appendix 11, except municipal separate
storm sewers that are located in the
incorporated places, townships or towns
within such counties: or
(ill) Owned or operated by a
municipality other than those described
in paragraph (b )(4) (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)(4) (i) or
(ii) of this section. In making this
determination the Director may consider
the following factors:
(A) Physical interconnections
between the municipal separate storm
sewers:
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharge. from
municipal separate storm sewers
described in paragraph (b)(4)(i) of this
section:
(C) The quantity and nature of
pollutants discharged to waters of the
United States:
(D) The nature of the receiving waters:
and
(E) Other relevant factors: or
(iv) The Director may, upon petition.
designate as a large municipal separate
storm sewer system. municipal separate
storm sewers located within the
boundaries of a region defined by a
storm water management regional
authority based on a jurisdicticnal.
watershed, or other appropriate basis
that indudes one or more of the systems
described in paragraph (b)(4) (), (ii). (iii)
of this section.
(5) Major municipal separate storm
sewer outfall (or “major outfall”) means
a municipal separate storm sewer outfall
that discharges from a single pipe with
an inside diameter of 30 inches or more
or its equivalent (discharge from a single
conveyance other than circular pipe
which is associated with a drainage
area of more than 50 acres); or for
municipal separate storm sewers that
receive storm water from lands zoned
for industrial activity (based on
comprehensive zoning plans or the
equivalent), an outfall thst discharges
from a single pipe with an inside
diameter of 12 inches or more or from its
equivalent (discharge from other than a
circular pipe associated with a drainage
area of 2 acres or more).
(6) Major outfall means a major
municipal separate storm sewer outfall.
(7) Medium mun c:pal separate storm
sewer system means all municipal
separate storm sewers that are either
(i) Located in an incorporated place
with a population of 100.000 or more but
less than 250.000. as determined by the
latest Decennial Census by the Bureau
of Census (appendix C): or
(ii) Located in the counties listed in
appendix I, except municipal separate
storm sewers that are located in the
incorporated places, townships or towns
within such counties; or
(iii) Owned or operated by a
municipality other than those described
in paragraph (b)(4) (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 scorm sewers
described under paragraph (bfl4) (i) or
(ii) of this section In making this
determination the Director may consider
the following factors
-------
Federal Register I Vol. 55, No. 222 / Friday, November 15, 1990 I Rules and Regulations
48065
(A) Physical interconnections
between the municipal separate storm
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharges from
municipal separate storm sewers
described In paragraph (b)(7)(i) of this
section:
(C) The quantity and nature of
pollutants discharged to waters of the
United States
(D) The nature of the receiving waters;
or
(E) Other relevant factors: or
(lv) The Director may. upon petition,
designate as a medium municipal
separate storm sewer system. municipal
separate storm sewers located within
the boundaries of a region defined by a
storm water management regional
authority based on a jurisdictional,
watershed, or other appropriate basis
that Includes one or more of the systems
described in paragraphs (b)(7) (1), (ii),
( Iii) of this section.
(8) Municipal separate storm sewer
means a conveyance or system of
conveyances (including roads with
drainage systems, municipal streets,
catch basins, curbs, gutters. ditches.
man-made channels, or storm drains):
(i) Owned or operated by a State, city,
town, borough, county, parish, district.
association, or other public body
(created by or pursuant to State law)
having jurisdiction over disposal of
sewage. Industrial wastes, storm water.
or other wastes, including special
districts under State law such as a
sewer district, flood control district or
drainage district, or similar entity, or an
Indian tribe or an authonzed Indian
tnbal organization, or a designated and
approved management agency under
section 208 of the CWA that discharges
to waters of the United States:
(ii) Designed or used for collecting or
conveying storm water.
(iii) Which is not a combined sewer
and
(iv) Which is not put of a Publicly
Ownsd Treatment Works (POTW) as
defined at 40 CFR 122.2.
(9) Outfall means a point source as
defined by 40 CFR 122.2 at the point
where a municipal separate storm sewer
discharges to waters of the United
Slates and does not include open
conveyances connecting two municipal
separate storm sewers, or pipes. tunnels
or other conveyances which connect
segments of the same stream or other
vater, of the United States and are used
o convey waters of the United States.
(10) Overburden means any material
of any nature, consolidated or
inconsolidated. that overlies a mineral
d — sit. excluding topsoil or similar
naturally-occurring surface materials
that are not disturbed by mining
operations.
(11) Runoff coefficient means the
fraction of total rainfall that will appear
at a conveyance as runoff.
(12) Significant materials includes,
but is not limited to: raw materials;
fuels: materials such as solvents.
detergents. and plastic pellets: finished
materials such as metallic products; raw
materials used In food processing or
production: hazardou, substances
designated under section 101(14) of
CERCLA any chemical the facility is
required to report pursuant to section
313 of tItle 111 of SARA; fertilizers:
pesticides; and waste products such as
ashes, slag and sludge that have the
potential to be released with storm
water discharges.
(13) Storm water means storm water
runoff, snow melt runoff, and surface
runoff and drainage.
(14) Storm water dischorge associated
with industrial activity means the
discharge from any conveyance which is
used for collecting and conveying storm
water and which is directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. The term does not include
discharges from facilities or activities
excluded from the NPDES program
under 40 CFR part 122. For the
categories of industries identified in
paragraphs (b)(14) (i) through (x) of this
section, the term includes, but is not
limited to. storm water discharges from
industrial plant yards: immediate access
roads and rail lines used or traveled by
carriers of raw materials, manufactured
products, waste material, or by-products
used or created by the facility; material
handling sites: refuse sites: sites used for
the application or disposal of process
waste waters (as defined at 40 CFR part
401); sites used for the storage and
maintenance of material handling
equipment; sites used for residual
treatment. storage. or dispotal: shipping
and receiving areas; manufacturing
buildings: storage areas (including tank
farms) for raw materials, and
Intermediate arid finished products: and
areas where industrial activity has
taken place in the past and significant
materials remain and are exposed to
storm water. For the categories of
industries identified in paragraph
(b)(14)(xi) of this section. the term
includes only storm water discharges
from all the areas (except access roads
and rail lines) that are listed in the
previous sentence where material
handling equipment or activities, raw
materials, intermediate products. final
products, waste materials, by-products.
or industrial machinery are exposed to
storm water. For the purposes of this
paragraph. material handling activities
include the storage, loading and
unloading, transportation. or
conveyance of any raw material.
Intermediate product, finished product.
by-product or waste product. The term
excludes areas located on plant lands
separate from the plant’s industrial
activities, such as office buildings and
accompanying parking lots as long as
the drainage from the excluded areas is
not mixed with storm water drained
from the above described areas.
Industrial facilities (including industrial
facilities that are Federally. State. or
municipally owned or operated that
meet the description of the facilities
listed in this paragraph (bfll4)(i)—(xi) of
this section) include those facilities
designated under the provisions of
paragraph (a)(1)(v) of this section. The
following categories of facilities are
considered to be engaging in “industrial
activity” for purposes of this subsection:
(I) Facilities subject to storm water
effluent limitations guidelines, new
source performance standards, or toxic
pollutant effluent standards under 40
CFR subchapter N (except facilities with
toxic pollutant effluent standards which
are exempted under category (xi) in
paragraph (b)(14) of this section):
(ii) Facilities classified as Standard
Industrial Classifications 24 (except
2434), 28 (excel .t 285 and 287). 28 (except
283). 29. 311, 32 (except 323), 33. 3441. 373;
(iii) Facilities classified asStandard
Industrial Classifications 10 through 14
(mineral industry) including active or
inactive mining operations (except for
areas of coal mining operations no
longer meeting the definition of a
reclamation area under 40 CFR 434.11(1)
because the performance bond issued to
the facility by the appropriate SMCRA
authority has been released. or except
for areas of non-coal mining operations
which have been released from
applicable State or Federal teclamation
requirements after December 17. 1990)
and oil and gas exploration, production.
processing, or treatment operations, or
transmission facilities that discharge
storm water contaminated by contact
with or that has corns into contact with.
any overburden, raw material.
intermediate products. finished
products. byproducts or waste products
located on the site of such operations:
(inactive mining operations are mining
sites that are not being actively mined.
but which have an identifiable owners
operator inactive mining sites do not
include sites where mining claims are
being maintained prior to disturbances
associated with the extraction.
beneficiation. or processing of min-d
-------
48008 Federal Register ! Vol. 55. No. 2 I Friday. November 16. 1990 I Rules and Reg. I4ioiI5
materials. nor sites where minimal
actividee are trndertaken for the sole
purpose of maintaining a mining daim):
(iv) Hazardous waste treatment.
storage. or dispose) faallties. including
those that are operating under interim
status or a permit under subtitle C of
(v) Landfills, land application sites.
and open dumps that receive or have
received any industrial wastes (waste
that is received from any of the facilities
described under this subsection)
including those that are suhpect to
regulatIon under subtitle D of RCR&
(vi) Facilities involved in the recycling
of materials, including metal scropyards.
battery reclaimers. salvage yards. and
automobile junkyards. including but
limited to those classified as Standard
lr.dustrial Dassification 5015 and 5093:
(vii) Steam electric power generating
larilities. including coal handling sites.
(viii ) Transpurtuiion fiid)ities
classified as Standard Industrial
Classifications 41.1, 41.42 (except 4221—
25). 43. 44. 45. and 5171 which have
‘.ehicle maintenance shops, equipment
cleaning operations, or airport deicing
operations. Only those portions of the
facility that are either involved in
vehicle maintenance (including vehicle
rehi ibiliLation. mechanical repairs,
painting, fueling, and lubrication).
equipment deaning operations, airport
deicing operations, or which are
otherwise identified under paregrapha
(bJ(14) (i —(viil or (ix) -4xi) oI this section
ate associated with industrial activiiy
(ix ) Treatment works treating
dwnesl:c sewagr or any other se dge
sludee or wasir waler treotment device
or sys’em. uscd in the storage treiitmcni,
rrc)(.lIng. a d reclamation of municipal
or domestic sewage. enriuding lahd
dedicatLd to the disposal of sewage
sludge that are located within the
cunfir.rs of tue facili’y. wi’h a design
flow of 1 0 mgd or more, or reiuired to
h.p.e an approved pretir...tnuuit program
undr:r 40 CFR part 403. %ci inr.’aded a;e
Farm lands, domestic g.irdens or lands
used for sludge management whrre
sludge is beneficially reused and which
are not physically located iii i’ve
confines of the facility, or areas that are
in compliance with section 405 of the
CWA:
Is) Construction activity including
cleanng. grading and excavation
activities except operations that result
in the disturbance of lees than five acres
of total land area which are not part of a
ldrger common plan of development or
sale.
(si) Facilities under Standard
Industrial Classifications 20, 21. 22. 23.
2434. 25. 265, 267. 27. 283. 285. 30. 31
except 311j. 323.34 (exa .pt 3441). 35, 35
37 (except 373). 38. 39.42:1—25. (and
which are not otherwise included within
categories (üHx));
(c) Application faquiternenIs for alarm
water discharges associated with
industrial activity—(1) Individual
opplication. Discharger. of storm water
associated with industrial activity are
required to apply for an individual
permit, apply fore permit through a
group application, 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 40 CPR 124.52(c)) under
paragraph (a)(1 J(v) of this section and is
not a municipal separate storm sewer.
and which is not part of a group
application described under paragraph
(c)(2) of this section. shall submit an
NPDES application in accordance with
the requirements of 122.21 as modified
and st.pplemented by the provisions of
the remainder of this paragraph.
Applicants for dkicha’ges composed
entirely of storm water shall submit
Form 1 and Form 21’. Applicants for
discharges composed of storm water
and non-storm waler shall submit Form
1. Form ZC. and Form 21’. Applicants for
new sources or new discharges (as
defined in f 122.2 of this part) composed
of storm water and non-storm water
shall submit Form 1, Form 21). and Form
2F.
(ip Except as provided in § 122.28(c)(1)
(ui) —(ivj. the operator of a storm water
discharge associated with industrial
activity subject to this section shalt
provide:
(A) A site map showing topography
(or indicating the outline of drainage
areas served by the outfall(s) covered in
the application if a topographic map is
unavailable) of the facility including
each of its drainage and discharge
structures: the drainage area of each
storm water outfall, paved ureas and
buildings within the dramage area of
each storm water outfall, each past or
present area used for outdoor storage or
disposal of significant materials, each
existing structural control measure to
reduce pollutants in storm water runoff.
materials loading and access areas,
areas where pesticides, herbicides, soil
conditioners and fertilizers are applied.
each of its hazardous waste treatment.
storage or disposal facilities (including
ea b area not required to have a RCRA
permit which is used for accumulating
hazardou, waste under 40 CFR 202.34).
each well where fluids from the facility
are injected underground: springs. and
other surface water bodies which
receive storm waler discharges from Inc
facility:
(B) An estimate of the area of
impervious surfaces (including paved
areas and building roofs) and the total
area drained by each outfall (within a
mile radius of th. facility) and a
narrative description of the following;
Significant materials that in the three
years prior to the submittal of this
application have been treated, stored or
disposed in a manner to allow exposure
to storm water method of treatment.
storage or disposal of such materials;
materials management practices
employed, in the three years prior to thr
submdtal of this application, to
minimize contact by these materials
with storm water runoff: materials
loading arid access areas. the location.
manner and frequency in winch
pesticides, herbicides, soil conditioners
and fertilizers are applied: the location
and a description of existing structural
and non-structural control measures to
reduce pollutants in storm water runoff.
and a description cif the treatment the
storm water receives, including the
ultimate disposal of any solid or fluid
wastes other than by dischurgei
(C) A certification that all outlalts thai
should contain storm water discharges
associated with industrial activity have
been tested or evaluated For the
pres.’nce of non-storm water dischargec
which are not covered by a NPDES
permit: tests for such non-storm water
discharges may include smoke tests.
fluorometric dye tests, analysis of
accurate schematics, as well as other
appropriate tests. The certification shall
include a description of the method
used, the date of any testing, and the o”
site drainage points that were directly
observed during a test:
(D) Existing information regurdin
significant leaks or spills of to’iic or
hazardous pollutants at the facility thai
have taken place within the three years
prior to the submittal of this application.
(E) Quantitative data based on
samples collected during storm events
and collected in accordance with
f 122.21 of this part from all outlaUs
containing a storm water discharge
associated with industrial activity lot
the following parameters:
(I) Any pollutant limited in an e(fluaen
guideline to which the facility is sub ect
(21 Any pollutant listed in the facility,
NPDES permit (or its process
wastewater (ii the facility is .ipera!ing
under an existing NPD permit):
(3) Oil and grease. p14. 801)5, COD.
TSS 1 total phosphorus. total ICjeldahl
nitrogen, and nitrate plus nitrite
nitrogen:
(4) Any information on the discharge
required under paragraph I 12:.21(g)(7)
(iii) .ind (iv) of this part’
-------
Federal Register / Vol. 55, No. 222 1 FrIday, November 11 1990 / Rules and Regulations
48067
(5) Flow measurements or estimates of
the flow rate, and the total amount of
discharge for the storm event(s)
sampled, and the method of flow
measurement or estimation; and
(6) The date and duration (in hours) of
the storm event(s) sampled. rainfall
measurements or estimates of the storm
event (in inches) which generated the
sampled runoff and the duration
between the storm event sampled and
the end of the previous measurable
(greater than 0.1 Inch rainfall) storm
event (in hours):
(F) Operators of a discharge which Is
composed entirely of storm water are
exempt from the requirements of
122.21 (g)(2), (g)(3). (g)(4), (g)(5),
(g)(7)(i), (g)(7)(ii), and (g)(7)(v); and
(C) Operators of new sources or new
discharges (as defined in 122.2 of this
part) which are composed in part or
entirely of storm water must include
estimates for the pollutants or
parameters listed in paragraph
(c)(1)(i)(E) of this section instead of
actual sampling data, along with the
source of each estimate. Operators of
new sources or new discharges
composed in part or entirely of storm
water must provide quantitative data for
the parameters listed in paragraph
(c)(1)(i)(E) of this section wIthin two
years after commencement of discharge.
unless such data has already been
reported under the monitoring
requirements of the NPDES permit for
the discharge. Operators of a new
source or new discharge which is
composed entirely of storm water are
exempt from the requirements of
* 122.31 (k)(3flii), (k)(3)(iii), and (k)(5).
(ii) The operator of an existing or new
storm water discharge that is associated
with industrial activity solely under
paragraph (b)(14)(x) of this section, is
exempt from the requirements of
I 122.21(g) and paragraph (c)(I)(i) of this
section. Such operator shall provide a
narrative description of:
(A) The location (including a map)
and the nature of the construction
activity:
(B) The total area of the site and the
area of the site that is expected to
undergo excavation during the life of the
permit:
(C) Proposed measures, including best
management practices. to control
pollutants in storm water discharges
during construction, including a brief
description of applicable Slate and local
erosion and sediment control
requirements:
ID) Proposed measures to control
pollutants in storm water discharges
that will occur after construction
ope ations have been completed.
mci .ding a brief description of
applicable State or local erosion and
sediment control requirements:
(E) An estimate of the runoff
coefficient of the site and the Inanase hi
Impervious area after the construction
addreued In the permit application is
completed, the nature of fill material
and existing data descr1bin the soil or
the quality of the discharge: and
(F) The name of the receiving water.
(Iii) The operator of an existing or new
discharge composed entirely of storm
water from an oil or gas exploration,
production, processing, or treatment
operation, or transmission facility is not
required to submit a permit application
In accordance with paragraph (c)(1)(i) of
this section, unless the facility:
(A) Has had a discharge of storm
water resulting in the discharge of a
reportable quantity for which
notification is or was required pursuant
to 40 CFR 117.21 or 40 CFR 302.6 at
anytime since November 16, 1987: or
(B) Has had a discharge of storm
water resulting in the discharge of a
reportable quantity for which
notification is or was required pursuant
to 40 CFR 110.0 at any time since
November 16, 1987; or
(C) Contributes to a violation of a
water quality standard.
(iv) The operator of an existing or new
discharge composed entirely of storm
water from a mining operation is not
required to submit a permit application
unless the discharge has come into
contact with, any overburden, raw
material. Intermediate products, finished
product, byproduct or waste products
located on the site of such operations.
(v) Applicants shall provide such
other information the Director may
reasonably require under I 122.21(g)(13)
of this part to determine whether to
issue a permit and may require any
facility subject to paragraph (c)(1)(ii) of
this secticn to comply with paragraph
(c)(1)(i) of this section.
(2) Group opplicouon for d,schorges
associated with ,ndustr,al activity. In
lieu of individual applications or notice
of intent to be covered by a general
permit for storm water discharges
associated with industrial activity, a
group application may be filed by an
entity representing a group of applicants
(except facilities that have existing
individual NPDES permits for storm
waterj that are part of the same
subcategory (see 40 CFR subchapter N.
part 405 to 471) or. where such grouping
is inapplicable. are sufficiently similar
as to be appropriate for general permit
coverage under I 122.28 of this part. The
part I application shall be submitted to
the Office of Water Enforcement and
Permits. U.S. EPA. 401 M Street. SW..
Washington. DC 20400 (EN—336 1 for
approvaL Once a part I application Is
approved, group applicants are to
submit Part 2 of the group application to
the Office of Water Enforcement and
Permits. A group application shall
consist ofi
(I) Port 1. Part I of a group application
shall:
(A) Identify the participants in the’
group application by name and location.
Facilities participating in the group
application ‘shall be listed in nine
subdivisions, based on the facility
location relative to the nine
precipitation zones indicated in
appendix E to this part.
(B) include a narrative description
summarizing the industrial activities of
participants of the group application and
explaining why the participants, as a
whole, are sufficiently similar to be a
covered by a general permit;
(C) Include a list of significant
materials stored exposed to
precipitation by participants in the
group application and materials
management practices employed to
diminish contact by these materials with
precipitation and storm water runoff;
(D) Identify ten percent of the
dischargers participating in the group
application (with a minimum of 10
dischargers. and either a minimum of
two dischargers from each precipitation
zone indicited in appendix E of this part
in which ten or more members of the
group are located. or one discharger
from each precipitation zone indicated
in appendix E of this part in which nine
or fewer members of the group are
located) from which quantitative data
will be submitted in part 2. If more than
1.000 facilities are identified in a group
application, no more than 100
dischargers must submit quantitative
data in Part 2. Groups of between four
and ten dischargers may be formed.
However, in groups of between four ano
ten, at least half the facilities must
submit quantitative data, arid at least
one facility in each precipitation zone in
which members of the group are located
must submit data. A description of why
the facilities selected to perform
sampling and analysis are
representative of the group as a whole in
terms of the information provided in
paragraph (CIII) (iJ(B) and (i)(C) of this
section. shall accompany this section.
Different factors impacting the nature of
the storm water discharges. such as
processes used and material
management. shall be represented, to
the extent feasible, in a manner roughly
equivalent to their proportion in the
group
(ii) Port 2. Part 2 of a group
application shall contain quantitative
-------
19911 F L.J Register I Vol. 55. No 2fl F Fi4day, November 15. 1990 1. Rules and Regulations
data (NPO Form 2F). as modified by
paragraph (cfll) of this section. so that
when pert land part z of the group
application ate taken together, a
completa NPV application (Pores 1.
Form 2C, and Form 2F) can be evaluated
fur each discharger identified In
paragraph (c)(2)(i)(D) of this section.
(d) Appiicatwn reqwieinents far !oi e
mid rnediwri municJpoi separce storm
sewer dischorga& The operator of a
discharge from a large or medium
municipal separate storm sewer or a
municipal separate storm sewer that is
designated by the Director under
paragraph (a)(1)(v) of this s ion. may
submit a jurisdiction-wide or systmn-
wide permit application. Where more
than one public entity owns or operate.
a municipal separate storm sewer within
a geographic area (including adjacent or
Interconnected municipal separate
storm sewer systems). such operators
may be a coapplicani to the same
application. Permit applications for
discharges from large and medium
municipal storm sewers or mi.nirip.l
storm sewers designated under
paragraph (a)(1)(v) of this section shall
include;
(1) Port 1. Part I of the application
shall consist of;
(i) Generol information. The
applicants’ name, address, telephone
number of contact person, ownership
status and status as a State or local
government entity.
(ii) Legal authority. A description of
existing legal authority to control
discharges to the municipal separate
storm sewer system. When existing
legal authority is not sufficient to meet
the criteria provided in paragraph
(dflz)(i) of this section. the description
shall list additional authorities as will
be necessary to meet the criteria and
shall Include a schedule and
commitment to seek such additional
authority that wall be needed to meet the
criteria.
(iii) Source identification. (A) A
description of the historic use of
ordinances, guidance or other controls
which limited the discharge of non-
storm water discharges to any Publicly
Owned Treatment Works serving the
same area as the municipal separate
storm sewer system.
(B) A USGS 7.5 minute topographic
map (or equivalent topographic map
with a scale between 1:10,000 and
1:24.000 if cost effective) extending one
mile beyond the service boundaries of
the municipal storm sewer system
cove,ed by the permit application. The
following information ahall be provided:
(Il The location of known municipal
storm sewer system outfall. discharging
to waters of the United States:
(2)Aducr1pIIoeofd t.land .
activities (e.g. divisions indicating
undeveloped, residentiaL i. . . ... .evdal.
agricaharul and Industrial uses)
accoespenled with estimates of
population densities end projected
growth for a ten year period within the
drainage area served by the separate
storm sewer. For each land use type. an
estimate of an average runoff coefficient
shall be provided:
(3) The location and a description of
the activities of the facility of each
currently operating or dosed municipal
landfill or other beetment. storage or
disposal facility for municipal waste
(4) The location and the permit
number of any known discharge to the
municipal storm sewer that ha. been
Issued a NPDES permit
(5) The location of major structural
controls for storm water discharge
(retention basins, detention basin..
major Infiltration devices. etc. and
(8) The Identification of publicly
owned parks. recreational areas. and
other open lands.
(iv) Discharge characterization. (A)
Monthly mean rain and snow fall
estimates (or summary of weather
bureau data) and the monthly average
number of storm events.
(B) Existing quantitative data
describing the volume and quality of
discharges from the municipal storm
sewer. Including a description of the
outfalls sampled, sampling procedures
and analytical methods used.
(C) A list of water bodie . that receive
discharges from the municipal separate
storm sewer system. including
downstream segments. lakes and
estuaries, where pollutants from the
system discharges may accumulate and
cause water degradation and a brief
description of known water quality
impacts. At a minimum, the description
of impacts shall include a description of
whether the water bodies receiving such
discharges have beeiu
(1) Assessed and reported In section
305(b) reports submitted by the State,
the basis for the assessment (evaluated
or monitored), a summary of designated
use support and attainment of Clean
Water Act (CWA) goals (fishable and
swimmable water ,), and causes of
nonsupport of designated uses:
(2) Listed under section 304(l)(l )(A)(I),
section 304(l)(1 )(A)(ii). or section
3O4flfllflB) of the CWA that is not
expected to meet water quality
standards or water quality goals:
(.7) Listed In State Nonpoinr Source
Assessments required by section 319(a)
of the CWA that, without additional
action to control aonpomt sources of
pollution, cannot reasonably be
expected to attain or maintain water
quality s tandard . due to storm sewers ,
construction, highway maintenance ant
runoff from mun dpaf landfills and
municipal sludge addIng significant
pollution (or contributing to a violation
of water quality standards)
(4) identIfied and classified according
to eutrophic condition of publicly owned
lakes listed in State reports required
under section 314(a) of the CWA
(include the following: A description of
those publicly owned lakes for which
uses are known to be impaired; a
description of procedures, processes and
methods to control the discharge of
pollutants from municipal separate
storm sewers into such lakes and a
description of methods and procedures
to restore the quality of such lakes);
(5) Areas of concern of the Great
Lakes identified by the International
Joint Commis ’on.
(6) Designated estuaries under the
National Estuary Program under section
320 of the CWA
[ 7) Recognized by the applicant u
highly valued or sensitive waters:
(8) Defined by the State or U.S. Fish
and Wildlife Services’s National
Wetlands Inventory as wetlands: and
(9) Found to have pollutants in bottom
sediments, flab tissue or biosurvey data.
(D) F ield weening. Results of a field
screening analysis for illicit comiections
and Illegal dumping for either selected
field screening points or major outfall,
covered in the permit application. At $
minimum, a screening analysis shall
include a narrative description. for
either each field screening point or
major outfalL of visual observations
made during dIy weather periods. If any
flow is observed, two grab samples shall
be collected during a 24 hour period
with a minimum period of four hour,
between sample.. For all such samples.
a narrative description of the color.
odor, turbidity, the presence of an oil
sheen or surface scum as well as any
other relevant observations regarding
the potential presence of non.storm
water discharges or illegal dumping
shall be provided. In addition, a
narrative description of the result. of a
field analysis using suitable methods to
estimate pH. total chlorine, total copper,
total phenol, and detergents (or
surfactanta) shall be provided along
with a description of the flow rate.
Where the field analysis does not
invoh,e analytical methods approved
under 40 CFR part 130. the applicant
shall provide a description of the
method used including the name of the
manufacturer of the test method along
with the range and accuracy of the test.
Field screening points shall be either
major outfnlls or other outfall points (or
-------
Fedaral Register / VoL 55 No. 222 / Friday, November 16 1990 1 Rules and Regulation.
49990
any other point of acceu such as
manholes) randomly located throughout
the storm sewer system by plaang a
— over a drainage system map and
Identifying those cells of the grid which
contain a segment of the storm sewer
system or major outfall. The field
screening points shall be established
using the following guidelines and
critena:
(1) A grid system consisting of
perpendicular north-south and east-west
lines spaced Ye mile apart shall be
overlayed on a map of the municipal
storm sewer system, creating a series of
cells:
(2) All cells that contain a segment of
the storm sewer system shall be
ldentlfled one field screening point shall
be selected In each ceth major outfalls
may be used as field screening points;
(3) Field screening points should be
located downstream of any sources of
suspected illegal or illicit activity,
(4) Field screening points shaU be
located to the degree practicable at the
farthest manhole or other accessible
location downstream in the system.
within each cell: however, safety of
personnel and accessibility of the
location should be considered in making
this determination:
(5) Hydrological conditions; total
drainage area of the site: population
density of the site: traffic density; age of
the structures or buildings In the area:
history of the area; and land use types;
(8) For medium municipal separate
storm sewer systems, no more than 250
cells need to have identified field
screening points: in large municipal
separate storm sewer systems, no more
than 500 cells need to have identified
field screening points: cells established
by the grid that contain no storm sewer
segments will be eliminated from
consideration: if fewer than 250 cells In
medium municipal sewers are created.
and fewer than 500 in large systems are
created by the overlay on the municipal
sewer map, then all those cells which
contain a segment of the sewer system
shall be subject to field screening
(unless access to the separate storm
sewer system is impossible); and
(7) Large or medium municipal
separate storm sewer systems which are
unable to utilize the procedures
described in paragraphs (d)(1)(iv)(D) (1)
through (6) of this section. because a
sufficiently detailed map of the separate
storm sewer systems is unavailable.
shall field screen no more than 500 or
250 major outfalls respectively (or all
major outfalls in the system, if less); in
such circumstances, the applicant shall
establish a grid system consisting of
north-south and east-west lines spaced
V. mile apart as an overlay to the
boundaries of the municipal storm sewer
system, thereby creating a series of
cells: th. applicant will then select
major outfalla in as many cells as
possible until at least 500 major outfalls
(large municIpalities) or 250 major
outfalla (medium municipalities) are
selected. a field screening analysis shall
be undertaken at these major outfalls.
(B) Chorncter?zction plan. Information
and a proposed program to meet the
requirements of paragraph (d)(2)(lii) of
this section. Such desaiption shall
Include: the location of outfalls or field
screening points appropriate for
representative data collection under
paragraph (d)(2)(iii)(A) of this section, a
description of why the outfall or field
screening point is representative, the
seasons during which sampling is
intended. a description of the sampling
equipment. The proposed location of
outfalls or field screening points for such
sampling should reflect water quality
concerns (see paragraph (d)(i)(iv)(C) of
this section) to the extent practicable.
(v) Management pmgmms. (A) A
description of the existing management
programs to control pollutants from the
municipal separate storm sewer system.
The description shall provide
InformatIon on existing structural and
source controls, including operation and
maintenance measures for structural
controls, that are currently being
implemented. Such controls may
include, but are not limited to:
Procedures to control pollution resulting
from construction activities floodplain
management controls; wetland
protection measures: best management
practices for new subdivisions: and
emergency spill response programs. The
description may address contj’ols
established under State law as well as
local requirements.
(B) A description of the existing
program to Identify illicit connections to
the municipal storm sewer system. The
description should include inspection
procedures and methods for detecting
and preventing illicit discharges. and
describe areas where this program has
been implemented.
(vi) Fiscal resources. (A) A
description of the financial resources
currently available to the municipality
to complete part 2 of the permit
application. A description of the
municipality’s budget for existing storm
water programs, including an overview
of the municipality’s financial resources
and budget, including overall
indebtedness and assets, and sources of
funds for storm water progiams.
(2) PaM 2 Part 2 of the application
shall consist of:
(i) Adequate legal authority. A
demonstration that the applicant can
operate pursuant to legal authority
established by statute, ordinance or
series of contracts which authorizes or
enables the applicant at a ,Il iII%um to:
(A) Control through ordinance, permit.
contract, order or similar means, the
contribution of pollutants to the
municipal storm sewer by storm water
discharges associated with industrial
activity and the quality of storm waler
discharged from sites of industrial
activity;
(B) Prohibit through ordinance, order
or similar means, illicit discharges to the
municipal separate storm sewer
(C) Control through ordinance, order
or similar means the discharge to a
municipal separate storm sewer of
spills, dumping or disposal of materials
other than storm water
(D) Control through interagency
agreements among coapplicanta the
contribution of pollutants from one
portion of the municipal system to
another portion of the municipal system:
(B) Require compliance with
conditions in ordinances, permits.
contracts or orders: and
(F) Carry out all inspection.
surveillance and monitoring procedures
necessary to determine compliance and
noncompliance with permit conditions
including the prohibition on illicit
discharges to the municipal separate
storm sewer.
(ii) Source identification. The location
of any major outfall that discharges to
waters of the United States that was not
reported under paragraph (d)(1)(iii)(B)(!)
of this section. Provide an inventory.
organized by watershed of the name an
address, and a description (such as SIC
codes) which best reflects the principal
products or services provided by each
facility which may discharge. to the
municipal separate storm sewer, storm
water associated with industrial
activity:
(iii) Characterization data. When
“quantitative data” for a pollutant are
required under paragraph
(d)(a)(lii)(A)(3) of this paragraph, the
applicant must collect a sample of
emuent In accordance with 40 CFR
122.21(g)(7) and analyze it for the
pollutant in accordance with analytical
methods approved under 40 CFR part
13 . When’ o 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,
Includingi
(A) Quantitative data from
representative outfalls designated by the
Director (based on information received
-------
48070 Federal Register I Vol. 55. No. 222 / Friday. November 10. 1990 I Rules and Regulations
in part I of the application, the Director
shall designate between five and ten
outfalls or field screening points as
representative of the commercial,
residential end Industrial land use
activities of the drainage area
contributing to the system or. where
there are less than five outfall. covered
in the application, the Director shall
designate all outfalls) developed as
follows:
(1) For each outfall or field screening
point designated under this
subparagraph, samples shall be
collected of storm water discharges from
three storm events occurring at least one
month apart in accordance with the
requirements at § 122.21(g)(7) (the
Director may allow exemptions to
sampling three storm events when
dimatic conditions create good cause
for such exemptions);
(2) A narrative description shall be
provided of the date and duration of the
storm event(s) sampled, rainfall
estimates of the storm event which
generated the sampled discharge and
the duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event;
(3) For samples collected and
described under paragraphs (d)(2)Iiii)
(A)(1) and (A)(2) of this section.
quantitative data shall be provided for
the organic pollutants listed in Table II;
the pollutants listed in Table Ill (toxic
metals, cyanide. and total phenols) of
appendix D of 40 CFR part 122. and for
the following pollutants:
Total suspended solids (TSSI
Total dissolved solids ITDS)
COD
BOD
Oil end grease
Fecal colilorm
Fecal strepiococcus
pH
Total Kpeldahl nhirngen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus otgon:c nitrogen
Total phosphorus
(4) Additional limited quantitative
data required by the Director for
determining permit conditions (the
Director may require thai quantitative
data shall be provided for additional
parameters, and may establish sampling
conditions such as the location, season
of sample collection, form of
precipitation (snow melt, rainfall) and
other parameters necessary to insure
representativeness).
(9) Estimates of the annual pollutant
load of the cumulaii .e discharges to
waters of the Uniied States from all
identified municipdl outfdlls and the
event mean concentration of the
cumulative discharges to waters of the
United States from all identified
municipal outfall. during a storm event
(as described under * 122.21(c)(7)) for
DOD 1 , COD. TSS. dissolved solids, total
nitrogen. total ammonia plus organic
nitrogen, total phosphorus, dissolved
phosphorus. cadmium. copper, lead, and
zinc. Estimates shall be accompanied by
a description of the procedures for
estimating constituent loads and
concentrations, Including any modelling.
data analysis, and calculation methods;
(C) A proposed schedule to provide
estimates for each malor outfall
identified in either paragraph (dflZ)(ii) or
(d)(I)(iii)(B)(1) of this section of the
seasonal pollutant load and of the event
mean concentration of a representative
storm for any constituent detected in
any sample required under paragraph
(d)(2)(iii)(A) of this section; and
(D) A proposed monitoring program
for representative data collection for the
term of the permit that describes the
location of outfalls or field screening
points to be sampled (or the location of
instream stations), why the location is
representative, the frequency of
sampling, parameters to be sampled.
and a description of sampling
equipment.
(iv) Proposed monogement progmm. A
proposed management program covers
the duration of the permit. It shall
include a comprehensive planning
process which involves public
participation and where necessary
intergovernmental coordination, to
reduce the discharge of pollutants to the
maximum extent practicable using
management practices. control
techniques and system. design and
engineering methods. and such other
provisions which are appropriate. The
program shall also include a description
of staff and equipment available to
implement the program. Separate
proposed programs may be submitted by
each coapplicant. Proposed programs
may impose controls on a systemwide
basis, a watershed basis, a jurisdiction
basis, or on individual outfalls. Proposed
programs will be considered by the
Director when developing permit
conditions to reduce pollutants in
discharges to the maximum extent
practicable. Proposed management
programs shall describe priorities for
implementing controls. Such programs
shall be based on:
(A) A description of structural and
source control measures to reduce
pollutants from runoff from commercial
and residential areas that are
discharged rrom the municipal siorm
sewcr system thai are to be
implemented during the life of the
permit, accompanied with an estimaie of
the expected reduction of pollutant
loads and a proposed schedule for
implementing such controls. At a
minimum, the description shall include
() A description of maintenance
activities and a maintenance schedule
for structural controls to reduce
pollutants (including floatables) in
discharges from municipal separate
storm sewers:
(2) A description of planning
procedures Including a comprehensive
master plan to develop, implement and
enforce controls to reduce the discharge
of pollutants from municipal separate
storm sewers which receive discharges
from areas of new development and
significant redevelopment. Such plan
shall address controls to reduce
pollutants in discharges from municipal
separate storm sewers after construction
is completed. (Controls to reduce
pollutants in discharges from municipal
separate storm sewers containing
construction site runoff are addressed in
paragraph (d)(2)(iv)(D) of this section:
(3) A description of practices for
operating and maintaining public
streets, roads and highways and
procedures for reducing the impact on
receiving waters of discharges from
municipal storm sewer systems.
including pollutants discharged as a
result of deicing activities;
(4) A description of procedures to
assure that flood management projects
assess the impacts on the water quality
of receiving water bodies and thai
existing structural flood control devices
have been evaluated to determine if
retrofitting the device to provide
additional pollutant removal from storm
water is feasible:
(53 A description of a program to
monitor pollutants in runoff from
operating or closed municipal landfills
or other treatment, storage or disposal
facilities for municipal waste, which
shall identify priorities and procedures
for inspecuons and establishing and
implementing control measures for such
discharges (this program can be
coordinated with the program developed
under paragraph (d)(ZKiv)(C) of this
section): and
(6) A description of a program to
reduce to the maximum extent
practicable, pollutants in discharges
from municipal separate storm sewers
associated with the application of
pesticides, herbicides and fertilizer
which will include, as appropriate.
controls such as educational activities.
permits, certifications and other
measures for commercial applicators
and distributors, and controls for
applicalion in public right-of-ways and
at municipal facilities.
-------
Federal Reglaler / VoL 55 No. 222 I Friday, November * 1990 / Rules and Regulations 41071
(B) A desoription of a program.
Including a schedule, to detect and
remove (or require the discharger to the
mualdpal separate storm sewer to
obtains separate NPDES permit for)
Illicit discharges and improper disposal
Into the storm sewer. The proposed
program shall include:
(1) A description of a program.
including inspections, to Implement and
enforce an ordinance, orders or similar
means to prevent illicit discharges to the
municipal separate storm sewer system;
this program deectiption shall address
all types of illicit di’ch rges, however
the following category of non-storm
water discharges or flows shall be
addressed where such discharges are
Identified by the municipality as sources
of pollutants to waters of the United
States: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters. uncontsmlnnted ground
water infiltration (as defined at 40 GR
35.2005(20)) to separate storm sewers.
uncomtaminated pumped ground water,
discharges from potable water sources,
foundation drains, air conditioning
condensation, irrigation water, springs.
water from crawl space pumps, footing
drains, lawn watering. individual
residential car washing, flows from
riparian habitats and wetlands,
dechlorinated swimming pool
discharges, and street wash water
(program descriptions shall address
discharges or flows from fire fighting
only where such discharges or flows are
identified as significant sources of
pollutants to waters of the United
States):
(2) A description of procedures to
conduct on-going field screening
activities during the life of the permit.
including areas or locations that will be
evaluated by such field screens
(3) A description of procedures to be
followed to investigate portions of the
separate storm sewer system that, based
on the results of the field screen, or
other appropriate information, indicate a
reasonable potential of contauiing illicit
discharges or other sources of non-storm
water (such procedures may include;
sampling procedures for constituents
such as fecal coliform, fecal
streptococcus. surfactants (MBAS).
residual chlorine, fluorides and
potassium testing with fluorometric
dyes; or conducting in storm sewer
inspections where safety and other
considerations allow. Such description
shall include the location of storm
sewers that have been identified for
such evaluation);
(4) A description of procedures to
prevent. contain, and respond to spills
that may discharge into the municipal
separate storm sewer
(5) A description of. program to
promots. publicize. and facilitate public
reporting of the presence of illicit
discharges or water quality Impacts
associated with discharges from
municipal separat. storm sewers;
(6) A desmiption of educational
activities, public information activities,
and other appropriate activities to
facilitate the proper management and
disposal of used oil and toxic materials;
and
(2 A description of controls to limit
Infiltration of seepage from municipal
sanitary sewers to municipal separate
storm sewer systems where necessary;
(C) A description of a program to
monitor and control pollutants in storm
water discharges to municipal systems
from municipal landfills, hazardous
waste treatment, disposal and recovery
facilities, Industrial facilities that are
subject to sectIon 313 of title Ill of the
Superfund Amendments and
Reauthorization Act of 1968 (SARA).
and industrial facilities that the
municipal permit applicant determines
are contributing a substantial pollutant
loading to the municipal storm sewer
system. The program shall:
(1) Identify priorities and procedures
for inspections and establishing and
Implementing control measures for such
discharges;
(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
constltuents any pollutants limited in
effluent guidelines subcategories, where
appllcabls; any pollutant listed in an
existing NPDES permit for a facility; oil
and grease, COD, pH. BOD . TSS. total
phosphorus. total lCpeldahl nitrogen.
nitrate plus nitrite nitrogen, and any
information on discharges required
under 40 CPR 122.21(g)(7) (îü) and (iv).
(D) A description of a program to
implement and maintain structural and
non-structural best management
practices to reduce pollutants in storm
water runoff from construction sites to
the municipal storm sewer system.
which shall include:
(1) A description of procedures for site
planning which incorporate
consideration of potential water quality
impacts;
(2) A description of requirements for
nonsiructural and structural best
management practices:
(3) A description of procedures for
identifying priorities for inspecting sites
and enforcing control measures which
consider the nature of the construction
activity, topography, and the
characteristics of soils and receiving
water quality, and
(4) A description of appropriate
educational and training measures far
construction site operators.
(v) Assessment of controls. Estimated
reductions in loadings of pollutants from
discharges of municipal storm sewer
constituents from municipal storm sewer
systems expected as the result of the
municipal storm water quality
management program. The assessment
shall also Identify known impacts of
storm water controls on ground water.
(vi) Fiscal analysis. For each fiscal
year to be covered by the permit, a
fiscal analysis of the necessary capital
and operation and maintenance
expenditures necessary to accomplish
the activities of the programs under
paragraphs (d)(2) (iii) and (iv) of this
section. Such analysis shall include a
description of the source of funds that
are proposed to meet the necessary
expenditures. including legal restrictions
on the use of such funds.
(vii) Where more than one legal entity
submits an application, the application
shall contain a description of the roles
and responsibilities of each legal entity
and procedures to ensure effective
coordination.
(viii) Where requirements under
paragraph (d)(1)(Iv)fE). (dflz)(ii).
(d)(Z)(iii)(B) and (d)(2)(iv) of this section
are not practicable or are not applicable.
the Director may exclude any operator
of a discharge from a municipal separate
storm sewer which is designated under
paragraph (a)(1)(v). (b)(4)(ii) or (b)(7)(ii)
of this section from such requirements.
The Director shall not exclude the
operator of a discharge from a municipal
separate storm sewer identified in
appendix F. C. H or I of part 122. from
any of the permit application
requirements under this paragraph
except where authorized under this
section.
(e) Application deadlines. Any
operator of a point source required to
obtain a permit under paragraph (a)(1J
of this section that does not have an
effective NPDES permit covering its
storm water outfall., shall submit an
application in accordance with the
following deadlines:
(1) For any storm water discharge
associated with industrial activity
identified in paragraph (b)(14) (‘H, ’l of
this section. that is not part of a group
application as described in paragraph
(c)(2) of this section or which is not
covered under a promulgated storm
water general permit, a permit
application made pursuant to paragraph
(c) of this section shall be submitted to
the Director by November 18. 1091;
-------
41972 Federal isgister I VoL 55, No. 222 I Fdday. November 19, 1990 I Rules and RegUlations
(2) For any group application
submitted in accordance with paragraph
(c)(2) of this section:
(I) Part I of the application shall be
submitted to the Director. Office of
Water Enforcement and Permits by
March 18, 1991:
(ii) Based on information In the patti
application, the Director will approve or
deny the members in the group
application within GO days after
receiving patti of the group application.
(UI) Part 2 of the application shall be
submitted to the Director. Office of
Water Enforcement and Permits no later
than 12 months after the date of
approval of the part I application.
(Iv) Facilities that are rejected as
members of a group by the permitting
authority shall have 12 months to file an
individual permit application from the
date they receive notification of their
rejection.
(v) A facility listed under paragraph
(bli l4) (l)-(xl) of this section may add on
to a group application submitted In
accordance with paragraph (eU2)(i) of
this section at the discretion of the
Office of Water Enforcement and
Permits, and only upon a showing of
good cause by the facility and the group
applicant the request for the addition of
the facility shall be made no later than
February 18,1992: the addition of the
facility shall not cause the percentage of
the facilities that are required to submit
quantitative data to be less than 10%.
unless there are over 100 facIlities In the
group that are submitting quantitative
data: approval to become part of group
application must be obtained from the
group or the trade association
representing the individual facilities.
(3) For any discharge from a large
municipal separate storm sewer system:
(i) Part I of the application shall be
submitted to the Director by November
18.1991;
(Ii) Based on information received in
the part 1 application the Director will
approve or deny a sampling plan under
paragraph (d)(1)(Iv)(E) of this section
withIn 90 day. after receiving the part I
appllcat loa:
(Iii) Part 2 of the application shall be
submitted to the Director by November
16.1992.
(4) For any discharge from a medium
municipal separate storm sewer system:
(I) Part a of the application shall be
submitted to the Director by May 18.
1992.
(ii) Based on information received ii’
the part 1 applIcation the Director will
approve or deny a sampling plan under
paragraph (d)(lfliv)(E) of this section
within 90 days after receiving the part I
applicatton.
(Iii) Part 2 of the application shall be
submitted to the Director by May17,
1993.
(5) A permit application .hallbe
submitted to the Director within 6l days
of notice, unless permission for a later
date is granted by the Director (see 40
CFR 124.52(c)), for
(I) A storm water discharge which the
Director, aria States with approved
NPDES programs, either the Director or
the A Regional Administrator,
determines that the discharge
contributes to a violation of a water
quality standard or Is a significant
contributor of pollutants to waters of the
United States (see paragraph (a)(1)(v) of
this section);
(II) A storm water discharge subject to
paragraph (c)(1)(v) of this section.
(6) FacilIties with existing NPDFS
permits for storm water discharges
associated with Industrial activity shall
maintain existing permits. New
applications shall be submitted in
accordance with the requirements of 40
CFR 122.21 and 40 CFR 122.26(c) 180
days before the expiration of such
permits. Facilities with expired permits
or permit . due to expire before May 18.
1992, shall submit applications in
accordance with the deadline set forth
under paragraph (e)(1) of this section.
(I) Petitions. (1) Any operator of a
municipal separate storm sewer system
may petition the Director to require a
separate NPDES permit (or a permit
issued under an approved NPDES Slate
program) for any discharge into the
municipal separate storm sewer system.
(2) Any person may petition the
Director to require a NPDES permil for a
discharge which is composed entirely of
storm water which contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States.
(3) The owner or operator of a
municipal separate storm sewer system
may petition the Director io reduce the
Census estimates of the population
served by such separate system to
account for storm water discharged to
combined sewers as defined by 40 CFR
35.2005(b)(11) that is treated in a
publicly owned treatment works. In
municipalities in which combined
sewers are operated, the Census
estimates of population may be reduced
proportional to the fraction, based on
estimated lengths. of the length of
combined sewers over the sum of the
Length of combined sewers and
municipal separate storm sewers where
an applicant has submitted the NPDES
permit number associated with each
discharge point and a map inthcating
areas served by combined sewer. and
the.locatlon of any combined sewer
overflow discharge point.
(4) Any person may petition the
Director for the designatlonof a large or
medium municipal separate storm sewer
system as defined by paragraphs
(b)(4)(iv) or (b)(7)(iv) of this section.
(5) The Director shall make a final
determination on any petition received
under this section withIn 90 days after
receiving the petition.
8. SectIon 122.28(b)(2)(i) is .revised to
read as follows:
• 122.2$ Gaaer permits ( p ’ to
Stat. NPO€S program., on. *123.25).
• • • • •
(2) Requiring an individual permiL (i)
The Director may require any discharger
authorized by a general permit to apply
for and obtain an Individual NPDES
permit. Any interested person may
petition the Director to take action
under this paragraph. Cases where an
individual NPDES permit may be
required include the following:
(A) The discharger or “treatment
works treating domestic sewage” is not
in compliance with the conditions of the
general NPDES permit
(B) A 1 4 t*nge has occwved in the
availability of demonstrated technology
or practice. for the control or abatement
of pollutants applicable to the point
source or treatment work. treating
domestic sewage:
(C) Effluent limitation guidelines are
promulgated for point sources covered
by the general NPDES permit:
(D) A Water Quality Management
plan containing requirements applicable
to such point sources is approved,
(E) Circumstances have changed since
the time of the request to be covered so
that the discharger is no longer
appropriately controlled under the
general permit. or either a temporary or
permanent reduction or elimination of
the authorized discharge is necessary:
(F) Standard. for sewage sludge use
or disposal have been promulgated for
the sludge use and disposal practice
covered by the general NPDES permit:
or
(C) The discharge(s) is a significant
contributor of pollutants. In making this
determination, the Director may
consider the following factors:
(1) The location of the discharge with
respect to waters of the United States;
(2) The size of the discharge:
(3) The quantity and nature of the
pollutants discharged to waters of the
United States; and
(4) Other relevant factors:
. . . .
-------
Fd$T$J Register I Vol. 55, No. 222 / Friday, November 16, 1990 / Rule. and Regulation.
7. Section 122.42 Ii amended by
addln paragraph (c) to read as follows;
* 122.42 Admuoii& oondltloes applcatifs
ta mdfl.d calegods . of NPO(S permits
( appEahis ta Stats NPOES programs , is.
*1ni5
• • • •
(c) Municipal separate storm sewer
systems. The operator of a large or
medium municipal separate storm sewer
system or a municipal separate storm
sewer that has been designated by the
Director under 122.28(a)(1)(v) of this
part must submit an annual report by
the anniversary of the date of the
issuince of the permit for such system.
The report shall Include:
(1) The status of Implementing the
components of the storm water
management program that are
established as permit conditions:
(2) Proposed changes to the storm
water management programs that are
established as permit condition. Such
proposed changes shall be consistent
with 122.26(d)(2)(iii) of this part: and
(3) Revisions, If necessary. to the
assessment of controls and the fiscal
analysis reported in the permit
application under 122.26(d)(2)(iv) an’i
(d)(2)(v) of this part:
(4) A summary of data. including
monitoring data, that is accumulated
throughout the reporting year.
(5) Annual expenditures and budget
for year following each annual report:
(6) A summary describing the number
and nature of enforcement actions,
inspections, and public education
programs;
(7) Identification of water quality
improvements or degradation:
7a. Part 122 is amended by adding
appendices E through I as follows:
Appendix E to Part 122—Rainfall Zones of the United States
Not Sltown Alaska (Zone 7); HawaIi (Zone
7): Northern Mañana Islands (Zone 7)’, Guam
(Zone 7); Amencan Samoa (Zone 7): Tnist
Terntory of the Pacific Islands (Zone 7):
Puerto Rico (Zone 3) Virgin islands (Zone 3).
Source: Methodology for Analyst, of
Dtmition Basins for Control of Urban Runoff
Quality, prepared for U.S. Environmental
Protection Agency. Office of Water. Nonposni
Source Division. Washington. DC, 1986.
Appendix F to Part 122—Incorporated
Places With Populations Greater Than
250.000 According to Latest Decennial
Census by Bureau of Census.
Stat.
tcoipOisl.d place
B ngflam.
Long Beath
Los Angeles.
Oeliland
S. sm.nio.
San .go.
San Francisco
San Jo..
Stats lncorp stsd place
4 Ofl
Colorado Denver.
Osseict of ColumCsa I
F nda
G.org4 -
IIknois
Ind iana
Kansas I
Kentucky
Loijs ar ta
Massachusetts
Mch. gsn
Minnesota
.Jacksonv .lIe
Tampa.
Atlanta.
Cflicaqo.
Indianapobs.
Wichita.
Louisville
New Orleans.
Balbvnor1
Boston
Detroit
Minneapolis
St Paul
-------
MW4 F.d.r.J RO5WII I VoL 55 No. I Filday. November 18 lSOv! Rules ami aegelalions
.q
ft -_
sIt
nu
—
Tc*sdo.
I98n____._____
—
Tilua.
FOISIAO.
fl ad
Ns e Oendsen
Oa la
e
Fe.? we.e
San ieaiac
*ga e Bead?
Sean1
Appendix C to Part l -4ncospotated
Places With Pe, Iatiace Greater Than
1t J0O and Lass Than Aenordlag
to latest Decennial Census by Bureau of
Census
p*aoe
Hi.msvle
Me
Tsn .
Ls100 R000
Bakarstold
car
Freanô.
FuIe.Wn
Garden
Bead?
San
Scea - -
Stoduaft
Twaacs .
Aitar&
Colmneo Senagt
Felt W
Gi
Se Bud
Oes 64oud
Kusus car.
Tcps l ia
Baten Rouge
Warce a l ee
Mn Asee..
Gmnd R
Warren.
Jac l i sca
Las Vegas
Patereon.
Atea
S,iaouse
Yonkois .
Greensbo ro
Roe ign
W inston.Saiø i’.
Mrort
Yourgsto.. .
Eugene
AS entow n
Pmvdence
Litinilo
AIakgton.
Gelard
t
Waco.
Salt Lake Cd
Mexan00a.
a’asaoea l ie
Hamp ton.
N..uon ‘Iews
R ton oAO
i1 oma
Appendli H to Part —Counths wlth
UtLn” ’p 1 .iated Urb ed Ansas WIth
Population of 2 MOO or More Accoedin
to ss Latest flr.uinImI Census by the
Bureau of Census
Slat.
Coll?y
U.—’-—.
ad 19.&JOJ
ge lausi
C.IJ ..-e._
Las AIVIea.. . .....
Swasu’Ks-
San O.go.... . .......
5*2.664
4fl 6
304 .758
OelawwL....._
sIcoCases.. .
257.164
Flo r .
ds
7 8 ?. 5I 9
G
aeun
Haw ___
HonaliA ._
688175
Ma1u _......._ *gvre ArondH.._._ 271.458
Baltanor. ._.... 601.300
IIo.J .matb .I 4 7.993
Rotoe Georges ..4 450.158
Tesas . , Hams -I 409.60?
Lake 304 . 632
527.178
3
Appendix Ito Part 225—Counties With
Unineniporated Urbaniaed Areas
Greater Than 100.600. But Less Than
.109 According to the Latest
Decennial Census by the Bureau of
Census
Uhn uIPO!Il
State Cotin ad
Alabama ._...___ Jelaiso n ..._j 1O2.9 7
a ..... _..... .Pwna._...._...__....._’ t1I.49
Cascornia — Alamede.._...__ 167.474
Cones Costa 158.452
Kern...... _. .... 117.23?
Orange..........__.... 210.693
R.evsid................ 1*5.719
Sac BemaiSno .... i40.Su
Bosa 153 370
bcam o t a ., 147.692
PHabor o ugit . 2*292
Orange.. - 215.325
Palm Bead? ........ 167.089
Pinaltas.... .._.. ! *64.389
I 104150
Sa rasota J *18009
Georgia .,ClirIon._._..........i 100.742
204.121
..J 110.529
Kentixty ............... Jefluson I 224.958
li l1 ...... Jefferson *40.838
Carolina Cumb a itand - I 142.727
N*rads.__....._. Ctt..__..._. ......t 201.778
eguL ..___J Uiiecoi&l — *41.100
*u*angun.._ 109.349
South Grei.. . .J*s 135358
I Rieltlarte.._..... *24.634
4 152 99
fHumeo.._.... . ....J *61.204
ICMslel.efe.._ 1 ‘ e3”
WasIknSton____I *99.493
*98 1*3
N .. Jusey
Ni. o
N.. t___
al.r
Gonpa . .
N.ho _
--
Sa
opf
-
n a
Ro
1
-
p -.--
Msusr..
Ne a*a._
Nousda
a.——
GsWom .._ .
He. Jusev....._
f Ins
North Car0*u ..
Ge0* .
Rbod i d__
Be
Taiwiasi..
PART 123—STATE PROGRAM
REQUIREMENTS
8. The authority citation for part 123
continues to read as Follows:
-------
Federal RegIster ‘ VoL 55. No. 222 I Friday, November 16. 1990 I Rules and Regulations
48075
AIIShe* Clean Water Act. 33 U.S.C. 1251
a’ seq.
0. Section 123.25 Is amended by
revising paragraph (a)(9) to read as
follows:
* 123.25 Rs *.msnt. for p..mIWnq .
(a) ‘
(9) § 122.26—(Storm water
discharges):
PART 124—PROCEDURES FOR
DECISIONMAKING
10. The authority citation for part 124
continues to read as follows:
Authmilyi Resource Conservation and
Recove y Act. 42 U.S.C 0901 ci seq., Safe
Drinking W.t.r Act. 42 U.S.C 3001 ci seq.:
Clean Water Act. 33 US.C. 1251 ci seq.: and
Clean Air Act. 42 U.S.C. 1857 ,1 seq.
11. Section 124.52 is revised to read as
follows:
* 124.52 P&.Jl . i.quhd on a eas.4y -
soon
(a) Various sections of part 122.
subpart B allow the Director to
determine, on a case-by-case basis, that
certain concentrated animal feeding
operatIons (0 122.23). concentrated
aquatic animal production facilities
(0122.24), storm water discharges
(0 122.26), and certain other facilities
covered by general permits (0 122.28)
that do not generally require an
Individual permit may be required to
obtain an individual permit because of
their contributions to water pollution.
(b) Whenever the Regional
Administrator decides that an individual
permit is required under this section.
except as provided in paragraph (c) of
this section. the Regional Administrator
shall notify the discharger in writing of
that decision and the reasons for it, and
shall send an application form with the
notice. The discharger must apply for a
permit under 122.21 within 00 days of
notice, unless permission for a later date
is granted by the Regional
Administrator. The question whether the
designation was proper will remain
open for consideration during the public
comment period under § 124.11 or
0 124.118 and in any subsequent hearing.
(c) Prior to a case-by-case
determination that an individual permit
Is required for a storm water discharge
under this section (see 40 CFR 122.26
(a)(1)(v) and (c)(1)(v)). the Regional
Administrator may require the
discharger to submit a permit
application or other infnrination
regarding the discharge under section
308 of the CWA. In requiring such
information, the Regional Administrator
shall notify the discharger in writing and
shall send an application form with the
notice. The discharger must apply for a
permit under 122.20 within 60 days of
notice, unless permission for a later date
Is granted by the Regional
Administrator. The question whether the
Initial designation was proper will
remain open for consideration during
the public comment period under
0 124.11 or * 124.118 and in any
subsequent hearing.
Notr The following form will not appear in
the Code of Federal Regulations.
coot isis—me
-------
41076 F ’al R. at / VoL , No. 222 / Fs day. Novemb 16 10 / Rths aod a1 a$
EPA 5ha,ther fecipy eon, Rem l om, s Form App:ove vi 2040-0086
I iov .upces 5/31/92
‘
P oEs
‘-
lkiited Stoles E aiwoivwantal liot.ction Agency
=_-_,i,L_.Dc
EPA Application for Permit To Discharge Stormwater
Discharqes Associated with Industrial Activity
_______ Pap....ort Reduction Mt Nodes
mp _ iI . . Reod m m - - i Is estimsard te . . 26.5 twins sppticafot , iriduding time for re e .ng Instiuclionc ,
ssat ng ewating data acun . gewiersi arid mont wg Vie d n—’—rL aid waiØitmg mid reviewing the collection of Information. Send
... _ . _ aSs tugdmg die fondet, estimate, arty other aapect of Vim l4,% of Inlormalica. or siiggestiorie for Improving this form, Mdudtng
- alN ansy iaess or mdiate Vu binden 1o Oilef. Vtic.miIion PCRCy Branch, PM .223. U & Eninrcnmsntal Protection Agency,
405 M Br , SW. Wadengmm CC 20440, ci Director, Office of min mid tory N I ass. Off ice of Manageroast and Budget.
Wutdngiw DC
C.. .li S — iS . , — i .d 1 I .. ‘ ———— — — — — IC — — ..a . a. al ia __ k.Z _
WW UW p WWpUC
W
WU_flC W I
•• - ‘ •fl
A. itd M
fli
R! ’
thngbu
0. lbcaiuing Water
(n&wa
vements
—
-_
—
& ts vu new required by any Federal, State, or focal authority to meet any impremernation schedule for me COnstruction. upgraoing or
operation of wastewater Ueatrnent equipment or practices or any other enwonm.ntiif programs which may edict Vie discharges
d..w.b.d itt this application? his moludel, but us not limited to, permit conditions, edm.n,ul,alrve or enlorvemstit orders, enforcement
complianci thiduls tellers, stipulations, COWl orders. arid graM ci loan conditions.
1. ldsnlif ’icathon of Conditions.
Agreements, Etc
2. Affected Outfails
3 thief Description of Protect
4. Final
Compliance Date
req L2 .
number
sowce of discharge
8. You may attach additional sheets desalting any additional watar pollution (or other environmental pro.cts which may affect vur
diaolwges) ‘ Vu new have wider way or which you plan, fodiCtee . .tlidusr aids progrem is flow under way or planned, mid indicate yorit
actual ci plarvied adhedulits for os.iauuction.
III. Site Oralnaqe Ma —
Macli a site map showIng topography (or Indicating the outline of drainage arsa* served by the outfall(s) covered in the application if a
topographic map la unavailatile) depicting tile facility including’ each of its intake and discharge a ’ructurel. the drainage area Of each storm
water outhit; paved areas and buildings within the drainag, area of c di storm waler outfall, each known past or present areas used toi
outdoor storage or disposal of significant materials, lath existing stnjclissl riVoI measure to reduce pollutants in storm watr runoff,
mawjiala loading and a as sreaa. areas where pesticides. herbicides. sal conditioners and f i lh,h,ers are applied, each of Its hazardous
waste Veatmerit, storsge or disposal units (including each ares not requited So have a RCRA permit which is used for accumulating tiasaidous
waits wimui 40 CFR 262 34 ). cacti well where fluids from the facility we infected underground, springs, end other surface water bodies which
raceum storm water discharges horn the facility
IPA Fo,ie 3310 ’ZP (1248)
Page I of 3
tor%tinu. on Pig. 2
-------
paxI.uI Re5kt / Vol 55, No. 2 / Friday, Noveatber 10 1090 I Ru le . and Regulaticas
Continued from Uta Front
IV. Narrative Oescription of Pollutant Sources —. ____
& For on01t oustaL guide on estinats c i tile W 5S )n ad. ) 01 ttpancoma ailcoss fr idei psasti muon and bal n9 1001$) 4 -
or on Sia oredsi ce
Outfall
Aria of Wipervious Susfacs
Totui Aria Drained
Outiat
Area of tinpsMous Suilace
Total Area Drained
Number
f oiui un i t s)
ioi iiWf a)
Nwnbeu
di units)
(rt,ov,de units)
a Provide a narrative description 01 significant materials that Sf1 currently or in Ill, put three yeats have been treated. stored or disposed in
a manner to allow exposure to storm water msthcd of beatmsnt. storage. or disposal: past and present materials management practices
employed, in the last tltres years. to nvnimize contact by mess materials with storm water runoff; materials loading and access silas. and
the location, manner, and frequency In which pesticides, herbicides, soil oonditionefs. and fertilizers are applied
C. For lath outfall, provide the location and a desCsiption of existing structusa ) and nonstructural ContrOl measures to reduce pollutants in
storm water runoff, and a description 01 the treatment the storm water receives, including the schedule and type of maintenance for contiol
.-
‘i ueximeni measures airo o le uttimsie aiwosei or arty . .
List Coøer horn
Treatment TaDte 2F I
Ou lfaN
Number
V. Nonstoqynwater Discharoes
& I certify under penalty ot law mat Ins outtali(s) covered by this application have been tested or evaluated for Inc presence Of
nonstofmwat.r dischaiges, and that aS nonstotmwatsr discharges from these outfall(s) are identified in either an accompanying Form 2C
or Form 2E anojiestion fur the out all
hems and Official Title ( or pnnsj Signature Date S.gned
S Provide a description of the method used, the date of any testing, and the orsite drainage points that were directly observed during a test
VI. Significant Leaks or Spills
Provide existing information ie st .ng the y 01 s uk.,..nt hats or 01 onic or tea s poSutonts at the tubty In the last three
ye Ira, ii lg the appsoxm d anti ‘ . aL. . atme or h i sS, widths type arid ambled 01 matuta) released
£PA Form 3310’ZF (t2’ad)
Page 2 of 3
Continue on P.ge 3
-------
48078 Fsi1 r.t Register /VoL 55, No. 222 I Friday, November 16, 1990 / Rules and Regulations
Continued from Page 2
PA Ill rkamDer ( ‘copy from II) I OVFGmI I
AJ C, & se. uedons before proceeding. Complete one set of tables for sedioudali. kv otats die outfall nianber in Ill. Sp provided .
Tables V ’ c .A V1l4 and Vfl.C are Induded on separate sheets numbered RI1 and 3 , 1I2.
E Potential diedlavg.s not md by analysis. b any pollutant listed In Table 2F .2 a substance or a component of a substance whiCh ys
cufrendy use ci manufacture as an Intermediate ci final product ci byproduct?
fl Yes (list all such pollutants below) El No (p0 to Section WI) —
VIII. Biologi
ris ( 111 tI ‘k t - :.
Yes Th 5I,e 5uhs .Iou)
fl No (go to Section I X)
v.ifl ‘ ri n rT7n
Yes
Ho (gotoSecfsoiiX)
A. Name
B Address
C Area Cone 8 Pricrie fr.o
0 P IIvtants Arisly2ed
A
N ms & Official T itle ( o,pnn,)
B A,ea Cede and Pflofle NO
C
Signature
o Ode Signec
EPA Form 35 10 .2F (1248)
Pap. 3013
-------
Federsi Reglater I VoL 55, No. 222 / Friday, November 18 199Q I R Ies and Regulatkma
EPA tO i nbsv tocpy*ort, an,Ief Form sj Form Approved. 0MB N 204 0-0 086
, .. , 5/31/9 2
, ,.....,. .d S .. ... . 5 t . ... CI
PUISA- You must proud. the multi of ak • e .s Wt.1 IIs p- ’ - ’w ki Otis table. CampSite en. Ss lot eacit eutWI S.e
lnsbu ho.n for additional details.
Pojtsnt
aitd
CAS Mimbes
I da “le)
Msxisnutn Vaiuii
( nc rde units)
kati e. e
(incSi i )
Mimber
0*
Storm
Events
Sampled
Sources of Pollutants
Grab Sample
Taluea rmig
lhnute
CvM Q.I&
Grab Sampi.
TslrenDuruig —
M itiutes
R . heed
Oil ndGr.u.
Biological Caygsn
Demand (8005)
Oiu.m Cayg.n
‘)emand (COO)
Total Suspended
Solids (TSS )
Total Iqustalil
Mtrogen
pivat. Js
MInt, P 0 0 0gm
Total
0—
pH
lilinimum
Maitmum
Minimum
Maximum
Pa n U- List macn poltuwtt that is limited it an ettluent Oum1’ is uttiolt l ate tacilsty is wbtect
permit tar its process wastewater the facildy is opelaling under an existing NPOES
S.. I uuwwtwnom In, si 1iennal wuq uatd n,nfplnents
at any pollutant listed in the (acuity S NPDE
permit) Complete one table to, each outtafl
Polk,taro
and
c s
(if available)
Miaimiim VaN,..
( incMd (teds)
Merag. Valves
( ic k veds)
I*inioot
c i
Storm
Events
Sa....,leø
Sources of Pollutants
Grab Sample
Taken Outing
Minute S
Composite
Grab SIIIIp IS
Taken During
Minutes
Rouwer—atted
Composite
Spa roriwjaiu .xr
Page VlI.l
Continue on Reverse
-------
41090 Pederil Register I VoL 55. No. 322 / P iday, November 16 1990 I hubs and Regulations
UtC. Uatsmb t 1own 10 TabIss g 4 M d 4 that ou 10iow m I at rs an 10 bslis’.’s 10 aa d . S.. It. I Mdons for
___dMdISMd mmsof S. Co U.10 or .. ties for Mdi
PcUi
Md
CASMambsr
4Va .-fla )
N
(kc* ia fo
N
1 0 _thIDP J
V
of
S tone
EMd .
Samplsd
Soui sd Poftuthntl
0mb SampIs
T.ksnOu, ng
I lawtu
Composit.
0mb S.
T*i L fli
t&nutsi’
Comp aZl
PsilO. Pt.vids dp foe ow .town svs ..t i
WUdi resulted 10 the msid—am values foe thu flow weiqmsd composite sample
2.
of Owsdor.
OM. . of
Ev t (inninimbe )
3.
ToteS relnf ill
.‘
biches)
4.
P4imbsr of ltoum batueso
begluwig of sown .ns
wad Md end of prenoras
msasinsblo rain event
5.
Masimum floe iii .
dining isin uvunt
(galbwiofnote or
spsc4 .unite
6
Total flow from
rsin event
(gallons or
spoc junbe)
Season
WU
taken
Form of
Prsdpitatton
(minfall.
unoiwnaltl
P ovIdi a ds .alpdon of the method of flow m.asijmment c i estimate.
sr* roem sigzr iz .p
Pegs V 3
-------
V.d..I Register / VoL 56, No.222 I Fz4day. November 10, 1990 / Rulee and Regulations
Instructions - Form 2F
Application for Permit to Discharge Storm Water
Associated with Industrial Activity
Who Must File Form 2F
Form 2F must be completed by operators of facilities which discharge storm water associated with industnal
activity or by operators of storm water discharges that EPA Is evaluating for designation as a significant
contributor of pollutants to waters of the United States, or as contributing to a violation of a water quality
standard.
Operators of dlschar9es which are composed entirely of storm water must complete Form 2F (EPA Form
3510-29 In conjunction with Form 1 (EPA Form 3510-1).
Operators of discharges of storm water which are combined with process wasrewater (process wastewater
Is water that comes into direct contact with or results from the production or use of any raw material, interme-
diate product, finished product, byproduct, waste product, or waslewater) must complete and submit Form
2F, Form 1, and Form 2C (EPA Form 3510-2C).
Operators of discharges of storm water which are combined with nonprocess wastewater (nonprocess
wastewater Includes noncontact coding water and sanitary wastes which are not regulated by effluent guide-
lines or a new source performance standard, except discharges by educational, medical, or commercial
chemical laboratories) must complete Form 1, Form 2F, and Form 2E (EPA Form 3510-2E).
Operators of new sources or new discharges of storm water associated with industrial activity which will be
combined with other nonstormwatef new sources or new discharges must submit Form 1. Form 2F, and
Form 20 (EPA Form 3510-20).
Where to File Applications
The application forms should be sent to the EPA Regional Office which covers the State in which the facility
is located. Form 2F must be used only when applying for permits In States where the NPDES permits
program is administered by EPA. -For facilities located In States which are approved to administer the NPOES
permits program, the State environmental agency should be contacted for proper permit application forms
and instructions.
Information on whether a particular program Is administered by EPA or by a State agency can be obtained
from your EPA Regional Office. Form 1, Table I of the General lnstructions lists the addresses of EPA
Regional Offices and the States within the jurisdiction of each Office.
Completeness
Your applicatIon will not be considered complete unless you answer every question on this form and on Form
1. 0 an item does not apply to you, enter NA (for not applicable) to show that you considered the question
Public Availability of Submitted Information
You may not claim as confidential any information required by this form or Form 1., whether the information
Is reported on the forms or in an attachment. Section 402 (J) of the Clean Water Act requires that all permit
applications will be available to the public. This Information will be made available to the public upon request.
Any information you submit to EPA which goes beyond that required by this form. Form 1. or Form 2C you
may claim as confidential, but claims for information which are effluent data will be denied.
If you do not assert a claim of confidentiality at the time of submItting the information, EPA may make the
information public without further notice to you. Claims of confidentiality will be herded in accordance with
EPA’s business confidentiality regulations at 40 CFR Part 2.
Definitions -
An significant terms used in these instructions and in the form are defined in the glossary found in the General
Instructions which accompany Form I.
EPA ID Number
Fill in your EPA identification Number at the top of each odd-numbered page of Form 2F. You may copy this
number directly from item I of Form 1.
EPA Form 3510-2F (12-88) I. i
-------
49992 V dseaI RegIater/ Vol.51 No I rn day, Noveutbe, 111990! Roles sad Pp t ’Uoes
Nemi
You may use the map you provided for item 01 Form I to datem*ie the l and longitude 01 each of
your or”f s and the name of the receiving water.
Item Il-A
If you check “yes” to this question. coniplete all pads of the chart, orattacha copy of any previous submission
you have made to EPA containing the same lofoimallon .
Item Il-B
You are not required to submit a description of future pollution control protects you do not wish toordnone
Is planned.
Item I I I
Attach a site map showing topography (or Indicating the outline of drainage areas saivad by the outfall(s)
covered in the application If a topographic map Is wiavaflabie) depicting the fadithly Including:
each of adra inageand discharge structures:
the drainage area ci each storm water outfaP ;
paved areas and building within the drainage area of each stomi water outfall, each known past or
present areas used for outdoor storage or disposal of significant materials, each existing structural con-
trol measure to reduce pollutants in storm water runoff, materials loading and accessareas, areas where
pesticides, herbicides. soll conditioners and fertilizers are applied;
each of its hazardous waste treatment, storage or disposal facilities (!nctudlng each area not requited to
have a ACRA permit which is used for accumulatinghazardous waste for less than 90 days under 40 CFR
262.34);
each well where fluids from the facility are In eczed underground; and
springs, and other surface water bodies which receive storm water discharges from the fadiffty-
Item IV-A
For each outfall, provide an estimate of the area drained by the outfall which Is covered by impeMous
surfaces. For the purpose ci this application. Impervious swiaces are surfaces where storm water runs off at
rates that are significandy higher than background rates (e.g., predevelcpment levels) and include paved
areas, building roofs, parking lots, and roadways. InclUde an estinmte ci the total area ( ncluding aS impervi-
ous and pervious areas) drained by each outfall. The site map required under Item Ill can be used to estimate
the total area drained by each outfall.
Item lV-B
Provide a narrative description of significant materials that are currently or in the past three yea;s have been
treated, stored, or disposed in a manner to allow exposure to storm water method of treatment, storage or
disposal of these materials: past and present materials management practices employed. in the last three
years. to minimize contact by these materials with stomi water runoff; materials loading and access areas;
and the location, manner, and frequency ii which pe 4cfr4et . herbicides. sod conditioners. and (estdszers are
applied. Significant materials shorid be identified by chemicat name, form (e.g., powder, liquid, etc.), and
type of container or treatment unit. Indicate any materials treated, stored, or disposed ci together. ‘Signifi-
cant materials” indudes, but is not limited to: raw materials; fuels: materials such as solvents, detergents, and
plastic pellets: finished materials such as metaPic products : r materials used in food processing orproduc-
tion: hazardous substances designated under SectIon 101(14)0 1 CERCLA any cherncal the facidy is re-
quired to report pursuant to Section 313 of Trne Ill of SARA: fertilizers: pesticides: and waste products such
as ashes, slag and sludge that have the potential to be released with storm water discharges
Item tV-C
For each outfall, structural controls Include structures which enclose material handling or storage areas,
covering materials, berma, dikes, or diversion ditches around manufacturIng, production, storage or treat-
ment units, retention ponds. etc. Nonstructural controls include practices such as spif I prevention plans.
employee training, vIsual knpections, preventive mairiterenc., and houselieepi g measures that are used to
prevent or minimize the potential lot releases of pollutants.
EPA Form 3510-2F (12.88) I .2
-------
F.àzaI Re stsr I VoL 55, No. 222 / Friday, November 16, 1990 I Rules and Regalatfons 48083
Item V
Provide a certIfication that all oidfalls that should contain storm water discharges associated with Industrial
ac*Mty have been tested or evaluated for the presence of non .atonn water discharges which are not covered
by an NPOES permit. Tests for such non-stomi water discharges ‘nay itidude smoke tests, Iluorometric dye
teats, analysis of accurate schematics as well as other appropriate tests. Pail B must Include a description
of the method used, the date of any testing, and the onsite drainage points that were directly observed during
a teat. All non-stomi water discharges must be identified hi a Form 2C or Form 2E which must accompany
this application (see beginning of Instruct ions under section tItled ‘Nho Must File Form 2F’ for a description
of when Form 2C and Form 2E must be submitted).
Item V I
Provide a description of existing Information regarding the history of significant leaks c i spills of toxic or
hazardous pollutants at the facility In the last three years.
Item Vu-A, B, and C
These iteme require you to collect and report data on the pollutants discharged for each of your outfalls. Each
pail of this item addresses a different set of pollutants and must be completed in accordance with the specific
instructions for that part. The following general Instructions apply to the entire item.
General Instructions
Pan A requires you to report at least one analysis for each pollutant listed. Parts B and C require you to report
analytical data In two ways. For some pollutants addressed In Parts B and C. if you know or have reason to
know that the pollutant Is present In your discharge, you may be required to list the pollutant and test (sample
and analyze) and report the levels of the pollutants In your discharge. For all other pollutants addressed in
Pans B and C, you must list the pollutant if you know or have reason to know that the pollutant is present in
the discharge, and either report quantitative data for the pollutant or briefly describe the reasons the poliutant
Is expected to be discharged. (See specific Instructions on the form and below for Parts A through C) Base
your determination that a pollutant Is present in or absent from your discharge on your knowledge of your
raw materials, material management practIces, maintenance chemicals, history of spdls and releases, inter-
mediate and final products and byproducts, and any previous analyses known to you of your effluent or
similar effluent
A. SamplIng: The collection of the samples for the reported analyses should be supervised by a person
experienced In performing sampling of Industrial wastewater or storm water discharges. You may con-
tact EPA or your State permitting authority for detailed guidance on sampling techniques and for answers
to specific questions. Any specific requirements contained In the applicable analytical methods should
be followed for sample containers, sample preservation, holding times, the collection of duplicate sam-
ples, etc. The time when you sample should be representative, to the extent feasible, of your treatment
system operating properly with no system upsets. Samples should be collected from the center of the
flow channel, where turbulence is at a maximum, at a site specified in your present permit, or at any site
adequate for the collection of a representative sample.
For pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, and fecal colilorm. grab
samples taken during the first 30 minutes (or as soon thereafter as practicable) of the discharge must be
used (you are not required to analyze a flow-weighted composite for these parameters) For all other
pollutants both a grab sample collected dunng the first 30 minutes (or as soon thereafter as practicable)
of the discharge and a flow-weighted composite sample must be analyzed However, a minimum of one
grab sample may be taken for effluents from holding ponds or other impoundments with a retention
period of greater than 24 hours.
All samples shall be collected from the discharge resulting from a storm event that is greater than 0 1
inches 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 rairfall of the event Should flOt.
exceed 50 percent from the average or median rainfall event in that area.
A grab sample shall be taken during the first thirty minutes of the discharge (or as soon thereafter as
practicable), and a Row-weighted composite shalt be taken for the entire event or for the first three hours
of the event.
Grab and composite samples are defined as follows.
EPA Form 3510-2F (1248) .3
-------
euss F.deril Register Vol. 55, No.2221 FWday. November19, 1990 I Rules and Regulatfoni
Grab sample: An individual sample of at least 100 milliliters collected during the first thirty minutes
(cc as soon thereafter as practicable) of thedischarge. This sample Is $ 0 be analyzed separately from
the composite sample.
Flow-Weighted Composit umpls A flow .we4*ed compoe e sample may be taken with a con-
tinuous samplerthat proportions the amount of sample ooa,Ped whIt the 00w rate or as a combina-
tion of a mlnünttnoftlvee sample eliquols taken is each hose of discharge for the entire event or for
the first three hoses of the event, witJs each alkpjol being at least 100 miiliters and collected with a
minimum period of fifteen mirates between aliquot ollections. The composite must below propor-
tional; either the time Interval between each aliquot or the volume of each aliquct must be propor-
tional to either the stream fl at the time of sampling cc the total stream flow since the collection of
the previous aIIqUOL AlIquots may be collected manually or automatically. Where GC/MS Volatile
Organic Analysis (VOA) le required, eliquots must he combined in the laboratory immediately before
analysis. Only one analysis for the composite sample Is required.
Data from samples taken In the past may be used. provided that:
All data requirements are mel
Sampling was done no more than three years before submission: and
M data are representative of the present discharge.
Among the factors which would cause the data to be unrepresentative are significant changes in produc-
tion level, changes In raw materials, processes, or final products, and changes in storm water treatment.
When the Agency promulgates new analytical methods In 40 CER Part 136. EPA will provide Information
as to when you should use the new methods to generate data on your discharges. Of course, the
Director may request additional Information, Induding current quantitative data, if they determine it lobe
necessary to assess your discharges. The Director may allow or establish appropriate site-specific sam-
pling procedures or requirements, Induding sampling locations, the season in which the sampling takes
place, the minimum duration between the previous measurable stalin event and the storm event sam-
pled, the minimum or maximum level of precipitation required for an appropriate storm event, the form
of precipitation sampled (snow melt or rainfall), protocols for collecting samples under 40 CFR Pail 136.
and additional time for submitting data on a case-by-case basis.
B. Reporting: All levels must be reported as concentration and as total mass. You may report some or all
of the required data by attaching separate sheets of paper instead of filling out pages Vu-I and VIl-2 if the
separate sheets contain all the required Information In a formal which Is consistent with pages VU-I and
VII-2 In spacing and In identification of pollutants and columns. Use the following abbreviations in the
columns headed links’
Mass
ppm parts per million lbs pounds
mg/I milligrams per liter ton tons (Engtish tons)
ppb parts per billion mg milligrams
ugh micrograms per titer g grams
kg kilograms T tonnes (metric tons)
All reporting of values for metals must be in terms of tosal recoverable metaL ’ unless:
(1) An applicable, promulgated effluent limitation or standard specifies the l’miftahon for the metal in
dissolved. valent. or total I cmi; or
(2) All approved analytical methods for the metal Inherently measure only Its dissolved form (e.g,,
hamvalent chromium); or
(3) The permitting authority has determined that in establishing case-by-case limitations it Is neces-
sa,y to express the limitations on the metal In dissolved, valeni, or total form to carry out the provi-
sions of the CW& If you measure only one grab sample arid one flow’welghted composite sample
for a given outfall, complete only the ‘Maximum Values columns and Insert 1’ Into the ‘Number of
Storm Events Sampled’ column, The permitting authority may require you to conduct additional
analyses to further characterize your discharges.
EPA Form 3510 -2F (12.88) I -4
-------
Federal Reg stsr / Vol 55 No. / FWday, November 18, 1990 / Rules end Re!uIatf ens
-- -
If you measure more than ona ofue fer a ab sample ore Iomreelghted composite sample for a given
outfall and those values am , v .i r*alive of your dhche e , you must report them. You must describe
your method of testing and data analysis. You also must delemdrm the average of all vulues within the
last year and report the concentration mass wider the ‘Average Values’ coluavis, and the total number
of storm events sampled wider the ‘Number of Storm Events Sampled’ columns.
C. Analysis: You must use teat methods promulgated in 40 R Part 136: however. if none has been
promulgated for a partl iar polk rs. you may use any suitable method for measuring the level of the
pollutant In your discharge provided that you submit a description of the method or a reference to a
published method. Your descrIption should indude the sample holding time. preseivation techniques.
and the quality control measures which you used. If you have two or more substantially identical outfatls,
you may request permission from yew pennittirig authority to sample and analyze only ore outfall and
submit the results of the analysis for other sibstamlally identical outfalis. If your request Is granted by the
permitting authority, on a separate sheet attached to the application form. identify which outfall you did
test, and describe why the oudells which you did not test are substantially identical to the outfall which
you did test
Pail VU-A
Part Vu-A must be completed by all applicants for all outfalls who must complete Form 2F.
Analyze a grab sample collected during the first thirty minutes (or as soon thereafter as practicable) of the.
discharge and flow-weighted composite samples for all pollutants in this Part, and report the results excepi
use only grab samples for pH and oil and grease. See discussion In General Instructions to Item Vii for
definitions of grab sample collected during the first thirty minutes of discharge and lVow.weighted composite
sample. The ‘Average Values’ column Is nr A compulsory bit should be fflled out if data are available
Pad VU-B
List all pollutants that are limited In an effluent guideline which the facility is subject to (see 40 CFR Subchap-
tar N to determine which pollutants we limited in effluent guidelines) or any poflutant listed in the faciIit s
NPOES permit for Its process wastewater (if the facility Is operating tinder an existing NPDES permit) Com-
plete one table foreach outfalL See discussion in General Instructions to item Vii for definitions of grtb
sample collected during the first thirty minutes (or as soon thereafter as practicable) of discharge and flow-
weighted composite sample. The ‘Average Values’ column Is not compulsory but should be fIfed out If data
are avallable.
Analyze a grab sample collected during the first thirty minutes of the discharge and flow-weighted composite
samples for all pollutants in this Part, and report the results, except as provided in the General Instructions
Part Vu-C
Part VU-C must be completed by all applicants for all oudaJis which discharge storm water associated with
industrial activity, or that EPA Is evaluating for designation as a significant contributor of pollutants to waters
of the United States, or as contributing to a violation of a water quality standard. Use both a grab sample and
a composite sample for all pollutants yori analyze for In this part except use grab samples for residual chlorine
and fecal coliform. The ‘Average Values’ column is not compulsory but should be ISled out If data are
available. Part C requires you to address the pollutants in Table 2F-2, 2F-3. and 2F-4 for each outfall Pollu-
tants in each of these Tables are addressed differently.
Table 2F-2 For each outfall, list all pollutants in Table 2F-2 that you know or have reason to believe are
discharged (except pollutants previously listed in Part VU-B). If a pollutant Is limited in an effluent guideline
limitation which the facility Is subject to (e4. use of TSS as an Indicator to control the discharge of Iron and
¨num),thepdllutaritshouldbeflszedinP.IVII-8. ifapd lutantintab le2F-2 ls lndurectlytlmltedbyan
effluent guideline limitation tiwough an kiJIcet . , you mt analyze for ft and report data In Part VU-C. For
other pollutants listed In Table -2 ( those nor flmftad db ct)yor lndlrectfy by an effluent limitation guideline).
that you know or have reason to believe am dlJ s , you rrant either ott quantitative data or briefly
describe the reasons tt e pollutant is expected to be discharged.
Table 2F.3: For each outfall, list all pollutants In Table 2F-3 that you know or have reason to believe are
discharged. For every polkitais In Table 2F-3 erq)amfld to be dlsclwged in concentratIons of 10 ppb or
greater, you must submit quailltative data. For acroleit, acrØonitde. 2.4 diiatrophwd, w 2-meth l4,6
dinitrophenol, you must submit quantitative data V any of these four pclltaams is e rpected to be datharged
EPA Form 3510-2F (12-88) I-S
-------
48086 Fedesal Register! VoL 55, No. 222 I Friday, November 16, 1000 / Rules and Regulations
itt concentrations of 100 ppb or greater. For sway pdhaant expected to be discharged In concentrations less
than 10 ppb (or 100 ppb for the four pollutants listed above), then you must either submit quantitative data
or briefly describe the masons the pollutant Is expected to be discharged.
Small Business Exemption - If you are a atnafl buslness you are e n, L from the reporting requirements
for the organic toxic pollutants listed In Table 2F.3 There are two ways In which you can qualify as a “small
business’. If your facility Is a coal mine, and If your probable total annual production Is less than 100,000 tons
per year, you may submit past production data or estimated future production (such as a schedule of esti.
mated total production under 30 CFR 795.14(c)) Instead of conducting analyses for the organic toxic pollu-
tants. If your facility Is not a coal mine, and If your gross total annual sales for the most recent three years
average less than $100,000 per year ( In second quarter 1980 dollars). you may submit sales data for those
years instead of conducting analyses for the organic torde pollutants. The production or sales data mus be
for the facility which Is the source of the discharge. The data should not be limited to production or sates for
the process or processes which contribute to the discharge, unless those are the only processes at your
facility. For sales data, In situations Involving lnhiacorporate transfer of goods and services, the transfer price
per unit should approximate market prices for those goods and seMcesas closely as possible. Sales figures
for years after t980 should be Indexed to the second quarter of 1980 by using the gross national product
price deflator (second quarter of 1980=100). ThIs Index Is available In NatIonal Income and Product Ac-
Counts of the United States (Department of Commerce. Bureau of Economic Analysis).
Table 2F-4: For each outfall, list any pollutant In Table 2F-4 that you know or believe to be present in the
discharge and explain why you believe It to be present. No analysis is required, but if you have analytical
data, you must report them: Note: Under 40 CFR 117.12(a)(2). certain discharges of hazardous substances
(listed at 40 CFR 117.21 or 40 CFR 302.4) may be exempted from the requirements of section 311 of CWA,
which establishes reporting requirements, civil penalties. and liability for cleanup costs for spills of oil and
hazardous substances. A discharge of a particular substance may be exempted if the origin, source, and
amount of the discharged substances are identified in the NPDES permit application or in the permit, if the
permit contains a requirement for treatment of the discharge, and if the treatment Is in place. To apply for an
exclusion of the discharge of any hazardous substance from the requirements of section 311. attach addi-
tional sheets of paper to your form, setting forth the following information
1. The substance and the amount of each substance which may be discharged.
2. The origin and source of the discharge of the ,IiK nca
3. The treatment which Is to be provided for the discharge by:
a. An onsite treatment system separate from any treatment system treating your normal dis-
charge;
b. A treatment system designed to treat your normal discharge and which is additionally capable
of treating the amount of the substance identified under paragraph I above; or
C. Any combination of the above.
See 40 CFR 1 17.12(a)(2) and (c), published on August 29, 1979, in 44 FR 50766, or contact your Regional
Office (Table I on Form 1, InstructIons), for further Information on exclusions from sect on 311.
Part VII-D
If sampling is conducted during more than one storm event, you only need to report the information re-
quested In Part VII-O for the storm event(s) which resulted in any maximum pollutant concentration reported
in Part VII.A, VU-B, or Vll.C.
Provide flow measurements or estimates of the flow rate, and the total amount of discharge for the storm
event(s) sampled, the method of flow measurement, or estimation. Provide the data and duration of the storm
event(s) sampled, rainfall measurements, or estimates of the storm event which generated the sampled runoff
and the duration between the storm event sampled and the end of the previous measurable (greater than 0.1
Inch rainfall) storm event
Part VII .E
List any toxic pollutant listed In Tables 2F-2, 2F-3, or 2F-4 which you currently use or manufacture as an
intermediate or final product or byproduct. In additIon, If you know or have reason to believe that 2,3,7,84e-
trachlorodibenzo.p-dioxin (TCDD) Is discharged or If you use or manufacture 2,4.5-tnchlorophenoxy acetic
EPA Form 3510-2F (12-as) I -6
-------
Fidiusi Rs stsr I VoL 55, No. 222 I P!lday, N aiuber 16,1990/ Rules and RegulaUons
add (2,4.5.1); 2-(2 ,4.S4dcNorophenovy) propanolc acid (Silvex, L4,5.-W 2.(2.4.5.t,IcNorophenoxy) ethyl.
2,2 -dicNoroproplonate (Erbon); 0,0-dlmethyf O .(2,4,54rld upf1en 1) pl ospfiorolNoate (Ronnel); 2.4.5-
DfcNorophenol (TCP); or hexaddorophene (HCP); then Hat TCOO. The Direetcr may waive or modify the
requirement if you demonatrate that wotid be undidy burdensome to ldentl y each totdc pollutant and the
Director has adequate Information to Issue your penolL You may net claim thIs Information as confidential;
however, you do not have to dladngtkh between use or production of the pollutants or flat the arnow ts.
Item Viii
Self explanatory. The permitting authority may ask you to provide additional details after your application is
received.
Item X
The Qean Water Act provides for severe penalties for submitting false information on this application form.
Section 309(c) (4) of the Cean Water Act provides that ‘Any person who knowingly makes any false material
atatemenr, representation, or certdlcation In any application,. . . shall upon conviction, be punished by a fine
of not more than $10000 or by imprisonment for not more than 2 years, or by both. If a conviction of such
person Is for a violation committed after a first conviction of such person under this paragraph, punishment
shall be by a fine of not more than $20000 per day of violation, or by Imprisonment of not more than 4 years.
or by both.’ 40 CFR Part 122.22 requires the ceslificatlon to be signed as follows:
(A) For a corporation: by a responsible corporate official . For purposes of this section, a responsible
corporate official means (I) a president, sec etaiy . treasurer, or vrce.president c i the corporation In
charge of a principal business function, or any other person who performs similar policy- or decision-
making functions for the corporation, or (ii) the maiiager of one es more mamdacttalng. production, or
operating facilities employing more than 250 persons or having gross annual sales or expenditures
exceeding 525.000.000 fin second-quarter 1980 dollars), If authority to sign documents has been as-
signed or delegated to the manager In accordance with corporate procedures.
Note: EPA does not require specific assignments or delegation of authority to responsible corporate
officers identified In 122 22(a)(1)(I). The Agency will presume that these responsible corporate officers
have the requisite authority to sign permit applications unless the corporation has notified the Director to
the contrary. Corporate procedures governing authority to sign permit applications may provide for
assignment or delegation to applicable corporate position under 122.22(a)(1)(ii) rather than to specific
indMdua ls.
(B) For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or
(C) Fore municipality, State, Federal, or other public agency: by either a pnncipal executive officer
or ranking elected official. For purposes of this section, a principal executive officer of a Federal agency
Includes (I) the chief executive officer of the agency, or (ii) a senior executive officer having responsibility
for the overall operations of a pnncipal geographic unit of the agency (e g, Regional Administrators of
EPA). -
EPAr .113510 .2F(12-U) 1 .7
-------
doss 7d sl Register VoL 55, No. 222 / En day, November lSb 1990 1 Rule, and Ragu1atim s
Table 2F ..1
Codbs icr Treatment Units
nsosous E on
O i tI!ation
0
an
Foam Fmcdanation
F-
Gs Phaoa SS WI5On
Gilndirig (Comn ois)
2 .A Caftan ?dso ,ption
3.0 Oi.micai O,ddalion
I C Qismical Pmctation
2.0 Coagulation
24 Dechlonnatlon
2 .F CIsinl.ctlon cModns)
frctlvatsd go
Misted Lagoons
Maerotiic Tisatment
I .M G *flam d
14 1 aowalakig
1.0 Melng
IP i g0sdRlt.rs
1.0 I ntsdIs F ilvation
pid Sand Pi ttston
14 rss Corned. (Hypsdtvation)
I.T ScissmMg
lU Ssdlrnsriwlon (SsttlngJ
1.V Sow Sand flitratlon
1 .W Solvent E .iUa ton
1.X Soipton
5.0 (Coons)
3M Otainfection (Outer)
24 Q.U i ..ttsrnical Trssvnsnt
icn tsngo
241 Heuesl lzadan
24.. duc6an
3 4 P i s . .M rst ion
IF Spray gabon n4 Application
10 aton Ponds
344 Tridd Ing Filtration
4.A Oicdta ,g. te Sutfaoo Wits,
4.8 Ocean Discharge Thr ugfl Outfg
5.A Mtoblc Digestion
5.8 Masrabic Oig.sllon
S .C eat Filtration
5 .0 Cuntilfugatian
5. 5 Casmicat Contidoning
S.F Otloiti. Tma n.nt
5.0 COmpolting
54$ Drying Buds
54
5.J Rotation Thidiening
5 4 Frs.z .g
tymichiunkig
4C uas/ ct d. of Treated Effluent
40 tkiducgmund titjuction
541 Mist Drying
5 tl Heat Treatment
5.0 incineration
S. F Land Application
5.0 Landfill
5 .R Prsans Filtration
4.3 P a
5 .T Sudge Lagoons
Vacuum Filtration
5V &ibration
SW Wit Osidation
l .A
14
1 .c
1.0
14
1.c
14
144
14
w
I .E
1 .L
IA
5.8
IC
5.0
EPAF0Im35 IO.2F(1248) 1-8
-------
P.dwiI RegIut I VoL 51 No. 2 / FrIday, November 16, 1990 I Raleisad Regelatmens 40009
Table 2F-2
Conventional and Non wivenIIonal Pollutants Required To Be Tested by EzMllng Discharger if
lipectud To Be Present
0 1 10 1 5 ,1 ;
,ow cw m
P$. . . . Total l .d.tiI
CU ow C ,. . ..
f wa Tow p. rn
Ma,thi ,mi. Tow
Bv5on, Tow
So ,cn. Tow
Cobalt. TO
M aA.sl.Jm. Total
I5,I tdsnum. ToW
salvm. ToW
Tkt, Tow
T%wàjn. Tow
EPA Form 3510.2F (12.8$) -9
-------
tidsial Rsgtatsr / VoL 55 No. 222 I P it day, November 15 1990 1 Rules and Regulations
Table 2F-3
Toxic pollutsids rsqubud to be
Idsntlficd by applicant If expected to be preser’
Toxic P .1*4cM. ow Toil Phu.I
kd Imsny.To i l Ooi pv , Tow Sdvs,, Total
Msni Total Li.d. Toil ThsWum. Tot ’
flsfyIlkall. Total Mimay, Toil - no, Total
dnthim. TOtal Mdiii, Total Cyanids. Toti’l
Owomhgm To’ii Seisniuhi, Toil P*snols, Total
owsn W otu —s
AcicIsüi Cldiloiobiomomsthsn, 1.12
1,1 .Dc o tomseian. Ti lt s oct?lyicns
1 .2ClcIisms Itwi. Tolusuii
1,I . ctII s ’ c a 1 *,4sns 1.2.Tiot0taiosmy$sn.
Caslten TSlt I 1.2C lcMoiop,opan, i.i ,1.Tdc ldotoothan,
13 .Chiiulciopiop 4sn. 1,1,2 .T ,le$iloro.than,
*y1bsn xsn. TiUil otc. sth ,1.n.
Oi loieseh i ins Ms1* 4 Ooinds Wt 1 Oiloe ,d.
2alo’oso 1 ,Iv’n 1 $ E1*s, MsV* I Qilorl4c
Oi lotolotm Mslrjlsns O*lords
2O*lolo?n.ncl 2 .4 .Cü * l to i Iia nd PSn%aeIIIO t OpIISnOI
2.4.CicI *mioØ * a nd 24 tiQØi,ao l PI*s ol
2 .4 .Oinvethy lpMnol 4 . MVu *l ian al 2.4,6 .TicNoiopt *snol
4.6.O.nitt o .O .C,oxol D .O loIo .U.C,ssoi
8 au/Nsu ii
SC.na 6iini 2OiioeoiiapI *e *a lsn. Fluzoianti.n,
snalim lsne 4 .allotcpIlen 4 P.sn ,4 Ernst flunisne
Mdvaosris Q yians . w tzcototownzsn.
Bsnz ld ln. Oibsnz o(I .h)antlv acsns Itaxacli1otobu1ad .sn
flsnzo(a)wrnr.csn. I2 .CicMotobsnz.n. Hsiaetdosost’ians
øsnzo(a)wsn. l.3.Cic l lloiobsnxsn. ldsno(l.2.3cd)pyIsnb
3.4Benzo ltuotanin.ns 1.4 .Cithlorobsnxsns Noptioton.
Ozo(ghi)pe t I s n. 3Z .Oiddoiobanzidins Napiflatane
eoIl ..o.sntMn. 0ise* 1 Phihalata NuoDenhene
O l . t2-cN oIosItloay)mslha n. mei 1 Phihalat. N Pet o .od,m,In 4am,n
aSoee * i$)sl hs, oi*eut,1 Phthalat. trcoo.N.P iopyiani
isotosoopbI e ms, 2 .O.niPo l olu en. N -t erosod .pI’sn 1am.nt
&s24t h flex$)plW i lals 2.&O nittotok.s.is Phiinsnmrsn.
4aomophan 4 Ph.n)4 Ems’ 0i*OCIblpl tth Sial.
luIyNon2y Phthalat. I2. snyfh 4ia in. . . A o. * I. .4.Tuch .ot-Dsnt.n.
i - WI
Psidcldss
M d , , . . PC8.I 54
A.Endos ..llan PCB .122 1
Bsta .8HC esrn .e .dox lfan
Gamm.. SHC Endosuif an Sullate PCe .t248
DsIta.SHC 8 1 1dM PC S . 1280
Otloidan. E ndflnMusi tyas PCB. 1016
Hsptad tioe TO. 5.P4 n.
44.006 HsptacNov Epornde
4.4.000 .I242
EP Form 3510.2F (12.88) I- 10
-------
F.4 s1R /VoL55 No.22/Friday.November16 ig9O/RuIeeandReguIattons 48091
Table 2F-4
Nsardous sub sncss required to bs
ldsntlflsd by appUcsi II up. ed lobs prss.nt
Ts s Po5i t
wdove SvMuness
Naplhsnic acid
M 4 alooàcl Diquat MttoWu.ne
AI)I JU ..4J fliaitmüi P arathion
kn 4 aosta Ck,on Ph.nol aulfcnate
e.nzo ni u. kn Pvoparglt.
__ — o_
—I1I P_ni
—
Guthion loonVUum
—
Cowviaplios I Ithun i 2.4.5.T .4.5TfIcfl Oioç isnozy.c,tic
s d)
TOE (Ts pIiun l ithane)
DsSsn dSIiyds 2,4.5W I2 4 .5 .TriCftIotOpflenoiy)
— i dI
c c.i.im. Mec ap sdim.thw Trithloofan
2.40 .4CIcNoroøusnoayacedc MSthI IIJOV
Clacinon Muth 4 msrcaptan Tdmsthy$sm ne
MuOv 4 msouar lat %kuilum
thyI parathion Vanadium
CI Isn. Ms A npA e W yI acmai.
U . J U .WhC add Ilsaacarbate X 4.n a
—
CiSthyl Mini UOflU ...iThplitflisiS lreonlum
F Doc. 90-25315 Filed 11-4-4 10 1217 pm)
• &ms onoc =
EPa Form 3510.2F 11248) I. i
S U.S. Guv rn•,n Prinhin Ull...
-------
Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Notices
47917
Regulations
ERP No. R-FRC-AO3O84-i 18 CFR
Parts 157 and 284; RevisIons to.
Regulations Governing Transportation
Under Section 311 of the Natural Gas
Policy Act of 1978 and Blanket
Transportation Certificates (55 FR
33017).
Sunimo,y: EPA supports the proposed
rule s expansion of various
environmental requirements. but is
concerned about continued and newly
proposed exemptions of natural gas
pipeline projects from National
Environmental Policy Act (NEPA)
analysis. EPA also requests a
programmatic NEPA analysis for the
overall Natural Gas Policy Act Section
311 program.
Dated: November 13. 1990.
Anne N. Miller.
Duector. SPAD. Office of FedemlActivities.
(FR Doc. 90-27094 FIled 11-15-60. &45 am
coca
IFRL 3881-Il
Indiana’s Application to Administer the
National Pollutant Discharge
ElImination System (NPDES)
Pretreatment Program
AGENCY: Environmental Protection
Agency.
acnoii Notice of application for State
program revision.
SUMMARY: In a letter dated December
12. 1989. Mr. Charles Bardonner,
Assistant Commissioner. Office of
Water Management. Indiana
Department of Environmental
Management (IOEM). requested
approval of the State of Indianas
Pretreatment Program. In support of that
request. IDEM has submitted.
(1) A signed statement from the
Indiana Attorney General that the State
of Indiana has the necessary statutory
and regulatory authority to implement
The requli’ements of 40 CFR 403:
(2) Copies of all statutes and
regulations cited in the Attorney
GeneraFs statement
(3) A description of the funding levels
and personnel available to implement
the program:
(4) A description of the procedures
developed to implement the program;
and
(5) A signed revision to the NPDES
Memorandum of Agreement.
U.S. EPA Region V has reviewed the
submittal and intends to notice its
recommended approval by the
Administrator once additional work
years are allocated to IDEMa
Pretreatment Group and certain
regulatory updates are made.
Specifically. IDEM must add a minimum
of two-and-a-half work years to its
Pretreatment Group (for a total of five).
and update its Slate pretreatment
regulations to incorporate the
Pretreatment Implementation Review
Taskforce (PIRT) revisions adopted by
U.S. EPA on October17, 1988. the
Domestic Sewage Study (DSS) revisions
adopted on July 24. 1990. and the
categorical pretreatment standards for
those categories not subject to the 1970
NRDC-EPA Consent Decree. (40 CFR
parts 417. 418. 424.426.427.428. 446. 447.
443. 458. 406 (subparts C & EJ. 409
(subpart A) and 412 (subparts) A & B).
as well as part 414 (organic chemicals.
plastics and synthetic fibers)). IDEM Is
In the process of addressing these
concerns.
A comment period and an opportunity
to request a public hearing will be
provided when the intended notice of
recommended approval is issued by the
Administrator.
FOR FURThER INFORMATION CONTACT:
Matt Gluckman. Permits Section
(SWQP). U.S. EPA. Region V. 230 South
Dearborn Street. Chicago. Illinois 60604.
(312)880-1089.
IUP9LIMENTARY lNFORMATIO On June
16. 1978, the United States
Environmental Protection Agency (U.&
EPA) promulgated the General
Pretreatment Regulations (40 CFR part
403). Amendments to the General
Pretreatment Regulations were
promulgated on October 17. 1988 and
July 24. 1990. These regulations.
mandated by the Clean Water Act as
amended by Public Law 100-4. 1987.
govern the control of industrial wastes
introduced into publicly owned
treatment works (POTWs). commonly
referred to as municipal sewage
treatment plants. The objectives of the
regulations are to: (1) Prevent
Introduction of pollutants into POTWs
which will interfere with plant
operations and/or disposal or use of
municipal sludges: (2) prevent
introduction pollutants into POVN’s
which will pass through treatment
works or otherwise be incompatible
with such works: and (3) improve the
opportunity to recycle and reclaim
municipa! and industrial wastewaters
and sludges.
The establishment of State
pretreatment programs to supplement
existing State National Pollutant
Discharge Elimination System (NPDES)
permit programs is required by the
General Pretreatment Regulations, and
is fundamental in achieving the above-
stated objectives. In order to be
approved, a request for State
pretreatment program approval must
demonstrate that the State has legal
authority. procedures. available Funding.
and qualified personnel to implement a
State Pretreatment Program as specified
In 1 403.10 of the regulations. The Slate
of Indiana received NPDES permit
authority on January 1. 1975: Cenerally.
local pretreatment programs will be the
primary vehicle for administering.
applying, and enforcing Pretreatment
Standards and Requirements for
Industrial users of POTWs. The State
will be The control authority and will be
required to apply and enforce
pretreatment standards and
requirements directly against Industries
that discharge to POTWe where local
programs are not required or have not
been developed.
The Administrators decision to
approve or disapprove the proposed
pretreatment program will be based on a
determination of whether the proposed
program meets the requirements of the
Clean Water Act and 40 R part 403.
and on comments received.
The Indians submission may be
reviewed by the public at the State of
Indiana Department of Environmental
Management. 105 South Meridian Street.
P.O. box 6015. Indianapolis. Indiana
46208-6015. and at the U.S EPA office in
Chicago at the address appearing at the
beginning of this notice. Copies of the
submittal may also be obtained from
these offices: a copying fee will be
assessed.
The Office of Management and Budget
has exempted this rule from the
requirements of section 3 of Executive
Order 12291.
Valda. V. Adamkus.
Reg:onolAdminisuvtor
(FR Doc. 90-27028 Filed 11—15-90. &45 ami
coca
FEDERAL COMMUNICATIONS
COMMISSION
IDOC*M No. 90-478; FCC 90-3311
Commercial Television; Bozeman, MT;
Bee Broadcasting Associates
AGENCY: Federal Communications
Commission.
aciiose 1070. notice of apparent
liability.
SUMMARY: The Commission is
designating for heanng the applications
of See Broadcasting Associates for
assignment of the construction permit of
Station KCTZ(TV). Bozeman. Montana.
and for the license to cover the
construction permit. The Commission
-------
p.ud l R. istee / VoL 55 No. i21 / Thursday. November 15. i O / Notices
47 ’7 5
I
releases abse. a ‘ .n”iph oIthe
CERCLA reportable quaptity, frequent
releases from the same facility, and
releases sf ehpiidr ., 1 listed as extscmely
hazardous substances under SARA
I 302) to select for additional reporting
certain hazardous eabstwzw releases
reported to the National Response
Center. the EPA or tbeU .S . Coast Guard.
Fixed facriltles responathi. for lbs
selected release are required to
complete and return a quesHnwudre
which asks (or more 4ef 1 ed
Information on the cows and
conseq”ences otaccidental releases, as
well as ct1ons that hay, been or amid
have bees effective In prevseting them
fromoccurring.
The collected info inatioa will serve
to support a range clcbemiml ‘ ° “
prevention and prepar ss efforts
Involving industry, local and state
government, and EPA aegkms and
headquarters.
Burden Slatem.nL The estimated
public reporting burden for this
collection of Information Is 24.5 hours
per respondent This estimate includes
time to read the Instructions, gather
existing information, and prepare end
submit the final qeestlormaire.
Rsspoadeads . O.wu /oparatws of
fixed facilitie, with acrkt,ntal releases
meeting trigger tmia.
&tlmaiedNo. of R. .ip mdan .
&timoted-TotolAiraualiluxden an - -
Respondents 34.912 hbu& -
Frequency of C II.ctiorcOn occasion,
when releases meet spedf Ic Itiggers.
Send nts regarding the burden
estimate, or any other aspect of this
information collection, including
suggestion. for r. ’ ’u ug the burden, tor
Sandy Farmer, U.S. EnvIronmental
Protection Agency, Informati on Policy
Branch tPM-J, 401 M Street, SW.,
Washingto DC 20480
and
Tim Hunt Office of Management and
Budget flffi n of lnlorrna*lon and
Regulatoiy Affairs, 729rjachaoo Place,
NW., Washington. DC
Dateé November 5. 1
Paul lapeley, DL..J.... .
PvlctwyMgerneetflfwz,io&
(PR Dcc. so-zamz Plied 11-14- 945 amj
, . , . ccci or
(m.-3a90-4c LAG 551008l
Proposed NPC(S GarwrM P.,. , . .II to ,
Domestic WIiw.he, DIacJt& s in
1 1w Stats 01 LouIsiana
A w Envirucw .ntal Protection
Agency.
*aicot Notine at draft general ?WDBB
permit.
sume*nv: The Director new propose, to
lasses General Permit for privately
owned and publicly owned sewage
treS ”— .4 facilities In the State of
Louisiana with design flows Of 3.500
gallas per day (gpd) ( OIW gpd) and
greater, but Less than 25400 gpd (O.O
gpd) who treat domestic wastes. When
leaned, this General Permit wiR
establish effluent l Imitations,
prohibitions, and other conditions on
discharges. This Draft General Permit Is
based on the a 1n1slrsUve record
available for public review In Regione
of the Environmental Protection Agency
(EPA). The Lad sheet sets forth the
principal facts and the significant
factual, iegai and policy qu st1ons
considered in the do eIcjin t of the
DraftGeneralPerml tA copyof the
Draft General Permit Is available for
public review at EPA Region 6 and at
the Lorrislana Department of
Environmental Qoality.
0ATE Comment Period: Comments
must be received by December14. 1900.
A0DRc1 5E Mall ‘ “nts lix U.S.
Environ , ,iental Protection Agency.
RegionS, 1445 Ross Avenue,
Texas 75202-2733. Documents may also
be reviewed at the Louisiana
Department of Environmental Quality,
035 Fourth Street. 9th Floor. Baton
Rougs. Louisiana 70804-4091.
a umma swoswaiiou cowvacu
Ms. Ellen Caidwell, U.S 1 FavI Ia.th .I
Protection Agency, 1445 Ross Avenue.
Dallas, Texas 75203-2733, Telephenor
(214)655—7190.
L IJ , 1 . tion and Fad
Sheet
A. General PenniS
Section 301(s) of the ( een Water Act
(the Act) provides that the discharge of
pollutants Is unlawful except In
accor’ 4 ’ e with a Nath i Pollutant
Discharge Elhithtatiea 53r.1 (rsrunu)
Permit. In the pest, audi permits have
generally been Issued to Individual
discharger.. EPIV 5 regulations
autborine the Issuance of General
Permits to categories 0 f discharges (40
Q ’R 135.20). EPA may Issue a single,
General Permit to. category of point
s located in the come geographic
area whose discharges warrant similar
pollution control measures. The Director
(with delegation to the Water
Management Division Director) I.
authorized to Issue a General Permit If
there are a omaber of point sources
operating in c geographic area that
1. Involve the same or substantially
sUrlier types of operations;
S. Discharge the seas types Of wastes:
3. Require the same
limitations or operating conditions
4. RequIre the same or 3im(tAr
monitoring Ieçthements and
5. In the opinion of the Director, are
more appropriately controlled under
a General Permit than order
Individual permits.
B. Any discharger desiring coverage
under the General Permit must submit a
(1) NotIce of brtent(2)a General
Information Form 1 (EPA Form 3510-1)
and (3) .n EPA Application Form For
Facilities That Do Not Discharge
Process Wastewater (EPA Form 3510-
2E), or Standard Form A-Municipal
(EPA Form 7550-33) for publicly owned
beatment works.
C. Violations of any oondltlormof a
General Permit constitutes a violation of
tim Act and subjects the discharger to
th. penalties ap.e ed In Secllw ’ 308 Of
the Act. Any owner or operator
iatIwwIzed by a ftnal General Permit
may be excluded from coverage by
applying for en Individual permit ml.
request may be made by submitting a
?WD permit applia . a n . together with
reasons supporting the request. New
facilities, that apply, may be covered
under this General Permit unless they
apply for an individual permit using the
e w 1 ideta applIcation.
a The Director may require any
facility that 1. applyIng to discharge
under a final General PerIl to apply For
and obtain an individual permit In
addition, any Interested person may
petition the Director to take this action.
However. an Individual permit will not
be Issued for any point source
by a General Permit unless it can be
demonstrated that Inclusion under a
General Permit Is dearly inappropriate.
K. The Director may consider the
Issuance of Individual permits eccording
to the criteria Ia 40 CFR 122.28(b)(2).
These criteria indudor
1. The discharge(s) Ii a significant
contributor of poffntiosc
2. The discharger as not in compliance
- with the terms and oonditions of the
General Permit
3. A change has . ,.. .. . ...d In the
availability of d. .insfrated
technology or practices for the
control or aha of polh.t .11ts
applicable to the point sowcs;
4 Effluent limitation guidelines are
subsequently promulgated for the
point sources , ... d by the
General Permit
3 A Water Quality Management Plan
containing . quLmueats applicable
to such point sources Is apprcved
or
-------
47796
Federal Register / VoL 55. No. 221 I Thursday. November 15. 1990 / Notices
0. The requirements listed In 40 CFR
122.28(a) and identified In the
previous paragraphs are not met.
IL Conditions in the General Permit
A. Expiration Data
This NPDES General Permit shall
expire five (5) years from the effective
date of the permit or for coverage of a
facility under the General Permit upon
termination of discharge and closure of
the facility.
B. Water Quality Based Effluent
Limitations
1. The Louisiana Depariment of
Environmental Quality. Office of Water
Resources. has promulgated area wide -
policies which update the Water Quality
Management Plan for all domestic.
wastewater treatment facilities which
discharge to U.S waters In the State of
Louisiana.
2. MinImum levels of effluent quality
attainable by secondary treatment are
established by 40 CFR 133.102. The State
of Louisiana has established more
stringent requirements for all facilities
with anticipated flows of 2.500 gpd
( (10025 mgd). or greater. but lees than
gpd (0.025 MCD). This General
Permit is based on facility design flows
In accordance wIth 40 CFR 122.4
Conventional pollutants are controlled
at the following levels: 30 mg/i 30 .day
average and 45 mg/i daily maximum for
BOD, and TSS respectively. DisinfectIon
and 15 mg/i Daily Max for Oil and
Grease Is required by the State of
Louisiana. The pH limits within the
range of 6.0 and 9.0 standard units are
based on 40 R 133.102 (c).
Monitoring Reqwaement,
All facilities operating under
conditions of this General Permit are
required to monitor each parameter
once every three months by grab
sample. Howver. if the daily ‘ ‘dmum
limit In any sample is exceeded then the
monitoring frequency Inareuee to once
per month. This Inereased frequency
shall continue until a s ”p 1
demonstrates a value less than or equal
to the daily maximum.
0. The Nature of Discharges From
Privately Owned Sources
All facilities operating under
conditions of this teneral Permit will be
required to document the domestic
nature of the discharge. The sources of
wastewater discharges from treatment
plants are domestic sewage amendable
to biological treatment
£ Geographic Aieos and Covered
Facilities
The General Permit will authorize
discharges from facilities within the
State of Louisiana, to various storm
sewers, tributaries, stream segments and
river basins. The permit will be
applicable only to facilities which have
direct discharges to “waters of the
United States” as defined In 40 CFR
122.2 and are therefore subject to the
requirements of sections 302 and 402 of
the Act. It does not apply to facilities
that are specifically listed In the
Louisiana Water Quality Management
Plan with previously designated
limitations.
F. Privately Owned Discharges
The General Permit will be applicable
to facilities with discharges of domestic
waste only. Toxic or priority pollutants
shall not be present in the discharges.
Th. privately owned facilities covered
by this permit include multi-family
residences, trailer parks, restaurants,
entertainment centers, hospitals.
shopping centers, motels and office
buildlngsL The nature of effluent from
these facilities Involves the same type of
operations, discharge of the same types
of wastewater, and the same effluent
limitations and monitoring requirements.
Therefore, these facilities are more
appropriately controlled by a General
Permit.
C. Publicly Owned Facilities
The General Permit will be applicable
to facilities with discharges of domestic
waste only. Toxic or priority pollutants
shall not be present in the discharges.
Publicly owned facilities covered
include cities, towns. boroughs.
counties, parishes, districts.
associations, or other public bodies
ereated under State law and having
Jurisdiction over disposal of sewage, or
an ln’I’ ” tribe, or “ flan tribal
o?g”nl’ dcns, or a designated and
appw’v.d management agency under
section 308 of the CWA located within
the Stats of Louisiana. The nature of
effluent from these facilities involves the
same type of operations, discharge of
the same types of wastewatel, and the
same effluent limitations and monitoring
requirements. Therefore, these facilities
are more appropriately controlled by a
General Permit.
DL Other Legal Requirements
A. State Certification
Under section 401(a)(1) of the Act,
EPA may not Issue a NPDES permit until
the State In which the discharge will
originate, grants or waives certification
to ensure compliance with appropriate
requirements of the Act and State law.
Including water quality standards.
Region VI has requested the State of
Louisiana to certify this Draft General
Permit.
B. Water Quality Standarfis
Section 301(b)(1)(C) of the Act
require. that NPDES permits contain
limitations necessary to meet water
quality standards established pursuant
to State law or regulation or any other
Federal law or regulation, or required to
implement any applicable water quality
standard established pursuant to the
Act In accordance with the Statewide
Sanitary Effluent Limitations Policy, as
established In the Louisiana Water
Quality Management Plan, the
maximum 30.day average load allowed
by this General Permit for either BOD or
TSS is 6.2 lb/day. Therefore, no water
quality standard violations are
expected.
C Duty To Provide information
The permittee shall furnish to the
Director, within a reasonable time, any
Information which the Director may
request, to determine whether cause
exists for modifying, revoking and
reissuing, or terminating this permit, or
to determine compliance with this
permit. Reports shall be supplied as
specified by the permit.
fl Planned Changes
The permittee shall give notice to the
Director within 30 days of any planned
physical alterations or additions to the
permitted facility or In the nature or
characteristic of the discharge.
£ Endangered Species Act
The Endangered Species Act and its
implementing regulations (50 CFR part
402) require that each Federal Agency
shall ensure that any of their actions.
such u permit iasti rn e. do not
jeopardize the continued existence of
any n’.dangered or threatened species or
result In the destruction or adverse
modifications of their critical habitats.
To ensure protection of endangered or
threatened species and their habitats
toxic materials and priority pollutants
are prohibited by this permit Discharges
that are permitted are for treated
domestic westewater only. Based on the
‘erms, conditions. and limitations of this
General Permit, EPA has concluded that
the discharges authorized by this
general permit are not likely to
adversely affect any endangered or
threatened species nor adversely affect
their critical habitat. The State of
Louisiana has a similar general permit
with an effective date of March 10. 1989
-------
Federal Register I Vol 55, No. 2 I Thursday, November 15, 1990 I Notices
47797
covering the same facilities for which
this permit Is wntten. EPA will provide
copies of the Draft General Permit and
Fact Sheet to the U.S. Fish and Wildlife
Service and the National Marine
Fisheries Service prior to issuing the
General Permit and will request their
concurrence on EPA’s not likely to
adversely affect determination.
F. The Coos WI Zone Management Act
The Coastal Zone Management Act
(CZMA) and its Implementing
regulatIons (15 R part 930) requIre
that any Federally licensed or permitted
activity affecting the coastal zone of a
State with an approved Coastal’Zone
Management Program (CZMP) be
consistent with the CZMP (section
307(c)(3)(A) subpart D). The State of
Louisiana has a CZMP that has been
approved by the National Oceanic and
Atmospheric Atlmlvdstratlon (NOAA).
The Region has reviewed Louisiana’s
Coastal Use Guidelines and believe that
this draft permit action Is consistent
with the Intent of those guidelines. A
copy of the draft permit along with a
consistency determination will be.
submitted to Louisiana for a consistency
determination.
C. The Marine Protection. Resewtth and
Sanctuo.nes Act
The Marine Protection, Research and
Sanctuaries Act (MPRSA) of 1972
regulates the dumping of all types of
materials into ocean waters and
establishes a permit program for ocean
dumping. In addition the MPRSA
establishes the Marine Sanctuaries
Program, implemented by NOAA. which
requires NOAA to designate ocean
waters as marine sanctuaries for the
purpose of preserving or restoring their
conservation. recreational, ecological or
aestbetic values. Section 301(1) of
MPRSA requires that the Secretary of
Commerce, after designation of a marine
sanctuary, consult with other Federal
agencies. and issue necessary
regulations to control any activities
permitted within the boundaries of the
marine sanctuary. It provides that no
permit. license. or other authorization
Issued pursuant to any other authority
shall be valid unless the Secretary shall
certify that the permitted activity Is
consistent with the purpose of the
marine sanctuaries program and/or can
be carried out within its promulgated
regulations. There are presently no
existing marine sanctuaries in the
coastal waters of Louisiana.
IV. Admlnlatradv. Requirements
A. Economic Impact (Executive Order
22291)
The Office of Management and Budget
(O ) has exempted this action from
‘the review requirements of Executive
Order 12291 pursuant to section 8(b) of
that order.
£ Paperwork Reduction Act
EPA has reviewed the requirements
Imposed on regulated facilities in this
Draft General Permit under the
Paperwork Reduction Act of 1980,44
U.S.C. 3501 et seq. The Information
collection requirements of this permit
have already been approved by the
Office of Management and Budget in
submissions made for the NPDES permit
program under the provisions of the
Clean Water Act. In addition, the
General Permit will eliminnte or reduce.
for the Agency, the time consuming
process of drafting and Issuing
individual permits.
C The Regulatory Flexibility Act
After review of the facts presented In
the notice printed above. I hereby
certify, pursuant to the provisions of S
U.S.C. 605(b), that this general NPD
permit will have a positive benefit on a
substantial number of small entities.
Moreover, It will reduce a significant
a,Imin utratIve burden on regulated
sources.
Jo.D.Wlnkle,
ActhigRegjon&Athninisoutoz. Region a
(FR Doc. 90-26930 FIled 11-14-6l &45 am)
IIL&I CCCI = C
(FRL 398041
Draft General NPDES Permit for
Domestic Wastewutur Discharges In
the State of Loulslanm LAGSS6000
AGERCY: U.S. Environmental Protection
Agency.
ACTI Notice of Draft General NPDES
Permit.
SUMMARY: The Director now proposes to
Issue a General Permit for publicly and
privately owned sewage treatment
facilities. in the State of Louisiana. with
design flows of 25,000 gallons per day
(gpd) (0.025 mgd) and greater. but less
than 50.000 gpd (0.050 mgd) who treat
domestic wastewater. When issued, this
General Permit will establish effluent
limitations, prohibitions, and other
conditions on discharges. This Draft
General Permit is based on the
administrative record available for
public review in Region 6 of the
Environmental Protection Agency (EPA).
The fact sheet sets forth the principal
facts and the significant factual. legal
and policy questions considered in the
development of the Draft General
Permit A copy of the Draft General
Permit Is available for public review at
EPA Region 6 and at the Louisiana
Departwent of Environmental Quality.
DATES Comment Period.’ Comments
must be received by December 17, 1990.
AODRESS! Mail comments to: U.S.
Environmental Protection Agency.
Region 6,1445 Ross Avenue, Dallas.
Texas 75202-2733. Documents may also
be reviewed at the Louisiana
Department of Environmental Quality,
625 Fourth Street. 9th floor, Baton Rouge.
Louisiana 70804—4091.
FOR FURTHER INFORMATION CONTACT
Ms. Ellen CaIdwell. U.S. Environmental
Protection Agency, 1445 Ross Avenue,
Dallas, Texas 75202—2723. Telephone:
(214) 655—7190.
L Supplemental Information and Fact
Sheet
A. General Permits
SectIon 301(a) of the Clean Water Act
(the Act) provides that the discharge of
pollutants Is unlawful except in
accordance with a National Pollutant
Discharge PiImins tlon System (NPDESJ
Permit. In the past. such permits have
generally been Issued to individual
dlschargers. However, EPA’s regulations
authorize the issuance of General
Permits to categories of dischargers (40
CFR 1 ) . EPA may Issue a single.
General Permit to a category of point
sources located In the same geographic
area whose discharges warrant similar
pollution control measures. The
Regional Administrator (with delegation
to the Water Management Division
Director) Is authorized to Issue a
General Permit if there are a number of
point sources operting in a geographic
area that
1. Involve the same or substantially
similar types of operations;
2. DIscharge the same types of wastes:
3. Require the same effluent
limitations or operating conditions;
4. Require the same or similar
monitoring requirements; and
5 In the cplnlon of the Director, are
more eppropnately controlled under a
General Permit than under individual
permits.
B Any discharger desiring coveroge
under the General Permit must submit a
(1)0 Notice of !nten& (2) General
Information Form 1 (EPA Form 3810-i),
and (3) an EPA Application Form For
Facilities That Do Not Discharge
Process Wastewater (EPA Form 3510-
2E) (Private Domestic), or Standard
-------
47798
Federal Register 1 Vol. .55. No. 221 I Thursday, November 15. 1990 I Notices
Form A4funJcipr,J (EPA Form 7550-22)
for publicly m. treatment works .
C. Violoticon of w,ywnditfon ofa
CenerviPemiitceralibit.z a violation
of the Ad and sub/ecte the disthcipor to
the perinitho specified in section 3W of
the Act. Any owner or operator
authorized by a final General Pe .It
may be excluded from coverage by
applying for an individual pevmL This
request may be made by submitting a
NPD permit application, together with
reasons supporting the request. New
facilities, that apply. may be covered
under this General Permit unless they
apply for an Individual permit using the
appropriate application.
D. The Director may require any
facility that Is applying to discharge
under a final General Permit to appiy for
and obtain an individual permit In
addition, any Interested person may
petition the Director to take thi, action.
However an mdlvi dual permit will not
be Issued for any point source covered
by a General Permit unless It can be
demonstrated that Inclusion under a
General Permit Is dearly inappropriate.
£ The Director may consider Lb.
issuance of individual permits
acconfing to the criteria in 40 CTh
12Z28(b)(2). These ertteda
1. The discharge(s) is a griflcant
contributor of pnflnth n
2. The dl chargar is not In compliance
with the terms and conditions of the
General . ‘
3.A ellAnge has occurred In the
availability of damn’.Irated technolo ’
or practices for the control or abat mo, .f
of poliuthntu applicable to the point
source:
4. fluent limitation gnid.tIn .Q are
subsequently p n Ig ’ d for the point
sources covered by the General P. mi
5 A Water Quality Management Plan
cOnthlnIrg requirements appHi hls to
such point sources Is approvedi ox
0. ‘The requirements listed in 40 CFR
l sR (a) end Identified In the previous
paragraphs are not met.
IL “ - .— “ — In the Draft e... _ i
A. Expiration Date
This NPD General Permit shall
expire liv , (5) years frmn the effective
date of the permit or for . . . . .paf a
facility under the Cenerel P w t upon.
termination of discharge and closure of
the facility.
& Water Quality Based Eff luant
Limitation,
t The T uaiana Department of
Revirunniantal Quality, Office of Water
Reecurem, baa pemmalgated area wide
policies which update the Water Quality
Management Plea for all dome tlc waste
treatment f iIities which discharge to
U.& waters In the State of Louisiana.
2. Minimum levels of effluent quality
attainable by secondary treatment me
established by 40 CFR 130.102. The Slate
of Louisiana has established more
. Ii t requirements for all facilities
with anticipated flows of 25.000 gpd
(0.02.5 mgd). or greater. but less than
50.000 gpd (0.050 nrgd). This General
Permit I. based on facility design flows
In accordance wIth 40 CFR 122.44.
Conventional pollutants are controlled
at the following levels. 20mg/i 30 .day
average and 30mg/I daily ma dmem for
BOD, and TSS respectively. Disinfection
and 15mg/I Daily Max. for Oil and
Greas. Is required by the Slate of
Im.iui.n . The pH limIts within the
range of 60 and 9.0 standard units are
based on 40 ‘R 133Ilttfc).
C Mooitezmg Reqrthements
All facilities operating under
conditions of this General Permit axe
required to monitor each parameter
once per month by grab sample.
Huw e . If the daily maximum limit In
any sample is exceeded then the
monitu . . frequency Increases to once
per wash. This eased frequency
shall until a sample
demonstrates a value less than or equal
to the daily w 4 ” -
11 The Natere of Discharges From
Privately Owned Sources
Facilities operating under r.nrRUoas
of this permit will be required to
document the domestic nature of the
discharge. The sources of wastewater
discharges from privately owned
treatment plants are domestic sewage
m.n hle to biological treatment
£ Geographic Area, and Covered
Facilities
The General Permit will authorize
discharges from facilities within the
State of Louisiana, to various storm
se . tebutarles. stream segments and
river basins. The permit will be
appL. .bl only to facilities which have
d lrsotd i sthargeeto M w ster eofthe
United St.t., TM u defined In 40 .
122.2 and are therefore sublect to the
of sectIons 302 and 405 of
the Act. II does not apply to facilities
that are specifically listed In the
Louisiana Watw Quality Management
Plan with previously de,ignated
limitations.
F. Privately Owned Discharges
The General 1 t will be applicable
to fadlitim with dlecbsrgas of domestic
waste only. To or priority pollutants
shall sot be aes in the diwha,ges.
The privately owned facilities covered
by this permit Include multi-family
residences. trailer parks, restaurants.
entertainment centers, hospital..
shopping centers, motels and office
buildings. The nature of effluent from
these facilities Involves the same type of
operations. discharge of the . types
of wastewater. and the same effluent
limitations and monitoring requirements.
Therefore, these facilities are more
appropriately controlled by a General
Permit.
C. Publicly Owned Facilities
The General Permit will be applicable
to facilities with discharges of domestic
waste only. Toxic or priority pollutants
shall not ha present in the discharges.
Publicly owned facilities hwiude citles.t
towns, boroughs, counties. parishes.
districts, associations, or other public
bodies created under State law and
having jurisdiction over disposal of
sewage. or an Indian tribe, or Indian
tribal organizations, or a designated and
approved management agency under
section 308 of the CWA located within
the State of Louisiana. Thertfun . these
facilities are mare appropriately
controlled by a General Permit
DL Other Legal Requirements
A. State Cenification
Under section 401(aXl) of the Act.
EPA may not issue a NPDES permit until
the State In which the discharge will
originate, grants or waives certification
to ensure compliance with appropriate
requirements of the Act and State law.
Induding water quality standards.
Region VI has requested the State of
Louisiana to certify this Draft Cenera l
Permit.
B Water Quality StaXara,
Section 302(b)(INC) of the Ad
requiem thet NPDES p b contain
limitations “ ‘y to meet water
quality standards estohHthnd pursuant
to State law or regelat or any other
Federal law or regulation, or required to
implement any applicable water quality
standard established pursuant to the
Act. The ms. 4 uIm 30.day average load
allowed by this General Permit for
either HOD or TSS Is 8.3 lb/day. in
accor la ri . with the Statewide Sanitary
Effluent Limitations Policy established
In the Louisiana Water Quality
Management Plan. Therefore. no water
quality standard violations are
expected.
C Duty to Provide Information
The permattee shall furnish to the
Director, within a reasonable time, any
information which the Director may
-------
Federal Register I VoL 55. No. 221 / Thursday. November 15, 1990 / Notices
47799
request to determine whether cause
exists for modifying, revoking and
reissuing, or terminating coverage of this
General Permit, or to determine
compliance wfth this General Permit
Reports shall be supplied as specified by
this General Permit.
D. Planned Changes
The permittee shall give notice to the
Director within 30 days of any planned
physical alterations or additions to the
permitted facility or in the nature or
characteristic of the discharge.
£ Endangered Species Act
The Endangered Species Act and Its
Implementing regulations (50 CFR part
402) requIre that each Federal Agency
shall ensure that any of their actions.
such as permit issuance, do not
jeopardize the continued existence of
any endangered or threatened species or
result In the destruction or adverse
modification of their critical habitats. To
ensure protection of endangered or
threatened specfee and their habitats
this general permit prohibits toxic or
priority pollutants in the effluent
discharges. Discharges that are
permitted Indude treated domestic
wastewater only. Based on the terms,
conditions. and limitations of this
General Permit. EPA has concluded that
the discharges authorized by this
general permit are not likely to
adversely affect any endangered or
threatened specie. nor adversely affect
their critical habitat The State of
Louisiana has a similar general permit
with an effective date of July 31, 1989
covering the same facilitie, for which
this permit is written. EPA will provide
copies of the Draft General Permit and
fact sheet to the U.S. Fish and Wildlife
Service and the National Marine
Fisheries Service prior to Issuing the
General Permit and will request their
concurrence on EPA ’s not likely to
adver ely affect determination.
P. The Coastal Zone Management Act
The Coastal Management Act
(CZMA) and its implementing
regulatIons (15 R part 930) require
that any Federally licensed or permitted
activity affecting the coastalzone of a
State with an approved Coastal Zone
Management Program (CZMP) be
consistent with the CZMP (Section 307
(c)(3)(A) eupart D). The State of
Louisiana has a CZMP that has been
approved by the National Oceanic and
Atmospheric Administration (NOAA).
The Region has reviewed Louisiana’s
Coastal Lisa Guidelines and believe that
this draft permit action is consistent
with the intent of those guidelines. A
copy of the draft permit and fact sheet
will be submitted to the State of
Louisiana for a consistency
determination.
G The Marine Prvtection Research and
Sanctuaries Act
The Marine Protection. Research and
Sanctuaries Act (MPRSA) of 1972
regulates the dumping of all types of
materials into ocean waters and
establishes a permit program for ocean
dumping, In addition to MPRSA
establishes the Marine Sanctuaries
Program. implemented by NOAA. which
requires NOAA to designate ocean
waters as marine sanctuaries for the
purpose of preserving or restoring their
conservation, recreational, ecological or
aesthetic values. Section 302( 1) of
MPRSA requires that the Secretary of
Commerce, after designation of a marine
sanctuary, consult with other Federal
agencies, and issue necessary
regulations to control any activities
permitted within the boundaries of the
marine sanctuary. It provides that no
permit. license, or other authorization
issued pursuant to any other authority
shall be valid unless the Secretary shall
certify that the permitted activity Is
consistent with the purpose of the
marine sanctuaries program andf or can
be carried out within its promulgated
regulations. There are presently no
existing marine sanctuaries In the
coastal waters of Louisiana.
W Imb 4. .frative Requirements
A. Economic Impact (Executive Order
12291)
The Office of Management and Budget
(0MB) has exempted this action from
the reviqw requirements of Executive
Order 12291 pursuant to section 8(b) of
that order.
B. Paperwork Reduction Act
EPA has reviewed the requirements
Imposed on regulated facilities in this
Draft General Permit under the
Paperwork Reduction Act of 1980.44
U.S.C. 3501 et seq. The information
collection requirements of this permit
have already been approved by the
Office of Management and Budget In
submissions made for the NPDES permit
program under the provisions of the
Clean Water Act In addition, the
General Permit will eliminate or reduce.
for the Agency, the time consuming
process of drafting and Issuing
individual permits.
C The Regulator,’ Flexibility Act
After review of the facts presented In
the notice printed above. I hereby
certify, pursuant to the provisons of 5
USC 605(b). that this general NPDES
permit will have a positive benefit on a
substantial number of small entities.
Moreover, It will reduce a significant
administrative burden on regulated
sources.
Dated: September 4.1990.
Jo. 0. WInkle.
Acting RegionalAdminist rotor. Region 8..
(FR Doc. 90-20931 FIled 11-14-O &45 am)
coo.
(OPTS-5s191 FRL 3540-21
Toxic and Hazardous Substances
Certain Chemicals Premanufacture
Notices
AGENCY Environmental Protection
Agency (EPA).
acTiOi Notice.
suuuaav Section 5(a)(1J of the Toxic
Substances Control Act (TSCAJ requires
any person who Intends to manufacture
or Import a new chemical substance to
submit a premanufacture notice (PMN)
to EPA at least 90 days before
manufacture or Import commences.
Statutory requirements for section
5(a)(1) premanufacture notices are
discussed in the final rule published In
the Federal Register of May 13. 1983 (48
FR 21722). In the Federal Register of
November11. 1984. (49 FR 48066) (40
CFR 722.250). EPA published a nile
which granted a limited exemption from
certain P?&J requirements for certain
types of polymers. Notices for such
polymers are reviewed by EPA within 21
days of receipt This notice announces
receipt of 16 such PMN(s) and provides
a stimm iy of each.
DATES Close of Review Periods:
191—18. November 1, 1990.
192-17. November 8.1990.
191—18.91—18. 91—24 92—22.
November 12. 1990.
Y91— November 14. 1990.
191—Zi 91—24.91—25; 91—28.91—27.91—
28.91-24 91-34 November12. 1990.
Y91—31. November 14. 1990. -
Ofl RMTH89 INFORMATION CONTACT
Michael M. Stahl, Director,
Environmental Assistance Division (TS-
799). Office of Toxic Substances.
Environmental Protection Agency. Room
E -545. 401 M Street. SW.. Washington,
DC 20460. (202) 554-1404, TDD (202) 554-
0551.
SUPFLEMENTARY INFORMATICIC The
following notice contains information
extracted from the nonconfldential
version of the submission provided by
the manufacturer on the PMNs received
by EPA. The complete nonconfidential
document Is available In the Public
Reading Room NE—G004 at the above
-------
- 3&44
Federal Register I Vol. 55. No. 210 I TuesJdy. October 30. 1990 / Notices
IFRL-3856-el
Issuance of National Discharge
Elimination System (NPDES) Permit for
Occidental CMmlcaI Company’s
Kenton, Ohio Facility
AGENCV Environmental Protection
Agency.
acnosc Notice.
SUNM*RY Notice is hereby given. in
accordance with 40 CFR parts in. 122
and 124 and applicable guidelines and
regulations of the Clean Water Act
(CWA). that a National Pollutant
Discharge PIiffiinaUon Systom (NPDES)
peratit was Issued by the U.S.
Environmental Protection Agency (U.S.
EPA) Region V for the Occidental
Chemical Corporation’s Kenton. Ohio
facility (NPDES No. OHOOo 76O) on
September 28, 1990. Requests for an
evidantiary hearing on this action must
be submitted within thIrty (30) days
following the service of notice of the
Regional A.__ ..Istrato? S final permit
decision on the pennittea. Any such
requests shall be filed in accordance
with the procedures specified in 40 CFR
124.74.
oams: This action Is effective as of
October 28. 1990. and expires on
November 1. 1
AODRESS! Copies of the
administrative record for the permit.
i2clnhIiIlg the final I ssued permit, are
available far inspection span request at
the following location: U.S. EPA. Region
V. Water Division. Permits Section. 230
S. Dearborn Sfreet. cago. l1k wiis
80904.
FOR FURTHER INFOmIATTON CON1ACV
Denise Steiner of the U.S. EPA Region
Vs Water DiVISIOn, Permits Sec1iu at
the address given above. (312) 888—24
SUPFL PVTARY INFORMATIOC On
August 13.1988. the Ohio Environmental
Protection Agency (OEPA) public
noticed an NPDES permit for the
Occidental-Kenton facility. U.S. EPA
Informed the OEPA that Ii did tint
receive adequate information to make.
determination on the pvuiilt ha a timely
fashion. and that U.S. EPA would sot
coarm with the Issuance .flhe permit
as drafted. On September30. 1968, the
Ohio EPA issued an NPDES permit foe
the Occidental-ICenton facility which did
not correct the cited In the
August 13. 1988. letter. As that permit
failed to impose effluent liiuitatioum and
other conditions oncessary to meet the
requirements of the CWA. however, U.S.
EPA riled, under 40 CFR 123.44(bg2 ). lta
specific objection to the Issuance of the
perndt on December 10, 1986. Because
the State did not resubmit a permit
revised to meet U.S. EPAs obpections.
and no public hearing was requested.
exclusive authority to issue the
Occidental-Kenton permit passed to U.S.
EPA. Region V. The Regions draft
permit. which was prepared with the
assistance of the Ohio EPA. was public
noticed on March 28. 1990.
The permit war issued after taking
into consideration comments received
byOccidental saweR as revisions hi
Ohio’s Water Quality Standards.
Valdas V. “— ‘ .
RegiozwiAdmIzzisbati ,r.
(FR Doc. 90-25839 FIled 1O—29-I0. 0.45 amj
• ccc i ma-as-a
FEDERAL COMMUNICATiONS
COMMISSION
Public Information Collection
Requirement Submitted to Office of
Management and Budget for Review
October 23. 1990.
The Federal CnmwmT icatlous
Commission has submitted the following
information collection requirement to
the Office of Management and Budget
for review and clearance . t, ,A ,
Paperwork Reduction Act of 1980,44
U.S.C. 3507.
Copies of this submission may be
purchased from the C mlsSIan’s copy
contractor. international Trimsa’iption
Service, (208)857—3100, 2300 M Street
NW.. suIte 140, Washington. DC 7.
For further lnfnrm Hnn on this
submission contact Judy Boley. Federal
Communications CommissIon, (202)832—
7513. Persona wishing to m ’t on
this Infn! ,n tion collection should
contact Bruce McConnell. Office of
Man gi!! nt and Budget, room 323$
NEOB. Washington. DC 20 3I , (200) 395—
3785.
0MB number 3060-0069.
Title: Application for Commercial
Radio Operator License.
Form - ‘ ai FCC Form 758.
AcUon Revision.
Respondents: Individuals or
households.
Frequency of response: On O r im
Estimated anzwoi burden: 30M00
responses: 0.3 hours average burden per
response: 9.000 hours tots! annual
burden.
Needs and uses: The FCC Form 758 Is
used to Issue radio operator licenses to
those persons found to be qualified. To
properly Identify those qualified
persons, It Is necessary to collect the full
name, date of birth and physical
description of each applicant. The
physical J . ptton of the applicant is
placed on the Marine Radio Operator
Permit il to guard agaim 1 possible
fraudulent usage. Collection of
photographs of applicants for
radiotelegraph licenses and physical
descriptions are in accordance with the
International Radio Regulations.
Federal Communications Commission.
Donna R. Seercy.
Sene .
IFR Dos. 90-23558 Filed 10-29-90 0.45 aml
ss.i.s coca Sits.. ,..
FEDERAL. MEDIATiON AND
CONCIUATION SERVICE
Agency InformatIon Collection Activity
Under Review by the Offbeat
Management and Budget
acnouc Notice: Form F-53 Submitted for
Review to the Office of Management
and Budget .
The Federal Mediation
Conciliation Service (FMCS) has
submitted to the Office of Management
and Budget (0MB) a request for review
of FMCS Form F-.53. Notice to Federal
Mediation and Conciliation Service. The
request seeks 0MB approval to extend
the expiration date of Form F—53 from
August 31.1980 to February 28.1991.
The request was submitted pursuant to
the Paperwork Redaction Act (44 U.S.C.
chapter 35).
Form F-53 Is used to notify FMCS of a
dispute In the Federal eector that is
between a Federal agency and the union
representing that agencies employees.
The information supplied allows FMCS
to contact the parties and provide
assistance. Information pertaining to
Form F—53 is as follows:
Agency: Federal Mediation and
Conciliation Service.
Title: Notification to Federal
Ii *inn and Service.
Form Numbez Agency Form F-63
0MB No.3070-0006.
Type of Request Extenmon of
expiration date of a currently approved
collection without any change in the
substance or in the method of collection.
Authority: 5 U.S.C. 7119(aI and 29 CFR
part 1425.
Burderr Approximately 600 responses
per year. Generally, a Form F-53 is filled
out only once, the tinie needed to fill out
the Form is about 10 minates and the
reporting burden is 100 hours pet year.
Neeth and Uses.- The need for this
Form is to obtain the name, address,
phone number of the parties and the
type of dispute so that this information
may be used to respond to requests For
FM S assistance.
-------
Federal Register I Vol. 55, No. 191 I Tuesday, October 2, 1990 / Notices
40235
ThIE-10—16. The test marketing
conditions are described below.
flCTIVI DATES September 24, 1990.
FOR FURThER RWORMAflOR CORY*C
Rick Kelgwin, New Chemicals Branch.
Chemical Control Division (TS-794).
Office of Toxic Substances,
Environmental Protection Agency. Rm.
E-611, 401 M SL SW., Washington, DC
2048 (202) 382-Z44
BUPPIEMEJITARY INFORMA?!O* Section
5(h)(1) of TSCA authorizes EPA to
exempt persons from premanufacture
notification (P?tC 4) requirements and
permit them to manufacture or import
new chemical aubst n . e. for test
marketing purposes if the Agency finds
that the manufacture, ing.
distribution in commerce, use. and
disposal of the substance. for test
marketing purposes will not present an
unreasonabla risk of Injury to health or
the environment EPA may impose
restrictions on test marketing activities
and may modify or revoke a test
marketing exemption upon receipt of
new Information which casts significant
doubt on its finding that the test
market1 ig activity will not present an
unreasonable risk of injury.
EPA hereby approves Th1E-90-10
EPA has determined that test marketing
of the new chemical substance
described below, under the condition.
set out in the TME application, and for
the time period and restrictions
specified below, will not present an
unreasonable risk of injury to health or
the environment. The test marketing
penod. production volume, use, disposal
methods, and number of customers must
not exceed that specified In the
application. All other conditions and
restrictions described In the application
and In this notice must be met.
The following additional restrictions
apply to ThIE-eO-1O. A bill of lading
accompanying each shipment must state
that the use of the substance Is
restricted to that approved In the TME.
In addition, the applicant shall maintain
the following records until 5 years after
the date they are created. and shall
make them available far inspection or
copying in accordi nr, with section 11 of
1. Records of the quantity of the ThIE
substance produced and the date of
manufacture.
2. Records of dates of the shipments
to each customer and the quantifies
supplied in each shipment
3. Copies of the bill of lading that
accompanies each shipment of the TME
substance.
TUE— ID -Il
Notice of Receipt August 6. 1990 (55
FR 31882).
Applicant Confidential.
Chemicoi (C) Bis(hexamethylene)trts-
demethiocarbamlc acid.
Uem (C) Sulfur solvent for natural gas
production. Production Volume.’
(Confidential). Number of Custorneri
(Confidential).
Test Marketing F riod. ’ (Confidential).
Risk Assessment EPA identified
concerns for developmental toxicity.
neurotoxlclty and thyroid toxicity,
based on test data on analogous
chemlcals and chronic toxicity to the
liver and lungs, based on test data on
the ThIE substance. The submitted test
data also showed that the 7MB -
substance Is corrosive to the skin and
eyes. Because of these corrosive
properties, EPA expects that workers
will wear the protective equipment
specified in the Material Safety Data
Sheet (“MSDS”) submitted with the
ThIE application. EPA does not expect
the manufacturing, processing. and use
of the 7MB substance to result In
Ivih istion exposures to workers.
Therefore, the corrosive nature of the
7MB substance, low predicted
inhalation exposures, and the exposure
controls specified In the MSDS mitigate
EPA’s concerns for human health.
EPA also identified environmental
concerns for the ThIE substance based
on Quantitative Structural Activity
Relationships (“QSARf) derived from
test data on structurally similar
dithiocarbamates. EPA expects toxicity
to aquatic organisms to occur at a
concentration of 9 parts-per-billIon
(‘ppb) ThIE substance in surface
waters. However. EPA expects that the
TME substance will be deep-well
Injected and will not be released to
surface water. This use/disposal method
will not result in surface water
concentrations that exceed EPA’.
concern concentration.
The Agency reserves the right to
rescind approval or modify the
conditions and restrictions of an
exemption should any new information
come to its attention which casts
, 4gi iAremt doubt on its finding that the
test marketing activities will not present
an unreasonable risk of Injury to health
or the environment.
Dated: September 24. 1990.
Lawruec. K. Iiaen .
Acting Director. Chemical Control Division.
Office of Toxic Substances.
(FR Dec. 90-23241 FlIed 1O-1-e 8:45 amj
coca
11 .‘.
National pollutant DIscharg.
Ellininitlon System (NPDES) General
Permit for Activities Related to Natural
Gas Production Within the
Geographical Botmdailes 01 Southern
Ut. Indian Reservation as Located
Witithi the Political Bounderlu of the
Stats of Colorado
*OEPICY U.S. Environmental Protection -
Agency (EPA), Region VUL
acnosn Notice of intent to issue general
permit
WMMMY Region VIII of the U.S.
Environmental Protection Agency (EPA)
is hereby giving notice of its tentative
determination to issue a National
Pollutant Discharge Elimination System
(NPDES) general permit for certain
limited activities relating to the
production of natural gas within the
geographical boundaries of the southern
Ute Indian Reservation, located in the
southwest portion of the State of
Colorado. NPD permit Number COG-
075000. Issuanc. of the General Permit is
Intended to provide a more efficient
means of panting discharge
authorization for these facilities. A draft
general permit which incorporates the
requirements of the Federal Clean
Water Act end the NPDES regulations
promulgated thereunder at 40 CFR part
122 et seq. has been prepared by EPA.
The draft permit establishes proposed
effluent requirements and standards
based on technology and water quality
considerations, prohibitions, best
Management practices, and other
conditions applicable to the types of
waste waters generated by consthaction
facilities. Persons meeting the
prequalificatlon requirements of the
general permit and seeking discharge
authorization will be required to submit
a Notice of Intent (NO!) to discharge
and a request for discharge approval
prior to their commencement of any
discharge.
DATES Public comments on this
proposal must be on or before
November19. 1990.
ADOFFUIs. Public com enta should be
sent to: Mr. Steve A. Burkett, PB.
(8WM-CJ Chle1 Compliance Branch,
Water Management Division. U.S.
Environmental Protection Agency. 999
18th Street, Suite 500, Denver. Colorado
80203-2403.
For a copy of the complete text of the
draft permit and the Statement of Basis
and Fact Sheet, please call or write Ms.
Daniels Thigpen at the above-listed
addres, or telephone (303) 293—1432 or
Fl’S 330-1432. Questions regarding the
Data of ReceipL’ July 24. 1990.
-------
402
Federal Register I VoL 53. No. 191 / The day. OLtober 2. 1990 I Notices
specific requirements proposed by the
draft general permit may be directed to,
Mr. Robert a Sh iilrl .nd, telephone
( ) —i5g7.
A public meeting to review and
entertain co,lIm ts on the draft permit
has tentatively been scheduled as
follows;
Dater November 7. 1990.
Timer 7p.m.
Location: La mats County
Fairgrounds. Extenmon Building. 2500
Main Street. Durango, Colorado 81301.
SU LIMENTMY IIIPCnmATIO*.
A. Regulatory Backgrtmml
Section 301(a) of the Clean Water Act
(CWA) provides that the discharge of
pollutants Is unlawful except In
accor’ , with en NPD permit.
Discharges that ocm within Indian
Country are the jurisdiction of the EPA
unless the Agency enter. into an
agreement with a Tribe or other Indian
political body authorizing the Tribe to
regulate these discharges in lieu of EPA
doing se. No Tribal body has such
jurisdiction within the Southern Ute
Indian Reservation. Under EPA.
regulations at 40 CFR 19 EPA may
asaue a single general permit to point
sources within the same geographic area
if the regulated sources;
(1) Are involved in the same or
substantially illnt operations;
(2) Generate and discharge the same
types of waste;
(3) Require the same permit effluent
limitations and/or operating conditions;
(4) RequIre au , 1l r monitoring
requirements; and. _____
(5) In the opinion of the M’ut
Director, are more appropriately
controlled under a general permit than
an individual permit.
As in the case of any individual
permit Issued under the NPD
program, violation of any condition of a
general permit constitutes a violation of
the Clean Water Act and Is fully
enforceable under section 300 of the Act.
Any owner’ or operator authorized by
the general permit may be excluded
from the general permit by applying for
an individual permit as provided for by
40 CFR 122.2 5(b).
L Ceal Bud Meth.ue Pre ”” ’
The production of methane gas by
coal-bed degastflcatlon wIthin the
Southern Ute T ”dIan Reservation Is from
coal beds located within the Fruitland
Formation. Those coal beds contain
water, so the degasificatlon process
results In the.inlxture of methane gas
and water being brought to the ground
surface via wells. The water Is
separated from the gas at the ground
surface. Currently, the produced water
is not being returned to the coal beds
because the return of the water might
interfere with gas production. To date.
most of the produced water has been
disposed of by Injecting It underground
into another formation In accordance
with the requirements of the
Underground Injection Control (UIC)
permit program of the Federal Safe
Drinking Water Act. However, in some
situations this has proven to be very
expensive.
Although treatment of the produced
water by technologies such as reverse
osmosis to reduce salinity in the water
to acceptable levels Is expensive, It may
still be more cost effective to treat and
discharge than to continue to re-inject
the produced water. In addition, it Is
unknown how much of the produced
water can actually be re-injected Into
the formation without encountering
some problems like plugging In the
formation. Should such a problem arise.
treatment and discharge of the produced
water will become appealing as an
alternative.
There presently are approximately 700
of these methane gas wells located on
the Reservation. The Energy Resources
Division of the Southern Ute Tribe has
estimated that approximately 500
million barrels (21 billion gallons) of
water could be produced over the next
ten years unles . there are changes in the
gas jjb,t1 n ,i technology that will
reduce the volume of produced water. It
Is unknown how much of this water may
actually ever be discharged.
In the primary pollutant of concern for
the produced water is total dissolved
solids (TDS). a measure of the salinity of
the water. TDS concentrations In the
untreated produced water, mostly
sodium bicarbonate, have ranged from
less than 1.000 rng/L to more than 10.000
mg/I. Analysis of untreated water has
indicated that most wells have only
trace amounts of organic pollutants In
the produced water. Best Available
Treatment (BAT) for reducing TDS
suggests that, after beatmont. TDS
discharges should not exceed 500 mg/I.
Development of the well fields has
i vated a need for pipeline delivery
system.. Construction of these pipeline.
sometimes involve excavations (e.g.,
fri. .i Ii1r flJ which may 191 wIth water
from the resident groundwater or from
surface runoff. Another dewatering
activity Is to temporarily lower the
water table around the construction site
so as to prevent groundwater from
flowing Into the excavation. Although
dewatering of such excavations Is
,ml u ly done. It Ii unlawful to do so
without an NPDES permit suthorlzetion.
Construction dewatering discharges
under the general permit are generally
anticipated to be from areas of natural
and homogenous materials.
Construction excavations associated
with existing landfills, hazardous waste
disposal eites or the cleanup of
contaminated groundwater are entirely
outside the scope of this permit or. for
that matter, the general permit process.
Once pipelines and containment
vessels are constructed, It may be
necessary to test these vessels for
leakage and stiess prior to placing them
into final service regardless of the
material to be contained in the vessel or
pipeline. Water Is generally used to
“hydrostatically” test the system and
secure against Its failure while in
service.
Locally available water of relafively
high quality Is normally used for
hydrostatic testing. If a surface water
source Is used and the water Is returned
to the same source, essentially no
additional pollutants should be
introduced to the environment
However, if a groundwater source Is
used, the same considerations given for
produced water from coal-bed gns
production apply to these sources. If
chlorinated municipal water is used.
chlorine become. of major concern.
Originally. EPA considered Including
sand and gravel production activities
within the context of the general permit
Excavation of sand and gravel
construction materials needed for the
gas production activities will likely
occur In the area. Based on a
reevaluation of our information and on
comments by the State of New Mexico
on a preIünb vy draft of the general
permit. sand and gravel operations will
not be included under this general
permit. Although TDS contributions
from sand and gravel operations were
anticipated to be , rn,thnAI 1 quantifying
the TDS contribution from such sources
could uot be made. Further. sand and
gravel operations can often be operated
as “no discharge” facilities. In the event
that a discharge from a sand and gravel
operation Is necessary and appropriate.
a facility may apply for an Individual
permit 1 r .harge authorization.
EPA has sought prelb .iin ”y Input on
the requirements of the general permit
from a variety of Federal Agencuis. the
State of Colorado, the State of New
Mexico, the Colorado River Salinity
Forum. the Southern Ute Indian Thb
interested citfesun gruups . end Industry
representatives. The draft general
permit Incorporate. many of the
comments received from these parties as
well as attempts to respond to concern.
that were raised.
-------
Federal Register / Vol. 55, No. 191 / Tuesday, October 2. 1990 I Notices
40237
C. Coverage Under the Permit
Inclusion of each of the above
activities under a single NPDES General
Permit restricted to the geographical
confines of the Southern Ute Indian
Reservation appears to be a sensible
approach to effective environmental
regulation. The general permit provides
the Agency with a vehicle to review the
proposed discharges on a collective
basis rather than on an individual case-
by-case basis. As audi, the Agency can
more effectively use Its limited
resources to evaluate any cumulative
Impacts from the potential coal-bed
discharges. By their nature, general
permits are written to promote
“environmentally conservative”
requirements which push the application
of state-of-the-art technology upon
potential discharges. General permits do
not allow for variances for facilities
seeking less stringent requirements.
Facilities seeking authorization to
discharge under the general permit are
obligated to submit Information
demonstrating their ability to comply
with the general permit
EPA has reviewed the effect of
Executive Order 12291 on this proposed
general permit and has determined the
proposal not to be major under that
Order. This proposal Is subject to review
by the Office of Management and
Budget (O ffl) as required by the
Executive Order. Any comments from
0MB to EPA and any EPA responses to
those comments will be made available
for public Inspection at the U.S.
Environmental Protection Agency,
Compliance Branch, Water Management
Division. Denver Place. Suite 500, 999
18th Street, Denver, Colorado 80202—
E. Paperwork Reduction Act
EPA has reviewed the requirements
Imposed pn regulated facilities In these
draft general NPDES permits under the
Paperwork Reduction Act of 1980 44
U.S.C. 3501 et seq. The Information
collection requirements of these permits
have already been app vved by the
.Offlce of Management and Budget under
submissions made for the Clean Water
Act’s NPDES permit program.
F. The Regulatory Flexibility Act
After review of the facts presented In
the notice of Intent printed above. I
hereby certify, pursuant to the
provisions of 5 U.S.C. 605(b), that this
general permit will not have a
significant Impact on a substantial
number of small entities. Moreover, the
permit reduces the a.imlnintrative
burden on regulated sources.
Jamer J. Schsmr.
RegioaoiAdminiabator. Region Viii.
IFR Doe. 99- 184 Filed 10-1-0 4S
FEDERAL LABOR RELATIONS
AUTHORITY
Privacy Act of 1974; EstablIshment of
a New System of Records
AGENCY: Federal Labor Relations
Authority (FLRA).
acnoie Advance notice with request for
comments: publication of proposed
system notice for a new system of
records.
SUMMARY: The FLRA Is establishing a
new system of records under the Privacy
Act to consist of the investigatory files
of the FLRA’s Office of the Inspector
General (OIG). The publication of this
proposed system notice is one of the
steps required to establish the new
system. The new system of records
facilitates the OIG’s ability to collect.
maintain, use, and disclose information
pertAInIng to individuals, thus helping to
ensure that the OIG may efficiently and
effectively perform Its investigations
and other authorized duties and
activities.
DAIE Comments must be received on
or before November 1, 1990. Unless
changes are made In response to
comments received from the public, this
action Is effective upon final publication
of the amendment the FLRA’s Privacy
Act regulations, 5 CFR part 2412. set
forth in proposed form elsewhere in
today’s issue of the Federal Register.
ADDRUIU Forward comments to the
Office of the Solicitor. Federal Labor
Relations AuthorIty, 500 C Street, SW..
Washington. DC 2042s.
FOR FURTHER INFORMATION CONTACT
Paul D. Miller, Inspector General. FLRA,
500 C Street, SW., Washington. DC
20424. (202) 382-600L
mIPFUMINTARY nwoRma ’noic As
required by U.S.C 552a(e)(4) and (11),
the FLRA is notifying the public of the
establishment of a new system of
records in the FLRA’s Office of the
Inspector General (OIG). This system Is
being established as part of the formal
creation of an OIG within the FLRA by
action dated March 24. 1989. and the
appointment of the FLRA’s Inspector
General on September 25, 1989, under
the authority of the 1988 amendments to
the Inspector General Act of 1978 . See
Public Law No. 100-504. amending
Public Law No. 95-452 5 U.S.C. app. at
1184(1988). Among the O!G’s statutory
duties are the prevention and detection
of fraud, waste, end abuse relating to
the agency’s programs and operations.
through the conduct of audits and
investigations and the preparation of
reports to the agency’s Chairman and to
Congress.
The system of records being
established consists of Investigatory
files compiled and maintained by the
01G. Due to the law enforcement nature
of these records, the proposed system is
exempt from certain provisions of the
Privacy Act, including disclosure to
Individuals who are subjects of records
In system. SeeS U.S.C. 552a(J)(2) and
(k)(2). The exempt status of the system
Is the subject of a companion notice of
proposed ru1em kfng to amend the
FLRA’s Privacy Act regulations. 5 CFR
part 2412. That notice Is published
elsewhere In today’. issue of the Federal
Register. Pursuant to 5 U.S.C 552a(r)
and 0MB Circular No. A-iso. the FLRA
has submitted Its report on the proposed
establishment of this system of records
to both Houses of Congress and to 0MB.
Accordingly. the FLRA proposes to
establish the following system of
records:
FLRA/Ot0-1
FLRA/OIG-1—.Offlce of the Inspector
Ceneral Investigative Files.
LOCATIOtO
Office of the Inspector General.
Federal Labor Relations Authority. 500
C Street, SW, Washington. DC 20424.
caTseom es o istoivwu*u covasan arms
•Y IE
Sub jects of OIG Investigations
relating to the programs and operations
of the Federal Labor Relations
Authority. Subject Individuals include.
but are not limited to. current and
former employees: contractors.
subcontractors, their agents or
employees: and others whose actions
affect the FLRA, Its programs and
operations.
CAflSORIER cc ercoons mu sve am
— Correspondence relating to the
Investigatlorn internal staff memoranda:
copies of subpoenas issued during the
Investigation, affidavits. statements
from withesses. transcripts of testimony
taken In the investigation and
accompanying exhibits: documents.
records, or copies obtained during the
Investlgation interview notes,
Investigative notes, staff working
apers, draft materials, and other
-------
I.
30082 Federal Register / Vol. 55. No. 142 I Tuesday. July 24. 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Patti 122 and 403
(EN-FRL-36 51—7l
RIN 2040-U9 5
EPA Administered Permit Programs;
the National Pollutant Discharge
Elimination System; General
Pretreatment Regulations for Existing
and New Sources; Regulations To
Enhance Control of Toxic Pollutant
and Hazardous Waste Dischargee to
Publicly Owned Treatment Worics
AQENCY Environmental Protection
Agency (EPA).
ACTIOIC Final rule.
regulation La Issued at 1p.m. en August
z.1gso. .. - -
ADDRE3SE Questions on to fay’b rule oF
a technical nature should be adthesse
to: Marilyn Goode. Permits D sron.
(EN—336). Environmental Pro ctlon
Agency. 401 M Street SW.. Wu tocr,.
DC 20480. The record for this.
rulemaking. including all publr .
comments received on the prepoufJr
available for inspection and cap i a
the EPA Public Information R ....&
Unit, room 2402. 401 M Street SW ’..
Washington. DC 20480. A reasonabl fèa
may be charged for copying. -
FOR FURThER INFORMATtON C05RAC .
Marilyn Goode, Permits DMs1em. -
338). Environmental ProtectinmAgency.
401 M Street SW.. Washingtuz DC 3818
(202)475- 052L
IUPFtEMIIfTARY INPORI TtOIL -
Lliackground ..
U I. Executive Order 12201
LV. Regulatory flexibility Analyiis
V. Paperwork Reduction Act
L Background
The regulatory changes promulgated
foday are intended to improve control of
hazardous wastes introduced into
POtWs under the Domestic Sewage
Exclusion. The exclusion, established by
Cbngress In SectIon 1004(27) of the
Resource Conservation and Recovery
Act (RCRA). provides that solid or
dissolved material In domestic sewage
not solid waste as defined In RCRA. A
corollary Is that such material cannot be
considered a hazardous waste for
pt ses of RCRA.
The exclusion applies to domestic
rewage as well as mixture. of domestic
rewage and other wastes that pass
through a sewer system to a publicly.
owned treatment works (POTW) for
treatment (see 40 CFR 201.4(a)(lfl. The
exclusion thus covers Industrial wastes
discharged to POTW sewers containing
dbmestic sewage, even If these wastes
would be considered hazardous If
disposed of by other means. -
One effect of the exclusion Is that
dustria1 facilities which generate
hazardous wastes and discharge such
wastes to s..... . containing domestic
sewage are not subject to RCRA
manifest requirements for the transport
thoaz excluded wastes. However.
depending on the circumstances, such
Indusnial users may be required to -
comply with certain other RCRA
requirements that apply to generators of
hazardous wastes. Some of these
requirements are (1) Determining
whether a waste is hazardous (40 CFR
202.11): (2) obtaining an EPA
Identification number for hazardous
wastes not discharged to the sewer (40
( ‘R 202.12); (3) accumulatIon of
hazardous wastes (40 CFR 282.34): (4)
recordkeeplng (40 R 282.40(c) and
(4Th and (5) reporting (40 Q ’R 282.43).
dditlona1 requirements will usually
apply If the wastes are treated or stored
psica to. discharge to a POTW (see 40
pert 204).
Anather effect of the Do iestic
Sewage Exclusion Is that POTWs
ceivthg mixtures of hazardous waste
and domestic sewage through the sewer
system are not deemed to have received
hazardous wastes. Therefore, such
POTWs are not required to meet the
RCRA requirements of 40 CFR part 204
r treating, storing, and disposing of
the emstes. However, hazardous
wastes delivered directly to a POTW by
.mIl. or dedicated pipe are not
covered by the Domestic Sewage
IUMMARY On November 23. 1988 (53 FR
47832). EPA proposed to revise the
General Pretreatment and National
Pollutant Discharge Elimination System
regulations (40 CFR parts 122 and 403) . RndalO
pursuant to section 3018(b) of the
Resource Conservation and Recovery ‘ SpodflC Discharge Prohibition.
Act (RCRA) and sections 307(b) and 1 W ”Y and Explosivity
402(b)(8) of the Clean Water Act (CWA). 2. ReactIvity and Fume Toxicity’ -
The proposed regulations were. - .. 3. R A TOXicity -
d ’eveloped In accordance with EPA’s C w51IitT
Report to Cóflgzeas onthe Disdroxge of 5.011 and Crease . - , -
- s SelvuttWaems
Hozar , -Wastes to PubhiJy Owned-. - . Ild Batch DbCha s (.l )” -.
Tteatment Wo,*s (EPA153O . ..SW-88- C Trucked and Hauled Wastes
004. hereinafter referred to as “the
a Notification Requirements
Domestic Sewage Studr or “the , MchanIsn. ,
Study”). Today the Agency I . ,.. C•.
promulgating a finallrth tmimpremen, F. lmplementlhg tRe General PrchlbW -
many of the proposed revinions. ..
EPA su ed .thaSbidy to ( flVe3 5 Tmi ty .Bued Permit Limits ‘-: . -
in responu’tosectioa .30’l8( ) of R 2. Control _ -
direvtrdthe Agency tU 3. Control of Indirect Diachargetan
prepare a report for Cbn ere onwastes - nzed WaMtrTrestars
discharged through sewer systems to - 4..Catqorlmi Standards for Other .....
publicly owned tmatmantworks . - . - -
(PO.TWs)that are exempt from . . c esrofCategoncaI Standards
regulation under RCRA as a result oftha. - 1. Revisions Limits -
Domestic Sewage Exdus1on TheStudy z Uisp . .ctios and Sampling of 5lm riR .l ;
examined the nature and sources of industrial Users by p , . -
hazardous wastes discharged to 3. DefinitIon of Significant IndusniaWuer -
POTWs. measured the effectiveness of . Enforcement Response Plans fb i POtWs
EPA’. provams In dealing with such 5. Definition of Significant VioI 1lhe
discharges. and Identified for Agency - a Reporting Requirements for srwuBam c
consideration a number of possible 1ndus iaI Users. -
Initiat ives that could ih.nce control of H. Miscellaneous Amendments
hazardous wastes entering POTWs, I. Lees! Limits Development an&
Today’s final rule Is promulgated Enforcement
pursuant to section 3018(b) of ECRA. 2. A and Stat. Enforcement *eOoa
This section dIrects the Administrator to 3. National Pretreatment Standauiin_
revise existing regulations and Categorical Standards -
promulgate additional regulations as are 4. P01W Pretreatment Program -
necessary to assure that hazardous Requheinents implementatium -
wastes discharged to POTWs are 5 Development and Submluloasf NPD
adequately controlled to protect human Stale Pretreatment Program. — . . . . . -
health and the environment, S. Administrative Penalties Aga .
D*n This regulation shall become industrial Users — -
effective on August 23.1990. For 7. ProVisions Governing Fraud
purposes of Judicial review. ti !, Statements
-------
Federal Register F VoL 55, No. 142 / Tuesday , July24, 1990 I Rules and Regulations
30083
Exclusion. Industries sending their
wastes to POiWs In this manner are not
covered by the exclusion, and P01W.
receiving these wastes are subject to
regulation under the RCRA permit-by-
rule (see 40 CFR 270.60(c)).
In 198k Congress enacted the.
hazardous and Solid Waste
Amendments to ECRA. Section 246of
the Amendments created a new section
3018(a) of RCRA. requiring EPA to
prepare:
‘‘ a report to the Congress eoncarning
those substances Identified or listed under
section 3001 whIch are not regulated wider
this subtitl, by reason of the exclusionfor
mixtwes of domestic sewage and other
wastes that pass through a sewer system to a
piblicly owned vestment works. Such report
shall in 4 I . the types, size and number .f
generator, which dispose of substances In
thi, manner, the types and quantIties
disposed of In this manner, and the
Identification of significant generators,
wastes, and waste constituents not regulated
wider existing Federal law or regulated In a
sufficient to protect human health
and the envIronment.
EPA submitted its report (the Study)
to Congress on February 7. 1986. In
performing the Study, the Agency
reviewed Information on 160,000 waste
discbargers from 47 industrial categories
and the residential sector. Because of
the pature c! Se available data sources,
the Study provided estimates for the
discharge of the specific constituents of
hazardous wastes (e.g.. beuzene.
acetone. etc.) rather than estimates for
hazardous wastes as they are more
generally defined under RCM (i.e..
“characteristic” wastes such as Ignitable
or reactive wastes, or “listed” wastes
such as spent solvents, electroplating
baths, etc.). The Study also provided
more extensive estimates for those
hazardous constituents which are also
CWA priority pollutants. The CWA
priority poliutant list was originally
developed as part of a settlement
agreement between the Natural
Resources Defense Council (NRDC) and
EPA (NRDC v. Tirzth, Nos. 2153-73,75-
172,75-1698,75-1267 (D.D.C. June 6,
1975)). This agreement required the
Agency to promulgate technology-based
standards for 65 compounds or daises
of compounds. Congress then
Incorporated this list of toxic pollutants
as part of the 1977 amendments to the
CWA. From the list of compounds or
dasses of compounds. EPA later
developed a list of 126 individual
priority pollutants (see Appendix A to
40 CFR part 423).
EPA was able to give estimates In the
Study on the types, sources, and
quantities of many hazardous
constituents discharged to POTWs. The
Study provided Information on
Industrial categories ranging from large
hazardous waste generators (such as the
organic chemicals industry) to the
smaller generators (such as laundries
and motor vehicle services). The Study
also examined the fate of hazardous
constituents once they are discharged to
P01W collection and treatment systems
and discussed the potential for
environmental effects resulting from the
discharge of these constituents after
treatment by P01W.. The Study then
discussed the effectiveness of existing
government controls In dealing with
these discharges, particularly federal
and local pretreatment programs and
categorical pretreatment standards
applicable to Industrial users of POTVi’s.
After considering all the pertinent
data. EPA concluded that the Domestic
Sewage Exclusion should be retained at
the present time. The Study found that
CWA authorities are generally the best
way to control hazardous waste
discharges to P01W.. However, the
Study also recommended that these
authorities should be employed more
- broadly and effectively to regulate
hazardous waste discharges. The Study
Identified for Agency consideration a
number of possible Initiatives with a
potential for enhancing CWA controls
on hazardous wastes entering POTWs.
The legislative history of section 3018
of RCRA displays Congress’
understanding that the appropriateness
of the Domestic Sewage Exclusion
depends largely on an effective
pretreatment program under the CWA.
The pretreatment program (mandated by
sections 307(b) and 402 (b)(8) of the
CWA) provides that Industrial users
must pretreat pollutants discharged to
POTWs to prevent the discharge of
pollutants that would inlerfere with or
pass through the treatment works, or
that would be otherwise incompatible
with the P01W .
As a follow-up to the Domestic
Sewage Study, section 3018(b) of RCRA
requires the Mmlnistrator to revise
existing regulations and to promulgate
such additional regulations as are
necessary to assure that hazardous
wastes discharged to POTWs are
adequately controlled to protect human
health and the environment These
regulations are to be promulgated
pursuant to subtitle C of RCRA or any
other authority of the Administrator.
including sectIon 307 of the CWA.
A.. a first step toward promulgating
the regulations called for by section
3018(b), the Agency published an
Advance Notice of Proposed
• Rulemaking (ANPR) in the Federal
Register on August 22, 1986 (51 FR
30166). In the ANPR. EPA made
pr.IIth ry suggestions for regulatory
changes, which, If promulgated, would
Improve the control of hazardous wastes
discharged to P01W.. The Agency also
held three public meetings In
Washington. DC. Chicago. and San
Francisco to solicit additional comments
on the ANPR.
The comments received on the ANPR
were summarised and discussed in a
Federal Register notice published on
June 22, 1987 (52 FR 23477). That notice
also described many of the activities
which EPA is carrying out to address the
recommendations of the Study. Most
commenters suggested ways to make the
pretreatment program more effective In
contmlllng hazardous wastes
discharged to municipal wastewater
treatment plants. On November 23, 1888
(53 FR 47632). the Agency proposed
regulatory changes In response to the
recommendations of the Study and the
comments received on the ANPR.
EPA believes that today’s rule will
satisfy the Congressional directive In
section 3018(b) of RCBA that EPA revise
existing regulations and promulgate - -
such additional regulations “as are . -
necessary to assure that (hazardous
wastes) which pass through a sewer
system to a publicly owned treatment
works are adequately controlled to
protect human health and the
envtrccmenr. These rules are desigeed
to assure P01W complIance with water
quality standards, Including narrative
water quality standards preventing the
discharge of toxic materials In toxic
amounts. and to provide necessary
Information and regulatory tools to
POI’Ws to address problems that are
Identified.
State. and EPA have Invested a great
deal of time and resources in developing
water quality standards that provide a
benchmark for determining whether
harmful concentrations of pollutants
exist In the nations waters, Today’s
rules Include Important new information
collection requirements that will inform
PO’I’Ws and NPDES permit writers of
the likelihood that P01W discharges
will violate water quality standards, and
also provides new Information and
regulatory tools with respect to
Industrial user discharges that may be
causing water quality violations through
the POTW effluent.
Of particular Importance to
controlling hazardous waste discharges
to P0TWs are the following provisions
of today’s rule. First, under revisions to
40 CFR part 122, PO1W5 meeting
specified criteria will be required to test
their eMuent for toxicity which may be
caused by industrial user discharges of
hazardous wastes or other toxic
-------
30084 Federal Regtater j Vol. 5S No. 1421 Tuesday. uIy 24 9Q I Rnles and . Rguklfoca
substances. The results of this testh2g
may indicate that POTWs are violating.
water quality standard ,. thereby
endangering. human health and tire
environment. Depending on the esults
of this testing, P01W. way receive new
or more stringent p mit limits regarding
discharges of toxic pollutants. l order
to comply wLth the revised permit limIt..
POtWi may either alter their operations
or Impose more suingeut local limits. ow
Industrial user discharge. of hazardous
wastes. Imposition of such new or more
stringent local limits will be faaiullated
by another requirement of today’s ruler
the reqwi i it In 40 CFR that
Industrial users notify P01W., States
and EPA of.Ihe nature and mass of
ECRA hazardous wastes that they
introduce Into the sewers. in addition,
undes toda y. revisions to 40 R
122.21 (J3(2) , P0I’Ws arust evaluate in.
writing, at the same time a. they submit
the data homto d tytesting to them
permit-Issuing autharfty. the need to’
revise locaL Ii,& This new provs(on.
will allow the NPDES permit water to
review the PO1Ws rationale for not
Imposing wore stringent local limit.
when the results of toxidty tasting
Indicate that such new limits may be
necessary taase attainmaid of . .L
quality standard.. Today’s mica. will.
ban the infroduettoit to P01W. at
wastes that exhibit the RCRA. . -
th riatieoLiguiteblflfy . The basis
necessary to prevent s loatoualm
sewersysImu that could dlsrupLPOTW
operations and lead. in releases at -
hazardous wastes andoiherta,dcar
hazardous substances in the sewers
“Midnight dumping” of hazardous
wastes to sewers should be
substantially curtailed through the ban
Irs 40 CPR 403:5(b)(8) on the introduction.
of trucked or hauled wastes to P01W.
except at discharge points Identified for
such use by the POTW. Finally, through
general Improvements in the
pretreatment proçem provided by’ -
todays rule, such a. Isdusutal nserslbg.
control plans. permits fas ’slgrnfleanl
Industrial users ,, and.ROTW
.oforcementrmpons.p 1 em. fl
expects- a signifr’ ” enhsncemants .
the coutral of hazardous wa.tesandl
other toxic and hanzdoars substirms,
Introduced to P01W.. The Agency
notes that all pretreatment pro
changes reçdred by today’. rule muir
be incorporated InPOTWa’ NPD .
permits upon ieluuancs.
Whila EPA. believes that today’, nil.
satlsfles tha requirement.. of section.
3Q1 b). EPA Intends Ia carefully review’
the effect of tadq’arul. mid promulgate
In the f” . any addiffonal. regulations’
that ,.vn 1
improve control over faazurdoarwuta
andotherfraduathal user discharges Is’
P01W.. In addition. EPA has atway . .
reccgmmd. that additional ontegoricat
pretreatment standards will form an.
important. component of effective
controls over pollutants discharged in.
POTWs. On January 2. 1590. EPA
recently Issued a pies wider section
304(m) of the Clean Warer Act under
which It will develop regulation, for tour
new tenology-besedcategorical
pretreatment standards and wilYrevls.
three sxlsthigstundards (55 FR8O) The
categories of discharger, selected for lbs
development of new and revised
pretreatment standard, discharge large-
amounts of toxic and nonconventlanaj!
pollutants to P01W.. The Dome.tie
Sewage Study was in important source
of date for tho ’sectlon 304(intplaw
While EPA is not obligated to base
development of such techaofo base&
categorical, standards on findings
relating tepratection of human health or
the environment EPA befleves that
pollutant discharge reductions achieved
through Impleinentatloir of irew’
categorical standards will advance the
protection oThuman health and.thi
cnvfr w ent
It should be noted that today’) role
does not directly address potential sfr
emission. from thu wutewateg
collection systeuror P0Th . . EPAs
Office of Air and Radiation is.evaluatln&
potential air emission. from tile
collection and treatment of wasfewater
discharged to POTWs and plans to
address these. air emissions under the
Clean AfrAct
IL RevIsions
The. Agency received comments in.
response to Its proposal from.
approximately one fiund ed’ and st ci j
Individuals and groups. AU significant
comments and’ the Agency’s responses.
to the.. comments are discussed below.
The Agency. responses to mfnnr
comments are part of the recorita this
rulemaking and are avallabis far
Inspection at tile EPA Public Iblormati ’oa
Reference UhIL Roem.2t02.4 (Stheet
SW.. Washington. DC 20110..
A. Specific D schoiy. Prvhibidiina
1. Ignitabiflty and Explosiufli
a. Pzvpeaeic1w gz The sp.mfic
prohibitions of tile general pretreatment
regulations (4OO ’R 490JbThimbIdtha
dIscharge of certain typeso matertala
which map harer POTW systemeby
creating firs as explosion hazards.
causing corrosive structural damage,
ohs uctlnf ffsw. or aeatiflg, hear Ir a
P01W hifitiant which bd.bfWbIoIogisal’
activity. me ftug ot 2
discussed expanding these prohibitions
In. forbad the discharge if characteristic-
wastes under RCRA (1.... wastes that
are defined a, hazardous’under4ocTh
part 281. subpart Cit they possess.the.
characteristic, of ignflabihty
corrosivity. reactivity. or tax1cItyJ This
would provide greater specrflcitytb the
largely narrative structure of the
existing prohibitions in the pretresOneut
program..
With respect to Ignitability, the
Indirect dlacharge.of Ignitable materials
has caused many documented cases of
explosions cnd.flres tn.POIW collection
systems. The.. fires and explosions’
often happen near the point ofhidirecr
discharge. when the- temperatures
(Oormally above ambient)’ promote
evaporation afignitable wutes.Intn. a.
relatively fixed volum, of as forming.
vapors which- are’ sot diapersedi La Ss’ the
atmosphere anvapors cash..
Ignited by-visions sowees, induding
electric spshs. Mctlenal hear. ho
surf ices m ach awmmthal. . . ..
by the sun, or chem lcalheatp .wo.kd
Thesperifle dIscharge prohlbltlons.(40
GR 402.5(b)(1J)akeady piohlbitth.
dIr v to ww if material.
em ting all ,, or.xpros hwnfl-
Howeuz tide nametive psevIsIns
specthdly..As ase. ,Jt , the prehibMom
has limited ‘ - sss as.a preventiVe
requizementThas’ -’--’ fsdearly- -
vlolated.lf tharewesan sc’nuli or
explosion in dresewea orif air indu of
user WoI a IemIImitdestgnrdin
Implement. lbs prohibition,. .: -
Tb provide for better implimentatios
of the ,a provisions. EPA proposed Is’
revise 40CFK4O3.5(b) to prohibIt the.
Introduction Into sewer systema’of
pollutants which weate a fire’ or
explosion hazard fo4hcPOT
including butw*ftmited-to polibtante
with acIo.ed cup ffashpolnt oftear than.
140 degreesFabienhelt (sixty degree,
Centlgradh) as deterrnlnedby aPensily-
Mutes. Cc.edCup -Te ,te , uslhg tile’
test method specified inASfl4 stanrfar4
D-e3-rga,D. -Io. c ,rfletafla.b
Closed Cup Tester using lb. taut method
-apo Otiñ ASTM ndardD4 #&
The Agency ala. p dto .re, se4tp
GE 403 .5(b$.td prohthfl. lb. df.c1aarge
pollutante which uuae an exceedeoce -
of 59% of the Iower-explo.Fv, limit (ERR?
stanypolntw(th i nth .P0 ’ lW •. -
A flasipoilaf Is the-minimum - -
temperature at which vapor combustion
will spread awe,’ from Its sonics of’
ignition. Below the flashpainr
temperature. eombutleo’of thevspor
Immediately above-the liquid will e er
not occur at .1 ?. orwdI’ . . 1 -oiJy ’at the
point of I dtl.n. A 14e degree Farenbeit
_—r———— -—————— ———————J
-------
Federal Register / Vol. 55, No. 142 / Tuesday. July 24, 1990 Rules and Regulations
30085
ffashpoint standard has been used for
several years under RCRA to identify
liquid wastas that pose, fire bawd.
EPA proposed a similar standard far use
na sew prohibited discharge standard
In the pretreatment program.
The lower exploalvs limit was
proposed to deal with the problems of
mixing and dilution to th. sewer. The
LEL of an organic vapor is the minfrnum
crrni 0ntratIon required to form a
fluimm*ble or explosive vapor to air
mIxture The La Is measured with an
expLn liniiter. an instrument that a
commonly used by P01W technIcians to
protect against combustible vapors In
sewers.
In the preamble of the proposed rule.
the Agency solicited comments on (1)
Whether or not the flashpolnt
prohibition would be reasonable. unduly
stringent or Insufficiently protective of
POTWs under worst case conditions
and whether It would sufficiently take
Into acc .t the effects of effluent
mixing or dilution In a P01W system
(2) whether another technically feasible
and effective alternative exists: (3)
whether the regulation should exempt
aqueous solutions with lens than 24%
alcohol by volume from the proposed
flaahpolnt prohibitloe: (4) whether the
La prohibition is practical, either alone
or In combination with the fl hpotat
problbltioe: (5) whether it Is too difficult
to link en LEt. exceedence to specific
dlschazgee: (0) whether vapor phase
monitoring (sometime. needed to
determine the cause of any exceedence )
Is too difficult or too expensive: and ( )
whether the llashpolnt approach or the
LEt. approach would be sufficient alone
to prevent flies and explosions at
TWs.
b . Rerpwiu to oununente. Most
commenturs supported the propo.ai to
adopt limits that would add specificity
to the eidsdng nanstIv, probibftloe on
Ignitable and explosive discharge..
Ho .,ir, other commentee. believed
that existing local ordinance, and the
existing ipocific prohibition wars
sufficient and that the Ub$lossd
regulatory r .L....enta would impose
excessive burdens and costs en both
municipalitie, and industrial name.
A majority of the “-“
supported the flashpolnt prohibition,
either alone or in omj mrtion with the
LEt. epçarcath. These .c.——-- ’tuo stated
that the flasbpolnt prohibitions would
pruvlda Control Authoritie, with a
quantifiable standard against which to
measure compliance. Other c ”- ’”ters
believed that because the flaabpaint
limit Is used wider RCRA to defini
which wastes exhibit the characteristic
of ignltabilhty It would have greater
credibility end enforceability than other
approaches. Many con imenters stated
that the proposed flashpoint test would
be inexpensive and easy to implement.
EPA agrees with those coatmenters
who supported the proposed flashpomt
prohibition. Tb. Agency believes that
the established Cashpoiot method Is a
good measure of flit and explosion
hazard and wlfl thus be effective In
preventing interference with P01W
operations. The flashpolnt prohibition
will also add specificity to the existing
narrative prohibitions. thus facilitating
effective prevention and enforcement.
The dosed cup flashpolnt test methods
are also relatively simple and
Inexpensive. For these reasons, EPA Is
today revIsing 40 4 .5(bl(1) to
prohibit the Introduction to P01Ws of
pollutants which eate a fire or
explosion hazard In the P01W,
Including, but not limited to,
wastestreama with a dosed cup
flashpolat of less than 140 degrees
Fahrenheit (sixty degrees Centigrade).
Many commenters pointed out that
the language used In the proposed
regulation was not consistent wIth that
used In the preamble. The proposed
regulation stated that the flaahpolnt
prohibition applies to “pollutants,”
which could be interpreted to apply both
to specific constituents of the waste and
to the entire waste mb tta generated by
Indirect discharges. The preamble
discussion. clearly indicated
EPA’s intent that the fluhpolnt
prohibition would apply to “wastewuter
discharge” and not wutewa
constituents of the entire discharge or
combined waeteetreaa. To clarify the
regulatory language, todays final rule
has been modified to read,
“ ‘ Pollutants which aestoaflreor
explosion hazard In the P01W,
Including but not limited to,
r.vrtestieaois with a dosed cup
flasbpolat of less than 140 degree,
FahrenheIt (sixty degrees
Centlpade)’ ___
Some comm-’ter, expressed
confaslon as to the exact point where
the flashpolnt should be measured. The
modification made to the final rule
(discussed above) resolves any possible
ambiguity regarding the locution where
the flashpolnl should be measured.
Because the D.sbpolnt prohibition
applies to the Industrial aser’s
wastasbeam, lb. measurement should
be taken at th. point of indlred
discharge.
Although most commeuters approved
of the flashpolnt prohibition, some
expressed concerns about Its
limitations. One canwtentur stated that
a majority of 1Ws do not bar.
Industrial aseri that would warrant
closed cup testing. Mother coromenter
said that flaibpoiat was tot. good
Indication of Si, and explosion hazard
because wastewatm should not contain
enough hazardous constituents to be
flammable. In response. the Agency
believes that the flashpoint prohibition
Is relevant because most POTWu do
have at leut a few industrial users and
even one Industrial user may sometimes
have the potential to cause fire or
explosion hazards In a P01W. Also the
Study found that hazardous cons Wuents
are found In many different types of
wastestreams. EPA believes that the
flasbpolnt Is an accurate Indicator of fire
and explosion hazard caused by the
presence of toxic and hazardous
pollutants in wutestr”””'
Several commenters aigued that the
discussion on the use of existing
literature Cashpoint value, In the
preamble was not applicable to the vast
majority of wastes. These literature
values are oniy available for discharges
of “pure” substances, which are not
common.
The Agency suggested the use of
availabl, literature values far those
“pure” substancea believed present In a
wastestr,ain. EPA believes that if the
fla,bpolnt of. pure substance,, or the
flaabpobit of each hoowu substance in a
mix”we , Is above 140 degree . P. then the
Iluhpolnt of the wastestream omf 4ith g
the substance or ,‘ “-‘ ( w 11y
diluted preda th . IIy with water)
would imually also be above the limit. If
theinduatriel u s e r I s e n. of thIs
cwrelation, th. fla.hrIl4tla test should be
performed on its wuta ea or the
industrial user should consult the
Control Authority.
Several c ”'”'—’teri stated that
because Industrial wastes are usually
variable, testing would Ideally have to
be continuous. Since ib m are no
continuous monitoring methods
evuilabli., the.. ““ ‘“tsrs feared that
th, discharger would be faced with
NM 4ug the entire discharge until a
flashpotot determination meld be made.
Atthlspo t otUthawui ud ldnotpaus
th.tsst,ltwuuldthenbavetobs
disposed of wider R A. although It
could be sufficiently treat .d through the
P01W. A law *—wrtare had woc rna
about sampling msth iflL’gies, and one
mid that sampling
methodologie, should be ipesifled to
addition to tact methods. Another
comm”' ’ said that the reliability of
the closed cup test for wustewa was
not good.
EPA does not believe that moat
wastestreams are sufficiently variable
to require continuous monItoring.
However. If an Industrial user’s
wasteatream Is determined to be
-------
30086 Federal Register / Vol. 55. No. 142 I Tuesday, July 24. 1990 I Rules and Regulations
extremely variable, the industrial user
may wish to conduct frequent
monitoring if necessary to avoid
violating today’s rule. When Industrial
users are uncertain whether their
wastestream can be adequately
characterized by Intermittent
monitoring, they should consult the
Control Authority for monitoring
instructions. If monitoring Indicates
periodic violations of the prohibition.
industrial users may wish to take
appropriate measures to pretreat their
wastes so that they could be confident
that the discharges would not violate the
flashpotnt prohibition. This would
prevent industrial users, from the need to
retain their wastes pending flashpoint
analysis. With respect to sampling
methodologies, grab samples taken at
the point prior to discharge are generally
the appropriate methodology. However.
the number of grab samples which are
needed to characterize a wastestream
will vary. For most wastestrearns, one
grab sample may be sufficient. For
variable wastestreams. a series of grab
samples may be appropriate. In order
for a waste to meet today’s standard. no
single grab sample of the waste may be
below the 140 degree flashpoint limit.
With respect to reliability of the closed
cup method, this method has long been
In use under RCRA to measure the:
Ignitability of liquid wastes, with few
problems brought to EPA’s attention.
The Agency sees no reason why the
method would not be equally useful on
wastestreams discharged to POTW5. In
support of this view, many commenters
supported the test because of its
purported reliability.
Some commenters suggested changing
either the flashpoint or LEt. limits, and
one commenter stated that the
flashpoint approach alone could result
in unnecessary regulation in
circumstances where In-sewer dilution
would effectively eliminate any
hazardous conditions. One commenter
urged that the proposed revision be
made less stringent by prohibiting only
those discharges with $ flashpolnt of
less than 100 degrees P. This commenter
noted that EPA had acknowledged that
140 degrees F Is considerably
expected wastewater temperatures. The
comrnenter concluded that prohibiting
discharges with a flashpolnt near this
temperature (140 degrees F) would
therefore be overly protective. Mother
commenter urged EPA to allow case-by-
case variances from the prohibition
where it can be shown that the waste
will be rendered non-ignitable upon
mixture in the sewer system, and still
another suggested that the Agency.
consider regional variations In
fiashpoints which would take into
account differing temperatures in
different parts of the United States.
The Agency is not convinced that
prohibiting discharges with a flashpoint
of less than 100 degrees F would be
sufficiently protective against fires and
explosions. Although the comrnenter
stated that such a flashpoint would
better reflect the temperatures
encountered In most sewer systems
under actual conditions. the commenter
provided no data in support of this
argument Although it Is true that most
wastewater temperatures are below 140
degrees F. many industrial users
discharge very hot wastestrearns to
sewers, with wastewater temperatures
ranging from 120 to 212 degrees F (e.g.,
industrial and commercial laundries, oil
refineries, food processors, textile
manufacturers, power generating
facilities, and any facility discharging
boiler blowdown). Temperatures of
wastewater in the sewer may therefore
reach or exceed 140 degrees F for brief
periods of Urns near the point of a very
hot discharge. In addition, some sewer
use ordinances prohibit the discharge of
wastewater hotter than 150 degree. F,
which indicates that wastewaters may
reach that temperature. Although such
discharges are eventually diluted with
cooler water in the sewer, combustion
could be sustained near the point of
discharge lithe sewer wutewater
reached or exceeded 140 degrees F. a
wastestream with a flashpoint below
140 degrees F were discharged. and a
source of Ignition (such a friction spark
or a lighted cigarette) were present. For
this reason. EPA does not agree that In-
sewer dilution always eliminates
hazardous conditions, or that a
flaehpoint of 140 degrees F is
unnecessarily stringent With respect to
case-by.case variances from the
flashpolnt prohibition. the Agency
believes that the largest determinant of
sewer temperature at the point of
industrial discharge Is the temperature
of the industrial wastewaters
discharged. rather than the temperatures
prevailing outside of the sewer. EPA has
decided not to allow case-by-case
variances based on ability of the waste
tn be’aeufralized after mixture In the
sewer because such variances would -
not protect against explosions that may
occur prior to such mixing. POTWs may
establish more stringent limits than
those promulgated today at their
discretion.
With respect to the current exclusion
under RCRA (40 CFR 261.21(a)(1J) from
the ignltability characteristic for
aqueous solutions containing less than
24 percent alcohol by volume, some
commertters supported extending the
exemption to the proposed flashpoint
prohibition. indicating that such
solutions are quite soluble, readily
diluted. effectively treated by POTWi,
and pose little threat to POTWa. One
cominenter stated that such solutions
could flash but would not sustain
combustion, but acknowledged that the
ability to flash is connected to
explosiveness. This conimenter believed
that deficiencies in operating practices
and equipment often accounted for
explosions. Other commenters did not
support such an exemption. One
commenter stated that even though such
solutions may not be able to sustain
combustion because of their high water
content, the more critical issue for
substances discharged to sewer lines is
the ability of the vopot above the
aqueous solution to sustain combustion.
After evaluating this Issue. EPA has
concluded that an exemption from the
flashpoint prohibition for aqueous
solutions containing less than 24 percent
alcohol by volume is not appropriate.
POTW collection systems are an Ideal
environment for generation of
flammable/Ignitable atmospheresi -
Mirdm*Iafr interchange within
collection systems ensures that ignitable
vapors once formed cannot easily be
dispersed. Prninulgation of the
exemption would allow the discharge to
POTWs of wutewaters otherwise
falling the flashpolnt test. For example,
a flashpoint of 140 degrees F . , -
corresponds to an aqueous solution
containing only 0 percent ethyl alcohol’
by volume; an aqueous solution
containIng 24 percent ethyl alcohol by
volume would have a flashpolnt of 90
degrees. well below the flashpolnt
specified in today’s rule. Other allowed
discharges would Include potentially
flammable mixtures containing methyl
alcohol and lsopropyl alcohoL The
Agency believes that allowing an
exemption from the flashpoint
prohibition for aqueous solutions
containing less than 24 percent alcohol
by volume would not sufficiently protect
POTWs, and Is not promulgating such
an exemption in today’s rule. The ‘-.
Agency agrees that deficiencies In’
operating practices and equipment may
often be responsible for exploslonL and’
encourages industrial users to employ:.-:
the best methods available to ensure
compliance with today’s prohibition.
One commenter noted that many’
POTW5 use a dosed-cup Tagliabus test
to determine flammability, and
suggested that EPA should consider
adding It to its list of dosed cup testers.
The Agency agrees and notes that 40
CFR 201.Z1(a)(aJ, which specifies test’
-------
Federal Register / Vol. 55, No. 142 / Tuesday. July 24. 1990 / Rules and Regulations
30087
methods for the liquid lgnltabillty
characteristic. allows the use of
equivalent test methods If approved by
the Administrator under the procedures
set forth In 40 ‘R 260. and 260.21. To
enable POTWa to use equivalent test
methods according to these procedures,
the Agency has modified the proposed
prohibition to prohibit the discharge of
wasteeteams with a dosed cup
flasbpolnt of less than 140 degrees F
using the test methods specified In 40
CFR 261.2L
Many commenters favored keeping
both the flaehpolnt and La
prohibitions. These commenters
Included State and local authorities who
said that these limits and methodologies
were both reasonable and necessary.
Other commentere. however, thought It
unnecessary to Include both types of
prohibitions, and favored retention of
the flashpolnt limitation or the LEL -
limitation only. One commenter stated -
that the difficulty of enforcing the LEL -
approach In no way diminishes the need
for this prohibition, because It Is a much
more sensitive Indicator of fire or
explosion hazard. Some of the
commenters who supported both
prohibitions wanted to have the freedom
to choose one or the other or both on a
case-by-case basis, and one commenter
suggested that the flashpolat and LEt.
approach are better suited to be placed
In guidance documents rather than In a
regulation.
Few commenters supported use of the
LEt. approach alone and many pointed
out limitations to the LEt. methodology.
The most common orftlclsms were: (1)
Calibration of Instruments is difficult
since wutesfreams are a mixture of
substance (2) tracing any sort of
exceedance In the collection system
would be almost Impossible. since the
LEt. reading cannot distinguish which
hiuii,ilca1s are causing the exceedence
(although some commenters believed
that LEt. exceedances could be traced
by such means u tracking alarms to
certain points in the sewer system: (3)
unless continuously monitored, the LEL
would be an Instantaneous
measurement and therefore subject to
too much variability tos y
represent Industrial users’
wastesbeamE (4) the LEL. of a
substance Is difficult to measure with
portable Instruments and depends on
many variables that will affect the
accuracy of the measurement, such as
ambient temperature. VOC. air - -
exchange rate, oxygen concentration.
hwnidIty (5) industrIal users would
have difficulty ascertaining whether
their discharges would cause a
violation. due to the uncertainty of
conditions that may exist “downstream”
In the sewer system from their facilities,
and (0) the 10 percent LEt. Is too
stringent, since higher percentages of the
LEt. are routinely reached. One
coinmenter. however, favored use of the
LEt approach. arguing that It was more
effective than the flashpolnt technique
In measuring explosivity of mixtures
under actual sewer conditions.
EPA Is persuaded by certain of the
commenters’ arguments against
specifying a national prohibition based
on the LEt approach. Although the
approach has proved very valuable for
many P01W. EPA recognizes that
there are certain technical difficulties
associated with this approach which
make It more suitable for use on a case-
by-case basis at the discretion of the
particular POTW than as a nationally
applicable standard. The principal
difficulty Is associated with calibration
of the Instruments. Although one
commenter stated that the Indicated LEt.
Is accurately represented for the
common solvents and does not require
knowledge of the substance monitored,
other commenters who addressed this
Issue stated that unless the LEt. meter is
calibrated using the exact gas that is to
be measured, It may not give an
accurate reading of the vapors present
As an example, one eom ter Included a
table showing that great variation can
occur In LEt readings due to the
presence of different ch.”cals. This
would present a problem because the
proposed rule would have established
an LEt for any point In a POTW ’s
collection system, and the air space in
such systems generally contains many
different kinds of gases derived from the
complex mixtures of substance, In the
sewerage. EPA has therefore modified
proposed 40 R 403.5(b)(1) to delete the
prohibition on discharges which result
In an exceedance of 10 percent of the
LEt. at any point within the POTW.
In response to the commenters who
suggested that EPA allow P01W. to
choose either the LEt or the flashpolnt
approach, the Agency acknowledges
that the llashpoint prohibition in today’s
rule will not necessarily account for the
Igultability of mixtures of industrial user
discharges when combined In sewers.
However, owing to the effect of dilution
within the sewer system. the Agency
believes that It I. generally reasonable
to assume that the concentrations of
combustible constituents In sewer
wastewaters will be well below the
concentrations required for Ignitability,
provided that all Industrial users are in
compliance with the flashpolnt
prohibition. Fires and explosions from
the discharge of Ignitable pollutants
often occur In the POIW collection
system near the point of discharge, and
the temperature in the collection system
at that point may be above the ambient
temperature, promoting the evaporation
of Ignitable wastes and the formation of
flammable vapor to air mixtures. For
these reasons, the Agency believes that
today’s flashpoint prohibition I.
necessary to help prevent fires and
explosions at sewers, and Is not
adopting the suggestions that POTWs be
allowed to choos, between that
approach and the LEt, or that explosivfty
problems should be addressed In -
guidance only.
• However, the Agency recognize. that
many POTWs have made effective use
of the LEt. approach In preventing fires
and explosions, and encourages POTWs
to develop programs which employ this
approach, If they deem It appropriate.
Many commenters who addressed
vapor phase monitoring used to trace -
the source of an La exceedance stated
that such monitoring Is too expensive,
Some commenters were opposed to a :
requirement for vapor phase monitoring.
stating that most POIWs do not have
aoceu to the necessary methodologies,
and that POIWs could already track -
sources without this methodology. One
commenter sugg sLd that vapor phase -
monitoring be done at site-specific -—
paints within the P01W. Some
commenters argued that the regulation
should not require the POIW to Identify
the compounds responsible for the
exceedences, but one conimenter stated
that the details of a collections system,
the location of the LEt. exceedence, and
the location of the Industrial users will
make eIb Inmtlon of facilities not
causing the problem possible without
the specific Identification of each
Industrial use?s wastest’eam.
EPA did net propose. and Is not
fln Il h.g , requirements that vapor
phase monitoring be performed, nor that
the Identity if the compounds causing
the exceedences be revealed through
such monitoring. However, many
POTWs which adopt the LU. approach
may choose to adopt such monitoring on -
an as.need.d basis. In many case. the -
source of an exceedence can be
discovered by other means.
c. Today’s rule. Today’s final rule
prohibits the discharge of pollutants
which create a fire or explosIon hazard
In the POTW, Including, but not limited
to, wastestreains with a dosed cup
flashpolnt of less than 140 degrees
Farenhelt or 60 degrees Centigrade using
the test method. specified In 40 D R
261.21.
-------
30088
Federal Register VoL 55. No. 142 / Tuesday, July 24. 1990 I Rules and Regulation..
2. ReactIvity and Fume Toxicity
Wastes exhibiting the reactivity
characteristic ate regulated under RCRA
because their extreme Instability and
tendency to react violently or explode
make them a hazard to human health
and the environment during waite
management. A solid waste exhibits the
RCRA characteristic of reactivity If It Is
normally unstable and readily
undergoes violent change without
detonating reacts viclently with water,•
forms potentially expIo ive mixtures
with water: generates potentially
harmful quantities of toxic gases, vapors
or fumes when mixed with water: isa
cyanide or sulfide bearing waste which
when exposed to pH conditions between
2 and 12.5 can generate potentially
harmful quantities of toxic gases, vapors
or fumes; Is capable of detonation or
explosive reaction If It is subjected to a
strong Initiating source or If heated
under confinement Is capable of
detonation or explosive decomposition
or reaction at standard temperature and
prew . or Is a forbidden. Qua A, or
Class B explosive pursuant to 49 OR
part 173 (see 40 C1B 2e1. (afl.
The health and safety of POTW
Wutk has long been a serious concem
of the Agency. There Is no question that
the generation of toxic gases and vapors
can sometimes be dangerous to the -•
health and safety of these workers. thus
Interfering with operations at the P01W
and even endangering human life. In
addition, the local general population.
could also suffer If su clezit quantities
of toxic gases and vapors are released
from sewer vents or aeration or
containment basins. Gases and vapors
may be caused by chemical reactions
between constituents of the Industrial
discharge and the receiving sewage, or
microbial metabolism. Some toxic gases
can be generated as the result of iI1.
drops In pH. Besides generating toxic
gases andvaporswhenrnixed with
sewage. Industrial discharges may have
sufficiently high concentrations of toxic
gases and volatile liquids to cause toxic
levels of gas or vapor to form above the
wastewater even If the dIr 4 ’aige Ii
diluted by the sewage. There have been.
numerous instances of sewer
maintenance workers who have been
Injured or killed from toxic gase. formed
in sewers. While most accidents have
been caused by the formation of
hydrogen sulfide gases, more recant
Incidents have been linked to wtaln
organic pollutants that either volatilized
or reacted with hydrogen sulfide within
the POTW collection system.
a. Pmposed nil .. The prohibition
against the discharge of pollutants
which oreate a fire or explosion haeard,
as modified by today’s rule to Include a
prohibition on the discharge of materials
with a Oashpoint of less than 140
degree. F.. will help prevent harm to
P01W workers, as will the reqinrement
promulgated today that POTWs.
evaluate siguificant Industrial users to
determine the need for plans to coutmi
slug discharges (see past B below). To
augment these prohibitions and provide
further protection, the Agency proposed
on November , l 8 to revIse 40 OR
403.5(b) to add anew subsection (0)
providing that no discharge to a P01W
should result In toxic gases, vapors. or
fumes within the P01W Ins quantity
that may cause acute worker health and
safety problems. EPA also proposed to
revIse 40 OR 4 0 3.5(c) to require POTWs
to implement the proposed narrative
prohibition In 40 OR 403.5(b)(e) by
establishing numerical discharge limits
or other controls where necessary based
on existing human toxicity 4terta or
other Information. Industrial
would then be liable for any violations
of these limits or controls.
As possible Implementation
mechanisms, EPA suggested approaches
used by the American Conference of
Government Industrial Hygienists
(ACGIH) or the Metropolitan Sewer.
District of The ACGIH
publishes an annual list of threshold
limit values (TLVs) for numerous toxic
inorganic and organic the , ,.tr als. The
threshold limit values represent.
estimated chemical concentrations In air
below which harmful health effects In
exposed populations are believed to be
nnht t riilyto occur. The Metropolitan
Sewer District of C’ cinnad approach
features the use of a vapor headspace
gas chromatographic analysis of
equilibrated Industrial wastewatri
discharge (one volume of wastewater to
one volume of air bead space) at room
temperature (24 degrees C). Tb. analysis
measures the total vapor space organic
concentration by calculating the total
peak area of the chromatogram
expressed as parts per million (ppm) of
equivalent hexane .
The Agency solicited ‘ “ “ts on
the addition of this prohibition to the
general pretreatment regulations and on
the feasibility of developing local limits
from human toxicity oritarla at other
Information such as those discussed
above. The Agency requested co . ”ts
on the practicality of such a prohibition,
or alternative regulatory ways to protect
workerhealth and safety, andon
whether worker health and safety Is
adequately protected by the present
general and specific discharge
prohibitions.
b. Response So commen ts. The Agency
received many comments on the
proposed rule. Comment, were received
from States. environmental groups.
POTWs and industries. The majority of
the commenters supported the narrative
prohibition (proposed 40 CFR
403.5(b)(O)) but were against requiring
implementation of numerical limits
(proposed 40 CFR 403.5(c)). These
commentea generally believed that
such numerical limits would be too
difficult and expensive for POTWs to
develop. In genera], the commenlers
believed that the approaches used by
ACGIH and the Metropolitan Sewer
District of t buth.njiti would be useful as
guId nr. or as a screening tool, but that
the actual criteria are so imprecise that
It would be best not to require POTWs
to Implement them.
Some commenteis pointed out that the
Metropolitan Caw .Dtsislct of
rl. .. . ati approach contained
potentially serious flaws In that the 300
ppm equivalent bexane limit might not
provide adequate prctection against
more toxic compounds. These
commenters said that the Cincinnati
approach could thus pr vlde workers -
w lthafalsese rzse of safety. Other
,nnimntg, , stated that the approach
would only be valid If the wastewater in
the sewer was at equilibrium with the -
air above the wutuwater and the.
wastewateractsassnidealliqund _ ;
mixture. .. .
Some commenters also expressed
concernabouttheACGlHllstof :.r
rhsnucal threshold limit values. stating.
thatthellstlncludessklnanddust. i..:.
hazards as well as vapor hazards. The
commenters stated that the list of ThV
compounds appears to be very large, but.
many of the compounds on the list are
not applicable to the Agency’s purpose.
Only 136 compounds on the ThV list are.
for short term exposure (exposures of
less than 8 hours duration within the
P01W). The 130 compounds can then be
further reduced by the removal of simple
aspbyxiants (Inert ga..s , vapor, and.
solids (dusts)). Thus, k ” ters
believed that the number of ACGIH
listed chemicals that could realistically
bellniltedbyPo’rNslsverysmalL.
These commñters also said that -
ACCIH specifically disrlaIii . Its Thy.
list for setting environmental standards
ACGIH’s basis for this dis”Ialmer Is that
the averaging process Involved In
deternl” g the TLV. is Inappropriate
for establishing such standards.
Some “—“ r stated that even
though EPA has never explicitly
required POIWs to develop local limits
to prevent pass through or Interference
due to reactive chemicals and fuss.
-------
Federal Register / Vol. 55. No. 142 / Tuesday. July 24. 1990 / Rules and Regulations
30089
toxicity, almost eli POTWa have
ordinance prohibition. or local limits to
handle common pollutants such as
sulfide that have been associated with
worker health and ufety problems.
Alter evaluating this Issue, the
Agency has concluded that the actual
methods discussed In the November 23.
1988 proposal (as well as other methods)
are not sufficiently precise at the
present time to require P01W. to base
enforceable local limits upon these
methods. None of the approaches
currently In use are necessarily suitable
for required use at all POWi., although
they may fit the needs of many POTWs
after certain modifications. For this
reason. EPA Is not promulgating.
requirement to develop numerical limits
to protect worker health and safety
based upon specified procedures. The
Agency believes that a narrative
prohibition coupled with guidance on
developing limits would allow POTWs
more flexibility to adopt Implementation
procedure. to meet their particular
needs while providing adequate
protection of worker health and safety.
EPA Is therefore promulgating the
narrative prohibition on reactivity and
fume toxicity and plans to Issue
Ian on developing numerical
limits.
One suggested that EPA
should require POTWs to use proper
confined space entry procedure, or to
monitor their systems with portable gas
cbromatographs (CC.) to protect worker
health and safety. The commenter also
suggested that Industrial users causing
worker health problems should be
required to Install activated carbon
trea ent systems or to perform
continuous monitoring using CC..
Another commenter said that P0TWs
should conduct an extensive
Investigation of the effects organic
compound, have on their system, after
which limits could be developed for
contributors of organic pollutants. Other
commenters suggested requirIng P01W.
to develop an Intensiv, safety 1.111
program for P01W employees, or
allowIng P01W. to substitut. such
measures u exposure ai
engineering controls. or personal safety
equipment for numeric limits.
One commenter suggested that EPA
should require tests to be used by
industrial users to prevent the discharge
of wastewaters with high levels of toxic
constituents, such as the test used by
the Metropolitan Sewer DIstrict of
Cincinnati. The commenter also
suggested forbidding the discharge of
any wastewaters containing hazardous
constituents at concentrations which
could give rise to chronic worker
exposures higher than the relevant
OSHA Time-Weighted Average
Occupational Standard (TWA).
• According to the commenter. a simple
algorithm could be devised relating
TWAs to the concentration of hazardous
constituents in the discharge. Industrial
users would be prohibited from
discharging a wastewater which the
algorithm predicted would give rise to
vapor concentrations higher than the
TWA. A.. another alternative, the
commenter suggested that EPA adopt
particular tests for certain types of
wastes that can react In low or high pH
environments and give off toxic gases.
EPA should particularly consider
adapting to POTWs the simple scenario
It used to quantify the narrative
characteristic test used In RCRA for
cyanide and sulfide bearing wastes.
EPA encourages P01W. to use any or
all of the above approaches (or
modifications thereof) which they find
necessary to protect worker health and
safety at their facilities. However
because the numbers and types of
Industrial users vary so widely among
POTWs, the Agency does not believe
that any single test, training program.
* treatment technology, monitoring
.epproacb. or combination thereof Is
uzrently suitable for a nationally
applicable rule to protect worker health
and safety. Today’s rule allows P01W.
• to Impose controls on particular
Industrial users based on numeric limits
on specific pollutants or through other
measures that address their own
particular site-specific concerns.
Pursuant to 40 CFR 403.5(d), the
approach selected by the P01W will be
federally enforceable. With respect to
the OSHA TWA approach suggested
above, the Agency notes that this
approach Is similar to one suggested by
EPA In Its Guidance Manual on the
Development and Implementation of
Local Discharge Limitations Under the
F etreabient P)’ogmm. This approach
Involves using ACGI}1 threshold limit
value-time weighted average. (I1.V-
TWA.) which serve as a measure of
fume toxicity from which sereening
levels for all Industrial user discharges
can be calculated. However, the Agency
notes that the TWA levels are the vapor
- phase concentrations of compounds to
which workers may be exposed over
long periods of time without adverse
effect. In general. P01W workers are
not exposed for extended period, of
time to sewer atmospheres. The Agency
also notes that the algorithm suggested
by the coinmenter did not appear to take
Into account the effect of possible
dilution or mixture with other
substances In the sewer. For these
reasons. the Agency recommends the
use of such approaches as a way to
soreen Industrial users’ discharges. but
recommends POTW reliance upon site-
specific data in developing actual
controls for Industrial user ,. In some
cases, the use of improved chemical
handling or management practices may
eliminate any problems. Similarly.
regarding the narrative characteristic
test wider RCRA for cyanide and sulfide
bearing wastes, the Agency believes
that this test Is best adapted by POTWs
on a case-by-case basis to address their
particular circumstances with respect to
acidity or corrosivity which could result
In fume toxicity.
One commenter urged that EPA
clarify that a specific discharge
constituent must Itself be a significant
source of actual toxic gas, vapor, or
fume problems In order to fall within the
scope of the prohibition. This
commenter said that the proposed
regulatory language could prohibit the
discharge of biochemical oxygen
demand (BOD). which contributes to
anaerobic conditions. and otherwise
innocuous sulfate (toxic hydrogen
sulfide levels can be generated In
P01W sewers through the reduction of
sulfates by anaerobic bacteria.
according to this iinmenteg). Another
commenter urged the Agency to limit the
applicability ol the proposed prohibition
to those situations where a P01W
Interprets the prohibition through
adoption of specific numerical discharge
limits. In this way, Industrial users
would not be subject to the prohibition
in the absence of numerical limits
developed by the P01W. Another
suggested that EPA prohibit oniy those
substances discharged In a quantity
known to cause worker health and
safety problems. This commenter
pointed out that the only Instance cited
In the November 23,1988 preamble of
actual Injury to workers Involved
hydrogen sulfide, and stated that
regulation of other substances was
unjustified becaus, the existing
prohibitions already protect worker
health and safety.
In response, the Agency notes that all
of the specific discharge prohibitions
apply even In the absence of numeric
limits developed by the P01W to
implement such prohibitions. In
addition. EPA does not agree that
regulation of other substances besides
hydrogen sulfide Is unjustified to protect
worker health and safety. The Domestic
Sewage Study found that adverse health
effects on P01W workers have been
caused by a variety of pollutants
(Including toluene, benzene, hexane.
-------
30090
Federal Register I Vol. 55. No. 142 I Tuesday, July 24, 1900 I Rules and -Regulations
phenol, bexavalent chromaum, and
chloroform).
However, the Agency agrees that
there are certain situations in which
industrial users should not be held
responsible for a violation of the general
prettea ent regulations (including
today’s prohibition against fume
toxicity) because they did not possess
the information necessary for them to
prevent the causative dl.cb ’ge To
address this concern. EPA Is today
ame dlng 40 CFR 4 .S(aJ(2) to provide
that an Industrial user, In any action
brought against It alleging a violation of
40 GR 4 .5(b)(7), shall have an
affirmative defense where that user can
demonstrate that It did not know or
have reason to know that Its discharge,
alone or in conjunction with a discharge
or discharge. from other sources. caused
pass through or interference. Pursuant to
40 ( ‘R 4 .S(sJ(2), th affirmative
defense would also be available If the
industrial user were In v mp im u with
local limits developed to pass
through and interference, or (where no
such limits far the pollutants In question
had been developed) If the Industrial
user’s discharge had not h.nrd
substantially In nature or constituents.
from the usei s prior discharge activity
when the P01W was In compIiI!1 ø
with the POTW’s NPDES pennt or
applicable requirements for sewage.
sludgeuseordlspoul. -
c. Toviays i v ) .. Today’s rule adds a
new requirement (40 CFR 4(fl.5(b)(7) that
no discharge to the P01W shall result in
toxic gases, vapors. or fumes within the
P01W In a quantity that may cause
acute worker health and safety
problems. Today’s rule also amends 40
CFR 403.5(a)(2) to provide that
industrial user shall have an affirmative
defense in any action brought agalnit It
alleging a violation of 40 CFR 403.5(b)(7),
If It can make the appropriate
demonstrations pursuant to 40 CFR
403.5(a 2)(i) and (U).
3. RCRA Toxicity .
The Study discussed the possibility of
developing a specific prohibition to
forbid the discharge of waste exhiblth2g
the characteristic of toxicity, a.
measured by the Extraction Precedwu
(EP) or Toxicity Characteristic Leaching
Procedure (TCLP’J. This prohibition was
not proposed In the November23, 1908
rule, but was discassed in the AZ WR
published in the Fadwul isgimer on
August 23, 1986(51 FR 30166)
The EP toxicity test and the TC1P are
desigued to dmt .6t the propensity of
metals and organic contam I nta to
leach from a landfihled or land-applied
waste Into ground water Thu EP toad ty
test was used under RCRA to determine
which wastes are hazardous by virtue of
exhibiting the characteristic of toxicity.
On March 29. 1990(55 FR 11798) the
Agency published a final rulemaking
which, when effective, will replace the
EP with the TCLP, which EPA believes
provides a better measure of the
propensity of pollutants to leach from a
land-disposed waste.
EPA solicated “ ts in the ANPR
on whether the EP toxicity test or the
TCLP would be appropriate foe
detei vuithig whether particular
pollutants are likely to cause pass
through and Interference. EPA noted
that materials may be subsequently
diluted when mixed with large amounts
of domestic sewage, and that POTWs
are capable of removing many such
materials even in small amounts.
Comments in response to the AIWR
were overwbl”iIngly opposed to adding
specific prohibitions to the pretreatment
regulations based on either the EP or the
TCLP testS. Co mpnters generally
asserted that since the tests model the
tendency foe metals and organic
constituents to leach from a 6ni4nlI.d or
land-applied waste into ground water,
the tests were inappropriate far -
assessing whether an Industrial
wastewater discharge would cause pus
through or interference at a POTW.
The Agency believes that requiting
Industrial wastestreams discharged to
POTWs to pass either of the RCRA.
toxicity tests may result In both under-
regulation and over-regulation of
various pollutants with little technical.
justification, since application of the
tests to Industrial effluents does not take
Into account P01W removal efficiencies
nor the potential for adverse Impact on
P01W collection and treatment - -
systems. The Agency believes that
current controls on toxic discharges
from industrial users (the interference
and pass through prohibition,
categorical standards, and local limits)
and from POTWs (permit limits. . . -.
including controls an toxicity) are
currently the best way to regulate
materials that would warrant spw i t
consideration under RCRA due to
leachability characteristics. For these.
reasans . EPA did not propose to ‘ 4 ’ ge
the current specific discharge
prohibitions to add a prohibition based
on any RotA toxicity characteristic, nor
Is the Agency finaIl2h g such a
prohibition In todays rule.
One o”'nter on the ANPR, while
agreeing that the RCRA toxicity tests
were not necessarily suitable foe
Industrial wastewater discharges.
suggested that the Agency develop a
leaching test applicable to such
discharge. because of the likelihood that
they would leak from sewers and cause
contamination of ground water.
EPA believes that such a test would
be premature at the present t:ime
because of the lack of avaalable
Information about the extent of ground
water contamination caused by leaky
sewers. When more data is available.
the Agency may consider developing
such a test if appropr- .ate.
4. Corrosivlty (4n.5(b)(2))
Section 4m.5(b)(2) of the general
pretreatment regulations currently
prohibits the discharge of “pollutants
which will cause corrosive structural
damage to the POTW. (including)
discharges with pH lower than 50,
unless the works is specifically designed
to w’-ommodate such discharges.” This
prohibition provides a “ “lc limit on
the discharge of acidic wastes, but does
not contain a corresponding pH
limitation for caustic wastes. The Study
reviewed local otdisnir aa and found
that many provided numeric limits on
the discharge of caustic wastes.
The RCRA corrosivlty characteristic is
designed to address wastes which could
endanger human health or the
enviromnint due to their ability to
destroy or animal tissue In the
event of Inad rinut contact corrode
handling, storage, transportation. and
management equip t or mobilize
toxic metals Lu a environment.
Under 40 CFR 28t22, an aqueous waste
exhibits the hazardous characteristic of
corrosivity If Its pH is less than or equal
to 2 or greater than or equal to 12.5, or If
It Is liquid and capable of corrcding..
steel at a rate greater than 0.250 Inrl ..i
per year at a teat temperature of 130..
degrees F. EPA solicited comments In ..
the ANPR (51 FR 30188) on whether the
discharge of such wastes to POTWs
should be prohibited.
Almost no comments were received -
on this Issue. On. “mmenter believed
that the current specific dlvtharge
prohibitions were inadequate to control
hazardous wastes which exhibit the:
corrosivity characteristic as defined
under RQtA. The commeuter suggested
that the prohibition be amended to
Include a maximum pH. because the
Study had found that some local
ordinances were setting maximum pH
limitations in the range of 9.0 to 110.
Virtually all of the reported pH
related incidents at P0TWs involve
corrosion caused by the discharge of
acidic wastes. which are already
prohibited by the current specific
discharge prohibitions. The Agency has
no evidence that high pH wastes are a
problem for most P01W IIcfion
systems. For thIs I A.On . the Agency Is
-------
Federal Register I VoL 55, No. 142 / Tuesday. July 24. 1990 1 Rules and Regulations
30091
not amendIng 40 aa 403J(bX2) to add
a prohibition on high pH wastes at the
present time. However ‘A encourages
P01W. to address any problems with
caustic wastes through their local limits.
LOU and Crease
a. Proposed rule. There are currently
no specific nation-wide prohibitions
against disposing of oil and grease in
sewers, although the existing
prohibitions forbid the discharge of
pollutants which cause pass through or
interference or which obstruct flow at
the P01W.
The Agency Is concerned about the
possibility that the volume of used oil
discharged to sewers Is Increasing to the
point of causing interference or pass
through. Th. likely Increase In volume of
used oil disposed of in this way Is due to
several factors. among them lower
prices for crude oil which make It less
profitable to recycle used oil. In
addition, the Agency Is developing a
regulatory program under RCRA to
control the management of used oil,
Including used oil that Is recycled. Such
regulations could lead to Increased
discharges of used oil to sewers if there
are no controls Imposed under the Clean
Water Act.
To address these concerns and to
strengthen the movent prohibitions
against pass through and Interference.
on November 23,1980 the Agency
solicited comment on revIsing 40
403.5(b) to add a new provision
prohibiting the discharge of used oil to
POTW. ‘Used oilN was generally
described as any oil that has been
refinedfrvm crude oil. used. and. us
result of such use. *aivthi ted by
physical or chemical Impurities. The
proposal would have covered
automotive lubricating oils.
arid brake fluid, spent Industrial oils
such as compressor, turbine, and
bearing oil ., hydraulic oils,
metalworking. gear, electrical, and
refrigerator oils. railroad th.4n1 .ig. . and
spent Industrial ) M 5 otis. A
solicited com m — ” en the po 41 l .
advantages and disadvantages of such.
prohibition, and on which particular
kinds of used oil should be covered by
the prohibition.
h. Response to comments. The
majority of ters who addressed
this Issue believed that a complete
prohibition of the discharge of used oil
would not be practical, but many
commentary indicated support for a
numerical limitation. Most of these
commenteri su ested that any
prohibition should contain a do minim/a
enemption for small quantities .1 used
oil, since discharges from many
Industrial users contain small amounts
of oil from washdown or cleaning
waters that may not be completely
removed by a grease trap or oil
separator. These conimenters generally
believed that used oil In such small
quantities presented little danger of pus
through or interference, and that any
prohibition should apply only to bulk
dumping of large quantities. Three
commenters suggested a limitation of
100 milligrams per liter of fats, oils, and
grease as being reasonable and
consistent with local limits established
by many POTWs. Other commenters
were opposed to any kind of prohibition,
stating that problems with used oil were
already adequately addressed by the
general and specific prohibitions against
pass through and Interference and local
limits for oil and grease.
Some commenters pointed out that
certain used oils (I.e.. animal and
vegetable oils and certain oils used In
machine cutting and metalworking) are
highly biodegradable. These
commenters stated that biological
digestion In the POTW treatment system
Is the most appropriate treatment for
these substances, and that a complete
prohibition would lead to other methods
of disposal which would ultimately be
• less protective of the environment
Hoi , some of these , . , .uienters
• acknowledged that such oils could
Interfere with P01W operations If
discharged La very large quantities. One
commenter sugg ted that the proposed
prohibition should Include restaurant
grease because It has been known to
cause Interference, and is easily
rendered.
Several commenters stated that the
discharge of used oil to P01W. should
not be completely prohibited until
sufficient methods were available for
other kinds of disposaL Some of these
commenters recommended that EPA
encourage alternative mechanisms for
• the safe. legal, and Inexpensive recovery
of oil and disposal of the residue, along
with Incentive. for collecting and
recycling used oil. One commanter
suggested a national educational
canipalge directed towards do-Il-
yourself oil changers.
Several comm*flter. supported a
complete prohibition on the discharge of
• used .41 to sewers. One lW stated
that such a prohibition would
that It would not have to make caseuby-
case determinations on whether
requested discharges of used .11 would
violate its local limits. Another
commeater stated that a prohibition
should also include restaurant greases
because these can interfere with POTW
operations and because cw ent test
methods do not distlngwah between
these oils and oils of other origin.
Another conimenter who supported a
complete prohibition stated that
allowing the discharge of used oil would
contradict EPAs pollution prevention
policy, which seeks to avoid cross-
media transfer of pollutants. This
commenter stated that a prohibition
would provide the incentive for
generators to reduce the amount of used
oil they generate as well as to recycle
what they produce. A prohibition would
also stimulate development of a
recycling market that would reduce
costs and promote the
Institutionalization of recycling habits
and ethics.
EPA agrees with those commeeters
who said that a complete prohibition on
the discharge of oil Is unnecessary.
Trace amounts of such oil are very
difficult to eliminate from the
wastewaters of Industrial users.
Complete elimination could necessitate
costly process or treatment changes
• which would be difficult to justify given
the Agency’. assessment that the danger
of pass through or Interference from
small amounts of used oils Is slight
Although used oil is an energy resource
that might be better collected and
recycled than discharged to P01W.. -
todays rule would go some distance
towards accomplI.kli g this goal (as well
as the aim of pollution prevention),
without Incurring the disadvantages of a
complete prohibition.
EPA agrees with those commenters
who stated that oils of animal or
vegetable origin (such as restaurant
greases) can be more easily accepted by
wastewater treatment systems. These
oils (as well as certain synthetic oils
such as machine cutting or
cietalworkhg oils) can be metabolized
by microorganisms In secondary waste
treatment facilities and are readily
reduced In concentration In aerobic and
anaerobic biological treatment systems.
For this reason, the Agency believes that
a prohibition or a national limitation on
such oils would not be spproprite.
However, the Agency believes that
the discharge to P01W. of oIls of
petroleum orinineral orIgin Lsof
potential concern, since these oils are
less biodegradable in secondary
treatment plants. Release of such oil
thus has maze potential to Interfere with
operations at TWs, particularly In the
case of smaller plants. In addition, these
oils can contain a variety of to dc or
haanrdous constituents such as PCBs.
bensene. chromium, arsenic, cadmium.
and lead. EPA has analyzed the
potential for pass through of these
pollutants to surface waters and to
sludge. Results showed that when large
volumes of used oil are discharged.
-------
30092 Federal RegIster / Vol. 55. No. 142 I Tuesday, July 24, 1990 I Rules and Regulations
there Is $ potential for pass through and
violations of water quality criteria.
Some of the constituents in
contaminated used oil. such as
tzichloroethane, are very water soluble
and thus are characterized by a high
mobility potential. Metals such as
cadmium. chromium. and lead are very
.persiatent In the environment when
released from the POTW In sludge or In
wastewatar effluent.
For these reasons. the Agency agree.
with those commenters who urged
limitations on petroleum and mineral-
based oil discharged to POTWs. in light
of comments received. EPA considered a
complete ban on the discharge of such
materials, a nation-wide numeric limit.
or a new narrative prohibition. As
described above. EPA determined that a
complete ban was not necessary
because small amounts of such oils are
not expected to cause pass through or
Interference. With respect to the option
of promulgating a national numeric
limitation on the discharge of such oils
to POTW, EPA does not currently have
sufficient Information upon which to
base a limit of general applicability. For
this reason. EPA I. not promulgating a
numeric limit of national applicability.
• EPA is therefore revising the specific
discharge prohibitions to add a new
provision (40 CFR 403.5(b)(6)) to prohibit
the discharge of petroleum oil.
nonbiodegredable cutting oil. or
products of mineral oil origin in amounts
that will cause Interference or pass
through. Under existing 40 CFR 403.5(c)
(1) and (2). POTWs with approved
pretreatotent programs .would then be
required to Implement this prohibition
by developing specific limits for such
substances, and other POTWs would be
required to develop such limits in cases
where pass through or interference had
occurred and was likely to recur.
Today’s rule thus provide. more
specificity than is provided by the
existing general prohibitions against
pass through and interference by
including. specific prohibition ......,
addressing petroleum and mineral..:.. -.
based oils sad nonbiodepadable cutting
oils. . . . . -
In response to the commenters who —
stated that the Agency should not
prohibit the discharge of used oil until
sufficient methods were available for
other kinds of disposal, EPA notes that
today’s rule does not Include a complete
prohibition on the discharge of any type
of oil to POTWs. For this reason. the
Agency Is not adopting any specific
regulatory measures to incorporate
these commenters’ suggestions at the
present time, although the Agency.
encourages voluntary efforts in thu
regard.
As preliminary guidance to POTWs In
establishing local limits. EPA reiterates
that some coinmenters mentIoned 100
milligrams per liter as an oil and grease
limit frequently used by POTWs. Some
standard manuals of sewer use practice
and some studies have recommended
limitations of 25 to 75 milligrams per
liter of petroleum oils. nonbiodegradable
cutting oils, or products of mineral oil
origin. One comznenter submitted a list
of eight municipalities in which the
commenter operated. Of the eight. five
had limits of 100 millIgrams per liter on
oil and grease and two had more
strIngent limits. Only one had limits
which were less stringent. POTWs
should adopt limits as stringent as
necessary to protect against pass
through or interference at their
particular facilities.
As discussed earlier In todays notice.
some conimenten on EPA’s proposed
fume toxicity prohibition expressed
concern about possible liability for
violation of the prohibition when they
did not possess the Information
necessary for them to prevent the
causative discharge. The Agency
believes that this Is also a valid concern
for potential violators of todays
prohibition against the discharge of
certain types of oil In amounts that
cause pass through or Interference. To
address this concern, the Agency is
today amending 40 CFR 403.5(a)(2) to
provide that an industrial user, In any
action brought against it alleging a
violation of 40 CVR 403.5(b)(8J. shall
have an affirmative defense where that
user can demonstrate that It did not
know or have reason to know that its
discharge, alone or in conjunction with a
discharge or discharges from other
sources, caused pass through or
Interference. Pursuant to 40 CFR
403.(a)(2). the defense would also be
available if the Industrial user were in
compliance with local limits developed
to prevent pass through and
interference. or (where no such limits for
-the pollutants In question had been..
developed) If the Industrial user’e
discharge had not changed substantially
In nature or constituents from the users.
prior discharge activity when the POTW
was In compliance with the POTW’s
NPDES permit or applicable
requirements for sewage sludge use or
dlspouL
c. Today’s rule. Today’s rule adds a
new requirement (40 R 403.5(b)(6I)
prohibiting the discharge of petroleum
oil. nonbiodegradable cutting oil, or
products of mineral oil origin In amounts
that will cause interference or pass
through. Today’s rule also amends 40
CFR 403.5(a)(2) to provide that an
industrial user shall have an affirmative
defense in any action brought against it
alleging a violation of 40 CFR 403.5(b)(6),
If it can make the appropriate
demonstrations pursuant to 40 CFR
403.5(a)(2) (I) and (u).
0. Solvent Wastes
a. Proposed rule. On November 23,
1988, EPA solicited comment on revising
the specific discharge prohibitions to
prohibit the discharge of listed solvent
hazardous wastes from non-specific
sources as defined in 40 CFR 281.31
(EPA Hazardous Wastes Nos. POOl.
P002. P003, P004, and P005). These
solvent listings (about 30 organic
compounds) encompass spent solvents,
spent solvent mixtures and still bottoms
from the recovery of spent solvents and
spent solvent mixtures. The compounds
were listed on the basis of Ignitability
and/or toxicity.
Discharges of solvent wastes to
POTWs have Involved actual fires or
explosions, or potential fires which
caused evacuation of treatment plant
buildings or other measures to protect
treatment or collection systems.
incidents have also been documented
Involving hazards to worker health and
safety and Inhibition or upset of
biological treatment systems. In
addition, analysis of pollutant fat. -
within POTW systems has shown that
significant quantities of solvents pass
through to receiving waters where
biological treatment systems are not
well acclimated to the pollutant in
question. For these reasons. the Agency
solicited comment on revising the -
specific discharge prohibitions to
prohibit the discharge of certain solvent
wastes listed under 40 CFR 281.31.
Specifically. EPA solicited comment on
whether existing local limits, the
proposed revisions to the specific
discharge prohibitions concerning
Ignitability and fume toxicity, and the
proposed solvent management
component of industrial user spill and
batch control plans would address most
of the concerns discussed above.
possibly making a ban on solvents
redundant. The Agency stated that a
possible advantage of these proposed
revisions Is that they would addreu the
discharge of organic ccmpounda not
used as solvents. The Agency solicited
comment on whether the possible
Impacts of solvents on receiving waters
would justify prohibiting these wastes
from being discharged to POTWs. and
whether such a prohibItion would be
appropriate for those highly water- -
soluble solvent wastes which are more
-------
Federal Register / Vol. 55, No. 142 / Tuesday. July 24. 1990 / Rules and Regulations
30093
appropriately treated by biolo cai
degradation prvceues such as those
used at POTW.
b. Response So comments. In general.
commenters did not support a ban on
the discharge of listed solvents. Many
commenters pointed out that a complete
baa would not be practical because
most Industrie, cannot completely
eliminate detectable levels of solvents
from their discharge.. Solvent recovery
systems reduce the total amount of
hazardous waste present In a
wasteetream but there Is still a need to
dispose of the “r listed still bottoms.
Commenters pointed out that some
solvent wastes (e.g.. acetone, ethyl
acetate, and methanol) can be
effectively treated at P01W. usIng
secondary treatment. Some commenters
stated that the presence of certain
organic solvent wastes can be beneficial
to a biological treatment system.
Many commenters believed that
existing or proposed regulations
concerning ignitabthty. fume toxicity,
solvent management plans, categorical
standards and sludge control were
sufilcient (along with local limits) to
prevent the discharge of listed solvent
wastes from causing interference or
pass through at POTWs. These
.commenters stated that a proposed ban
on the discharge of listed solvent wastes
would therefore be redundant
However, several commenters aid
support a ban on listed solvents. One
commenter urged the Agency to make
the prohibition constltuent.speclflc so
that constituents of concern from the
RCRA K” and “U” lists could also be
included. This commenter also urged the
prohibition of alcohol and ketone
wastes, stating that these wastes pose
ulgniflcanthealth problems. Other
commenters stated that numerical limits
should be established, or that an
aggregate limit similar to the Total Toxic
Organic. standard for the electroplating
and metal flnisl ,g Industrie, be
promulgated. One commenter suggested
that each slgmflcanl Industrial user be
required to Institute a Toxics Organic.
Management Plan.
After reviewing the comments and
evaluating this Issue. the Agency has
decided not to prohibit the discharge of
RCRA listed solvents Fool-FOGS at this
time. EPA believes that such a
prohibition would not be Justified In
light of all the existing controls
(including those promulgated today)
designed to address the problem.
caused by solvents. For example, the
prohibition on the discharge of
wasteatreame with a flashpoint below
140 degrees Farenheit (the RCRA
standard for Ignitable liquid waste)
should effectively prevent the discharge
of substances (including solvents) that
could cause fires at P01W.. Similarly.
the prohibition of discharges resulting in
toxic gues. vapor., or fumes In a
quantity that may cause acute worker
health and safety problems should go
very far towards tmIneting any
problems occasioned by the
volatilization of solvent discharges in
POTW collection and treatment
systems. As discussed earlier. EPA I.
preparing guidance for P01W. on how
to implement this prohibition through
numeric limits.
• Today’s final rule also contalni a
requirement that eli P01W. with
approved pretreatment programs
evaluate their significant indusb al
users to determine if these users need
plans for the control and prevention of
slug discharges. Such plans must contain
any necessary measures for controlling
toxic organics (including solvents). EPA
believes that this provision will be an
effective vehicle for extending solvent
management plans to noncategorical
.ignificant Industrial users. Many
categorical users are already covered by
Total Toxic Organic and solvent
management plan requirements. In light
of these requirements, the Agency does
not believe that It I . necessary to
promulgate a total tonics organic
management plan requirement as part of
the general pretreatment standards.
With respect to establishing
numerical. constituent-specific, or
aggregate limits for specific solvents or
waste constituents of concern, the
Agency believe, that such limits would
not be appropriate at the national level.
Such limits could not, of necessity,
address the concerns of particular
municipalities with their unique
combinations of industrial users and
site.speciflc problems. For this reason,
the Agency prefer. at this time to leave
the development of such limits to
P01W..
a. Today’s Rule. For the reasons
discussed above. today’s nil, does ot
contain a prohibition against the
discharge of listed solvent hazardous
wastes to P01W..
B. Spills and Botch Dischoiyes (S/up)
(40 CF7I 403 8(f)(2)(v))
a. Proposed Cl iinge
The principal pretreatment regulation
addressed specifically to slugs is the
existing requirement In 40 CFR 403.12(f)
that all industrial users notify P01W. of
discharges that could cause problems at
their P01W, includIng any slug loadings
that would violate any of the specific
prohibitions of 40 CFR 403.5(b).
Spills and batch discharges present
special challenges to POTWs. As
documented by data on incidents at
P01W.. these discharges can cause
many problems at the treatment plant.
Including worker illness, actual or
threatened explosion, biological upset or
Inhibition, toxic fumes. corrosion, and
contamination of sludge and receiving
waters. A survey undertaken by the
Association of Metropolitan Sewerage
Agencies (AMSA) indicated that spills
to sewer systems were the most
common source of hazardous wastes at
the respondents’ treatment plants.
The current general pretreatment
r.gulatlons do not address these
problems comprehensively. To address
this concern and to strengthen the
existing prohibitions against pass
through and Interference. EPA proposed
on November 23. 1988. to revise 40 CFR
403.8(fl(2)(v) to provide that POTWs
must evaluate each of their significant
industrial users to determine whether
such users need a plan to prevent and
control slug loadings. This evaluation
was proposed to be required at the same
time that the POTW conducts Inspection
or sampling of a significant industrial
user. POTWs would use the opportunity
of an inspection or sampling to examine
the operational practices and physical
premises of a significant industrial user
to decide whether these warranted the
development of a plan to handle and
prevent accidental spill, or non.routine
batch discharges.
The proposal would alsohave revised
40 CFR 403 .8(fl(2)(v) to provide that If
the P0’I’W decides that such a plan I.
warranted for a particular significant
industrial user, the plan must contain, at
a the following elements:
(1) Description of discharge practices,
including nonroutine batch discharges:
(2) Description of stored chemicals;
(3) Procedure, for promptly notifying
the P01W of slug discharges as defined
under 40 R 403.5(b). with procedures
for follow-up written notification within
five days;
(4) Any necessary procedures to
prevent accidental spills. Including
maintenance of storage areas, handling
and transfer of materials, loading and
unloading operations, and control of
plant sit. run-off
(5) Any necessary measures for
building any containment structures or
equipment
(6) Any necessary measures for
controlling toxic organics (including
solvents);
(7) Any necessary procedures and
equipment for emergency response: and
(8) Any necessary follow-up practices
to limit the damage suffered by the
treatment plant or the environment
-------
30094 Federal Register / Vol. 55. No. 142 / Tuesday, July 24. 1990 I Rules and Regulations
EPA solicited comments on all aspects
of the proposed revisions. SpecificaUy.
the Agency requested comm’nts on the
following issues: Whether EPA should
impose specific .p 111 or batch control
requirements directly on Industrial
users: whether the control plans
proposed to be required should be
limited to significant Industrial users or
expanded to cover all industrial users,
or limited to other categories such as
Industilal users who submit notification
of the discharge of hazardous wastes
under proposed 49 G’R 403.22(p);
whether the requirements of 40 CFR
403.12(11. section 1 (a) of the
Compr.h ive Environmental
Response. Compensation, and Liability
Act of 1980 and section
304(b) of the Superfluid “ 4 ”ents
and R uthorization Act of 1938 (SARA)
are duplicative and unduly burdensome
and If so on how such duplication could
be avoided: whether It would be
appropriate to establish certain
a Im atrative exemptions from the
sectIon 103 notification
requirements for Indirect diachargers:
and whether industrial users should be
exempted from having to notify the
P01W of those siug discharges for
which they have submitted CLA
notification.
b. Response to Coummuts.
The Agency r celved many comments
on this aspect of the proposed rule from
POTWs, States, private Industry, bade
associations and environmental gruups .
In general. cominentera supported the
proposal because It would increase
control of slugs while still retaining
P01W flexIbility. These cominenters
ind icated that many P01W. have
already successfully reduced slugs using
similar control plans. A number of
commenters stressed such benefits of
slug control plans as facilitation of early
response and better control and clean-
up of accidental discharges. Sum.
supporters offered suggested
clarifications or modiflr Hni . as.
described below. -
Only a few commeolers opposed the
proposed rule. Some coesmenters
believed that some P01W. already
have procedures and rules even more
restrictive than those proposed by the
Agency. and that slugs are already
adequately regulated wider existing
pretreatment, CERCLA. SARA. and
RCRA requirements. Because of the-
many different type. of Industrial users
within the regulated community, some
comws n ten indicated coccem that
general slug control regulations would
either be too general or too specific, and
thus would be unworkable for mod
Industrial users. Other enmuienters also
expressed concerns about paperwork
burdens, available P01W resources.
and the techn1’ I ability of POTWs to
conduct the nutial evaluations and
subsequent Inspections. One co ””ter
said that s POTW systems are so
large that they would notbs affectedby
slug discharges, sad suggested that slug
plan reqniiemests should be optional.
Because of the importance of slug
control and prevention In controlling
Interference and pass through of totdc
and hazardous pollutants. EPA Is today
requiring P01W. to evaluate significant
industrial ewe to determine the need
for such plans. EPA believe, that ths
proposed evaluation and mI th,.um plan
requizements will provide significant
environmental benefits. The Agency
also believes that slug loads have the
potential to adversely effect even the
largest P01W .. Specific comments, and
EPA ’. responses. are set forth below.
Several commenters expresaed
confusion regarding the definition of
slug loading and submitted suggestions
for clarifying the definitions and
distinctions between shigs and batches.
The primary concern expressed by
commenters was that belch discharges
are not necessarily harmful. that effluent
limitations apply to such discharges. and
that batch discharges do not always
need to be prevented. To darify the
Agencys Intent In specifying the type of
discharges which should be covered In
slug control plans. EPA Is modifying the
language of proposed 40 G ’R -
403.8(f)(2)(v) to provide that, for
purposes of that subsection. a slug
discharge isa discharge of a non.
routine, episodic nature, Including but
not limited to an accidental spill or a
non-customary batch discharge. EPA
notes that, when evaluating SIUs to
determine whether they need lobe
subject to slug control plans, P01W.
may wish to examine the SIUs’ batch -
discharge practices. because batches are
not always subject to effluent
limitations: Batches may Include
discharge. from Industries not covered
by categorical standards or local limits,
and certain non-routine batch
discharges may cause problems for the
P01W.
Most commenters stressed the need to
retain complete P01W fle,tibllfty hi
deterv .inhl which Industrial users-
should have plans . and In approving the
adequacy of these plans. A nbor of
aommentors supported slug discharge
controls only as lung as P01W. lund the
discretion to make the needs assessment
and significant Industrial user
determination. mad g 4n the ci .
arbiter of what is necessary and
adequate. ra .ntms also generally
supported the proposed plan elements,
They believed that the elements are
comprehensive enough to enwe that all
the essentials of slug prevention are
covered. However, a few commenters
were opposed to the listed plan
elements. One commenter said that
imposing specific requirements for a
control plan would be excesalve and
should not be necessary. Another
commenter said that the detail Involved
in the list of elements would restrict
P01W flexibility in Implementing slug
controls end would discourage P0lWs
from Identifying appropriate Industries.
EPA recognizes the need for P01W
flexibility In determining which
Industrial users need to have plans for
the control and yw. 41on of slug
discharges, end In deter .vth .Itig the
appropriate elements of slug trJ and
prevcution plans. Today ’s rule leave,
much discietlon to the POFW. The areas
in whIch P01W. have considerable
discretion Include P01W designation
and designation of significant Industrial
users and P01W evaluation of each
, ig,tifie nj Industrial user to determine
theneedforas lugcontrolp lan.
However, the Agency does not a ee
that requiring mh ,I,,t.l elements for inch
plans Is unnecessary or undesirable. In
particular, the first three elements of the
plan (the description of discharge.. -
practices, the descriptian of stored . ,
chemicals. and notification procedures)
are essential for the P01W to be aware
ofactualorpoten&ials lugloadsfroma
particular iRi nt Industrial user. The
reIn ining plan elements refer to. . - -
“nerø.-s Iy” measures. procedures, or
practices, thus allowing considerable.
P01W flexibility In deciding which.,., -.
measures are appropriate for a . .. .
particular Industrial user with respect to
prevention, containment. emergency
response. and follow-up,
On the other hand, some commenlers.
who supported the proposed rule
indicated that Itdid notgolare uiaug h ln
stating which lndustr*ai users should be
evaluated, and which criteria should be
used In the evaluation. A few
comentezn objected to the lack of
regulatory criteria for detezuvftui’sg
whether a significant Industrial user
needs a control plan, one
fearing that this lack would lacreese the
potential for arbitrary decislo .in*% . 4 ’ g ,
another fearing that POTWs would not
make determinations that soda plans are
needed In all appropriate cases.
Regulatory miterla suggested by cc ,
commenter Included certain quantities
of stored chemicals, potential for slug
loadings, and history of slug discharges.
These criteria ‘would increase uniformity
and reasonableness of declslownaklng.
-------
Federal_Register / Vol. 55. No. 142 / Tuesday. July 24. 1990 / Rides and Regulations
30095
according to the commenter. Still
another commenter suggested that
Industrial users with diked storage areas
or an absence of floor drains be
exempted. One commenter stated that
the proposed language would not
exempt non-significant Industrial users
from slug control and prevention
requirements. Mother commenter
expressed concern about industrial
users who needed slug control plans
because of storage of hazardous
chemicals, but who had little Industrial
discharge to sewers.
EPA’. “Guidance Manual for Control
of Slug Loadings to P0 1 W.” (September
1988). provIdes guidance on evaluating
Industrial users for slug potential.
alterla for determining whether an
Industrial user needs a control plan. and
guidance In developing slug control
requirements. The manual is divided
into three parts: (1) Evaluating the need
for a P01W slug control program. (2)
developing an Industrial user control
program. and (3) developing a P01W
slug response program. Information Is
provided on Identifying potential
Industrial user slug sources and their
risk categories, evaluating or improving
the legal authority to regulate slugs.
requiring selected industrial users to
develop slug control plans or measures,
Inspecting and monitoring Industrial
users, and developing emergency
response procedures and resources. EPA
believes that this guidance will be useful
to POIWs In determining which
Industrial users need slug control plans,
and in developing such plans, thereby
reducing the potential for arbitrary
decfslonmnirbig However. EPA does not
believe that It should develop rigid
aiteria in Its regulation establishing
when slug control plans should be
required. P01W. are in the best
position to make such determinations
and, since such requirements will help
ensure continued compIIa’i e with Its
NPDES permit. It Ii In the Interest of the
P oTWtodoso.W lthrespec lto
exempting certain Industrial users from
slug control requirements, the Agency
notes that todays rids requires that
P01W. evaluate slgn1fl nt Industrial
users to determine whether such users
need slug control plans. EPA believes
that exemption. are best granted by
POTW5 during the course of such
evaluations to allow them to take Into
account the particular circumstances
present at the significant Industrial
user’s facility. Today’s rule does not
specifically exempt non-significant
Industrial users from slug control
requirements because P01W. may wish
to require such users to develop plans
on a case-by-case basis to address the
potential for adverse Impact caused by
slug discharges from those facilities.
With respect to facilities with little or no
industrial discharge, the Agency notes
that non-domestic users which typically
introduce only sanitary. es opposed to
Industrial, waste to POTWs are
nevertheless subject to the general
pretreatment regulations and may be
designated as significant Industrial users
by P01W. for such reasons as the
potential of stored chemicals to enter
the sewer In an accident. They may also
be required to have slug control plans
pursuant to POTWs’ local authorities.
One commenter suggested including
among the elements a timetable for
Implementation. Still another said plans
should contain language requiring the
Industrial user to Immediately take
measures to cease the discharge and
remedy the damage. Several wanted to
see a requirement for plan certification
by professional engineers, and one
commenter suggested an equalization
system requirement for industrial users
with a history of slug discharges.
Although these elements may sometimes
be needed on an individual basis, EPA
does not believe that they are necessary
elements for all slug control plans Issued
to significant tndus*ilal users and Is
therefore not promulgating such
requirements as part of today’s rule. For
example. today’s rule already specifies
that control plans must contain any
follow-up measures necessary to limit
the damage suffered by the treatment
plan or the environment P01W. may
wish to require many Industrial users to
Immediately take measures to cease the
discharge as a follow-up measure, but
such a requirement may be superfluous
for some industrial users because of the
nature of their effluent or their discharge
practices. Similarly, although P01W.
may wish to require certain facilities to
have their plans certified by
professional engineers. certification may
not be needed for smaller, less complex
facilities. With respect to equalization
systems for facilities with a history of
slug discharges. EPA believes that In
many cases other measures may be
equally as or more spproprlate to
address the problem. Concerning
timetables for Implementatlon , EPA
believes that It is preferable for POTWs
to decide on a case-by-case basis
whether such a timetable is needed In
order to address the potential for
adverse Impact presented by a
particular significant Industrial user.
Today’s rule allows POTWs the
flexibility to require such timetables,
orders to cease discharge. or engineer
plan certification as POTWs deem
appropriate or necessary. However, the
Agency has modified today’s rule
slightly from the proposal to require that
slug control plans must contain any
necessary measures for Inspection as
well as maintenance of storage areas
and for any necessary worker training.
Inspection and maintenance of storage
areas Is essential to see that stored
materials are not leaking or improperly
placed, and worker training is necessary
to Instruct employees in the most
practicable methods to prevent, detect.
and respond to spills at the particular
facility.
Another commenter suggested that the
rule be modified to require that any
significant Industrial user which
discharges a slug loading should not
only notify the P01W but also
specifically ort (within thirty days)
what happe and what action would
be taken to t mlze the possIbility of
recurrence. HQwever, EPA believes that
the commenter’s concern will be
adequately addressed by the
requirement in today’s rule that slug
control plans contain procedures for
prompt notification to the P01W of slug
discharges and follow-up written
notification within five days. Today’s
n ile also requires foUow.up practices to
limit damqe to the treatment plant or
the environment.
Several oummenters asked for
clarification an how often the need for
slug plans should be evaluated by the
POTW: Le., whether the evaluation of
significant Industrial users Is to be a
one-time requirement or whether It must
be updated at the time of each sampling
or inspection. Also, some commenters
stated that P01W. need the flexibility
to perform frequent inspections without
having to evaluate the need for slug
plans every time. Another commenter
suggested that P01W. be required to
evaluate the need for slug plans only
when Individual significant Industrial
user permits are reviewed. One
co” ’” ter suggested implementation of
plan. over a three-year period by
approved pretreatment POTWs.
Another commenter suggested that
POTWs should be allowed up to two
year. to complete ill of the Initial
evaluations. even If sampling or
Inspection Is more often than once every
two years. The cammenter believed that
a two-year Interval provides adequate
time for the P01W to require, review,
and evaluate each slug loading control
plan.
EPA believes that evaluation of
significant Industrial users to determine
the need for slug prevention and control
plans should be more than a one-time
requirement Today. rule therefore
requires POTWs to conduct such
-------
30096 Federal Register / Vol. 55. No. 142/Tuesday. July 24. 1990 / Rules and Regulations
evaluations of significant Industrial
users for purposes of determining the
need for a slug prevention and control
plan at least once every two years.
However, the Agency notes that at least
one commenter apparently misconstrued
the language of the proposal to reqmre
that POIWI rav ew slug control plan.
every two years. EPA reiterates that
under today’s rule. P01W. would
evaluate significant Industrial users to
determine the need for a slug control
and preventi on plan. Actual evaluations
of already submitted plans would take
place according to a schedule of
P01W.’ own thooein&
The November , 1908 proposal
would have required P01W. to
evaluate . igrMi’ nt industrial users to
determine the need for slog control and
pievenif on plans eveiy two years, and
would have also required that the
evaluation be conducted at the same
time that the P01W r nnd .d
Inspections and sampling of.ignifi ’s
Industrial users. Under today. rule,
P01W. must Inspect and sample
, iaj’ffi. nt Industr ial users at least once
a year. Instead of once every two year.
as was proposed en November , 19 8
(see Part G.Z of today!. notice). The
Agency believes that det 4nh1g the
need for slug control plans need not take
place that often, and therefore Is
m J . .IA tngln the ilnairule the
proposed requirement that P01W.
make the det tn tion a minimum of
once every two years. Under todays
rule, the determination need not
necessarily be made at the same time as
Inspections and sampling of lbs
particular significant indnstrlai user.
since EPA believes that P01W. should
have the flexibility to conduct this
evaluation separately If they deem it
appropriate. Nevertheless, EPA believes
that inspections and sampling of -
Industrial users will generally pzvvlde
the P01W with the best oppastonity for
determination of the n .—lty for slug
prevention and control p” . and
encourage. 1’Ws to conduct iuch
evaluations at the same e as -
thsp. 4ia and sampling are carried
out. Although EPA believes that where
slug control plans me developed,
axnpliance with the plans should be
made a requirement In the significant
industrial users individual control
mechaniums. no schedule for
implementation of plans Is required in
today’s rule. This will allow P01W. the
flexibility to set priorities with i spect
to their own . gnifie’nt Industrial users.
EPA also solicited comments on
whether spill or batch control
requirements should be Imposed directly
on Industrial users by EPA. In response,
some commenters Indicated that It
would be appropriate for the Industrial
users to bear the burden of preventing
harm to the POIW and Its workers.
However, the majority of commeaten
did not support Imposing the slug
control requirements directly on all
Industrial users, on the basis that slug
control plans must be specific to each
industrial user In order to be effective
(although one commeuter believed that
slug control requirements should be
unifoirn for all industrial users who
handle hazardous waste). Cowv .tu,
generally tn’ ’ ted that due to the
facility-specific nature of moat control
plans, the P01W 1. In the best position
to determine whether a control plan
contains appropriate measures. One
commenter said that the requirements
should be Imposed directly on only
significant Industrial users or those
Industhal users with slug potential for
both hazardous and nonhazardous
discharges.
EPA agree. that slug control plus
should not be Imposed directly by EPA
because there are almost no
requirements that would be uniformly
appropriate for ill hidristrial users or all
significAnt Industrial users, P01W. wIll
be in the best position to develop slug
prevention and control requirements for
industrial users because, by ( vilfilhing
Inspection and sampling requIrements,
they will be fnmill, with the operations
of their Individual Industrial users, and
they will also know best what type. of
discharges must be prevented to avoid
causing passthrough and intederence.
Accordingly, today’. rule provides that
the P01W will develop Individual slug
control plan requirements as necessary.
With respect to panting
evaluation requirement to other -
categories or all industrial users.
commenters generally preferièd
requirIng P01W. to evaluate only
significant industrial users as a way to
conserve P01W resources, especially
since POTW5 may ‘ 4 ’ y any user as
significant. A number of commentirs
made their approval of the limitation to
significant Industrial usmi con gent
upon adoption of an Ippuyilat
significant industrial user definition.
One corumeuter stated that If POTWs
appropriately designate as sign ru f
those facilities that have a ‘reasonable
potential to adversely affect the -
POTW’s operation. the significant
Industrial user limitation would be
appropriate. However, one . .mfnaI!f ar
stated that by Implication the proposed
rule would make any facility that a
POVPJ believe, should have a control
plan a significant industrial user, and
that this should not necessarily be the
case. Other commenters opposed to
expanding the requirement beyond
significant Industrial users generally
indicated that evaluating all industrial
users for slug control plans could result
In development of unnecessary plans,.
Several commenters expressed concern
that EPA had not considered the costs of
expanding the proposed rule to include
all Industrial users, especially small
facilities,
However, a number of comenters
stated that ill industrial users should be
evaluated for slug control plans. One
co’ nter stated that all discharger,
should be covered by slug control
requirement. to limit Incentives for
industries to relocate to areas without
en approved pretreatment program.
Another ‘ “ er suggested that the
requirement for slug pian evaluations be-
expanded to InrI IaIe Industrial user.
who submit notification of the discharge
of hazardous wastes (as proposed In 40
CFR 4 .12 (p)) and any n’d.ntal user
of the P01W who submits notification
of the discharge of hazardous waste
pursuant to CERCIA. R A or SARA
requirements.
Under today’s rule, P01W. mast, at a.
. lnI,n.nn evaluate ‘ gr’ ” industrial
users to determine the need for slag .
control plans. However. P01W. are free
to inspect sod require slag control plan&
of other industrial - Today. role
affords considerable P01W llexibthty..r
in designating significant Industrial —
users, and in selecting other ao date
Industrial users for slug plan .
developmenL However, today, rule ‘:
also does not require or Imply that every
Industrial user determined by the P01W
to need a sl og control plan Is a
significant Indosthal user, because snub’
usersmaynotfltthecriterlafor
significance found In the definition of
significant Industrial user promulgated
today (for example, they may have the -
potential for adversely affecting P01W.
operations only La the event of a spill. In’
which case the P01W may not wish to
dn ig uite t as . lgii1fin.int for other.
purposes). Industries that are not
signifi nt industrial users. 4n .-hwllqg
some that store or discharge hazardous
wastu. may sometimes need a slug
control plan. but EPA believes It I ..
preferable for P01W. to ascertain
whether this Is necessary on a case-by..
case basis.
With eepect to duplication of -
CERCLA, SARA and/or RCRA
requirements, all oommenters c pi wid
an Interest In administrative . .ni.y .
A number of commenters asked that the
rule rsco p&.ze the pot.ne .oI existemm of
Indastrial user plans ebeady prepared
for other permit or regulatory
-------
Federal Register I Vol. 55, No. 142 / Tuesday, July 24. 1990 I Rules and Regulations
30097
requirements, and partially exempt such
industrial users or Incorporate their
RCRA or other permit elements by
reference. Several commenters asked for
clarification about whether an Industrial
user can submits copy of a document
prepared for another agency or
regulation to the P01W In lieu of
preparing a separate slug control plan.
Several commenters stated that the Spill
prevention Control and Countermeasure
(SPCC) Plan nirements should suffice
for slug contzoL One commenter
requested clarification about whether a
facility would be required to have a
RCRA ‘n qement plan which could
serve as a slug control plan If the facility
generated a au dent quantity of waste
to be subject to the formal reporting
requirements (the Agency assumes that
the oummenter was referring to today’s
hazardous waste notification
requirements).
EPA recognizes that a number of
existing requirements under other
statutes and regulations could serve as
components of slug control plans. If a
significant industrial user Is covered by
such a pian, the P01W may accept such
plans In partial or complete fu1fiHm nt
of the requirement. In today’s rule, as
long as each element set forth In today’.
rule Is addressed In an acceptable
“ ‘ In some document or collection
of documents. POTWs may also Impose
more rigorous requirements as
circomatenc . warrant. With respect to
today’s hazardous waste notification
requirements for discharger, of
hazardous wastes to P01W.. EPA notes
that some. but not .11. of such
dischargers are also subject to RCRA
management re uIr rnent..because they
treat, store, or dispose of hazardous
waste pwiuant to 4 CFR pail 284.
With respect to exemptions from slug
notification requirements for Industrial
users who submit CER .A and SARA
notifications, almost no commeetera
ap .d of this proposaL Although
SARA and Q 1 A have notification
requirements that may overlap with slug
notification, most commenters believed
prompt and direct notification of the
P01W by the Industrial user was
essential. These commeateru pointed out
that prompt POTW response to slugs
would be delayed by a second-hand
notification from SARA or RCLA
personneL Mother commenter pointed
out that the SARA list of Extremely
Hazardous Substances does not address
many potential P01W hazards.
Casoline, toluene, and other common
flammable and explosive chemicals are
not included, while certain unusual
chemicals and medicines that may not
be of concern to POflNs are on the list.
One cowmenter expressed concern that
inch an exemption would lead Industrial
users to believe that spills below a
C Q.A reportable quantity (RQ) are of
no consequenc, to the P01W, when this
Is often not th. case.
EPA believes that slug loading
notification requirements serve different
purpose. from SARA/C CLA
requirements and are not duplicative.
Direct notification to the P01W affected
by the slug Is untically Important
becaus, time Is essential In formulating
an appropriate response. Similarly,, the
reports hi, quantities established under
CLA are not necessarily related to
the potential for pass through or
Interference at the P01W. nor are the
hazardous substances required to be
reported under SARA necessarily the
substances of most concern to POTWs.
In the proposal. EPA requested
corniv .nt on whether an administrative
exemption from CIA section 103(a)
notification requirements would be
appropriate for releases Into sewers
whichposelitt leornobazard to the
P01W. The Agency received no data
indicating that such an exemption would
be appropriate. For this reason. EPA is
not addressing the Issue of
ae! ,i hul*trative exemption. under
cERa 1 A In todays r”i ’ g
c. Today. Rule
Todays rid, revIses 40 _.. 403. I) to
provide that P01W. with approved
pretreatment programs must evaluate, at
least once every two years, whether
each significant Industrial user needs a
plan to control slug discharge. as
defined under 40 CYR 403.5(b). If the
P01W decides that such a plan Is
needed, the plan shall contain at least
the following elements:
• De 1yUen of discharge practices.
Induding nonroutine batch discharges:
• Description of stored chemicals:
• Procedures for promptly notifying
the IW of slug discharges. Including
any discharge that would violate a
specific prohibition under 40 R
403.5(b). wIth procedures for follow-up
written notification within five days
• If necessary, procedure. to prevent
adverse Impact from accidental spills.
Including Inspection and maintenance of
storage areas, handling and transfer of
materials. loading and unloading
operations. control of plant site run-ofL
worker training, building of containment
structures or equipment. measures for
containing toxic organic pollutants
(Including solvents). andlor measures
and equipment for emergency responss:
and
• U necessary, follow-up practices to
limit the damage suffered by the
treatment plant or the em4rorunent.
C Thacked and Hauled Waste (40 CFR
403.s(bg8J)
a. Proposed nge
Many P01W. have expressed
concern about discharges from liquid
waste haulers. The Study Identified the
strengthening of controls on these
discharger. as potentially deserving of
the Agency’s attention. In June 1987 the
Agency Issued guidance to help POTWs
control the discharge of hazardous
wastes from liquid waste haulers to
their systems (Guidance MwwoJ for the
Identificnsion of Hazardous Wastes
Delivered to Publicly Owned Treatment
Works by Thaclc. Roil. or Dedicated
Pipe). As a further response to the Study
and to further the prevention of pass
through and int.rL ce. the Agency
proposed on November 23. 1988 to add a
provision to 40 CFR 403.5(b) prohibiting
the Introduction to POTWs of any
trucked or hauled pollutants except at
discharge points designated by the
POTW. The Agency requested
comments on the proposai and on the
following issuem whether to revise 40
CFR 4038 to require P0TWs to specify
particular discharge sites: whether the
proposed specific discharge prohibition -
Is too extensive end ehovid be limited to
noa-eeptlc wastes only: end whether to
require P01W. to develop and obtain
approval of additional procedures to
dealwithtruckedw,stes,suchss
requiring POTWs to monitor md sample
such wastes.
b. Response to Co ” ”.nt.
The Agency re d many comments
on the pr osed rule from POTWs.
States, private Industry, trade
associations, and environmental groups.
Comnienter. generally favored the rule
although many . ited modifications.
The majority of commenters indicated
that specific discharge sites would
provide better coabotaf trucked and
hauled waste. as well as Improved
accountability for this type of
discharger. Commenter. generally
Indicated that the rule would Inerease
P01W . control without adding
burdensome requirements. Additionally.
one commenter Indicated that the
requirement for designation of discharge
points gives notice to all waste hauler,
that the POTW’s control authority is
backed by federal controls and
guideline.. On. wi enter stated that
as the lend disposal of untreated
hazardous wastes Is Inereasingly
prohibited wider RCRA. surreptitious
disposal of unwanted hazardous wastes
might become more commonplace. and
therefore better controls on trucked or
hauled discharges will be necessary.
-------
30098 Federal Register / Vol. 55. No. 142 / Tuesday. July 24. 1990 I Rules and Regulations
However, some cornmenters stated
that there is no need for additional
federal requirements for liquid waste
haulers. Some commenters said that
current requirements established by
P01W. with approved pretreatment
programs for sampling. testing. and
manifesting are adequate to control the
discharge of non-septic trucked wastes.
Same commenters opposed to the rule
stated that RCRA is the appropr at.
primaly vehicle for control of trucked or
hauled hazardous waste In order to
avoid confusion. duplicative
requirements. and uncertainty. These
commentaTe stated that II would not be
productive to require duplicative
requirements under the pretreatment
program. since liquid waste haulers are
not covered by the domestic sewage
exclusion and are therefore subject to
RCRA transporter requirements.
The Agency does not agree with the
assertions that the proposed
requirement Is redundant with existing
RCRA or pretreatment requirement, or
that trucked or hauled wastes should
not be subject to specific regulation.
Because hazardous waste haulers must
comply with RCRA .n.i iFest
requirements (including transport of the
waste tea designated RCRA facility).
the principal new legal effect of today.
requirement . . i be to prohibit the . . -
discharge of trucked non-hazardous
wastes to P01W. except at designated
discharge points. Practically, however.
this requirement will give POTWs better
control of all wastes entering their -
systems (including hazardous wastes)
by encouraging P01W. to designate
certain discharge points that they can
monitor to prevent the Introduction of
undesirable wastes Into the sewer •--
system. -
A believes that designation of
discharge points Is an essential tool to
Improve POTW control of bucked or
hauled wastes. Therefore. EPA Is
revisIng 40 CFR 403.5(b) to add
paragraph (8) which prohibits the
introduction to POTWs of any bucked
or hauled pollutants except at discharge
points designated by the POTW. The
rule allows P01W flexIbility In
Implementing this prohibition.
Commenters were generally opposed
to requiring POTWs to specify particular
discharge sites. One commenter noted
that only POTWs accepting such waste
should designate discharge points. The
commenter concluded that requiring
POTWs to designate discharge points
would cause confusion because many
POTWs do not accept hauled waste.
EPA agrees that requiring all P01W. to
designate discharge points would not be
appropriate; not all POTWs are
equipped to handle additional loads
and/or types of pollutants which may be
introduced to their facilities by liquid
waste haulers. It Is not EPA’s intent to
require the designation of discharge
points by P01W.. Rather. EPA Intends
that today’s rule be interpreted as
prohibiting the discharge of hauled
waste to a P01W except to the extent
that the P01W allows such discharges
and they occur at locations designated
for such purposes by the P01W.
A number of commenters suggested
specific modifications to the rule. One
commenter stated that POTWs should
have explicit authority to refuse to
accept such wastes in order to protect
the plant. including a rejection because
proper analyses and certification were
not met. This commenter indicated that
P01W. should also be able to specify
location of disposal, time and other
condition. deemed necessary, including
local limits. The commenter favored
adding statements doC g conditions
P01W. can Impose prior to accepting
such wastes. Including the use of local
limits. Two commenters suggested
P01W performance standards for -
establishing discharge points, stating
that POT’.Vs with a wide distribution of
industrial users should provide multiple
location. to ‘ ‘ 1 1 ’e transportation
expenses and the risks Inherent in all
transportation for Industrial users who
haul their wastes to the P01W. One
cominenter suggested requiring that-
designated discharge points be
supervised by P01W personnel at all
times when discharging is permitted.
EPA believes that the conditions and
restrictions suggested by these
commenters are sometimes necessary
on an individual basis, but would
necessarily vary according to different
P01W. and their circumstances and
therefore are not appropriate for -
inclusion in a uniform national rule. The
Agency notes that today’s rule provides
POTWs with the flexibility to adopt
specific conditions or restrictions such
as those suggested by the above
commenters. For example. POTWs may
designate multiple discharge points for
non-hazardous waste at any sites they
deem appropriate for particular types of
Industrial users and they may provide
supervision at some or all of these sites -
as appropriate. Similarly. P01W. may
refuse to accept any trucked or hauled
waste if proper procedure . have not
been followed, or they may set specific
limits for such wastes. EPA’s “Guidance
Manual for the Identification of
Hazardous Wastes Delivered to Publicly
Owned Treatment Works by Truck.
Rail, or Dedicated Pipe” (Office of
Water Enforcement and Permits. June
1987), suggests numerous specific means
to ensure that hazardous wastes are not
being discharged to POTWs, Including
permits, waste tracking systems.
Inspection and sampling analysis,
surveillance and investigative
techniques, and restricted discharge
permits. Because the need for such
measures will vary, today’s rule leaves
It up to the POTW to adopt them when
necessary.
A few commenters requested
guidance on what specific tests to
perform on bucked waste, or suggested
the use of simple tests to determine the
hazardousness of wastes. EPA’s above-
cited “Guidance Manual for the
Identification of Hazardous Wastes -
Delivered to Publicly Owned Treatment
Works by Truck. Rail, or Dedicated
Pipe” contains detailed guidance on -
such testing. Including how to determine
if a waste Is hazardous and how to
establish a waste monitoring program
tailored to the POTW’s needs.
One comenter suggested that the
regulations should prohibit acceptance
of bucked or hauled materials which
may result in interference or pass -
through of pollutants. Another
commenter stated that categorical limits
should not apply to trucked wastes,
since this would unduly complicate the -
process. Still another commenter stated
that estahll.Iiment of dump sites away.
from the treatment facility could create
a control problem for the P01W, and . . -
that the most effective control method :
would allow discharge only at the- i..t
P01W headworks. - - -
In response, EPA notes that trucked; -
and hauled wastes are already subject.
to both EPA’. general pretreatment -.
regulations (Including the general -
prohibition against pass through and
Interference) and to any categorical --
pretreatment standards applicable to the
wastes. EPA agrees that in many
Instances the most effective control -
method may be to allow discharges of -
trucked or hauled wastes only at P01W
headworks, and encourages P01W. to -
adopt this method if they deem It -
appropriate. In designating discharge -.
points, and establishing procedures to’
ensure that wastes Introduced to the -
P01W comply with all applicable -
federal requirements. EPA suggests that -
POTWs keep two critical Issues in mind.
First, facilities generating wastes
covered by categorical pretreatment -
standards may not avoid pretreatment -.
requirements simply by arranging for
waste removal by liquid waste haulers.-
Accordingly. wastes generated by such
facilities may not be Introduced to a
P01W by a liquid waste hauler unless
they have been pretreated In accordance -
-------
Federal_Register / Vol. 55, No. 142 I Tuesday. Wy 24. 1990 / Rules and Regulations
30099
with the categorical pretreatment
standard(s) applicable to the waste.
Second. P01W. may not designate
discharge points outside of the P01W
facility boundary for the Introduction of
hazardous wastes to the sewer system.
tinder the RCRA regulations, kazardom
wastes may only be transported to
designated facilities permitted to handle
the waste des ibed in the manifest (see
40 tFR 2$2- . 263.21). For P01W.
operating under a RCRA permit-by-rule.
the area outside the P01W property
bounday, Including most of the sewer
collection system, is not part of the
permitted facility, so cannot be used as
a location for accepting hazardous
waste. See EPA ’s 1987 “Guidance for
implementing RCRA Permit-by-Rule
Requirements at P0’rWs.”4. 11. For
P01W. operating under or considering
applying fora RCRA permit. EPA has
stated that “n’ nifested wastes may
only be delivered to an approved
(hazardou . waste management facility).
and sewer systems will not be approved
for that purpose”. 45 FR 33320 (May 19,
1980).
Many commenters supported limiting
the prohibited discharge standard to
non-septic wastes, stating that
designating discharge points for all
tmrl Ot hauled wastes could
pota . .H fly put an undue burden on
small POTWs because of supervising
discharges at these points. and that
limitizag the prohibition to non-septic
wastes would not prevent a POTW from
specifying specific discharge points for
septic waste If deemed appropriate by
the P01W.
However, other commenters believed
that both septic and non-septic wastes
should be Included in the prohibition.
These commenters indicated that the
prohibition would be difficult to enforce
if septic wastes are excluded, since It is
sometimes difficult to ascertain without
sampling whether a truck Is carrying
septic or non-septic wastes.
EPA agrees with those commentm
who expressed concerns about the
potential presence of toxic and
hazardous pollutants from non-domestic
so u In septic wastes. For this
reason, the Agency Is today prohibiting
the discharge of .11 tru ed and hauled
wasjes except at designated discharge
points. This will give P011W. better
control of tIl such wastes potentially
containing toxic and hazardous
pollutants.
One comznenter stated that the
prohibition does not distinguish between
a liquid waste hauler’s off-site discharge
to a P01W and an on-site discharge
from a truck which Is used to transport
waste from one Industrial plant building
to another, then rinsed out and the
residue discharged to the sewer at the
industrial user’s site. In response. EPA
notes that the intent of today’s rule was
to regulate the discharge of wastes
trucked or hauled off-site to the POTVv
from an Industrial facility. Wastes
discharged from . truck to the collection
system at an Industrial user’s facility are
not covered by today’s prohibition. since
such waste would not normally differ
(roar that discharged by the facility
during its usual operations. The purpose
of todays prohibition. on the other
hand. Is to give POTWs better control of
potentially harmful wastes which may
be difficult to Identify or which may
have no easily ascertainable origin.
Most commenters did not support
requiring other procedures for trucked
and hauled wastes, although a few
commenters recommended requiring
additional sampling and monitoring
procedures. However, most cammenters
generally Indicated that while
monitoring and sampling of truck loads
are Important, specific procedures
should be developed by each P01W on
a case-by-case basis to address Its own
particular situation. A number of
POTWs discussed their own procedures
for controlling trucked and hauled
wastes, such as a certIfication or
manifest requirement to track wastes
entering the treatment plant. continuous
supervision of designated discharge
points. Inspection of wastes (visual or
through chemical and/or physical
analysts) prior to acceptance by the
P011W. requirIng that trucked wastes be
subjected to a minimum annual
characterization and compatibility
testing, and IndMdnal truck load
sampling. Commenters believed that the
extent of discharge management control
exercised by the P011W should be
tailored to facility-specific conditions,
such as volume of specific material
which the treatment process can
ac ounnodate over a period of time
without lose of treatment effectiveness.
EPA believes that requiring mdfurrn
1’W procedures for handling trucked
and hauled waste is not appropriate at
the present time, since such procedures
are very dependent on site-specific
situations which P01 1 W. are generally
but equipped to address on their own.
For this reason, EPA (a not requiring
P01W. to develop any particular
measwes to deal with trucked or hauled
wastes, other than the prohibition on
discharges except at locations
designated by the P01W.
c. Today’s Rule
Today’s rule adds a new provision (40
CFR 403.S(b)(8)) prohibiting the
discharge of trucked or hauled
pollutants except at discharge points
designated by the P01W.
D. Notiflcctioa Requuemenis (40 CFR
403.12(p))
a. Proposed Change
Section 3010 of RCRA requires that
any person who generates or transports
hazardous waste, or who owns or
operates a facility for the treatment.
storage. or disposal of hazardous waste
must file a notification with EPA or with
a State with an authorized hazardous
waste management program. Pursuant to
the Domestic Sewage Exclusion In 40
261.4(a)(1), any material mixed with
domestic sewage that passes through a
sewer system to a publidy-owned
treatment works for treatment Is not a
solid waste, and therefore cannot be a
hazardous waste. However, section
3018(d) of RCRA (enacted as part of the
Hazardous and Solid Waste
Amendments In 1984) provides that the
notification requirements of RCRA
section 3010 “shall apply to solid or
dissolved materials in domestic sewage
to the same extent and in the same
manner as such provisions apply to
hazardous waste. There Is currently no
regulatory requirement that Industrial -
users report the discharge of all
hazardous wastes to sewers. The Study
therefore Identified the implementation
of se on 3018(d) as a potentially useful
component of an improved pretreatment
program. The Agency believes that the
information provided by such
notification Is needed for the ultimate
development by P01W. of controls to
prevent pass through and interference.
On November . 1985 EPA proposed
to revise 40 CFR 400.12 to add a new
paragraph (p) that would require efl
Industrial users to notify EPA Regional
Waste Management Division Directors.
State Hazardous Waste authorities, and
their POTW of any discharge Into a
PO l Wof a substancewbich Is a listed
or characteristic hazardous waste under
section 3001 of R( A. Sack notification
would Include a deseription of any such
wastes discharged. specifying the
volum, end concentrations of the
wastes. the type of discharge
(continuous, batch, or other) and
Identifying the hazardous constituents
contained In the listed wastes. ‘The
notification would also include an
estimate of the volume of hazardaus
wastes expected to be discharged during
the foliowurg twelve months. The
notification would take place within six
months of the effective date of the final
rules.
To further ensure control of hazardous
wastes discharged to sewers, the
-------
301 1 ,0 Federal Register I Vol. 55, No. 142 / Tuesday, July 24, 1990/Rules and Regulations
proposed rule would require all
industrial users who submit notification
of the discharge of hazardous wastes to
certify that they have a program In place
to reduce the volume and toxicity of
wastes generated to the degree they
have determined to be economically
practicable, and that they have selected
the practicable methods of treatment,
storage, and/or disposal currently
available to them which m nimi the
present and future threat to human
health and the environment A similar
certification requirement already applies
to all generators of hazardous wastes.
(other than those that discharge their
wastes to sewers) under section 3002(b)
of RCRA.
In the October17, 1988 revisIons to
the general pretreatment regulations (53
FR 40562,40614) EPA added a
requirement at 40 CFR 403.12 (j )) that all
Industhal users promptly notify the
POTW In advance of any substantial
change in the volume or character of
pollutants In their discharge. To clarify
that 40 R 403.12(1) also applies to the
discharge of hazardous wastes, the
Agency also proposed to require that all
industrial users promptly notify the
P01W In advance of any substantial.
change In the volume or character of
pollutants In their discharge. including
changes In the volume or character of
any listed or characteristic hazardous
wastes for which the Industrial user has
submitted initial notification under 40 . -
CFR 403.12(p).
Under proposed 40 CPR 403.12(p) -
generators would have been exempt
from notification requirements during
any calendar month in which they
generated not more than 100 kilograms
of hazardous waste, except for those
wastes identified under 40 CFR 261.5 (e),
(I). (g) and (1). Generators of mois than
100 kilograms of hazardous wastes In
any given month would be required to
file the one-time notification.
In the proposed rule, the Agency.
solicited comments on the small
quantity generator exemption and on
whether any of the existing RCRA forms
might be suitable for submission of the
proposed notification requirements. EPA
also requested comment on whether
those Industrial users required to submit
Form R (a Toxic Release Inventory form
required under section 313 of SARA to..
be submitted annually by Industrial
users with over ten employees who
discharge certain listed toxic chemicals)
should send a copy of Form K to the
POTW, In lieu of the proposed
hazardous waste notification
requirements, If the toxic chemicals
reported by the Industrial user on Form
R include those RCRA hazardous
wastes for which notification would be
required. The Agency also requested
comments on whether additional (or
more specific) management
requirements should be imposed to
control wastes for which notification
would be submitted undet the proposaL
b. Response to Comments
The majority of the commenters
expressed strong support for notifying at
least the p01W of hazardous waste
discharged Into Iti system. Supporting
comments were that such notification
would augment existing controls on
spills and accidental discharges and
give the POTW more knowledge of and
control over previously unreported
discharges.
Other commenters opposed any -
additional notification requirements.
stating they would be duplicative and
burdensome for all pasties concerned.
Several commenters stated that the
requirement was not necessary because
the discharge of hazardous waste was
already prohibited In their sewer
ordinances and therefore did not occur
unless It was an uncontrolled spill. Still
other commenters believed that the
Information needed by the POTW.
should be available through the State
and Federal RCR.A or SARA databases
for them to obtain as necessary.. -
Because the proposal would Impose
only a one-time notification requirement
which can frequently be fulfilled with
available information, EPA does not
believe It to be burdensome for
Industrial users. The information will
also be useful to POTWs In developing
programs to better control the
introduction of hazardous wastes Into
treatment and collection systems. Sewer
ordinances do not generally contain a
prohibition against the discharge of -
hazardous waste, and these wastes are
frequently present In part because of the
Domestic Sewage Exemption provided
under RCRA. Although some of the
Information in the proposed
notifications Is accessible through State
and Federal databases, much of It Is not.
For example, hazardous substances for
which notification is required under..
SARA are not necessarily the urn. as
the listed and characteristic hazardous
wastes for which notification would be
provided under todays nile.
Most of the POTWs and States who
commented believed that P01W., Stat.
authorities, and EPA should receive the
notification. But many commenters
(mostly Industries) supported
notification of the POTW only. They
stated that notifying the State hazardous
waste management authorities, as well
as EPA, would be redundant.
Section 3018(d) of RCRA makes the
requirements of section 3010 applicable
to solid or dissolved materials in
domestic sewage “to the same extent
and in the same manner as such
provisions apply to hazardous waste.”
Section 3010(a) states that “any person
generating or transporting (hazardous
waste) or owning or operating a facility
for treatment, storage. or disposal of
such substance shall file with the
Administrator (or with States having
authorized hazardous waste permit
programs under section 3006) a
notification stating the location and -
general description of such activity and
the Identified or listed hazardous wastes
handled by such person” (emphasis
added). The statute thus mandates that.
at the least, State or EPA hazardous
waste personnel be notified. However,
EPA does not Interpret section 3018(d)
as limiting the recipients of notification
provided for under that section to the
recipients specified under 3010(a). EPA’s
authority to tailor notification
requirements to meet the needs of the
pretreatment program is based In
section 307(b) of the Act. authorizing -
EPA to promulgate such standards as
are necessary to prevent pass through
and intederence. Also. RCRA section
3018(b) directs EPA to revis, existing -
regulations “to assure that substances
Identified or listed under (RCRA section
3001) which pass through a sewer’S
system to a publicly owned treatmen t ”
works are adequately controlled to ‘
protect human health and the ‘- • . -
environment.” As described below. EPA
believes that proper control of materials
identified or listed under RCRA will be
facilitated by a requirement that
notifications re4ulred by today’s rule be
submitted to POTWs, State authorities..
andEPA.
EPA agrees with the comznenteri who
support notification of the P01W
because It Is directly affected by the..
discharge of such wastes. POIWs need
to fully understand the nature of Influent
wastes to their plants to ensure proper
treatment at the plant, establish -
appropriate local limits, and meet permit
requirements. EPA believes that It Is- -
important for States to receive the-
notification so that they may use It In
Issuing NPDES permits, implementing:
State pretreatment programs, and • .: -
protecting public health and welfare. In
addition, submission of the notification
requirements to EPA may assist the
Agency In Issuing NPDES permits to -
P01W. where It I. the permitting -
authority and In establlahlng
pretreatment requirements where Ills
the Control Authority. Notification of.
EPA will make possible the
-------
Federal Register I Vol. 55, No. 142 / Tuesday, July 24. 1990 I Rules and Regulations
30101
development of a national data base or
tracking system that would organize the
Information into a useful format for all
Interested parties.
Several commentere suggested that
the Information received could be
summarized by States and EPA and be
made available to POTWs. One
commenter suggested that only the
POTWs be notified and that the State
and EPA could get the Information from
the POTW. However, other commenters
suggested that other parties be notified.
such as EPA Headquarters, State
pretreatment program personnel State
water quality (NPDES) personnel and
Regional as well as State Water
Division Directors.
Summarization of the Information
received by the States and EPA and
subsequent distribution to the
appropriate POTW would. In most
cases. be a cumbersome notification
method. The Agency believes that the
required information should be made
available to the POTW as soon as
possible. Although the suggestion of
notifying EPA Headquarters,
pretreatment personnel. water quality
personnel and Water Division Directors
is reasonable, EPA believes that today’s
rule. In providing for receipt of the
notification by the most important
representatives of local. State and
Federal governments. will allow other
personnel from these respective
branches of government to easily obtain
copies of the Information. As mentioned
above, the Agency ii considering the
development of a data base or tracking
system that would organize the
Information into a useable format.
Several commenters pointed out that
much of the required Information was
already submitted to regulatory agencies
in Indirect diachargerpermit
applications, notices of process changes,
through local orilnances. or Is already
reported under 40 CFR 403.12 and SARA
section 313.
Although some Information may be
submitted pursuant to the., authorities,
EPA emphasizes that none of these
provisions specifically requires
submittal of Information to POTW,
States, and EPA about .11 R A
hazardous wastes discharged to sewers.
- Several commenters, while agreeing
with the need for a notification
requirement believed that the POTW
should have the flexibility to determine
the appropriate reporting. This would
eliminate some of the redundancy, since
POTWs have different programs and
, .4I,ianp. and could then choose that
Information which would best suit their
needs.
-Todays rule require. a minimum
amount of Information that I. to be
reported by all industrial users
discharging hazardous wastes to sewers.
except for diachargers of less than
fifteen kilograms per month of non acute
hazardous wastes. EPA believes that
these minimum requirements will be
very useful to POTW. Slates and EPA.
POTWs have the flexibility to request
additional information to suit the needs
of their specific programs.
Several commenters expressed
concern about the requirement to
estimate the volumes of hazardous
waste that would be discharged over a
12 month period. Commenters believed
that the estimates would be unreliable
and would result in possible liabilities
(possibly from failure to report
accurately). They questioned how to
account for dramatic variation In
discharges over the twelve-month
estimation period and also questioned
the purpose of the requirement. One
commenter stated that although this
kind of Information might be useful.
POTWs could not enforce a failure to
report accurately. Another comntenter
suggested that an estimation over 30
days might be more useful.
The Agency believes that the
Information received through this
requirement will be useful for PO11
ptiiiin4ng purposes. The information
requested from Industrial users Ii only
an estimate of what they know or have
reason to believe will be discharged
over the next 12 month period, fiiklng
any variability into account The
estimation Is not Intended to constitute
an enforceable limit Industrial users are
reminded that under 40 CFR 403.12 (j) of
today’s rule. P01W. must be notified in
advance of any substantial change In
the volume or character of pollutants In
their discharge. POTWs may choose to
develop enforceable local limits based
on the Information submitted.
One commenter mentioned that the
last line of 40 CFR 403 .12(p)(1) allows an
exemption from the notification
requirement for pollutants already listed
under the self.inonltorlng requirements.
The commenter stated that self.
monitoring Information alone would not
be sufficient to prevent pass through or
interference.
The purpose of this proposed
exemption Is to avoid duplicative
requirements. since In some Instances
Information required under the
hazardous waste notification provisIons
will have already been submitted under
40 CFR 403.12. The Agency notes that
neither the self.monltortng requirements
nor the hazardous waste notification
requirements are Intended primarily to
prevent Immediate pass through or
Interference. The purpose of the 40 CFR
403.12 requirements Is to monitor
compliance with categorical standards.
The primary purpose of the hazardous *
waste notification requirements Is to
gather as much information as is nceded
to assess the potential effects of
hazardous and toxic waste discharged
to POTWs. It should be noted that the
exemption for pollutants reported under
the 40 CFR 403.12 self.monitoring
requirements applies even though such
reporting may not necessarily indude all
elements submitted under today’s
notification requirements. such as an
estimate of the wastes expected to be
discharged over the next twelve months.
Since the 40 ‘R 403.12 provisions
require the submission of actual
sampling results and periodic reporting
every six months, the Agency believes
that such reports are an adequate
substitute for the section 3018(d)
requirements. Although self-monitoring
reports under 40 CFR 403.12 are
submitted only to the Control Authority
and not to EPA and the States as are
today’s section 3018(d) notifIcations,
EPA believes that the existence of an
already established, easily accessible
data base for 40 CFR 403.12 sell.
monitoring requirements obviates the
need to notify additional parties, as fe
required for one-time notifications of
hazardous waste discharges under
section 3018(d).
One commen* stated that
notification should extend to all
pollutants of concern In addition to
hazardous wastes. This commenter
supported notification of the discharge
of hazardous constituents listed in 40
CFR part 261. appendIx VIU. The
commenter stated that this would keep
the focus of the notification on the
chemistry of the discharge rather than
the legal status of the wastastream. end
would also assure more equitable
treatment of different types of
discharger.. Some commenters also
Indicated that the notification
requirements should be oriented toward
volumes and types of waste based on
their chemistry sitar treatment rather
than using the ROtA codes to describe
the waste. The rationale was that the
ROtA “derived from” and “mixture”
rules fail to provide Information about
the waste after treatment, other than to
define the status of the waste as
hazardous up until the point of
discharge Into a domestic sewage
system.
The Agency believes that notification
of the discharge of all appendix ‘JIll
constituents Is not routinely necessary.
EPA believes It I. preferable for the
POTW to require such Information on a.
case-by-case basis when appropriate to
protect against potential pass through or
-------
interference. The Agency also notes that
todays rule requires the Industrial user
to report hazardous constituents
discharged. if known. If an industrial
user is not aware of the hazardous
constituents contained in its hazardous
waste discharge, EPA believes that
POTW, after receipt of notifications
received under today’s rule. will be In
the best position to institute
requirements for follow.up information
on an as-needed basis based on the data
already acquired about the Industrial
user’s hazardous waste. Such additional
Information may provide more detail on
the chemistry of the disdiarge, and thus
fill In any data gaps that may result from
use of RCRA waste codes and ECRA
definitional constructs such as the
mixture and derived from rules.
Some commenters objected to the
requirement that industrial users notify
the POVW of “any discharge Into the
POTW” and questioned whether the
presence of a section 3001 RCR.A waste
In levels below the detection limits
would require notification. One
comments? opposed requiring that
constituents be identified in the
notification, stating that It would be
urdensome to identify all constituents
calculate their volumes. Another
ommenter believed that such a
equirement would be ed” 1 ”•
cause the constituents an already
reported under w finn 313 of SARA.
Some commonters also stated that the
presence of a hazardous waste does not
mean that certain constituents are
always pr nt. nor does the presence of
constituents indicate that a waste as
hazardous.
EPA notes that under 40 CFR 261.11,
any person generating a solid waste Is
responsible for dete”n’ng whether
that waste Is a listed or characteristic
hazardous waste. Thus, industrial users
who are generators of hazardous wastes
are already required to have knowledge
of such wastes. Todays rule requires all -
parties discharging hazardous weat to
POTWs to file. one-time notIfication.
The notilicatfoa must Include a
desatpdoa of any such wastee
discharged, To clarify this requirement
and make description easier. od ’s
rule requires that industrial users
Include the name of the hazardous
waste and the EPA hazardous waste
number for each hazardous waste
discharged (these numbers are found In
40 17R part 261, subpart D). Today’s
‘leo requires an Identification of the
tuents discharged. along with their
.and concentration In the
estreaza, but only to the extent that
I a . constituents and their mass and
concentrations are known and readily
available to the user. The Agency Is
requiring notification of mass rather
than volume (as was proposed) because
mass is a more useful measure of the
quantity of chemicals discharged.
Where a discharger has knowledge that
such constituents are present In Its
discharge. the discharger should Identify
such constituents La Its required section
3018(d) notification, notwithstanding
Inability to detect the exact levels of
such constituents In its discharge (e.g..
because constituent Levels are below
analytical detection llmit4
In response to concerns expressed by
commeoters. the Agency has clarified In
the language of todays rule that
identification of the constituents of
hazardous waste and their mass and
concentration need only be made If
these are known by the Industrial user
(unlike the notification of the discharge
of the hazardous waste and its
description by name and EPA hazardous
waste number). Monitoring for the
presence of these constituents Is not
specifically required. It Is not correct
that all of these constituents ire
reported under SARA section 313, since
the list of toxic chemicals required to be
reported under that provision does not
Include all hazardous constituents under
RCRA. The Agency believes that many
Industrial usersivill already have
Information about the constituents of
their waste and that this Information Is
often useful to POTWs. If the
information is not available, the POTW
may request additional monitoring on an
as-needed basis.
Under the proposed rule, generators
would have been exempt from the
notification requirements during any
calendar month In which they generate
no more than 100 kilograms of
hazardous wastes, except for certain
acute hazardous wastes.
Many commenteri supported t] ’j •
exemption. The commenters suggested
that by retaining the exclusion. EPA
would provide regulatory relief for small
Industries whfle not Jeopardizing lbs
protection of human health and the
environment.
A few commenters who supported the
small quantity generator exemption
suggested that the exemption be
widened to Include generators of
volumes between 100 to 1000 kilograms
per month. These commenters stated
that iecdon 3001(d) of RCRA
specifically discusses the regulation of
thes. generators, and that during
evaluation of an appropriate regulatory
scheme for such generators. EPA paid
special attention to jpv l in 1
paperwork burdens. Commentere stated
that by proposing to Impose notification
requirements on these generators. EPA
wan ignoring its previous position on
minimizing the burdens associated with
recordkeeping and reporting.
In response, EPA notes that no
POTWs suggested widening the 100
kilogram per month exemption to 1000
kilograms per month. In tact, several
POTWs were concerned that the 100
kilogram per month exemption was
unjustified and believed that such an
exemption could Jeopardize human
health and the environment since a
discharge of 100 kilogram. of certain
substances would be very likely to
cause pass through or Interference.
The majority of the cominenters who
opposed the small quantity generator
exemption were POVWs and State
governments. They believed that
discharges of less then 100 kilograms
per month could at times have a serious
impact on collection systems. POTWs
and worker health or safety, and thut
POTWs would be Interested in
ascertaining all quantities of hazardous
wastes discharged to sewers.
Some commenters who opposed the
small quantity generator exemption
stated that the Agen y’. proposal to
exempt such generators from
notification was not supported’bj lb.
evidence cited In the preamble.’These
comnmentem also pointed out that EPA
acknowledged that a 100 kilogram
discharge of some RCRA hazardous
wastes could be problematic for a -
POTW (particularly small and! or
unacclimated ones). Another commenter
pointed out that any exemption should
be tied to the discharge, rather than tha
generation. of a hazardous waste.
After evaluation of these cov mi . nti
EPA believes that a complete exemption
from the notification requirements for
many dlschargen of less than 100 -
kilograms per month would not be
environmentally Justified. The Agency
also agrees that any exemptions should
be tied to the dischargeratherthanthe
generation of hazardous wastes. since
only wastes actually discharged will -
usually be of mucern to the P01W.
The Agency believes that a discharge
of less than 100 kilograms of certain
types of hazardous wastes may cause
problems for POTW. (particularly small
and unacIli , ,I ted ones) if discharged at
once or over a short period of time (e.g.,
spent electroplating baths. certain sp
solvents such as bename. or dI ded
unused formulations containing th-
tees-, or pentaclorophenol). Although
one or two disthargers of approsimatel)
one hundred kilograms per month may
have little potential for adverse Impact
on a POTW (depending on the wastes
discharged) many POTWs have a
30102 Foderal RegIster / Vol. 55. t’o. 142 / Tuesday, July 24, 1990 / Rules and Regulations
I
I
-------
Federal Register I Vol. 55 . No. 142 / Tuesday. July 24. 1990 / Rules and Regulations
30103
5 gnJficaot number of such generators
ischargthg hazardous waste to the
sewer system, which cumulatively pose
a potential for causing pass through or
jaterference. EPA believes that some
degree of notification from these
dischargers Is the only way for POTWe
to be aware of which hazardous wastes
are entering their collection and
treatment systems. On the other hand.
the Agency believes that most
dischargef$ of considerably smaller
amounts of hazardous wastes will not.
as a general rule, present the potential
for adverse Impact at the rw.
As a general rule, the Agency believes
that discharger, of less than fifteen
kilograms per month (the equivalent of
about one pound per day) of hazardqus
waste to POTWa present little danger of
adverse Impact to such POTWa. For this
reason. today’s rule provides an
exemption for such dlschargers. unless
the hazardous wastes are acute
hazardous wastes as specified In 40 CFR
281.30(d) and 281.33(e). Today’s rule also
provides that all non-exempt
diachargere of hazardous wastes must
submit the name of the hazardous waste
discharged . the EPA hazardous waste
.number, and the type of discharge
(whether batch or continuous). The
Agency believes that this Is the essential
Information which Is needed to enable
POTWs to be aware of which hazardous
wastes are entering their systems and to
enable them to decide whether to
request further data from a particular
discharger. Todays rule also requires
those industrial users discharging more
than 100 kilograms per month of a
hazardous waste to a FW to submit
additional Information, to the extent
such information Is known and readily
available to the user. ‘The additional
information consists of an Identification
of the hazardous constituents contained
in the listed wastes, an estimation of the
mass and concentration of such
constituents In the wastestream
discharged during that month, and an
estimation of the mass of such
constituents In the wastestream
expected to be discharged during the
following twelve months. POTWs may
decide to require more detailed
Information from any discharger on a
case-by-case basis In the exercise of
authorities granted unde, local law.
POTWs may also decide, In the exercise
of local authorities, not to provide any of
the above exemptions or reduced
reporting requirements If they do not
deem them appropriate for their
particular systems.
Two commentere stated that because
of the application of the “mixture rule”
In 40 CFP. 281.3(a)(2)(iilJ, facilities
discharging wastewater containing any
amount of hazardous waste would be
subject to the proposed notification
requirements. regardless of the proposed
exemption for small quantity generators.
The regulation cited by the
commenters provides that waste
mixtures that Include a hazardous waste
that Is classified as hazardous solely by
virtue of exhibiting a hazardous
characteristic identified In 40 CFP.
281.30-281.24 are hazardous only if the
mixtures themselves exhibit a
hazardous characteristic. A companion
rule. 40 R 261.3(a112)(iv), provides that
mixtures that Include a hazardous waste
listed In 40 CFR 201.30-281.33 (other
than one which Is hazardous solely
because It exhibits a characteristic
Identified in 40 CFR 281.30-26124) are
hazardous unless the resultant mixture
is “delisted” pursuant to 40 CFR 260.20,
260.22, or one of the exceptions In 40
CFR 201 3(a)(2)(Iv)(A)—(E) applies. The
result of these rules Is that mixtures of
small quantities of certain hazardous
wastes with large quantities of process
or other solid wastes render the entire
mixture a hazardous waste. These rules
apply to Industrial users covered by
today’s nile: accordingly. for purposes of
ascertaining whether an industrial user
discharges between 0 and 15 kilograms
per month. 15 to 100 kilograms per
month or over 100 kilograms per month
of hazardous waste. the Industrial user
must apply the RCA mixture rules to
calculate the volume of hazardous waste
being Introduced to the sewer.
Two commenters stated that the
Agency should limit the notification
requirement to significant industrial
users as defined In proposed 40 CFR
403.3(u) who hav, never before notified
EPA of their hazardous waste activities.
This commenter stated that less than
one percent of all hazardous wastes
generated is associated with non-
significant Industrial users.
The Agency believes that limiting the
notification requirement to significant
industrial users would not be adequate
to fulfill the statutoRy requirement of
section 3018(d), since the definition of
significant Industrial user does not
necessarily Indude the discharger, of
hazardous wastes covered under RCRA
section 3010. In addition. EPA believes
that notification by all hazardous waste
discharger. will assist FWs In
ascertaining whether the cumulative
effect of many small discharges of
hazardous waste may cause pass
through or Interference. Prior
notification to EPA of hazardous waste
actIvities under RCRA does not
constitute compliance with today’s rule,
since the notification would not
necessarily include all the Items of
Information specified in this rule.
Some commenters suggested that EPA
provide an exemption for the discharges
described In 40 CFR 28L3(a)(2)(A}-.(E)
and an exemption from notification
requirements for acute hazardous
wastes, They recommended that the
exclusion should specify a level for each
characteristic waste as well as for total
listed wastes.
The Agency notes that 40 CFR
26 1.3(afl2)(iv) (A)—(EJ describes certain
wastes that axe not classified as
hazardous waste. Discharge of such
materials to aPO N would not.
therefore, trigger today’s notification
requirements. In addition, the Agency
believes that such discharges present
little potential danger of pass-through or
Interference at POTWa. However,
POTWs may require notification of
these discharges on a case-by-case basis
pursuant to local authorities.
Today’s rule does not grant an
exemption for acute hazardous wastes.
Such wastes have been identified under
the RCRA program as meriting controls
more stringent than for other types of
hazardous waste (e.g. there Is a less
extensive small quantity generator -
exemption), and EPA believes that
Information on the discharge of any
quantities of such wastes to a POTW is
Important for POTW pI nnlng to prevent
pass through or Interference.
Some commenters questioned the
requirement that Industrial user,
provide notification to the POTW of any
substantial change In the volume or
character of hazardous wastes
discharged. Notification of substantial
changes In pollutants discharged Is
already required pursuant to 40 CFR
403.12(J ), and will be modified by
today’s rule to specifically provide for
notification with regard to substantial
h r%ges In hazardous waste discharges.
These commenters requested
clarification about the definition of
“substantial change In the volume or
character of pollutants” as well as the
means of notification. Another
commeuter felt that the language should
be deleted because It Implied continuous
monitoring.
Thepousibility of providing a
regulatory definition for “substantial
change” In the volume or character of
pollutants In an Industrial user
discharge was specifically addressed in
the preamble to the final PIRT rule (53
FR 40562), whIch was promulgated on
October17, 1988. The preamble
discussion of 40 CFR 403.12 (j) stated
that EPA has determined that a
regulatory definition of “substantial
change” In the volume or character of
-------
30104 Federal Register / Vol. 55, No. 142 / Tuesday. July 24. 1990 / Rules and-Regulations
pollutants discharged Is Inadvisable
because what Is substantial In a given
situation will depend on several
variables (53 FR 40599). The Agency
stated that substantial change should be
determined by the comparable notice
requirements for direct discharger.
under the NPDES regulations and -
supplemental. or more stringent, notice
requirements adopted by the POTW or
required by the permitting authority In
the P01W. NPDES permit With
respect to substantial changes In the
volume or character of pollutants
discharged. the Agency stated that these
should include a substantial change in
any characteristic of the industrial
user’s wastewater discharge, including
volume, flow, the amount or
concentration of pollutants, and the
discharge of new pollutants not
previously reported to the POTW. Only
changes which the indusbial user
expects to occur on a regular basis over
an extended period of time (three
month. or more) need to be reported.
Sporadic or episodic changes in the
volume or character of a discharge are
not ordinarily covered by the changed
discharge notification. However,
depending on the circumstances, the
industrial user may have to report these
discharges in accordance with other
pretreatment requirements, e.g., the
“slug load” notification requIrements (40
CFR 403.1.2(f)), the upset provision (40
CFR 403.16), or bypass provIsion (40
CFR 403.17)). In most cases, a
substantial change in the volume or:
character of a user’s discharge will
result from a deliberate or planned
change to the user’s facility or
operations. “Substantial” should be
based on the magnitude of change to the
Industhal user’s existing discharge and
not ott the anticipated effect of the
changed discharge on the POTW.
Therefore, a regulation specifying
absolute numbers, such as an increase
ordecreaseof Xgallonsof flow
discharged, would not be appropriate.
Although the approach taken today may
result in notifications about changed -
discharge, which will not have a -
demonstrable effect on the POTW’.
lnfluent, effluent or sludge quality, EPA
has determined that any incidental
“over notification” Is Justified by the
need of the POTW (and NPDES
permitting authority) to have
information one timely buis to
determine whether, considering other
changes to the POTW’s system or
pollutant control requirements, new
limits on pollutant discharges are
necessary, or should be further
evaluated to prevent pass through or
interference (see 53 FR 406003.
One commenter inquired about the
mechanism that would be used to
ensure that all industrial users were
made aware of the one-time notification
requirement. Another commenter
suggested that the regulations should
require POTWs to develop procedures
for notification of changes in a user’s
discharge.
The principal mechanism used to
ensure that industrial user. are made
aware of the notification requirement is
through the publication of this notice in
the Federal Register In addition,
POTWs may wish to send notices to.
their Industrial users on the procedures
that they wish them to follow. With
respect to requiring P0’ I’Ws to develop
procedures for notification of discharge
changes, EPA prefers to leave this
question to the discretion of the specific
POTW.
Some commenters stated that the
certification requirements seemed
inappropriate for wastewater effluents..
EPA disagrees with these commenters,
The Agency believes that a certification
requirement is appropriate for industrial
users because waste minim1 Uo will
Improve the quality of the effluent which
enters the POTW and, eventually, the
discharge that enters navigable waters
through the POTW. The certification
requirement will also further EPA’. -
stated goal of pollution prevention by.
helping to reduce loadings of hazardous
wastes to sewers. . .
However, the Agency has modified
the language of the certification
requirement somewhat from the — -
November 23. 1988 proposal in order to
make the requirement more appropriate
to discharges of hazardous wastes to
POTWs. Today’s language clarifies that
the requirements apply only to .
hazardous wastes for which notification
was submitted under 40 CFR 403.12(p).
In addition, the language now requires
the industrial user to certify that it hu a
program in place to reduce the volume
and toxicity of wastes generated to the
degree it has determined to be
economically practicaL The Agency has
substituted the phrase “economl ally
practical” for “economically
practicable” because It believes the. -
former phrase more accurately conveys
that generators should choose those
means of reducing the volume and -
toxicity of their wastes that are feasible
and cost-effective.
EPA has also deleted the proposed
language requiring notifiers to certify
that they have selected the treatment,
storage, andlor disposal methods
currently available to the user which
ml,tlml e the present and future threat
to human health and the environment.
By recommending retention of the
Domestic Sewage Exclusion, the Agency
has made a determination that disposal
of hazardous wastes to sewers in
compliance with pretreatment
requirements is an environmentally
acceptable disposal method. In addition.
many industrial user. discharging
hazardous waste to sewers also ti-eat,
store, or dispose of hazardous waste by
other means and are already subject to
the waste minlml,ation certification
requirements of 40 CFR 284.73. This
deletion will therefore .Iimrnate
duplicative paperwork requirements for
those facilities while still protecting
P0 ’I’Ws and fnlnlltng Congressional
Intent to encourage the selection of
optimal waste management techniques
to reduce or elimtnate the generation of
hazardous waste.
One commenter suggested that the
waste mlniml,atjon certification
requirement should allow POTWs or
industries to focus on alternative control
mechanisms such as source control and
best management practices.
In response, the Agency notes that the
requirement that Industhal users certify.
that a program Is In place to reduce the
volume and toxicity of wastes to the
degree that the user has determined to
be economlcafly practical allows
complete flexibility to the industrial
user, including the use of source controls
and best management practices to
mInlvnize the generation of hazardous
wastes..
One commenter suggested that the
regulations Include a requirement that
all industrial users be placed on a 5-year
schedule to eliminate hazardous wastes
discharged under the Domestic Sewage
Exclusion. However, the Study.
demonstrated that In general, PO’l’Ws
are capable of accepting a certain
amount of hazardous waste without
threatening the POTW, human health or
the environment The Agency therefore
believes that with proper controls, such
as those In today’s rule. ellmlni .tion of
all hazardous waste discharges from
industrial users Is unnecessary at the
present time.
With respect to the use of
supplemented EPA Form R or RCRA
Forms to fulfill the proposed notification
requirement. the majority of the
commenters who addressed this Issue
supported the use of such forms. The
commenters believed that the use of
these forms would lessen duplicative
and burdensome paperwork
requirements. Other comrnenters
opposed the use of these forms, stating
that the use of such forms would lead to
extraneous or misleading information
that would create an administrative
-------
Federal Register / Vol. 55, No. 142 I Tuesday, July 24. 1990 / Rules and Regulations
3 105
burden for POTWa. They stated that
Form R might simplify the reporting
requirement for some Industrial users,
but would not simplify POTWs’ task of
evaluating th, form and sorting out
wineceuaty information.
In response to these comments. the
Agency is clarifying today that EPA
Form R and e,dating RCRA forms may
be used to fuUlll the notification
requirement as long as the Industrial
user submits all Information required in
today’s rule. However, POTWs may
require Industrial users to use other
forms If they wish. Industrial users may
also submit the required information by
other means, such as a letter.
Two commenters stated that the
information on Form R would be based
on pure estimates on the part of the
discharger. In response. EPA points out
that today’s notification requirement
also requires estimates for the mass and
concentration of hazardous waste
constituents, as well as the mass of
constituents discharged over the
following twelve months: These -
estimates should be based on the best
available data.
Cominenters stated that Form R would
not cover a sufficient range of pollutants
and that the list of SARA compounds
wu Very different from the list of
hazardous wastes under section 3001 of
R A. In the case of substances which
are listed or characteristic wastes under
section 3001 of RCRA which do not
appear on Form P. the industrial user
must submit the required information on
those wastes to EPA, the States, and the
POTW. In addition, although section 313
of SARA only requires notification for
Industrial users with more than ten
employees, today’s rule does not include
any exemptions based on the number of
employees at the facility.
A commenter mi ested that the
reporting requirements under 40 C ’R
403.12 be used to fulfill the notification
In response, the Agency
notes that pollutants reported under 40
CFR4 0 3i2(b),(d ) ,ar(e)neednotbe
reported under today’s notification
requirement However, the reporting
requirements under th. above.
mentioned provisions of 40 GR 403.12
apply to pollutants regulated under
applicable categorical pretrea ant
standards. Thus the reporting
requirements under 40 CFR 403.12 may
not necessarily address hazardous
wastes and would fulfill today’s
requirements only If such wastes had
been reported under 40 CFR 403.12 (b).
(d). or (e).
Toclarify that today’s rule applies to
new Industrial users or to existing
Industrial users which will discharge
hazardous waste only In the future. EPA
has added a provision requiring
industrial users who commence
discharging after the effective date of
today’s rule to provide the notification
no later than 180 days after the
discharge of the hazardous waste.
c. Today’s Rule
Today’s rule provides that the
Industrial user shall notify the POTW.
the EPA Regional Waste Management
Division Director, and State hazardous
waste authorities In writing of any
discharge into the POTW of a
substance, which, If otherwise disposed
of, would be. hazardous waste under
40 n part 281. Such notification must
Include the name of the hazardous
waste as set forth In 40 CFR part 281, the
EPA hazardous waste number, and the
type of discharge (continuous, batch. or
other). If the industrial user discharges
more than 100 kilograms of such waste
per calendar month to the POTW, the
notification shall also contain the
following Information to the extent such
Information I . known and readily
available to the industrial user an
Identification of the hazardous
constituents contained In the wastes, an
estimation of the mass and
concentration of such constituents In the
wastestream discharged dw g that
calendar month, and an estimation of
the mass of constituents in the’
wastestream expected to be discharged
during the following twelve months. All
notifications must take place wIthin 180
days of the effective date of this rule.
industrial users who commence
discharging after the effective date of
this rule shall provide the notification no
later than 180 days after the discharge of
the hazardous waste. Any notification
under this paragraph need be submitted
only once for each hazardous waste
discharged. However, notifications of
thenged discharge. must be submitted
under 40 ‘R 403.12 (J ). The notification
requirement In this section does not
apply to pollutants already reported
under the self-monitoring requirements
of 40 CFR 403.12 (b), (d), and (eJ.
Industrial users are exempt from the
above requirements during a calendar
month In which they discharge no more
than fifteen kilograms of hazardous
wastes. ni t.it . the wastes are acute
hazardous wastes as specified In 40 R
281.30(d) and 281.33(e). DIscharge of
more than fifteen kilograms of non-acute
hazardous wastes In a calendar month,
or of any quantity of acute hazardous
wastes as specified in 40 CFR 201.30(d)
and 281.33(e), requires a one-time
notification. Subsequent months di. .ng
which the industrial user discharges
additional quantities of such hazardous
waste do mit require additional
notification.
In the case of new regulations under
section 3001 of RCRA Identifying
additional characteristics of hazardous
waste or listing any additional
substance as a hazardous waste, the
Industrial user must notify the POTW.
the EPA Regional Waste Management
Division Director, and State hazardous
waste authorities of the discharge of
such substance within 90 days of the
effective date of such regulations.
In the case of any notification made
under today’s rule, the Industrial user
shaflcertify that ithas aprogramin
place to reduce the volume or toxicity of
hazardous wastes generated to the
degree It has determined to be
economically practical.
& individual Conbvl Mechanisms for
Industrial Uses, (40 CFR 44fl.8(J)(iJ(iii))
a. Proposed nge
The existing pretreatment regulations
require POTWs with approved
pretreatment programs to have the legal
authority to control, through permit,
order, or similar means, the contribution
to the POTW by each Industrial user to
ensure compll.’ie with pretreatment
standards and requirements. EPA’s
experience In developing and overseeing
the pretreatment pr . . m has ted It to
believe that Individual control
mech-”ia”. are the best way to ensure
compil w , with applic.bli
pretreatment standards and
requirements. Such a system gives the
Industrial user Individual notice of all of
the pi Lrcatment requirements to which
It Is subject, thus ‘ t cthg It easier for
such users to understand their
obligations before a violation occurs
and ensuring more effective prevention
of pass through and Interference.
For these reasons, the Agency
proposed on November 23, 1988 to
revIse 40 G’R 403.a(fl to require that
POTWs wIth approved pretreatment
programs Issue discharge permits or
equivalent individual control
mechanisms to Industrial users
Identified as significant under proposed
40 R 403.3(u), Under the proposal,
such control mechanisms would contain.
at a minimum, the following elements:
(1) Statement of duration (In no case
more than five years):
(2) Statement of non-transferability
without prior P01W approval
(3) Applicable effluent limits based on
categorical pretreatment standards and
local limits:
(4) Applicable monitoring, sampling.
and reporting requirements:
-------
30106 Federal Register I Vol. 55. No. 142 / Tuesday, July 24, 1990 I Rules and Regulations
(5) Notification requirements for slug
discharges as defined Ia 40 Q’R 403.5(b);
and
(6) Statement of applicable civil end
criminal penalties for violation of
pretreatment standards and. -
requirements. -
The Agency solicited comment on the
merits of the proposed revision.
Specifically, the Agency requested
comment on: (1) The approprlateneu of
halting the requirement to Industrial
users defined as significant under
proposed 40 Q’R 403.3(u), or the
appropriateness of additional or
alternative targets. such u categorical
users or notifiers of hazardous wasto
discbargee under proposed 40
403.12(p); (2) whether the requirement
should apply only to P01W. wIth more
than a specified number of industrial
users (and. if so, what number would be
appropriate as a cut.off point); and (3)
whether the list of conditions proposed
should be reduced. expanded. or
modified.
b. Response to Comments
The Agency received many comments
an this Issue. Commentero Included
States. POTWs. trade assodatlons.
tdustrles end environmental groups. Of
ese. most ãupported the proposal In
ime form and many supported It as
roposed . - . . - -
Several commenters suggested that
me Instruments other than permits.
such as contracts or administrative -
orders, might serve as equivalent control
mechanisms. Most of those opposing the
requirement etated that the p01W
should have the flexibility to choose
whether or not to Implement a system of
Individual control mechanisms. One
comnienter stated that the requirement
was redundant, because every P01W
with an approved program Is already
required to notify users of pretreatment
requirements and to have the authority
to prohibit harmful pollutants from
entering the POTW.
POTWs are required under the
existing pretreatment regulations to
have and exercise the authority to
control through permit, order. or similar
means, the con ibution of Individual
indu sbiaRisers to the POTW (40 CFR
403.8(fl(IilJ). Ills also true that, under the
existing regulations. P01W. are
required to notify users of applicable.
pretreatment standards and
requirements and to ensure compliance
with such standards and requirements.
Agency does not believe, however.
roWs have consistently exercised
discretion under the existing
aUons to develop adequate
trial user control mechanisms.
A .o conducted of local pretreatment
programs have led the Agency to
conclude that many existing control
mechanisms are Inadequate to ensure
compliance with pretreatment
requirements and that Industrial users
should often be provided with better
notice of pretreatment requirements.
The Agency continues to believe that
Individual control mechanisms are the
best way to accomplish these objectives.
For this reason. EPA proposed to require
P01W. to Issue permits or other
individual control me h*ithma to
sIgnificant Industrial users.
Today’. rule will provide substantial
benefits to the P01W, to the Industrial
user, and to the pretreatment program as
a whole. For Instance, a user subject to
both categorical standards and local
limits would receive Individual notice of
which limits are applicable (Li., the
most stringent of the two) for each
regulated pollutant In its discharge.
Similarly, a user with equivalent mass-
or concentratlon.based limits or
alternative limits derived by the
combined wastestream formula would
be Informed of such limits In Its permit
or other individual control me 4 u. , .itm.
Users would also be individually -,.
notified of sampling and reporting
requirements. Including any - -
requirements more stringent than th
applicable Federal mlnhnum -
requirements. An Individual control
mechanism also benefits the user by
providing notice of applicable
requirements before a violation occurs,
rather than afterwards. In addition, -
Individual control mechanisms provide a
mechanism for the POTW to Impose
Individualized pretreatment
requirements (e.g for sampling and
reporting) on an Industrial user. Finally.
as some commenters pointed out. this
requirement would bring greater
consistency to administration and
Implementation of the national
pretreatment program across the
country. Some conimentere also felt that
uniform Federal requirements were
necessary to ensure fairness In the
administration of the program.
Several commenters stated that
mandatory Individual control
mechanisms would be costly for
POTWs. One commenter said that the
rule would require POTWs to “somp
existing and approved pretreatment
programs. Some P01W. stated that they
were unnecessary because they already
bad effective ordinances.
Although the Agency Is sensitive to
concerns regarding costs. EPA notes that
many POTWs already Issue permits or
other individual control mechanisms to
some or all of their users and will
probably need little or no modification
to their existing program to meet these
requirements. POTWu which heretofore -
have relied entirely on ordinances to
ensure compliance will require greater
modification of their programs to comply
with today’s rule. However. EPA
believes that the long-term benefits of
this approach will justify the costs, even
for POTWs that now rely on ordinances
as their only control mechanism.
POTWs will be able to reduce their
costs by utilizingexisting data and by
incorporating some existing
requirements Into the new system.
Substantive requirement. of the
P01W. program (such as prohibited:
discharges, monitoring and reporting
requirements, and penalty provisions)
should be selfImplementing under the
P01W. ordInance. Many of these
requirements could simply be written
into the Individual control mechanism,.
while others could be adjusted with
slight modifications to reflect the
particular circumstances of the user.
Where the P01W already possesses all
necessary data from its users to enable
It to Identify the character and volume
of pollutants contributed by each user to
the P01W. there would be no need to
collect that Information agaln In
support of Its view. EPA points out that
one P01W commented that it was
inatlally reluctant when required to..
Implement a permit system by Its State
Approval Authority. However, It found
that implementation was fairly simple
when standardized forms were - - -
developed. and its users preferred to
have all of their requirements listed In
one document
One POTW commented that its State
law prohibits municipalities with a .
population of greater than 500.000 from
using permits to control Individual -
discharges to the P01W. The - -
commenter did not indicate whether all
individual control mechanisms were
similarly prohibited. If not, under the
rule as promulgated. the co” Mer may
use some other equivalent individual
control merh i4.m, Alternatively, the
commenter would have to seek a
revision In Its State law. In another
context. a commenter requested that the
Agency clarify the meaning of
“equivalent control mechanisms” which
could be used In place of permits.
Another commenter stated that. if
approaches other than permits have -,
been approved and found effective, they
should be allowed to continue and that
EPA should not limit the definition of
individual control mechanisms to
permits only.
In this regard. the Agency would like
to clarify both whet It considers to be an
acceptable “permir under today’s rule.
and what may constitute “equivalent
-------
Federal Register / Vol. 55. No. 142 I Tuesday. July 24. 1990 / Rules and.Regulalions
30107
control mechanisms”. Where possible,
analogies or distinctions are drawn
between pretreatment permits and
NPDES permits because most POTWs
are very familiar (as NPDES permittee.)
with the NPDES program. First. unlike
federal requirements applicable to direct
diachargers. Industrial users are not
required under todays rule to obtain a
permit prior to discharging to a POTW.
(However. POTWs may establish such a
requirement Pursuant to their own legal
authorities). Second. industrial users
must comply with all applicable
pretreatment requirements under federal
law, whether or not they are contained
In the permit or equivalent Individual
control mechanism. A. a corollary,
compliance by the Industrial user with
the terms of the permit does not shield it
from liability for failure to comply with
federal pretreatment requirements not
set forth In the permit. However. EPA
expects that the POTW will do
everything possible to ensure that the
limits and other requirements in the
permit are as accurate and complete as
possible. and will notify the user of any
changes In applicable pretreatment
requirements which become effective
subsequent to the Issuance of the permit.
As stated In the preamble to the
proposed rule, the Agency will require
Issuance of “individual discharge
permits or equivalent control
mechanism..” An adequate equivalent
control mechanism is one which ensures
the same degree of specificity and
control as a permit. To darify that the
conditions of the individual control
mechanism must be enforceable against
the significant Industrial user through
the usual remedies for noncompliance
(set forth In 40 CFR 403.8(fl(1J(vi)(A)J,
EPA has amended the language of 40
CFR 403.8(fl(1J(vl)(B) to provide that
pretreatment requirements enforced
throtigh .the remedies of 40 CFR
4 .8 (fl(1)(vIJ(A) shall Include the
requirements set forth In Individual
control mechanisms. In addition. the
Agency has added to proposed 40 CFR
403.8Q)(13(ili) a statement that Individual
control mechanisms must be
enforceable.
EPA notes that the most effective
control mechanisms should also be
“strictly enforceable” under local law.
Generally, for an individual control
mechanism to be strictly enforceable.
the local ordinance must specify that the
terms and conditions of the control
mechanism can be challenged
(administratively and/or in court) only
within a very limited time period after
the control mechanism becomes
effective. U the control mechanism Is not
challenged within the ailoted time
period, It cannot later be challenged In
an enforcement proceeding (for
guidance on this and other Issues
concerning Individual control
mechanisms, see EPA’. lndustrioi User
Permitting Guidance Manual.
(September l989JJ.
Commenters suggested several
alternatives to the use of permits as
Individual control mechanisms. These
Included ordinances, administrative
orders. and contracts. Although only
two commentere discussed the use of an
ordinance as a control mechanism, some
POTWs rely on ordinances as their
principal control mechanism. An
ordinance may offer fairness and
consistency In It. application, but It
does not provide specificity and
Individual notice to significant Industrial
users. One POTW stated that its
ordinance, together with notice by mail
to individual users, was sufficient In
response. the Agency emphasizes that,
although a letter provides notice to the
Individual user of applicable limits and
other requirements, an ordinance system
contains the same limits for all
Industrial users and does not provide for
POTW evaluation of significant
Industrial users to determine whether
Individual requirements are necessary
for that user. Accordingly, an ordinance
will not be considered an equivalent
control mechanism under today’s rule.
• Two commenters discussed the use of
administratIve orders as an altemative
control mechanism. One commenter
stated that administrative orders are an
effective method of imposing
pretreatment and reporting requirements
on Industrial users and are less
paperwork-intensive than permits. One
POTW commented that It modified Its
administrative orders to attempt to
comply with EPA’s oversight requests.
but did not succeed In meeting all
requirements, This commenter also
stated that it Is necessary for the
Agency to dearly specify the
requirements for individual control
mechanisms.
The Agency agrees that detailed
aaIi nktmUve orders may be an
equivalent individual control
me 4 i nhm. In order to completely
satisfy today’. requirement with an
administrative order system, the POTW
must Issue administrative order. to Its
significant industrial users whether or
not they are complying with all
applicable pretreatment standards and
requirements. In addition, such order.
must contain all of the minimum
elements of an individual control
mechanism specified in today’s rule. The
use of administrative orders therefore
may not be necessarily less paperwork’
Intensive than other Individual control
mechanisms. Finally, administrative
orders that are typically Issued only in
the context of an enforcement action
may not meet one or more of the criteria
for an adequate control mechanism
des ’ibed above and thus would not
satisfy today’s requirements. POTWs
may, of course, use a mix of appropriate
administrative order., permits, and
other equivalent individual control
mechanisms to satisfy today’s rule.
Several coinmenters mentioned the
use of contracts as a control mechanism.
One stated that the successful use of
contracts precluded the need for
permits, and two others equated the use
of contracts with the use of permits.
Two commenters stated that the permit
should be signed by the permittee and
“act [ as a) legal contract between the
POTW and the permittee.”
The use of contracts as a control
mechanism was addressed in a previous
rulemaking (53 FR 40562. October 17.
1988). In that rulemaking. EPA stated
that contracts do not provide a POTW
with the requisite penalty authority for
an approved program and are not an
adequate control mechanism for POTWs
with an approved pretreatment program.
As a result, all references to the use of
contracts us control mechanism were
deleted from the general pretreatment
regulations (for a discussion of this
luue. see the abov..mentloned Federal
Register notice at 53 FR 40574 et seq.). A
“permit” signed by the permittee (i.e..
the Industrial user) may be deemed a
contract and thus lose its effectiveness
as a control mechanism. POTWs that
currently use contracts as control
mechanisms may Incorporate most of
the terms of such contracts Into their
newly Issued non-contractual individual
control me.’h*ntams If such terms are
current. reflect applicable pretreatment
standards and requirements, and
otherwise meet the requirements of
today’s rule.
Several mi .ienters appeared to be
confused about the meaning of the
statement In the preamble to the
proposed rulemaking that the Agency
was proposing to require POTWs with
approved programs to have “the legal
authority to (arnie individual discharge
permits or equivalent control
mechanisms.” Several POTWs
commented that they supported the
proposal, as some of them already had
the authority to Issue permits. One State
commented that the proposal was not
adequate unless the POTW is also
required to actually Issue the control
mechanism. One POTW supported a
requirement that POT’yVs have permit
authority, but not a requirement to issue
-------
30108 Federal Register I Vol. 55, No. 142 / Tuesday, July 24, 1990 I Rules and Regulations
permits. Finally, one trade association
commented that the Agency should
remove the word “permits” from the
requirement If permit issuance was cot
intended to bea mandatory
requirement.
EPA Intended that the proposed rule
be interpreted consistently with the
Agency. interpretation of other
requirements of 40 CFR 403.8(0(1), I.e.,
the requirement that the P01W have the
authority to undertake various activities
means that the P01W must. Infact ,
engage In those activities. EPA Is
revising the language of 40 ‘R 403.8(f)
to clarify that P01W pretreatment
programs must be implemented to
exercise the authorities to 40 R
403.8(0(1).
In the proposed rulemaking, the
Agency also requested comments on (1)
the appropriateness of limiting the
requirement to Industrial users defined
as significant under proposed 40 CFR
403.3(u). or the appropriateness of
additional or alternative targets, such as
categorical users or notifiers of
hazardous waste discharges under
proposed 40 CFR 403.12(p) (2) whether
the requirement should apply only to
P01W. WIth more than a specified
number of Industrial users (and. If so,
what number would be appropriate as a
cut-off potht) and (3) whether the list of
proposed conditions should be
contracted, expanded, or modified. The
Agency received a number of comments
in response to these questions.
Roughly ball of the commenters an the
proposal responded to the question of
which Industrial users should be
required to have Individual control
mechanisms. Several commenters stated
that the POTW should have the
flexibility to decide which users should
be covered. However, most commenters
who supported the proposal agreed that
EPA should specify certain classes of
Industrial users for which POTWs
would be required to Issue Individual
control mechanisms. Most of the..
supported the proposal to sequin th .
use of Individual control mechanisms for
significant Industrial users. With respect
to dlschargers other than significant
users, Including discharger. of
hazardous wastes, most commenters
stated that the use of control
mechanisms for such users should be at
the discretion of the Control Authority.
However, other commenters suggested
that the Agency extend the requirement
‘i Include dischargers of hazardous
sates or to Include all Industrial users.
nally, a few commenters wanted the
.equlnement lintited to categorical users.
None of these comments provided a
.. ,,mpeWrig reuon for the Agency to
change the proposed requirement that
permits or equivalent individual control
mechanisms be Issued to all significant
industrial users. The Agency agrees with
those comznenters who supported
limiting the requirement to significant
users, including categorical users. The
Agency also agrees with those
commenters who believed that the
definition of significant Industrial user Is
sufficiently Inclusive and flexible to
ensure that the necessary users are
regulated by individual control
mechanisms. The definition of
significant industrial user, as
promulgated In today’s rulemiticing,
includes all categorical discharger. and
all noncategorical discharger. meeting
certain criteria, except to the extent that
the Control Authority, with the approval
of the Approval Authority, modifies the
list of significant Industrial users In
accordance with criteria specified In 40
CFR 403.3(t)(lXil).
EPA believes that Issuing Individual
control mechanisms to non-significant
users should be at the discretion of the
P01W because this class of users does
not typically have sufficient potential to
caus. pass through or Interference to
warrant a requirement for Individual
control mechanisms. For this reason,
todays rule does not require that
P01W. Issue Individual control
mechanisms to all Industrial users. A
P01W may. however, require non-
significant users to have permit. or
other individual control mechanisms.
One POTW commented that there
should be two dasses of Industrial user
permits. In response. EPA points out that
POTW5 are free to implement this
approach If they wish, although the
Agency does not believe that a two-
class approach would be appropriate for
all PO ’r#l. Inc national rule.
EPA disagrees with those commenters
who stated that the requirement for
individual control mechanisms should
be limited to categorIcal users. Such a
requirement would fail to Include many
users whose discharges significantly
affect POTWs. One commenter stated
that the Agency should not require
permits for small discharger., but
supported rtquiriag permits for
categoricals. However, the Agency
believes that even small discharger.
should be required to obtain Individual
control mechanisms If they qualify u
significant Industrial users because they
may have a significant effect on a
POTW. On the other band, if a non-
categorical user Is not classified as a
slgniflcant industrial user, It would not
be required to obtain an Individual
control mechanism under today’s rule.
A few commenters addressed the
question of whether the requirement
should apply only to P01W. with more
than a specified number of Industrial
users. Several commenters stated that
the requirement shculd apply to all
POTWs with approved programs.
One stated that even a small P01W
may need to Issue Individual control
mechanisms to significant discharger..
Another corrunenter stated that small
P01W. (less than 5 million gallons per
day) with a small number of significant
users (less than ten) should not be
required to Issue such control
mechanisms to their significant users.
However, one large P01W commented
that this requirement should only apply
to smaller POTWs (under 20 mgd).
In response to the comm*nter who
wanted to limit the applicability of the
requirement to smaller P01W., the
Agency believes that the larger the
P01W (and the greater th, number of
industrial users), the greater the benefit
to be derived from Individual control
mechanisms. On the other hand, the
Agency does not believe that POTWs
with a small number of significant users
should be categorically exempted from
thu requirement Even a small number
of significant useze may have a
substantial Impact me a P01W,
particularly when their HwluhPge.
represent a large pal rtage of the flow.
In addition. Industrial usm will benefit
from IndivIdunth d notification of the,.
limits and monitoring requirements that
apply to them, regardless of the size of
thePOTW. .
Several commenters addressed the . ,
minimum elements to be Included In en
individual control mechanism. A P01W
opposed to the proposal commented that
there should be no minimum elements If
permits were to be required because the
P01W 1. In the best position to -.
determine the necessary contents of.
permit. and none of the elements would-
be appropriate under all circumstances.
Mother commenter recommended that
the Agency allow Incorporation by
reference u an alternative to listing -
conditions In the permit or alternative
Individual control mecb 4.” Most
commentars. however, appeared to be-
satisfied wIth the list of conditions In
the proposal. One P01W commented
that the requirements concerning non-
transferability, slug load notification,
and penalties be dropped from the list,
because these are already set forthln Its
local requirements, -
The Agency believes that there should
be minimum requirements for Individual
control mer n ! .I . Otherwise, the
requirement that P01W. issue such
nicch.”” would be Ineffective. The
Agency believes that incorporation by
reference is generally not appropriate
because of the Importance of effective
-------
Federal Regfster/ Vol. 55. No. 142 / Tuesdsy. July 24. 1990 / Rules and RegWatlons
30109
notice to the significant industrial user
of .11 pretreatment requirements
contained In the Individual control
mechanism.
Several commentera stated that the
list of minimum requirements for
Individual control mechanism, should
be expanded. Two commenten said that
the list should include (any required)
compliance schedule,. One commcnter
suggested that the list should Include a
statement of severability. One P01W
described Its own additional
roquuements. which Incindedi A
regularly updated spill prevention
programo water and wasteload
balance calcvlatloiz a wastewater
chareclerlzatlon data base a schematic
flow diagram: e building layout diagram.
Including all drains to the collection
system and a description of the
pretreatment systefi
The requirements listed in the
proposed role were Intended lobe
minimum requirements. This leave, the
P01W much flexibility In adding other
elements. Elements such as water and
wasteload calculations, flow diagrams.
building layouts. etc., are more suitable -
for Inclusion on a case-by.case basis
rather than through a national rule.
P01W, may also Include a statement of
severability, but the Agency I. not
requiring such a statement because even
if a control mechanism Is found to be
invalid andes local law becauab of a
single provision, the user Is nonetheless
required to comply with aU applicable
pretreatment standard. and
requirements.
The Agency has Issued detailed
guidance on the development of
industrial user permits (see the IPA
1ndusb o! User Permitting Gwdance
ManuaL September1989). The
Information in this manual should be of
use to all P01W. In uttlising Individual
control mechanism, to Implement
pretreatment requirements.
The Agency agree. that where.
compliance schedule Is required It
should be included Is the individual
control Poe this mason.
today’s rule includes such a
requirement. The Agency points out that
such compliance schedules cannot
relieve an Industrial userol Its federal
obligation to comply with categorical
pretreatment standards or any other
federal pretreatment requirenients In a
timely manner, and language to this
effect has also been added to today’.
rule. Compliance schedule, placed In
Individual control mechanisms are those
necessery for the attainment of new or
revised categorical pretreatment
standards or more stringent local limits.
rather than those which are the reault of
enforcement actions against the
significant industrial user.
Several commenters opposed the
proposal that individual control
mechanism. have a duration of no more
than five years. One P01W commented
that locking s user Into a set of
standards based on the combined
wastestream formula would result in
annual changes to the control
mechanism as flow conditions change.
Two other POTWs commented that a
five-yea: limit would be unduly
burdensome for P01W,. One stated
that permits should only need to be
renewed or amended when there are
changes In the quality or quantity of the
user’s discharge. The other stated that
there Is no need to modify the use?s
control mechanism as Long u the user Is
In compliance.
In the first Instance, the Agency does
not believe that a user is locked” into a
particular set of standards with any
individual control mechanism. The
municipality may structure Its permit
program to allow the use of reopener
clauses which would allow the
Individual control mechanisms to be
modified If and when the POTW revises
Its Local limits. Zn addition, where
production rates or flow rates are highly
variable, effluent limits can be written
to reflect such variability. The Agency
ha. provided some guidance on how this
may be accomplished (see the above-
mentioned Industrial User Permitting
Guidance Manual). The Agency believes
that a five-year maximum period is
reasonable, due to the inevitability of
changes to the POTW’s program and
changes In the characteristics of
wastewater discharged to the P01W.
TkIs Is consistent with the requirement
promulgated In today’s rvleiiinIrfi that
all P01W. must evaluate the need to
revise their local limits every five years
when they apply for renewal of their
NPDES permits. There are many reasons
for changing the control mechanism
requirements, whether or not the user
has changed the quality or quantity of
Its discharge, and the Agency believes
that each control mechanism should be
reevaluated at least once every five
years to ensure that It Is up to date.
The Agency also proposed to require
a statement prohibiting transferability to
a new owner or. operator without prior
P01W approvaL Only one comznenter
specifically addressed Ibis Issue. This
commenter stated that so long as
compliance has been maintained under
the conditions of. permit, the P01W
should have ample authority to enforce
the permit, although notification to the
new owner or operator would be
appropriate. The Agency agrees with
this commenter. P0’FWs may have
authority to enforce permits that have
been transferred. the
Individual control mechemser Is based
upon information provided to the P01W
by a particular owner or operator. The
P01W must. at a minimum, know of the
change In ownership or operation to be
able to learn of any forthcoming major
changes to the Industrial user’s
operations. Similarly, the new owner or
operator should have a copy of the
existing control mechanism In order to
have adequate notice of applicable
pretreatment requirements. To ensure
that this occur , , the Agency believes
that prior notification of the P01W and
of the new owner or operator Is needed
and is therefore promulgating 40 CPR
403.8(f)(tXiii)(B) to provide that each
Individual control mechanism must
Include a statement of
nontransferability without, eta
minimum, prior notification to the
P01W of the change In ownership or
operation and without, at a minimum,
provision of. copy of the existing
Individual control mechanism to the
new owner or operator. Today’s rule
does not, however, require prior
approval bythe P OTW.POTWs may
decide to require such prior approval In
the permits they Issue.
The Agency also received several
comments on the proposed requirement
that Individual control mechanisms
should include applicable effluent limits
based upon categorical standards and
local limits. Two P01W, sought to IL-nit
this requirement One of these
commeutems stated thet, due to the
inherent variability of certain effluent
limits, Incorporation of such limits by
reference Is preferred. The other
commented that permit limits should
only Include end-of-process limits and
Incorporate by reference local limit! and
the combined wustestream formula. Ills
unclear to the Agency why this
commenter believed that only end-of-
process limits should be included in’- —
Individual control er th &ini,, but the
Agency assumes that this commenter
was also concerned about variabilIty of
certain effluent limit.. As discussed
above, EPA does not believe thai
variability of flow and production
should prevent the Inclusion of
appropriate limits In Individual control
mechanisms. EPA’s policy Is that
P01W. should develop, and place In
individual control mechanisms, case-by-
case Individual end-of-pipe limits for
significant Industrial users pursuant
either to 40 CFR 489.5(c) and/or limits
reflecting the application of categorical
standards to the permiltees specific
operations.
-------
30110 Federal Register / VoL 55. No. 142 / Tuesday, July 24. 1990 / Rules and .Regulatlon .
A Slate suggested that “applicable
State standard.” be added to the
category. The Agency agrees that where
these standards apply. they should be
Included as elements in permits or
equivalent control mee 11(1mL Early
calculation of all endof•plpe limit.,
Induding those based on state law, will
result In better compliance with
applicable standards. Today’s rule
therefore includes a requirement In 40
CFR 403.8ØXI)(Iii) to Include In the
Individual control mechanism effluent
limits based on any applicable State or
local law. The Agency has also added a
requirement that the Individual control
mechanism Include effluent limits based
on applicable pretreatmeat standards In
part 403.
Finally, the Agency received two
comments on the requirement that
applicable monitoring, sampling, and
reporting requirement . be Included In
individual control mechanisms. A State
commented that control mechanisms
should also Include sampling location(s)
to ensure that compliance Is assessed at
the point where the limits are applied. A
POI1W suggested that the requirement
be modified In order to clarity that the
requirement refer, to self .monltorthg
instead of the POTW’s own compliance
monitoring activities. -
The Agency agrees with both of these
conimenters. Sampling requIrement .
should normally specify sampling -
location(s), and the location(s) should be
point(s) at which the limitation, set
forth in the Individual control
mechanism apply. Moreover, the Agency
Intended In the proposal to require that
Individual control mechanisms contain
self.monltoring requirements. The final,
rule requires that Individual control
mechanisms specify an Identification of
the pollutants to be monitored, sampling
location and self.monltoring
requirements, as well as sampling
frequency and sample type. The Agency
Is also adding a requirement that the -
control mechanism contain
recordkeeplng requirements when
applicable, since recordkeeplng may be
very useful In tracking complianc, and
In otherwise enabling the POTW to
obtain needed Information about
significant lndus ±1al users, In addition.
A has deleted from the proposed rule
a separate requirement for notification
of slug discharges, since such a
requirement might imply that other types
of notification should not be included In
divldual control mechanisms. Instead,
Agency Ii requiring that such
,!echanlams contain “applicable”
• .utiflcatlon requirements, which should
clude,ss well as slug discharges, other
notification requirements contained In
c. Today’s Rule
Today’s nile requires POTWs with
approved pretreatment programs to
Issue permits or equivalent Individual
control mechanisms to ench significant
IndustrIal user. The mechanisms shall be
enforceable and shall contain, at a
minimum, the following elements:.
• Statement of duration (In no case
more than five years);
• Statement of non-transferability of
the Individual control meeh nl m
without, at a minimum, prior notification
to the POTW and provision of a copy of
the existing control mechanism to the
new owner or operator
• Effluent limits based on applicable
general pretreatment standards In part
403 of this title, categorical pretreatment
standards, local limits, and State and
local 1aw’
• Self.monltoning. sampling. reporting,
notification, and recordkeeplng
requirements, including an Identification
of the pollutants to be monitored,
sampling locatIon, sampling frequency.
and sample type. based on applicable
general pretreatment standards In part
403 of this title, categorical pretreatment
standards, local limits, and State and
locallaw”,and
• Statement of applicable civil and
criminal penalties for violation of
pretreatment standards and
requirement, and, where required, afly
applicable compliance schedules. Such
schedules may not extend the
compliance date beyond applicable
federal deadlInes. .
F. implementing the General •.
Prohibitions Against Pass Through and’
Interference
1. Toxlcfty.Based Permit limits (40 CFR
122.21 W(1J(2) and (3))
a. Proposed nile. To supplement
numerical NPDES permit limits for
specific chemicals, EPA has strongly
encouraged NPDES permitting
authorities to establish toxicity testing
requirements In municipal permits and
to develop whole effluent toxicity-based
permit limitations to control toxicity to
aquatic life. Expanded use of toxicity
testing and water quality-based
permitting for POTWs was also one of
the principal recommendations of the
Domestic Sewage Study. EPA has
encouraged this approach to controlling
toxic effluents because It allows POTWs
and permit writers to better control pass
through by Identifying certain toxic
effects (such as lethality and effects on
growth and reproduction) of a complex
mixture with one measurement
Toziclty ’based permit limits can also be
useful where national categorical
pretreatment standards do not
adequately address pollutants that
cause local toxicity or where there are
no current numerical water quality
criteria for individual chemicals, as Is
the case for many toxic and hazardous
constituents. In such cases. toxicity-
based permit limits provide a numeric
measure of the nanative water quality
“no tonics In toxic amounts” standard.
When such a toxicity-based limit Is
violated. a toxicity reduction evaluation
(TRE) can be used to Investigate the
causes. sources. and method. to control
the toxicity. A TRE Is a procedure used
to find control methods to reduce or
eliminate toxicity. A TRE provide,
systematic methods for locating sources
of POTW whole effluent toxicity andlor
assessing the treatabillty of the toxicity.
whether through pretreatment (source
control) or through improved treatment
at the POTW. A toxicity Identification
evaluation (TIE) Is part of a TEE which
uses toxicity tests to characterize,
Identify, and confirm the specific
causative agents of effluent toxicity.
EPA recently enacted regulations -
requiring that whole effluent toxicity
limits be placed In NPDES permits In
appropriate cIrcums’ nce,- See 40 CFR
122.44(d) ) .
On November 23, 1988, EPA proposed
to revise 40 CFR 22.21(Jto require that
all existing POTWs conduct whole.
effluent toxicity testing and submit the
results of such testing In their NPDES
permit applications. The Information
would be used by permit writers to
Justify permit limitations and toxicity
reduction evaluations (TREs) when the
testing reveals a potential for violation.
of water quality standards. The toxicity
testing Information could also form the
basis for monitoring requirements and
other permit conditions when needed to
ensure ongoing compliance with water
quality standards. . - . -
In encouraging the use of toxicity
testing, EPA has recommended that.
testing requirements be based on the
technical recommendations and
principle. found In the Technicoi
Support Document/or Water Quality.
based Toxics Control (TSD) (EPA/440/
4-85-032, September1983, revised
edition to be published In 1990), and
EPA’s tOxicity testing protocols, or
equivalent procedures designated by the
Director (I.e. the EPA Regional
Administrator or the NPDES permitting
authority In a State that Is federally
approved to administer the NPDES
program). The TSD describes the
rationale for whole effluent toxicity
part 403 such as non.compliance
reporting and notification of changed
discharge.
-------
Federal Register / Vol. 55, No. 142 I Tuesday. July 24. 1990 / Rules and Regulations
30111
controls and the assessment of receiving
water effects.
b. Response to comments. EPA -
received approximately 90 comments on
th. topic of toxicity testing. Most of the -
comments focused on th. need for
toxicity testing at all POTWs and the
test procedures outlined In the proposal.
The majority of the commenters
asserted that toxicity testing at all . -
existing P01W. was unnecessary and
in some cases redundant. In addition, a
majority of commenters objected to the
testing procedures and the frequency of
testing required on the basis of cost and
the possibility that they may conflict
with state toxic control strategies
already In place. The various comments
are discussed in more detail below.
Several commenters stated that EPA
or the permitting authority should
demonstrate that toxicity Is a problem
before requiring whole effluent toxicity
testing.
Section 101(a) of the Clean Water Act
establishes a national policy of restoring
and maintaining the chemical, physical.
and biological Integrity of the Nation’s
waters. In addition. section 101(aJ(3)
clearly states the national policy that
the discharge of toxic pollutants In toxic
amounts Is prohibited. Dlschargers with
NPDES permits must meet all of the
technology-based requirements of the
CWA as well as any more stringent
requirements necessary to achieve
water quality standards established
under section 303. Section 301(b)(l)(C)
and section 402(a)(1) of the CWA
require that NPDES permittees achieve
the effluent limitations necessary to
attain and maintain the numeric and
narrative water quality standards set by
the states or. in appropriate Instances,
by EPA. EPA also has authority under
sectIons 308 and 402(e) (1H2) to require
such monitoring as Is necessary to
develop effluent limitations consistent
with the Act.
Many P01W. have been found to
discharge toxic substances In toxic
amounts. Effluent toxicity testing allows
permitting authorities to assess whether
a disuhirger is complying with state
water quality standard. end provides a
justification for establishment, where
necessary. of permit limitations to
achieve those standards. EPAs surface
water toxins control program uses both
chemlal and biological methods to
assess and protect water quality. Whole
effluent toxicity testing Is especially
appropriate where, as for POTWs,
complex chemical Interactions may
occur and where a chemical specific
evaluation alone cannot fully assess the
toxic effects of the effluent or
attainment or nonattalnznent of the
narrative water quality s”'’dard for
toxicity. .
One coinmenter stated that these
regulations should require that water
quality modeling and comprehensive
water quality studies be completed
before toxicity testing Is required.
The toxicity testing required by
today’s rule Is desigued to reveal If a
P01W Is causing or contributing to
lostreass toxicity. Toxicity tests are -
necessary In assessing the toxicity of an
effluent The results of such tests In
conjunction with any applicable water
quality modeling Information can lead to
decisions concerning appropriate water
quality-based limits on whole effluent
toxicity. However. EPA does not believe
that water quality modeling should be a
precondition for toxicity testing.
Many commentere stated that It
would be more appropriate to use
toxicity testhig as an optional
monitoring tool rather than as the basis
for an enforceable limit.
EPA emphasizes that today’s rule
does not explicitly require the
establishment of permit limits based on
the results of toxicity tests. Instead, It
requires certain POTWs to submit the -
results of toxicity tests with their permit
applications. EPA’. regulations at
CFR 122A4(d)(1)(iv), however, already
require whole effluent toxicity limits
where a discharge causes, has the
reasonable potential to cause, or
contributes to an In-stream excursion
above a numeric aiterlon for whole
effluent toxicity. A similar requirement
exists regarding excursions above
narrative iteria, except that limits on
whole effluent toxicity may not be
necessary If the permitting authority
demonstrates that chemical-specific
limits for the effluent are sufficient to
attain and maintain the applicable state
standard. EPA will continue to use the
results of effluent toxicity testing and
other data to establish permitting
priorities, to assess whether a
discharger Is in compliance with state
water quality standards, and to develop
permit limitations to achieve those
standards.
• Several commenters said that toxicity
tests cannot distinguish between
toxicity caused by “common materials.”
such as ammonia and chlorine, and
toxicity caused by section 307(a) priority
pollutants and therefore such tests are
of ilmltcd use In controlling priority
pollutants. -
In response. the Agency points out
that state narrative standards
prohibiting the discharge of toxics In
toxic amounts are not limited to section
307(a) priority pollutants. Toxicity tests
will account for toxicity caused by any
pollutant, whether priority, conventional
or nonconventlonaL Any effluent that
causes unacceptable toxicity In the
receiving waters would violate genera’
prohibitions on the discharge of toxic
pollutants In toxic amounts and controls
must be established accordingly.
In addition. a few commenters stated
that state disinfection requirements
would often cause failure of a toxicity
teat due to the presence of chlorine, and
therefore toxicity testing should be
conducted before disinfection.
Residual chlorine and other
byproducts of chlorination (I.e. mono-
and dich!oroamlnes) can be highly toxic
to aquatic life. Therefore. EPA
recommends that any use of chlorine for
disinfection be carefully evaluated. If
unacceptable effluent toxicity Is found
to be caused by excessive chlorine,
either a reduction in the amount of
chlorine used for disinfection.
dechlorination after disinfection, or use
of alternative disinfection technologies
may be necessary. Whole effluent
toxicity tests are an appropriate means
to Identify whether excessive toxic
chlorine discharges are occurring.
Several commenters suggested the use
of only acute tests to verify the need for
further testing and toxicity reduction. In
response, the Agency notes that today’s
rule,does not speclflcaUy require either
acute or chronic tests for any particular
P01W. However, after reviewing a
permit application con”'ining the results
of any testing conducted. the Director
may choose to require additional testing
(acute, chronic, or both) as he deems
necessary to assess the toxicity of the
discharge pursuant to his authority
under sections 402(a) (1)-(2) of the Clean
Water Act. The characteristics of
Instream dilution, effluent variability.
sad species sensitivity differ from one
P01W to the next, as do the types of
pollutants discharged. Sometimes
chronic tests are more appropriate,
sometimes acute tests are sufficient, and
at other times a combination of both
acute sad chronic tests are necessary to
accurately assess the toxicity of an
effluent to aquatic life.
On. commenter stated that the
industrial pretreatment program has
adequately screened and Identified
toxicity problems so that In smaller
systems (where the pretreatment
program docs not Indicate a potential
- for toxic discharges) It I. unnecessary
for P0’I’Ws to conduct toxicity testing.
EPA has found that P01W. with
pretreatment programs receive the
majority of Indirect Industrial discharges
and therefore have a significant
potential for effluent toxicity. Even In
smaller P01W. wIth pretreatment
-------
30112
Federal Register /VoI. 55. No. 142 I Tuesday, Juiy 24, 1990 I Rules and Regulations
programs, all the tox2Cs La a complex
emuent cannot, as a practical matter, be
measured or limited singly and. as
stated previously, chemical-specific
testing methods may not address the -
Interactive effects of the mixture.
Toxicity testing provides a way to
characterize and ultimately to limit, If
necessary. whole effluent toxicity where
necessary to meet water quality
standards. It may also help Identify the
presence of particular pollutants of
concern so that chemical-specific local
limits or other controls can be
developed.
One commenter suggested using a
priority pollutant scan in lieu of toxicity
testing to saeen a POTW’s Influent for
the presence of toxic wastes In
concentrations which would cause
damage to the POTW.
EPA agrees that POTWs should
generally test their Influent for the
presence of individual toxic pollutants.
However, a POTW’s effluent may be
toxic due to non-priority pollutants,
complex mixtures of pollutants. or
chemicals added or aeated during the
treatment process at the POTW. The
revisions to 40 CFR 122.21(J) requIre
PO’I’Ws to conduct whole effluent
toxicity testing to determine the Impact
of the effluent on water quality.
Several commenters suggested that
toxicity testing should not be required
for wastewater discharged to dry meek
beds, ephemeral drainages, sloughe.
ditches, etc. because these places have
no aquatic life to protect and do not
affect waterways. One commenter -
recommended the use of only chemical.
specific controls in such circumstances.
In response. EPA notee that narrative
water quality criteria apply to all
designated uses at all flows unless
otherwise specified In state water
quality standards. It is EPA’s policy that
no acutely toxic conditions may exist In
any state waters, regardless of
designated use. Likewise, criteria for
protection against chronic effects must
be met at the edge of the mixing zone,
where the state water quality s*uIa,d
allows a mixing zone. Dry meek beds,
ephemeral drainage areas, Intermittent
streams, sloughs. or ditches may act as
reservoirs for pollutants which can be
flushed Into larger permanent waters.
causing toxic impact.
Many commentate stated that the
requirements for toxicity testing in the
proposed rule conflict with existing state
toxic control strategies. Some
commenters wanted EPA to be more
specific In setting toxicity testing
procedures. while others wanted states
to have more flexibility.
EPA Intended in the proposed rule to
provide flexibility for the states by
allowing the use of testing procedures
equivalent to EPA’. protocols if they are
accepted by the Director. This provision
was apparently misunderstood by many
of the commeaters. The proposal, at 50
FR 47653 (proposed 40 CFR 12L21(fl(1)3
provided that the Director may require
alternative test procedures and may
require the submission of deflnltlvs
testing data generated according to
procedures specified by the Director to
replace or supplement the test data
specified In the proposal. Todays rule
also provides much flexibWty to the
Director In speclf)ing test method.. For
example . paragraph 122.21W(3) allows
the use of EPA’s methods or other
established protocols which are
scientifically defensible and sufficiently
sensitive to detect aquatic toxicity. To
clarify this requirement, the Agency hu
deleted the provisions In the proposed
rule which referred to the use of specific
protocols and dilution criteria.
A number of commenters stated that
biomonitoring has already been
completed or will be completed for their
facilities as pert of the toxlca control
programs required under section 304(1)
of the CWA. In response. EPA points out
that Ifs POTW has submitted the
results of toxicity tests with Its permit
application to meet water quality-based
permitting requirement. established by
the CWA section 304(1) regulatIons (40
CFR 122.44(d)), then the P01W has met
the toxicity testing requirement. in
today’s rule. Whenever that POTW’s
permit I . up for renewal, the POTW will
again be required to submit the results
of toxicity test. with Its permit
application pursuant to today’s rule. The
tests must be conducted since the last
NPDES permit reissuance or permit
modification under 40 Q ’R 122.62(a),
whichever occurred latest. For more
detail on the relationship between the
regulations at 40 R 122.44(d)(1)(ii) and
the testing required by today’. rule, see
the discussion on the requirements of 40
CFR 122.44(d) below.
Some commentere suggested that any
proposal affecting application
requirements for municipalities should
be Included In the new municipal
NPDES application form currently being
developed by EPA.
EPA plans to propose new application
requirements for POTWs In the near
future, along with a form to be used In
submitting the application. The final
application forms, when promulgated,
will reflect the requirements of today’s.
rule.
Two commenters suggested that EPA
should formally promulgate whole
effluent toxicity testing procedures
pursuant to section 304(h) of the CWA.
Although toxicity test procedures
have not yet been promulgated under
section 304(h) of the CWA, EPA has
proposed new biological measurements
and test procedure. for the analysis of
pollutants under section 304(h) (54 FR
50218, December 4. 1989). The proposal
would amend 40 CFR part 138 by adding
methods to measure the toxicity of
pollutant. In effluents and receiving
waters, by adding methods to measure
mutagenicity and to monitor viruses,
and by updating citations to
microbiological methods. In addition,
EPA and States have routinely used
certain other test methods. EPA’s
published guidance documents on acute
and chronic toxicity test method. have
undergone extensive public comment
and peer review prior to their
publication, following the standard
Office of Research and Development
public comment and peer review
process. In 1984, the Agency concluded
that TM ’ ‘ toxicity testing is sufficiently
refined to be used In setting effluent
limItatIons’’ ‘“(49 FR 380 (1984)).
EPA’s studies since 1984 reinforce this
conclusion. The absence of promulgated
guidelines under section 304(h) does not
affect EPA’s authority to require toxicity.-
testing, nor doe. It affect the reliability
of the Agency’s ffi’dcity tasting
protocols. ,
A number of c rnl.ntars objected to ‘i
a perceived objective of the proposal to
“codify elements of the TSD” because .
that document I. Intended only as
technical guidance and Is currently -.
being revised. These commenters ..
apparently misunderstood EPA’s lntenL
EPA recommends the use of the. . -
technical methods and principles
presented In the TSD because this
document is in wide use and has proven:
to be a useful tool for conducting - -
toxicity protocols. However, In the
proposed and final rules, EPA has -
provided a considerable degree of
flexibility to states desiring to use other
testing procedures.
Some co ”ters stated that toxicity
test procedures are still in the
developmental stage and are not
reliable or precise enough for purposes
of enforcement.
EPA studies indicate that toxicity tat
methods are comparable In accuracy
and precision to chemical analytical
measurements in common use. The TSD
discusses the precision of toxicity test
methods and cites various studies that
have led EPA to conclude that toxicity
test methods, where properly followed,
exhibit an acceptable range of
variabillty EPA recently conducted two
interlaboratory studies of chronic
toxicity testing using C.riodophnia.
-------
Federal Register I Vol. 55. No. 142 I Tuesday. July 24. 1990 I Rules and Regulations
30113
These studies showed that a high
percentage of the 21 partIcipating
laboratories met the survival and
reproduction criteria for acceptability of
test results. Furthermore, EPA has
demonstrated a direct correlation
between effluent toxicity (where
exposure Is adequately assessed) and
actual Instream impact. The Agency
began a series of eight studies in 1981 to
determine whether effluent toxicity
correlates to an Impact on receiving
waters. At eight water quality impacted
sites around the country, EPA conducted
extensive biosurveys, calculated actual
Instream waste concentrations, and
compared the results to measured
effluent toxicitles. Final reports for these
studies are presently available from
EPA. These reports reveal that if an
effluent Is found to be toxic at a certain
concentration using standard toxicity
tests, a toxic effect can be expected in
the receiving water 11 that concentration
Is met or exceeded Instream.
Several commenters stated that
POTWs are not equipped to handle
certain chemicals that may cause
toxicity. One commenter also stated that
the proposed rule does not address how
to develop Local limit. for toxic. control
when specific chemicals cannot be
readily Identified as the causative
to,dcants during a ThE. One comn enter
stated that POTWu would not be able to
identify sources of toxicity and would
therefore impose arbitrary local limits
on Industrial users.
EPA recognizes that many POTWs are
not designed to treat certain tonics and
that therefore these pollutants tend to
pass through or interfere with the
treatment system at the POTW. The
national pretreatment program and
today’s regulations are intended to
identify and control these effects.
POTWa with approved local
pretreatment programs often require
industrial users who are Identified as
the source of pass through or
interference to conduct toxicity
manlt.oring or take other measures to
help Identify the specific chemicals
causing toxicity. Industrial users are
often able to easily identify potential
toxic. used In or created by their
processes. The POTW can then derive
local limits. If necessary, from those
results. The Agency anticipates that in
most cases POTWs will be able to
determine the source of any toxicity and
will be able to develop appropriate local
limits if needed to address the problem.
EPA has also developed TRE and TIE
protocols to help address problematic
discharges where causative agents are
not readily Identified (see. e.g.. Methods
forAquodc Toxicity Idenuficozion
Evaluations: Phase I Toxicity
Characterization Procedures, U.S. EPA.
September 198$. EPA 600/3-88/034:
Methods for Aquatic Toxicity
!dent:fication Evaluotions. Phase!!
Toxicity Identification Procedures. U.S.
EPA. February 1989. EPA 60013-88/035:
Methods IotA quotic Toxicity
Identification Evaluations: Phase III
Toxicity Confirmation Procedures. U.S.
EPA, February 1989. EPA 600/3-88/038.
Generalized Methodology for
Conducting Industrial Toxicity
Reduction Evaluations (TP s), U.S.
EPA. March 1989. EPA 600/2-88f070 ,
and Toxicity Reduction Evaluation
Protocol for Municipal Wostewoter
Treatment Plants, U.S. EPA. April 1989,
EPA 600/2-88/062).
Several commenters were concerned
about the reliability of TREs because
they are allegedly in the developmental
stage and because TREs do not identify
specific causes of toxicity or chemical
constituents causing acute or chronic
toxicity.
EPA has found the TRE and TIE
methods currently available to be useful
In helping dischargers to achieve their
NPDES permit limits and comply with
State water quality standards. TREs
often do Identify specific chemical
causes of toxicity. EPA will continue to
develop and refine TRE methods and
provide technical assistance to
permittees. EPA anticipates that there
may be a few cases where a POTW will
be unable to attain or maintain
compliance with toxicity-based limits
despite implementing an exhaustive
TRE, applying appropriate istfluent an
effluent controls, vigorously enforcing
existing pretreatment requirements
against industrial users, and maintaining
continued compliance with all other
permit limits and requirements. In such
cases. EPA will work with the permittee
to resolve the problem and will exercise
Its enforcement discretion when
considering unusual problems faced by
certain POTWs In complying with
toxlcity.based limits.
A majority of the commenters strongly
opposed the requirement that all
exiatlag POTWa conduct toxicity
testing. Most of these wanted to see
testing procedures applied on a case-by.
:ase basis, after considering a number
of different factors.
EPA was persuaded by these
comments to reconsider the requirement
that all existing P01W. be required to
conduct toxicity testing as part of their
NPDES permit applications. The Agency
agrees that not all POTWs can be
anticipated to exhibit toxicity and that
toxicity testing for such P01Ws could
create an unnecessary burden.
However. EPA expects that with few
exceptions, all P01W. with design
influent flaws greater than one million
gallons per day and POTWs with
pretreatment programs will need to be
evaluated to determine whether they
have a reasonable potential to cause in-
stream excursions that violate a State
water quality standard. As stated abo’. e.
POTWs with pretreatment programs
receive the majority of indirect
Industrial discharges and therefore ha’. e
a significant potential for emuent
toxicity. In addition, one million gallons
per day Is the point at which the flow of
the wastewater usually begins to reach
attical Instream waste concentrations
that are more likely to result In impacts
caused by effluent toxicity. The Agency
believes that design Influent flow is a
more appropriate criterion than actual
effluent flow because of the possibility
that POTWa with a design influent flow
of one million gallons per day will reach
that capacity during a five-year permit
term due to the addition of new
industrial users. For these reasons, in
lieu of the requirement that all POTWs
submit the results of toxicity tests with
their permit applications, EPA I. today
requiring valid toxicity testing results to
be submitted as part of the permit
application requirements fon (1) Any
P011W wIth a design Influent flow
exceeding one million gallons per day.
or, (2) any POTW with an approved
pretreatment program or that Is required
to develop a pretreatment program.
Today’s regulations also p ovide that
the Director has the discretion to require
additional POTWs to submit the results
of toxicity tests with their permit
applications based on consideration of
one or more of the following factors
found at 40 R 122.44W(2): Existing
controls on point and nonpoint source
pollution (including total maximum daily
load calculations for the waterbody
segment and relative contribution of the
POTW), the variability of pollutants or
pollutant parameters in the effluent
(Including existing chemical-specifIc
information and type of treatment
facility), the dilution of the effluent in
the receiving water (ratio of effluent
flow to receiving stream flow), receiving
stream characteristics, and other
consideratlons. Any tests submitted
under today’s rule must have been
conducted since the last NPDES permit
relsauance or permit modification under
* 122.62(a), whichever occurred later.
If toxicity tests follow established
protocols and quality assurance
requirements are followed, the validity
of the test will be assured. An invalid
test will not meet the requirements of
today’s rule. Testing protocols that
-------
30114 Federal Register / Vol. 55, No. 142 / Tuesday. July 24. 1990 / Rules and Regulations
adhere to the principles presented In the
TSD and EPA’. test methods will meet
the requirements of today’s rule;
however, other valid procedures may
also be used. While today’s rule requires
larBer POTWs to conduct toxicity
testing. It also provides the Director the
flexibility to require small P011W.
located on small stream segments where
available dilution Is tiIi In aJ to conduct
toxicity tests, or to requIre P01W.
discharging to near coastal waters to
conduct such tests.
In m frlng the determination that the
categories of POTWi listed ln4oa ’R
122.ZIW(1) shall conduct toxicity tests
as part of the permit application
process. EPA was Influenced by the
findings of the Domestic Sewage Study
and the conclusion In that Study that
EPA should consider expanding the use
of blomonitoring techniques and water
quality-based permitting to Improve
controLs over haxardous waste
discharged to POTWs. To strengthen Its
water quality-based permitting program.
EPA recently revised Its permitting
regulations at 40 CFR 122.44(d) (54 FR
23868 June 2, 1909). These regulations
now require, with limited exceptions,
permit limits on *hole effluent toxicity
where the Director determines, using
toxicity testing or other Information, that
a discharge causes or has the potential
to cause excursions above State water
quality standards for toxicity. But 40
CFR 122.44(d) does not explicitly require
the discharger to generate toxicity
testing data, nor does it require
dischargers to submit such data with
their permit applications. EPA believes
that it is necessary to require toxicity
testing data from certain POTWs with
their permit application so that at the
time of application the Director will
have sufficient Information to determine
whether limits on whole ernuent toxicity
are requited In the P01W. permit. EPA
recogmzes that toxicity testing data will
not be necessary for certain categories
of POTWs. While EPA maintains the
authority to require toxicity testing data
from all P0’ W., It would not be
appropriate to require 1’Ws that have
little or no chance of causing excursions
above State water quality standards for
toxicity to conduct toxicity tests and
submit the results with their permit
applications.
Based on the results of the Study, and
in conjunction with EPA’ . ongoing
integrated approach to water quality-
based toxins controL the Agency has
determined that toxicity testing data Is
necessary and Is required to be
submitted by POTWs described In 40
CFR 122.21W(1) and by P01W.
designated by the Director under
paragraph (fl(2). Furthermore, under 40
CFR 122.44(d) (iv) and (v). the Director
must use this data In determining
whether limits on whole effluent toxicity
are required in the P01W. permit.
Paragraph (fl(2) provides the Director
with the flexibility to require additional
POTWs to submit toxicity data with
their applications. In exercising this
option, the Director Is to consider the
factors listed In paragraphs (J)(2)(IHv).
These factors are general principles
which EPA has consistently
recommended that permitting
authorities consider when assessing a
discharger . potential to cause or
contribute to Instrearn toxicity. These
principles are compatible with EPA’.
“Policy on Development of Water
Quality-Based Permit Limitations for
Toxic Pollutants” (49 FR 9016, March
1984). The Technical Support Document
for Water Quality-Based Toxics
Controls. and EPA’. revisions to 40 R
122.44(d) to implement CWA section
304fl).
Once the Director has determined that
a P01W meets any of the criteria In
paragraph (j)(1) or has designated a
POTW under paragraph (j)(2), and that
POTW must therefore submit the results
of toxicity testing as part of the permit
application process. paragraph (j)(3)
provides that POTWs shall use a
toxicity testing protocol that is
scientifically defensible and sufficiently
sensitive to detect aquatic toxicity.
Approved State NPDES programs that
do not presently allow permitting
authorities to require P01W. in the
categories described In paragraphs (j)
(1) and (2) to submit toxicity test results
with their permit applications will need
to revise their applicable law to conform
to today’s requirements. Under 40 CFR
123.62(e), regulatory revisions must
occur within one year of the effective
date of today’s rule, unless statutory
changes are necessary, In which case
such revisions must take place within
two year..
One commenter suggested that the
requirement that all P01W. conduct
toxicity testing Is Inequitable when the
proposal does not require such testing
for private discharger.. As stated above.
40 CFR 122.21(j) no longer requires all
POTWs to conduct toxicity testing.
Instead. P01W. that meet any of the
criteria listed In 40 CFR 122.21W(1) or
are designated by the Director under
paragraph (j)(2) are required to conduct
such testing. Moreover, the new
amendments to 40 CFR 122.44(d) requIre
the Director to determine whether any
discharge causes. ha. the reasonable
potential to cause, or contribute, to an
excursion above a narrative or numeric
criteria within a Slate water quality
standard. Such procedures will Include
toxicity tests by direct Industrial
discharger. in many cases.
One commenter stated that toxicity-
based limits in NPDES permits are not
an effective way of preventing toxicity
because rionpoint sources may also be
significant contributor, to toxicity. EPA
reiterates that today. regulations do not
explicitly require the establishment of
toxicity limits.
However, the Agency disagrees with
the argument that lWs should not
monitor or limit toxicity because
nonpoint sources may also contribute to
such toxicity. Ifs lWs effluent Is
found to cause lnstream toxicity (after
consideration of any applicable mixing
zone allowances) then discharge of such
effluent Is In violation of State water
quality standards that prohibIt
discharges of toxic pollutants In toxic
amounts. In such Instances. appropriate
limits aimed at achieving compliance
with State standards must be
established.
One commenter stated that permit
limits on toxicity should be required in
the permit when the results of testing
Indicat. that there Is or may be a
problem with toxicity In the discharge.
As a general nile. EPA .pees with this
statement. For further details on
appropriate measures to be taken, see
EPA’s section 304(1) regulations (54 FR
23868. June 2, 1989) at 40 CPR 122.44(d).
The regulations .t 40 CFR 122.44(d)
describe the procedure. that permitting
authorities must use when determining
whether a discharge causes. has the
reasonable potential to cause, or • -
contributes to an instream excursion -
above a narrative or numeric toxicity
criterion within a State waler quality
standard.
Many commenters expressed concern
over the cost of toxicity testing and the
lack of qualified laboratory facilities
available to perform the tests. EPA has
found that costs for toxicity testing
range from slew hundred dollar, for a
simple one time screening analysis to
one or two thousand dollars per month
foes ‘nonthly chronic toxicity analysis.
Typical monthly or quarterly testing
costs are comparable to many other
type . of chemical monitoring costs.
EPA ha. also found that there are
many competent labs around the -
country capable of performing these
tests. The Agency recently contracted
with several labs to perform toxicity
tests In support of each EPA Region’.
tonics control program. It I. the
responsibility of the permittee to find an
appropriate facility and have its
samples shipped, If necessary, and
11
-------
Federal Register / Vol. 53, No. 142 I Tuesday. 7uly 24. 1900 I Rules and Regulations
30115
analyzed. WA’s EnvIronmental
Monatoring and Support Lab t
Cincinnati Is currently developing
guidance for lab certification which
States can use to certify competent labs
and to provide permittees with lists of
labs capable of conducting toxicity tests.
One commenter stated that the
regulations should allow time for the
solicitation and subsequent awarding of
contracts to conduct toxicity tests and
that the proposed deadline for
submission of test results would be
unreasonably burdensome.
In response, the Agency points out
that the regulations do not require
P01W . to solicit contracts for the
performance of toxicity tests. Since
toxicity testing Is only required every
five years as part of certaIn P01W.’
NPDES permit applications, these
POTWs should have ample time to find
suitable laboratories.
One comznenter noted that the added
workload to permitting authorities for
reviewing the saeening data has not
been addressed. EPA has estimated
these and other costs associated with
Implementing the proposed
requirements and they are available as
part of the public record of this
rulemaking. The Agency believes that
Improved control of toxic and hazardous
pollutants occasioned by today’.
toxicity testing requirements justifies the
added workload to permitting
authorities.
c. Today’s Rule
Today’s rule provides that any POTW
with a design iniluent flow equal to or
greater than one million gallons per day
and any P0’TW with an approved
pretreatment program or which Is
required to have such a program must
provide the results of whole effluent
biological toxicity testing to the Director
as part of their NPDES permit
applications. Tests submitted under
today’s rule must have been conducted
since the last NPD permit reissniir,
or permit modification under *12 2 . 92(a),
whichever 1ater Tb. Director
may also require other POTW5 to
submit the results of toxicity tests with
th.Ir applications, based on
consideration of the variability of
pollutants in the effluent, the dilution of
the eliluent In the receiving water,
existing controls on point and noizpolnt
sources, receIving stream
characteristics, and other
consideratIons. In conducting the
testing. POTWs must use EPA’s methods
or other protocols which are
scientifically defensible and sufficiently
sensitive to detect aquatc toxicity.
2. Sludge Control
The provisions of the amended CWA
dealing with the regulation of sewage
sludge have far.reeching Implications
for the pretreatment program. The
amendments mandate the promulgation
of specific numeric limits for toxic
pollutants in sewage sludge and/or the
specification of acceptable sludge
management practices, and require that
these standards be Implemented through
permits. To carry cut these
requirements, WA ha. proposed
technical standards for en Initial group
of toxic pollutants for the five major
sludge use and disposal methods:
agricultural and non-agricultural land
application, distribution and marketing,
Incineration, sludge.only landfills, and
surface disposal sites. These standards
were proposed on February 0.1909(54
FR 5748). EPA earlier proposed
regulations governing sludge disposal In
municipal solid waste landfills
(MSWLFs) on August 30, 1988(53 FR
33314).
In addition to calling f .r the
- promulgation of technical criteria for the
use and disposal of sewage sludge, the
• 1987 amendments to section 405 also
contain a significant departure from
previous statutory provisions regarding
Implementation. The amendment
prohibits the use or disposal of sludge
except in compliance with WA’s
regulations and requires the
Implementation of the standards through
a permitting system. This means that, for
the first time, federal technical
standards will be Implemented through
permits Issued to treatment works
treating domestic sewage. When the
sludge standards are promulgated,
NPDES permits issued to PO’Z’Ws or
other treatment works treating domestic
sewage must Include these requirements
unless they are Included in another
permit under listed federal permit
programs or an approved state sludge
management program. On May 2.1989,
EPA promulgated final regulations for
implementing sludge standards into
NPDES permits and for developing
•pp . ovable State sludge permitting
programs.
Section 405(d](4) as amended also
requires that, before promulgation of the
criteria, the MmInl trator shall Indude
sludge conditions In permits tuned to
POTWs under section 402 or take such
other measures as the Mmrnlsn’ator
deems appropriate to protect public
health and the environment from
adverse effects which may occur from
toxic pollutants in sewage sludge. To
Incorporate sludge conditions Into
permits before promulgation of the
standards, such conditions will have to
be developed on a case-by-case basis.
To Implement this requirement, the
Agency hu developed a “Sewage
Sludge Interim Permitting Strategy”
which explains EPA’s strategy In
Implementing this CWA provision. EPA
has also completed guidance (signed In
December 1989) which will be
distributed In early 1990 to EPA Regions.
States, and Interested parties. This
“Cwdance for Writing Case-by.Case
Permit Requirements for Municipal
Sewage Sludge” Is designed to assist
permit writers In developing “best
professional Judgmenr permit
conditions prior to promulgation of the
technical standards. In September 1989.
EPA .Jso Issued the “PO’ V Sludge
Sampling and Analysis Documenr for
use in sewage sludge monitoring. In
addition, the Agency conducts
workshops several times a year on
writing sludge permit conditions.
This Improved regulation of sewage
sludge quality will drive the
development of local limits to keep
pollutants that could contaminate the
sludge and Interfere with Its proper use
and disposal from entering the treatment
plant Thus, this effort will further the
development of effective pretreatment
programs and will help to Identify and
control the discharge of hazardous
wastes and hazardous constituents to
POTWs,
3. Control of Indirect Dlschargers:
Commercial Centralized Waste Treaters
(40 CFR 403.3 (e) and (03,403.5(c),
403.8(e), 403.8))
a. Proposed change. Commercial
centralized waste beaters (referred to
herein as CWT5) are facilities that treat
wastes received from off-site generator,
of those wastes. The Agency first
proposed to specifically address CWTs
that discharge to P0TWs as part of the
proposal, published on June 12, 1980 (51
FR 21458), to Implement the
recommiudatlons of the Pretreatment
Implementation Review Tsskforc.
(‘PIRT”). Th. preamble to that proposal
clarified that under the current
requirements, categorical pretreatment
standards apply to the wastewaters
generated by certain industrial
processes and discharged to a POTW.
regardless of whether they are finally
discharged by an industrial generator or
some Intermediate entity such as a
CWT. For those CWTs that mix process
categorical wastewater with other
wastes prior to pretreatment, the
preamble Indicated that the combined
wastestream formula (CWF) In 40 CFR
403.8(e) should be used to calculate
alternate discharge limits. The proposed
rule would have codified this
-------
p
30116 Federal Register I Vol. 55, No. 142 I Tuesday, July 24. 19901 Rules and Regulations
requirement and would have required
generator. of wastes to supply the
Information necessary for calculating
the limits. Three other alternatives were
discussed In the June 12. 1988 proposali
(I) Promulgating national categorical
standard . for CWTs. (2) relying solely
on POTW.developed local limits, and (3)
limiting each pollutant discharged from
the CWT by applying the most stringent
parameter for that pollutant taken from
all the categorical standards applicable
to the wastes received by the CWT. EPA
did not amend Its regulations, or current
requirements applicable to CWTs. in the
final PIRT rule. Instead the Issue was
deferred and again addressed in the
proposal to today’s rule (November 23.
1988.53 FR 47832). That proposal
solicited comment on the same
alternatives, but proposed an additional
one: POTWs would be required to
obtain and Implemant authority to
regulate CWTs by developing local
limits based on the best available
technology economically achievable
(BAT), which would be determined by
each POTW for Its CWTs using best
professional judgment (BPJ). U the
POTW determined that the combined
removal by the Cwrand the POTW
was less than the removal that would be
achieved by BAT, the POTW would set
a limit equal to the BAT limits, but
adjusted for removal by the POTW.
b. Response :,, comments. The Agency
received numerous comments in support
of and opposing each alternative and
recommending additional alternative..
These comments raised technical, legal
and economic concerns. The Agency has
decided to collect additional data before
deciding whether to finalize any of the
alternatives. Data that would assist In
the decision Include more Information
on the types, variability, environmental
effects, and freatability of wastes
received and discharged by CWrs. Such
data would also assist the Agency in
providing guidance on how to Implement
Its decision. Once the data are obtained,
the Agency may determine that It Is
necessary to consider options not within
the current proposals. and to make
additional proposals. Otherwise l will
base Its decision on the proposals
currently outstanding and the comments
received thereon.
The Agency reiterates Its previously
- stated position (see 51 FR 21456) that
any national categorical standard that
would apply to a waste If discharged by
Its generator continues to apply If the
waste Ii shipped off-site to a CWT that
Is an industrial user of a POTW. Where
• iuch wastes are mixed with other
process wastestreams prior to discharge.
the combined wastestream formula may
be used to determine the applicable
limit. The Agency recognizes the
practical difficulties In applying the
CWF faced by CWTs that receive
categorical wastes in substantial or
highly variable quantities. CVfr.
experiencing difficulties in applying the
CWF may wish to either (1) Segregate
categorical wastes and provide batch
treatment to the levels required by
applicable categorical standards, or (2)
treat a mixture of categorical and other
wastes such that each pollutant
discharged Is In compliance (after
correction for dilution flows) with the
most stringent numerical limit
prescribed for that pollutant In any of
the categorical standards applicable to
the wastes being treated. EPA believes
that either of these options has the
potential for substantially reducing the
paperwork of CWTs that would
otherwise be required to use the CWF,
while still assuring treatment of
categorical wastes in accordance with
categorical standards,
As discussed In section Hi below,
today’s rule requires POTWs to
determine the necessity of developing
local limits to prevent pass through and
Interference. The Agency encourages
POTW5 to pay particular attention to
the effluent from CWTs In developing
those limits.
c. Todoy’srule. The Agency I,
postponing promulgation of any
additional regulations pursuant to the
proposals regarding CWTs:
4. Categorical Standards for Other
Industries .
SectIon 304(m) of the Clean Water
Act, added by the Water Quality Act of
1987. requires the Agency to establish a’
schedule for the annual review and -
revision of promulgated effluent ‘ a
guidelines, and to establish a schedule
for promulgation of new BAT guidelines
and new source performance standards
for Industries discharging toxic or
nonconvectional pollutants. On August
25, 1988 (53 FR 32584). the Agency
published a notice of Its proposed plan
to Implement section 304(m). That notice
contained a discussion of the Agency’s
proposed declsion.niaklng process to set
priorities for the development of new or
revised effluent guidelines. Although not
required by section 304(m). that notice
said that EPA would develop categorical
pretreatment standards whenever
appropriate when developing guidelines
for categories of discharger.. Some of
the categories which the Agency said It
would consider as candidates for new or
revised guidelines were identified in the
Study as significant contributors of
hazardous constituent. to POTWs,
One commenter on the November 23,
1988 proposal criticized EPA for not
moving swiftly enough to promulgate
new or revised categorical pretreatment
standards In accordance with the
recommendations of the Study and the
mandate of section 304(m). This.
commenter stated that existing
categorical standards cover an
Insufficient number of toxic and
hazardous pollutants, and that many -
industries discharging large amounts of,
such pollutants are not covered by
categorical standards at all.
On January 2, 1990, the Agency
published a final notice announcing the
Agency’s Initial plan for reviewing
existing guidelines and promulgation of
new effluent guidelines to implement
section 304(m). ThIs notice established a
schedule for reviewing existing
regulations and for selecting categories
of discharger. of toxic or
nonconvendonal pollutants for which
guidelines have not previously been
published. Many of the Industries for
which the Agency has established
schedules were recommended by the
Study as potential candidates for new or
revised categorical pretreatment .
standard.. -
C. Eafoa’t ement issues
1. RevIsion to Local LimIts (40 R, -
122.21(j)(2)) . ‘ -
a. Proposed change. Th. existing ‘.
pretreatment regulations provide that
the development of local limits (or a
demonstration that they are not
necessary) Is a prerequislt. to approval
of a POTW pretreatment program and
the continuing legal acceptability of an
approved program. Although the .
existing regulatory language does not’
explicitly require POTWs to update -
local limits, EPA has previously stated
that local limits must be updated as
necessary to reflect ch ng ng conditions
at the POTW (51 FR 21458, June12,
1988) Because of the Importance of up-
to-date local limits In controlling pass
through and Interference from toxic and
hazardous pollutants, EPA proposed on
November25, 1988 to revIse 40 r -
122.2101(21 to require POTWs to -
evaluate In writing the need to updafe
their local limits as part of their NPDES
permit apç ication (Le.. once every five
years at a MI?d?flum). If the Director
determines that a particular POTW
should evaluate the need for revisIon -
more often, it may so specify In the
NPDES permit or approved pretreatment
program (as Incorporated by reference
In the permit).
Thu provision would not require
POTWs to update their local limits
-------
Federal Register I Vol. 55. No. 142 / Tuesday, July 24, 1990 / Rules and Regulations
30117
when such revisIon Is not needed.
Instead. EPA Is esUiblishing a minimum
frequency for formal evaluation of the
need for revised limits. Example . of
events that might indicate the need for
such a revision include changes In the
pOrN’s NPDES permit. changes In
sludge disposal standards or P01W
sludge disposal methods, modifications
to the treatment plant, addition or
deletion of significant industrial users.
and changes In industrial users’
processes or pretreatment operations.
These events could all affect the
likelihood of Interference with POTW
operations or possible lack of
compliance with the POTVfs NPDES
permit. The minimum frequency for
formal evaluations will give the P01W.
more precise notice of their legal
responsibilities and should facilitate
EPA enforcement actions In some
situations where POTWs are not
fulfilling their obligations to develop and
update local limits. Regular evaluation
of the need for revised limits should also
lead to more effective limits on the
discharge of toxic and hazardous
wastes, thereby preventing pass through
and Interference.
•The Agency solicited comments on
whether POTWs should be required to
conduct the evaluation more often. For
example. POTWs might be required to
conduct the evaluation whenever
multiple Instances of pass through or
Interference had occurred (such as two
or more violations In a quarter), In order
to determine if existing local limits were
adequate to prevent these occurrences.
POTWs could also be required to submit
such evaluations annually as part of the
annual reports required under 40 CFR
40 2 .8(1 ).
b. Response to comments. The Agency
received many comments on the
proposed rule from States, POTWs.
environmental groups, and Industry. The
vast majority of the commenters favored
the rule as proposed. A small minority of
commenters expressed concern over the
proposed provision.
One area of concern Involved the
level of POTW discretion In the Hv thig
and performance of local limits
evaluations. One commenter stated that
the frequency for evaluation of local
limits should be left entirely to the
P01W since the P01W I. In the best
position to know the nature and effect of
the discharges into Its system. Another
commenter observed that development
of local limits should already have taken
into account changes In a POTWs
system (e.g., projected Increase in the
number of industrial users, etc.).
Therefore, It was believed that the
POTW should determine when changes
to local limits should be made.
EPA Is not persuaded by the argument
that no mimimum frequency for
evaluating the need for revision Is
necessary. The Agency believes that the
evaluation of local limits at least every
five years Is necessary to address any
changes in the POTW’s NPDES permit.
any problems In compliance with the
permit, changes In sludge disposal
methods, or changes to the treatment
plant. However, actual changes to local
limits would be made only when the
evaluation indicates the need for
updating the local limit, or when
otherwise required by applicable
provisions In POTW’s approved
programs or NPDES permits.
One commenter Inquired as to what
was meant by a “formal evaluation” of
local limits. The Agency Intends the
formal evaluation to be a written
technical evaluation by the Control
Authority determining whether or not
there Is a need to revise the existing
local limits at the time of permit
application, and the reasons for this
determination. To clarify this
requirement, today’s rule requires a
written technical evaluation of the need
to revise local limits, rather than a
“formal” evaluation.
There was almost universal
opposition to the suggestion that local
limits should be evaluated annually. The
Agency agrees that annual evaluation of
local limits Is not routinely necessary
and therefore Is not promulgating that
requirement as part of today’s final rule.
a. Todoy’s rule. Today’s rule provides
that all POTWs must provide a written
technical evaluation of the need to
revise local limits as part of their NPDES
permit applications.
2. Inspections and Sampling (40 CFR
44 .8(f)(2J(v))
a. Proposed change. The existing
regulations (40 CFR 403.8(f)(2)(v))
require that POTWs with approved
pretreatment programs must be able to
randomly sample and analyze the
effluent from their Industrial users and
conduct surveillance and inspections to
identify noncompliance with
pretreatment requirements. However,
these regulations do not specify how
often such P01W. must perform the
sampling analysis and surveIllance.
In the 1986 “Pretreatment Compliance
Monitoring and Enforcement Guidance.”
the Agency recommended that PO’I’Ws
conduct at least one Inspection and/or
sampling visit annually to all
“significant Industrial users.” EPA
emphasized In the Guidance that more
frequent monitoring should probably be
conducted In certain cases: e.g.. where
an industrial facility has exhibited a
marked inability to achieve and
maintain compliance with pretreatment
standards.
In order to facilitate implementation
of existing requirements by specifying a
standard for how often POTWs must
Inspect and sample the effluent of their
significant Industrial users, EPA
proposed on November 23. 1988 to
modify 40 CFR 403.8ffl(2)(v) to req wre
PO1’Ws with approved pretreatment
programs to Inspect and sample all
“significant Industrial users” at least
once every two years. EPA believes that
Inspection and sampling of these users
at least this often should help POTWs
avert pass through and interference by
keeping better track of the more
significant Industrial dischargers Into
their treatment and collection systems
(especially dischargers of toxic and
hazardous pollutants). The proposed
revisions should also provide a uniform
program requirement that EPA can
readily enforce If necessary.
The Agency solicited comments on
whether the biennial inspections and
sampling requirement was sufficient or
if annual Inspections and sampling
should be required. EPA also requested
comment on whether the proposed
regulation represented a redundant
requirement In the face of existing
reporting and monitoring requirements
and whether to require POTvVs to target
certain compounds (such as RCRA
appendix vlfl hazardous constituents)
In their sampling of significant Industrial
user discharges.
b. Response to comments. The Agency
received many comments on the
proposed rule. Comments were
submitted by States. POTWs.
environmental groups. and private
Industry. The commenters were evenly
split with regard to favoring or opposing
the proposed rule. Many commencers
stated that the rule should specify
annual Inspections and sampling while
others stated that a it i ’tl tum of biennial
Inspections and sampling was adequate.
A few of the commen(ers believed that
the frequency of Inspections and
sampling should be left entirely to the
POrN ’s discretion. Some of the
commanters stated that the proposed
rule was redundant In light of existing
requirements for self.monltorlng and
reporting by categorical industrial users
and proposed requirements for
significant non.categortcal industrial
users.
The Agency does not agree with the
assertion that these requirements are
redundant One of the principal
purposes and benefits of an annual
compliance monitoring program Is the
-------
30118 Federal_Register! Vol. 55, No. 142 1 Tuesday, July24 , 1990 / Rule, and Regulations
independent verification of the
compliance status of the Industrial user
by the Control Authority. This annual
presence provides a means to deterstirie
whether the information the POTW
receives Is adequate In terms of
sampling techniques and lab procedures.
It ilso provides a way to evaluate the
recordkeepmg procedures of the
industrial user as weU as the operation
and maintenance of the pretreatment
facility. This annual presence also
provides a deterrent value by
encouraging the Industrial user to
maintain appropriate operation end
maintenance procedures as weU as
helping to ensure proper recordkeeplng
and lab procedures These benefits are
not possible through the review of self-
monitoring reports alone. Therefore, the
Agency disagrees with the claim that
this Is a redundant requirement, because
the goal of this provision is not simply to
receive data but also to provide -
effective oversight of industrial user
operations.
One commenter stated that any
specification of inspection and
monitoring frequency would limit the
ability of the POTW to make rational
determinations based on local
considerations. It was felt that any more
stringent frequency would excessively
limit the needed flexibility of the POTW
in planning for inspections and sampling
of Its industrial users. Another
commenter was of the opinion that more
frequent than biennial inspections and-
sampling might become so demanding
as to prevent a POTW from focusing Its
attention on actual cases of effluent
violations.
However, other commentere did not
believe that a minimum frequency of
biennial inspections and sampling was
sufficient to oversee Indu.sfrial user
compliance. One POTW stated that It
supported a minimum frequency, but It
believed that It would be difficult to
maintain, in the face of competing
programs, it current level of two to
eight visits per year in the face of
regulations which allow for a
significantly reduced effort. Many
coinmentere pointed out that the
proposed rule was inconsistent with
existing EPA guidance regarding
inspections and sampling of significant
Industrial users. These commenters
stated that previous Instructions from
EPA during audits and Inspections as
well as In workshops directed Control
Authorities to establish annual
monitoring frequencies for their
significant Industrial users. Another
commenter expressed concern over
allowing biennial monitoring and stated
Its belief that annual oversight provided
greater credibility to the reported self.
monitoring information. A final
commenter said that this proposal ran
counter to the recommendations found
In the Domestic Sewage Study and that
the intent of these recommendations
was to provide a stronger effort in
pollution controL
EPA is persuaded by these arguments
in favor of a requirement for annual
inspections and sampling of significant
Industrial users. The purpose of the rule
is to ensure consistent tracking of
industrial users with the potential to
adversely affect the operation of the
treatment works. Requiring annual
inspections and sampling will provide
for more effective oversight of Industrial
user compliance, consistent with EPA
Guidance. For these reasons, EPA I.
today requiring that POTWs with
approved pretreatment programs sample
and Inspect all significant industrial
users at least once a year.
The Agency does not agree with those
commenters who said that specifying a
minimum inspections and sampling
frequency would excessively limit the
POTW In planning for Inspections and
sampling of industrial users The
Agency, in Its 1988 “Pretreatment
Compliance Monitoring and
Enforcement Guidance” recommended
that Control Authorities conduct at least
one Inspection and/or sampling visit
annually for all significant Industrial
users. This recommendation has also
been made during pretreatment
inspections and program audits. By
specifying aI ,iinimum compliance
monitoring frequency, the Agency Is
establishing uniform program
requirements to assist In program
oversight and which can be readily
enforced If necessary. In addition, the
Agency points out that this requirement
applies oniy to significant industrial
users. EPA has alloWed considerable
flexibility and discretion for non-
significant industrial users with regard
to effluent sampling and other
regulatory requirements. EPA doe. not
believe that implementation of today’.
rule will prevent P01W. from dealing
with actual cases of effluent violatha.
or from adequately Implementing other
requirements of their approved
programs. Many P01W. are already
Implementing an inspections and
sampling scheme with frequencies far
greater than required by todays rule,
and ther. have been no observed
difficulties In addressing violations or
maintaining complianc. with other
requirements of approved programs.
Finally, the Agency solicited
comments on whether to requir, that
POTWs target certain compounds In
their sampling, such as RCRA appendix
Vu hazardous constituents. There was
universal opposition to this proposal
and many commenters Indicated that It
would be excessively burdensome
w3thout producing environmental
benefits. Upon evaluation of the
comments submitted. EPA has
determined that routine monitoring for
RCRA appendix Vifi hazardous -
constituents Is not nationally necessary
for preventing interference or pass
through or for preventing sludge
contamination. The P01W has the
flexibility to require monitoring of these
substances If they pose potential
problems for the operation of the
P01W. The P01W should. however
sample for all regulated pollutants
discharged to the beatment works.
C. Today’. rule. Today’s rule requires
POTWs with approved pretreatment
programs to conduct at least one
inspection and sampling visit annually
for each significant Industrial user.
3. Definition of Significant Industrial
User (40 ‘R 403.3(t)) -
a. Proposed change. All Industrial
users which discharge wastes to P01W.
are required to comply with the general
pretreatment regulations found In 40
CFR part 403. Whul. the general.
pretreatment regulations Include very
specific requirements for categorical..
industries, the regulations are less,clear
about certain obligations for ..
noncategorical Industries. In the 1988
“Pretreatment Compliance Monitoring
and Enforcement Guidance”, the Agency
established a definition for what would
constitute a significant Industrial user.
This definition was In part designed to
Identify those non-categorical Industrial
users which are likely to have the most
significant Impact on the POTVJ. and for
which additional pretreatment
requirements might be justified.
In order to provide national
consistency In the application of
pretreatment requirements and to -
enhance program enforceability, the
Agency proposed on November 23, 1988
to amend 40 CFR 403.3 to add a new
definition of “Significant Industrial
User” which was generally consistent
with the 1988 GuIdance. Under the
proposaL a “significant industrial user”
was defined as: (1) AU discharger. —
subject to categorical pretreatment
standardr (2) all noncategorlcal
discharger. that, In the opinion of the
Control Authority, have a reasonable
potential to adversely affect the
P0 1 W’. operation: (3) all
noncategorical dlschargere that
contribute a process wastestream which
make. ep S percent or more of the
.1
-------
Federal Register I Vol. 55. No. 142 / Tuesday. July 24. 1990 1 Rules and Regulations
30119
average dry weather capacity of the
POT’sV treatment ;lant. or that
discharge an average of 25.000 gallons
per day or more of process wastewater
to the POTW. Under the proposal, the
Control Authority need not designate as
significant any noncategorical industrial
user in category 3) above that. in the
opinion of the Control Authority and
with the agreement of the Approval
Authority. had no potential for
adversely affecting the PO1Ws
operation or for violating any
pretreatment standard or requirement.
The agreemmit cf the Approval
Authority would not be necessary in
cases where the noncategorical
discharger would have been designated
as . ipt 1t only because of an
average discharge of 25.000 gallons per
day or more of process wastewater. The
proposal also would have allowed any
noncategorical Industrial user
designated as mgzziflcant to petition the
Control Authority to be deleted from the
list of signifIcant Industrial users on the
grounds that it had no potential for
adversely affecting the POTWs
operation or violating any pretreatment
standard or requirement
The Agency Intended to provide with
this definition a moans for POTWs to set
priorities for monitoring and
enforcement activities. including self-
monitoring by the Industrial user. In
addition, the definition would provide a
basis for establishing reporting
requirements for non-categorical
tndus ial users and for Control
Authority reporting to the Approval
Authority regarding industrial user
compliance. The definition would also
provide national consistency in the
implementation and reporting of
pretreatment requirements and would
assist Control Authorities In identifying
the effective use of permitting.
monitoring and enforcement resources.
In addition to thee, benefits, the
proposed regulatory definition would
provide better notice to POTWs of what
constitutes a well-structured
pretreatment program. On. basic goal
was to require that , bui 11 45 Industrial
facilitie, be treated consistently with
regard to reporting and monitoring
requirements.
EPA solicited comments on the
Noveber 23. 1988 proposal, and also
invited comments and suggestions on
the fotiowing issues: whether to allow
P0I’Ws to delete categorical users from
the significant industrial user list: the
appropriateness of the 25.000 gallons per
day criteria: the role of the Approval
Authority in designating significant
Industrial users; expanding the
definition of significant Industrial user
to include notifiers of hazardous waste
dischargers: and requiring POTWa to
estimate in annual reports whether the
amount of hazardous waste received
during the last calendar year has
increased significantly and whether any
change has affected operations at the
POTw.
b. Response to comments. The Agency
received many comments on the
proposed rule which were submitted by
States. local POTWs. environmental
groups and private industry. The
majority of the commenters generally
favored the rule. although many
suggested modifications. Some
commencers were of the opinion that
there should not be any regulatory
definition for significant industrial user.
As explained above and In the preamble
to the proposed rule, the purpose behind
the proposed definition is to provide
national consistency and program
enforceability, as well as to provide
notice of what constitutes a well.
structured pretreatment program and to
ensure equity in program
Implementat Ion. It Is EPA’s belief that
this definition Is necessary since several
pasts of today’s rule impose
requirements applicable only to
significant Industrial users.
L Role of the eppro vol outherity in
identifying significont industrial users.
The largest number of comments
received on the proposed definition
addressed the procedures for listing or
delisting industrial users and the role
which the Approval Authority would
play In this process.All commenters
seemed to agree that the P01W should
be allowed to add or delete certain
Industrial users from the significant
industrial user list, but there was
disagreement on whether and under
what circumstances to require the
agreement of the Approval Authority In
this process. Two comments front
P0I’Ws stated that there should not be
a requirement to seek prior consent from
the Approval Authority to delete or add
an Industrial user from the list of
significant industrial users because the
Approval Authority can review these
changes In the P01W. annual
pretreatment report and during other
oversight functions. Another comnicater
stated that the Approval Authority Is
not In a position to evaluate a
discharger’s potential to adversely affect
a POTW’s operation. It was stated that
the Approval Authority must rely on the
recommendation arid data supplied by
the Control Authority In designating
significant industrial users and that
requiring the agreement of the Approval
Authority would create so unnecessary
bureaucratic step which would lead to
delays. It was recommended that the
Contrul Authority be ailowed to simply
notify the Approval Authority of its
intent riOt to inc:ude. or remoie. an
industrial user from the list arid to have
that decision stand unless the Control
Authority was In violation oi Its NPDES
permit requirements.
Some of the comnienters. on the other
hand, favored a strong ?ole for the
Approval Authority ui designating the
universe of significant industrial use;s.
One coaimenter believed that the
political influence often exercised by
significant industrial users was
sufficient to require a strong oversight
presence by the Approval Authority. It
was stated that the tndeper.dent
evaluation of the Approval Authority
was necessary as an Important check on
the POTW’s exercise of its discretion.
especially in cases where there might be
pressure exerted by the industry to be
removed from the list of significant
industrial users (and the subsequent
regulatory requirements for such
industrial users). In addition, it was
stated that if the Control Authority tails
to place a significant industrial user on
the list, the Approval Authority should
have the power to require the listing of
that Industrial user.
The Agency does not agree that
adequate oversight can be achieved
through a simple review of the POTW’s
annual pretreatment report or through
other routine compliance monitoring
activities on the part of the Approval
Authority. The Agency believes that
notification should be required to make
the Approval Authority aware of any
changes to the approved program.
Prompt notification Is necessary for
proper oversight of approved programs
and to ensure proper enforcement of
program requirements. The Approval
Authority has the obligation to evaluate
compliance, and therefore needs to be
made aware of any changes to the scope
of the program as soon as possible.
rather than In an annual report For
example, the Approval Authority needs
to know if the numbers, of industrial
users subject to permitting. monitoring.
and reporting are undergoing a
significant change. If the Approval
Authority Is not made aware of these
changes. tracking program
Implementation would become
extremely difficult In addition. if the
Approval Authority does not have the
opportunity to object to unjustified
designations or de-designations of
significant industrial users, then the
Control Authority might be subsequently
liable to enforcement action from the
Approval Authority.
-------
30120
Fuderal Register I VoL 55. No. 142 I Tuesday. Itily 24 . 1990 1 Rules and Regulations
There was also some stated confusion
regarding at what point Approval
Authority consent would be necessaiy.
including whether the POTW should use
the procedures for uon•sub.tantial
program modifications promulgated in
40 CFR 403.18(b)(2). One comnienter
believed that the rule should explicitly
state that listing end deflating of SIUs
constitutes a minor program
modification.
To address these concerns and avoid
possible confusion, the Agency has
modified the language of the proposal
concerning consent of the Approval
Authority. Todays rule adds a new
provision. 40 CFR 403.8(I)(O). which
requires the POTW to prepare a list of
its significant Industrial users. The list
shall identify the criteria for significance
applicable to each Industrial user. For
non-categorical users meeting the
criteria for significance, the list shall
indicate whether the P01W has made a
determination that such Industrial user
has no reasonable potential for
adversely affecting the P01W.
operation or for violating any -
pretrea ent standard or requirement
This list, and any subsequent
modifications thereto. shall be
submitted to the Approval Authority as
a minor program modification pursuant
to 40 CFR 403.18(b)(2). EPA believes that
this language gives clearer notice to
POTWs of their responsibilities and of
the role of the Approval Authority in
approving significant Industrial user lists
and subsequent modificatIons. 40 CFR
403.8(I)(5) replaces the proposed
revisions to 40 CFR 403.12(i)(1) that
would have required updating lists of
significant industrial users In POTW
annual reports and an explanation of
why certain noncategorical users were
not designated as significant Todays
rule requires that any modifications to
the list of significant Industrial users be
submitted to the Approval Authority as
a minor program modification. Since.
modifications to the list will n’ lly
take place it a IIIthnum of once a year
In most pretreatment cities, the Agency
believes that requiring an updat. of
significant Industrial users In th. annual
report Is not necessary. EPA notes that
40 CFR 12(i)((4) provides that the annual
reports shall contain “any other relevant
Information requested by the Approval
Authority”. Approval Authorities may
therefore request additional Information
or more frequent updating of a particular
POTWs significant ladustilal user list if
they believe it appropriate.
Todays rule else make. a conforming
change to proposed 40 CFR
403.8(I)(2)(ui) to provide that, within 30
days of approval pursuant to 40 CFR
403.8(fl(8) of a list of significant
industrial users, the POTW must notify
each significant Industrial user of u.s
status as such and of all pretreatment
requirement., applicable to It as a result
of such status.
ii. Use of flow in determining
significance. The use of the 25.000 gallon
per day flow criterion received
considerable comment from States.
POTWI. environmental group., and
private Industry. In general, the
comnienters were of the opinion that the
25.000 gallon per day criterion was
either too low or that no flow criterion
should be Included In the definition at
alL One commenter believed that the
flow criterion served no purpose
because the proposed definition allows
the Control Authority to fail to desIgnate
or to delete these Industrial users
without the consent of the Approval
Authority. Another commenter stated
that relative, not absolute size Is
Important In detervv tnIng significance
and that size I. adequately covered In
the 5 percent criterion In the erdsting
definition. One POTW suggested that a
two-tiered approach be used with
POTW. with less than 5 million gallons
per day design flow usIng 25.000 gallons
per day and P01W. with a design flow
greater than 5 million gallons per day
using 50.000 gallons per day.
The major purpose of defining
significant industrial user Is to provide a
means by which EPA can set priorities
in its general pretreatment standards
and Control Authorities can set
priorities for permitting, monitoring and
enforcement The Agency believe, that
the flow criterion can be used as a
screen by the POTW to set priorities for
permit applications In their Initial
evaluation of industrial users, and for
updating the significant Industrial user
list annually. The 25.000 gallon per day
measure will provide a general cutoff
point for consideration in determining
whether a facility should be targeted for
compliance monitoring and enforcement
activities. Under 40 ( R 403.8(a ). the
Regional Administrator or Director may.
at his discretion, require hats P01W
with a design flow of 5 million gallons
per day or less develop a pretreatment
program in order to prevent pass
through or interference. The smallest
P01W. generally required by the
Regional M”nI.tritor or Director to
haves pretreatment program under the
discretionary authority of 40 CFR
403.8(a) have a design flow of 500.000
gallons per day. EPA chose 25.000
gallons per day as a flow criterion for
significant Industrial users in part
because that figure represents five
percent of the flow of the smallest
POTWs required to have • pretreatment
program. The Agency believes that a
50.000 gallons per day a-ite non would
not capture many non-categorical
significant industrial users with a
potential to adversely affect smaller
POTWs. P01W. may. in their
discretion, and subject only to review by
the Approval Authority as a minor
modification, delete any or all of the
facilities which were placed on the
significant Industrial user list based
solely on flow. EPA does not wish to
overrule POTW5 one routine basis
when It comes to the designation of
Industrial users as significant The
purpose of the notification requirement
is to provide the Approval Authority
with information necessary to prevent
the deletion of significant Industrial
users by P01W. without justification. It
is EPA’s position that this notification Is
necessary for proper and appropriate
oversight of prvvnm Implementation.
One commenter believed that the new
regulatory definition would Impose an
Increased paperwork and a’ 4 ” ” 'trative
burden on the POTW. The proposed
definition of significant Industrial user Is
closely related to the recop iø ii4ed
definition provided In the 1988
“Pretreatment CompII . .r, Monitoring
and Enforcement Guidance.” and as
such, has beau available to P01W. for -
over three years. Many Control - -.
Authorities have already adopted the , ..
definition found In the Guidance. EPA -
believes that most Control Authorities -
are familiar with the definition and have
already incorporated It In their
implementation activities.
iii. Other. The Agency also solicited
comment on whether to allow deletion
of categorical users from the list of
significant Industrial users. A majority.
of the commenters favored a procedure
for deleting categorical industrial users
from the lists, but one Approval
Authority stated Its strong objection to
any procedure for deregulating
categorical Industrial users. There was a
suggestion that a do i&nI,,ii . limit of
1000 gallons per day could be used for
delisting categorical ludusthal users
from the list of Sills Another
comrnenter suggested that only the
Approval Authority should be allowed
to delete a categorical.industrial user
from the list of SIU.
After reviewing these comments. EPA
Is not persuaded thst a P01W should be
able to delete categorical Industrial
users which, In the opinion of the
P01W, have no reasonable potential to
adversely affect the operation af the
POTW. In the development of
categorical standards, EPA made.
determination that these standards were
-------
Federal Register / Vol. 55, No. 142 I Tuesday, July 24. 1990 I Rules gnd Regulations
30121
cecessalY in the case of certain
industries to prevent pass through and
interference. Based on this
determina don. the Agency promulgated
standard. which restrict the discharge
of pollutants by these Industries. It is
therefore Important that the compliance
of these industries with categoncal
standards be assured. Therefore, todays
rule does not allow categorical
industrial users to be deleted from the
list of significant industrial users.
Some commenteri expressed concern
over the burden required to prove that
an industrial user had “no potential” to
adversely affect the operation of the
POTW. It was suggested that EPA
provide guIdance regarding this issue if
the current language is maintained In
the final nile. In the 1988 “Pretreatment
Compliance Monitoring and
Enforcement Guidance.” the Agency
stated that the Control Authority may
remove any noncategorical industrial
user from the SILl list If it has “no
reasonable potential” to violate any
pretreatment standards. Under today’s
rule, the Control Authority may remove
an Industrial user (subject to the consent
of the Approval Authority) based on
whether It has a reasonable potential to
adversely affect the operation of the
POTW or to violate any pretreatment
stan Inrd or requirement. The
determination of reasonable potential
should be based on the best professional
judgment of the POTW and should take
into account the compliance history of
the facility. the nature and character of
the effluent. and the flow of the facility.
One commenter front a State
Approval Authorfty stated that the
proposed definition lacks sufficient
objective criteria for determining
significance. It was suggested that
objective criteria are needed regarding
potential impact of an industrial user in
terms of the design capacity of the
treatment works. In relation to this.
another c ” ” enter noted that the 1980
GuzaIiw . provide, that a facility
“contribut(Lngj a pro su wastowater
which make . up 5 percent or more of the
average dry weather hydraulic or
organic capacity of the treatment plant”
would be considered significant. This
commenter suggested that the final rule
should conform to the Guidance
definition. EPA a ees that facilities
contributing 5 per cent or more of the
average organic capacity of the
treatment plant may have significant
potential to adversely affect the POTW.
since large concentrations of
Biochemical Oxygen Demand (BOD) or
Total Suspended Solids (‘TSS) could
Impair the biological capacity of the
plant to treat all incoming wastes. The
final rule will therefore Incorporate
organic capacity as part of the
regulatory definition.
One industry cominenter oJ jected to
the proposed defln tiou of significant
industrial user on the grounds that It
created additional reporting and
monitoring requirements for categorical
industrial users. However, today’s rule
places no additional reporting or
monitoring requirements on categorical
significant industrial users.
A final Issue raised by the proposed
rule was whether to expand the
definition of significant industrial user
to include notifiers of hazardous waste
discharges under proposed 40 CFR
403.12(p). There was almost unanimous
opposition to this proposal fromthe.
commenters. In light of this opposition
and upon reviewing this issue, it is —
EPA’s position that notifiers of
hazardous waste discharges should not
be automatically considered significant
industrial users for purposes of
pretreatment, since the discharge of
small amounts of hazardous waste do
not necessarily have the potential to
adversely affect the POTW. The POTW.
of course. may designate such facilities
as significant if a particular facility has
the potential to cause Interference, pass-
through, or sludge contamination at the
POTW. or pursuant to state or local law.
c. Today’s ride. Under todays rule. a
significant industrial user is (1) Any
discharger subject to categorical
pretreatment standards: (2) any other
Industrial user that discharges an
average of 25.000 gaflons per day or
more of process wastewater (excluding
sanitary, noncontact cooling and boiler
blowdown westewaters) to the POTW
or that contributes a process
wastestream which makes up 5 percent
or more of the average dry weather
hydraulic or organic capacity of the
POTW treatment plant or (3) that is
designated us such by the Control
• Authority on the basis that the Industrial
user has a reasonable for adversely
- affecting the POTWs operation or for
violating any pretreatment standard or
requirement. Upon a finding that a
noncategoelcal user has no reasonable
potential for adversely affecting the
POTW’s operation or for violating any
pretreatment standard or requirement,
the Control Authority may at any time.
upon Its own Initiative or In response to
a petition received from a
nàncategortcal industrial user or POTW
and with the consent of the Approval
Authority, determine that such Industrial
user is not a significant Industrial user.
Todays rub, also requires POTWs to
prepares list of their significant
industrial users. identify the criteria
applicable to such users. and indicate
whether the POTW has made a
determination that any noncategorical
user meeti .g the criteria in 40 CFR
403.3(t)(lllii) should not be a sig iflcant
Industrial user. This list, and any
subsequent modifications thereto. shall
be submitted to the Approval Authority
as a minor program modification
pursuant to 40 CFR 403.18(b)(2). Within
30 day . of approval of the list, the
POTW shall notify each signilicant
industrial user of its status as such ar.d
of all pretreatment requirements
applicable to it as a result of such status.
4. Enforcement Response Plans for
POTWs (40 CFR 403.8(0(5))
a. Proposed change. The existing
general pretreatment regulations do not
specify detailed enforcement
requirements applicable to PO’FWs with
approved pretreatment programs.
Specific enforcement sanctions
Identified in the general pretreatment
regulations are the requirement to
annually publish the names of
significant violators In the largest daily
newspaper. and the requirement that
POTWs have authority to seek or assess
minimum dvii or criminal penalties of
$1000 per day. The e,dstlng regulations
require POTW program submissions to
identify how the TW intends to
ensure complIance. and also require
POTWs to enforce all pretreatment
standards and requirements and obtain -
remedies for noncompliance (40 CFR
403.8(fl(1)). However. POTWs are not
further Informed what their legal
responsibilities are in carrying out
enforcement actions.
In the 1980 “Pretreatment Compliance
Monitoring and Enforcement Guidance”,
the Agency encouraged each POTW to
develop an Enforcement Response
Guide. which Is a set of procedures
describing how the rw will
investigate industrial user violations
and which corrective or enforcement
actions the POTW will take to respond
to such violations (the Guidance
suggested certain procedures). In order
to ensure that POTWs develop and
Implement specific enforcement
procedures. EPA proposed on November
23. 1988 to add 40 CFR 403.8(fl(5) to
require eli POTWs with approved
pretreatment programs to develop and
implement an enforcement response
plan describing how the POTW will
investigate and respond to instances of
Industrial user noncompliance, Including
time frames within which the responses
will take place.
The Agency believes that the process
of developing these plans will be very
valuable In helping POTWs decide what
-------
30122 Federal Register I Vol 55, No. 142 I Tuesday. July 24 . 1990 / Rules and Regulations
resources are needed to enforce their
pretreatment standards and how they
will actually deal with Industrial user
violations. Such plans will also make It
easier for EPA to determine whether a
P01W Is complying with Its
pretreatment implementation
requirements for en! orcemenL The rule
will not Interfere with the ability of the
POTW to carry out their programs In a
manner suited to their needs. nor should
such a plan be difficult to develop. The
P01W should use the 1988 GuIdance,
EPA’s recently Issued Guidance for
Developing ContmiAutiiorfty Response
Plans (September 1989) and Its own
expertise to develop a reasonable plan
to address and remedy noncompliance.
The Agency solicited comments on
whether to Include more specific
elements In the regulation.
b. Response to comments. EPA
receivsd many comments on the
proposed rule. Comments were
submitted by States. POTWs. private
Industry and environmental groups. The
commenters were generally evenly
divided with regard to favoring or
opposing the proposed rule. Several
commenters were of the opinion that
there should not be any regulatory
requirement to develop enforcement
response plans and that any such
p;ovision should be developed as
guidance only.
EPA believes that enforcement
response plans will help POTWs decide
what resources are needed to enforce
their pretreatment standards and assist
in dealing with industrial user
violations. In addition, a clearly defined
enforcement response pian will pr’-vide
notice to indust.iial users of what to
expect if they violate any pretreatment
reçuirement. By alerting Industrial users
to the possible response they may face
In the event of noncompliance, the
Control Authority will demonstrate that
it is serious about Its compliance
expectations and Is ready to respond to
violations with firm measures. This
heightened awareness by industrial
users should Improve their compliancs
status. Therefore, the Agency is of the
opinion that It ii appropriate to define
these enforcement response plans in the
regulation. For this reason, the Agency
Is today requiring all POTWs with
pretreatment programs to develop and
implement enforcement response plans.
The majority of the comments against
the nile claimed that the procedures
outlined In the proposed rule would
prevent the P01W from exercising its
enforcement discretion by locking the
P01W into a cookbook approach to
addressing violation.,. One commenter
from private industry believed that ks
rule would force the P01W to address
all instances of noncompliance with
equal vigor, regardless of the magnitude
of the violation. A P01W commented
that rigid enforcement response plan
requirements could result in less
vigorous POTW pretreatment program
Implementation. Another P01W stated
that establishing standardized national
elements fcr the enforcement respons.
plans would remove necessary
flexibility In program implementation. A
third commenter believed that the
current rule would Inhibit Innovative
means of enforcement In general, these
cominenters believed that the rule
would hinder rather than help the
P01W In its efforts to promote
industrial user compliance.
An effective enforcement response.
plan should provide that sImilar
violations will be dealt with in a similar
manner . and that more serious
violations will be addressed with more
stringent enforcement responses.
Therefore, It I. Incorrect to think that the
enforcement response plans will
address all Instances of noncompliance
with equal vigor. With regard to th.
Issue of flexibility, the Agency
understands that enforcement strategies
will be different from jurisdiction to
jurisdiction and that the responses
selected by each Control Authority will
depend on their legal authority and local
circumstances. EPA is defining the
principles for enforcement in the
regulation, but it is up to the local
Control Authority to decide how to
incorporate these principles into a
functional enforcement strate . taking
into account local circwnstances. The
Agency does not believe that the use of
such plans precludes innovative
enforcement strategies.
Even those commenters who favored
the rule were concerned that EPA
provide enough flexibility to the POTW
to decide the detail, of response
procedures appropriate for a particular
situation. One commenter believed that
the rule as written provided enough
flexibility to accommodate the
differences In the enforcement process
for each community. Most commenters,
however, felt that requiring the
specification of time frames within the
rule Itself would place an unreasonable
restraint on the P01W’. enforcement
discretion. Another ccmmenter stated
that time frames necessarily vary from
case to case.
Enforcement is the necessary driving
force that makes environmental laws
work. One of the foundations of
effective enforcement is the timely
response upon discovery of a violation.
The Agency Is not persuaded by the
argument that requiring the development
of time frames in the regulation will
place an unreasonable restraint on the
POTW’s enforcement discretion. The
actual time frames to be incorporated
into the enforcement response plan are
being left to the discretion of the P01W
(with the agreement of the Approval
Authority). EPA understands and
appreciates the need for local flexibility
In determining appropriate responses,
but the Agency believes that requiring
the establishment of time frames Is an
appropriate condition for effective
enforcement. The Agency emphasizes
that both the proposal and todars rule
would not require the same time frames
for different types of industrial user
noncompliance.
Many of the P01W. that commented
stated concern that this rule would
make them easier targets for EPA
enforcement action. One POTW
asserted that the rule was an attempt by
EPA to fit local programs into the
federal mold and to improve EPA’..
enforcement capabilities against
POTW. It was thought that a more
appropriate requirement would be to
make these enforcement response plans
a permit requirement for P0’l’Ws with
interference or pus through problems
due to inadequate enforcement
One of the legitimate purposes of this
requirement Is to provide EPA with a
means to evaluate program . ‘ .
implementation by the Control r
Authority. The present general .
pretreatment regulations already require
POTWs to ensure compliance by
industrial users with all pretreatment
standards and requirements. Today’s
revision to the regulations serves to
make this requirement more explicit.-
One of the difficulties In implementing
and enforcing pretreatment programs for
POTWs has stemmed from a lack of
clearly defined polides and procedures.
The process of developing enforcement
response plans will compel the P0’I’W
to lay out its enforcement rationale and
will therefore serve to mini ff125
eliminate the uncertainties concerning
enforcement. Thd Agency is requiring
that POTWs lay out a clearly defined
strategy to be used in addressing
violations. One of the benefits of such
an approach is that when the Control
Authority discovers that its local
enforcement authority has been
insufficient to return a recalcitrant
Industrial user to compliance. the
Control Authority may wish to report
that situation to the Approval Authority
as a possible candidate for joint
enforcement action. This partnership
between the local Control Authority asid
the Approval Authority is an anticipated
-------
Federal Register I VoL 55, No. 142 / Tuesday Tuly 24, 1990 / Rules and Reguiatlons
301
•ns nce of this requirement. To
ovide the Approval Authority with
owledge of who Is responsible for the
bus level., of response. the Agency Is
Jay adding a new provision (40 CFR
3.8(fl(5)(iii)). requiring the P01W to
‘ntify In enforcement response plans
official(s) responsible for
lementing each type of enforcement
;ponse.
)ne commentet was uncertain
ether the requirement for the
ielopment of enforcement response
.ns would apply to POTWs that
eady have approved programs. It Is
• Agency’s Intent that all Control
thoritlee. including those with
sting approved programs, develop
Implement the requirement of this
e. Therefore, all POTWs with
roved programs and those P01W.
uired to develop a program under 40
1 403.8(a) will be required to develop
enforcement response plan. This
umenter also suggested that a
pliance date be established for the
•elopmeut of these plans. Although
Agency does not agree that a
ron compliance data need be
cifled In the regulation. EPA points
all enforcement response plans
as other program changes
,u. by todays rule) must be
Iuded In the POTWs NPDES permit
n reissuance.
Today’s rule. Today’s rule provide.
P01W. with approved programs
it develop and implement an
.,rcemerzt response plan. This plan
U contain detailed procedure.
cating how a P01W will investigate
respond to Instances of Industrial
r noncompliance and shall, at a
imum:
a) Describe how the P01W will
“stigate Instances of noncompliance:
) Describe the types of escalating
.,rcement responses the POTW will
• In response to all anticipated types
.‘idustnial user violations and the time
.ods within which response, will
• place:
1) Identify by title the o clal(s)
onslble for Implementing each type
nforcement response: and
!) Adequately reflect the P01W’.
‘iary responsibility to enforce all
!.icable pretrea ent requirements
standards. as provided In 40 R
8(i) (1) and (2).
jefln.ition of Significant
- ‘ ipliance (40 CFR 403.8(fl(2)(vil))
nosed change. The existing
ru (40 CPR 403.8(fl(2)(vli))
iirv Control Authorities to publish. In
daily newspaper with the largest
ulation In the uenelce community, a
of Industrial users which had
significant violations of applicable
pretreath ent standards and
requirements during the previous twelve
months. This list must be published at
least once per year. ‘Significant
violation” Is defined u a violation
which remains uncorrected 45 days after
notification of noncompliance: which Is
part of a pattern of noncompliance over
a twelve month period: which Involves a
failure to accurately report
noncompliance or which resulted In the
P01W exercising Its emergency
authority under 40 403.8(f)(1)(vl)(B).
This definition Includes criteria
similar to those previously used by
Quarterly Noncompliance Reports
(QNCRa) for direct discharger.. The
Agency uses QNCRs to back the
progress and measure the effectiveness
of NPDES compliance and authorized
slate enforcement against direct
dischargers. However, In 1985 EPA
revised the criteria for the types of
violations to be reported In QN ts (see
40 CYR Part 123.45). The revisions
established more precise criterLa. known
as technical review criteria (TRC), to be
used for reporting ce ta1n permit
violations. The TRC are based on the
magnitude and/or duration of the
violations and provide a means to
quantify severity of violations fat
reporting of direct discharger
noncompliance.
In the 1988 Prelrealment Compliance
Monitoring and Enforcement Guidance,
the Agency included a detailed
recommended definition of significant
noncompliance by industrial users
which Incorporated the essence of the
new criteria used In determining the
violations required to be reported In the
QNCR. In the Cuidance, EPA
recommended the national use of this
definition to Identify the most serious
violations by Industrial users and to set
priorities for enforcement actions.
Experience with the current regulatory
definition of significant violation has
shown that POTWs vary considerably
In their application of this definition
when selecting which names of violators
to publish In the local newspaper. This
Is particularly thie in deciding what
constitutes a “pattern of
noncompliance” under 40 CFR
403.8(fl(Z)(vil). To eliminate these
inconsistencies and to establish more
parity In backing violations committed
by direct and Indirect discharger.. the
Agency proposed on November 23, 1988
to revise 40 CFR 403.8(fl(2)(vll) to
replace the definition of significant
violation with a new definition which
essentially Incorporates the criteria used
In determining direct discharge
violations to be reported on the QNCR.
Under the proposal, an Industrial user
would be In significant violation if Its
violation, met one or more of the
following criteria:
Chronic violation, of wastewater
discharge limits, defined as those In
which sixty.six percent or more of all of
the measurements taken during a six-
month period exceed (by any
magnitude) the daily maximum limit or
the average limit for the same pollutant
parameten
Technical review criteria (TRCJ
violations, defined as those In which
thirty-three percent ormore of all of the
measurements taken during a ilx.month
period equal or exceed the product of
the daily average maidmum limit or the
average limit times the applicable TRC
(TRC — 1.4 for BOD. TSS. fats, oil, and
grease. and 1.2 for all othet pollutants
except pH)
• Any other violation of a
pretrea ent effluent limit (daily
maximum or longer-term average) that
the Control Authority believes has
caused, alone or In combination with
other discharges. Interferenc, or pass
through (Including endangering the
health of P01W personnel or the
general public):
• Any discharge of a pollutant that
has caused imminent endangerment to
human health, welfare or to the -
environment and has resulted In the
P01W. exercise of Its emergency
authority under paragraph (f)(1)(vIXB) of
this section to ball or prevent such a
discharge: ,f
• Violation, by ninety days or more .
after the schedule date, of a compliance
schedule milestone contained In a local.
control mechanism or enforcement
order, for starting construction,
completing construction, or attaining
final compliance:
• Failure to provide required reports
such as baseline monitoring reports, go.
day compliance reports, periodic self-
monitoring reports, and reports on
compliance with compliltIle, schedules
within thirty days of the due date:
• Failure to accurately report
noncomplianoc or
• Any other violation or group of
violations which the Control Authority
considers to be significant.
The Agency believes that this new
definition will provide P01W. wIth
more precise Instructions regarding
which Industrial users In violation of
pretrea ent standards should have
their names published In local
newspapers.
EPA solicited comments on the
appropriateness of the definition
criteria, but emphasized that Industrial
users would continue to be liable fat
-------
30124 Federal Register I Vol. 55. No. 142 / Tuesday. July 24, 1990 I Rules and Regulations
any violation of applicable pretreatment
requirements.
b. Response to commenl& EPA
received many comments on the
proposed rule from States. POTWs.
environmental groups. and private
Industry. The commenters were
generally evenly divided with regard to
favozing or opposing the proposed rule.
By far the greatest number of
comments addressed the fact that under
the proposed definition of significant
violation. an industrial user could be
considered a significant violator based
on a single sampling event. This means
that if the Industrial user perform. the
in inim*Ily acceptable level of
monitoring (generally twice per year)
and detects a violation, then that
Industrial user, by definition. would be
considered a significant violator. There
was a recommendation from several
commenters to lengthen the evaluation
period for the criteria for chronic
violations of wastewater discharge
limits and technical review aiteria
violations from six months to twelve
months to allow for the accumulation of
more data. Alternatively, one
commenter suggested that EPA should
specify a minimum number of samples
for the determination of what is a
significant lation.
In lesponse, EPA point, out that the
general pretreatment regulations specify
only the minimum monitoring and
reporting requirements for Implementing
the pretreatment program. Although It is
true that an industrial user can be
classified as a significant violator based
on data from a single sampling event. an
Industrial user may Increase its
sampling frequency to lessen the chance
that, for chronic or TRC violations,
significant noncompliance will be based
on only one sampling event. In addition.
it should be noted that 40 CTR
403.12(g)(2) provides that-if sampling
performed by a categorical industrial
user indicates a violation, the user shall
repeat the sampling and analysis and
submit the results of the repeat analysis
to the Control Authority withIn 30 day.
after becoming aware of the violation.
Three commentere wers of the opinion
that the technical review criteria (TRC)
were too low and that a more realistic
ir.d appropriate level for the TRC would
e 2.0 for conventional pollutants and
1.5 for all other pollutants. One
ommenter suggested eliminating this
component of the definition altogether.
Another commenter suggested that the
TRC be separately calculated for each
pollutant by incorporating the removal
efficiencies at the treatment works. A
POTW commented that the TRC criteria
shouid have language which specifies
that the TRC applies for “each pollutant
parameter.” —
One of the reasons for the
development of the significant violator
criteria was to promote parity between
the tracking of violations for direct and
indirect dischargers. 40 CFR 123.45(a)(ZJ
establishes criteria for determining
significant violations for direct
discharger,. In the 1988 Guidance, the
Agency recommended adopting these
same criteria for evaluating significant
noncompliance for Indirect dlschargers.
The reportabillty criteria for the
Quarterly Noncompliance Report
(QNCR) uses TRC values of 1.2 and 1.4,
Therefore. EPA proposed to adopt these
same criteria in the regulatory definition
of significant violation in the
pretreatment program. The Agency does
not believe that basing TRC values on
the removal efficiencies at the POTW I,
a viable means to define significant
violations. since It would involve
calculations by each POTW on Its
removal efficiencies for many
pollutants, EPA does agree. however.
that the language in the TRC would be
clearer If it specified for “each pollutant
paramete and has accordingly
included such language in today’s final
rule.
Three commenters believed that
criterion “C” of the proposed definition
would promote arbitrai ’ and
Inconsistent Implementation of the
definition and should be eliminated. A
separate commenter stated that this
criterion was inappropriate because the
determination of s significant violation
should be based on actual fact and not a
“belier that a discharge has caused
Interference or pasa.through. This
comznenter recommended that we
change the wording of this criterion to
“has reason to believe.” There was a
related concern from private industry
that the definition. as proposed, would
allow for arbitrary or indiscriminate
enforcement without providing for
adequate or meaningful legal recourse
on the part of the industrial user deemed
to be In significant violation of
pretreatment requirements. It was stated
that certain of the criteria were
sufficiently vague as to penalize
dischargers wnhout adequate warning
and without any opportunity for appeaL
EPA recognizes the need to base
allegations of violation on information
and not on simple belief. Today’s final
definition therefore Incorporates the
phrase “which the Control Authority
determi.nes has caused, alone or in
combination with other discharges.
Interference or pass through’ ‘ ‘“
instead of the language In the proposed
definition. For the same reason. the
Agency has also incorporated the
phrase “which the Control Authority -
delerrnrnes will adversely affect the
operation or imp/en en:otion of die local
pretieazmentprogro.’n” in the last
cnerlon for signJicant violation.
instead of “which the Control Authority
considers to be significant”, as was
proposed. The Control Authority’s
determination may include a technical
analysis documenting Interference or
pass through or other appropriate
evidence which It deems sufficient EPA
believes that the above changes
decrease the chance of arbitrary
judgments by Control Authorities,
One commenter stated that an
affirmative defense should be explicitly
included In the definition of significant
noncompliance. However, EPA does not
believe that POTWs should be burdened
with ascertaining which Industrial users
may be eligible for an affirmative
defense under 40 CFR 403.5(a)(2) before
satisfying the publication requirement in
40 CFR 403.8(f)(2)(vti). Incorporating the
commenter’s suggestion into the rule
could lead to protracted and
counterproductive efforts by P01W. If -
they had to investigate the eligibility of
an industrial user for an affirmative
defense prior to publication. In addition,
where the eligibility for an affirmative
defense Is unclear, this requirement
would leave POTWs uncertain about
their obligations under 40 CFR
403.8(fl(2)(viiJ. Since the listing of an
industrial user In the newspaper does:.:
not involve an administrative penalty or
judicial action. eligibility for an - -
affirmative defense Is unaffected by
such a listing, and such eligibility will be
determined during administrative
penalty or judicial enforcement
proceedings. Accordingly, today’s rule
does not provide for the consideration of
eligibility for an affirmative defense In
determining whether an industrial user
is in significant noncompliance.
In response to the comment that thern
industrial user Is not provided with
adequate or meaningful legal recourse.
EPA believe, that Control Authorities -
will not arbitrarily list industrial user,
as being In significant violation of.
pretreatment requirements. The Control
Authority is most likely to base this —
decision on a reasoned professional
judgment In cases where there is
discretion provided to the P01W.
Three commenters stated that the
P01W should develop its own criteria
for what is considered significant .
because It was believed that the POTW
Is in the best position to determine what
violations cause the greatest damage to
the treatment works. These commenters
suggested that EPA provide support by
-------
Federal Register I VoL 55. No. 142 / Tuesday. July 24. 1990 / Rules and Regulation.
30125
etan%taining its current criteria in
MndaflCt. One commenter was
oncetned that the Agency be very
sreM not to foster activities which
eight inhibit relations between the
pOTW and Its industrial users. U th
pQTW then fails to follow its criteria. it
would be liable to enforce action by the
Approval Authority. In response. EPA
pointS out that both the proposal and
todays rule allow POTWs discretion to
List any violations they consider
significant. Todays rule establishes only
minimum requirements, and should not
alfect relation. between POTWs and
their Industrial users.
One commenter requested
clarification regarding whether proposed
criterion C. “failure to accurately report
noncompilance”. induded only willlui
failures or any failures to report
The general pretreatment regulations
specify the signatory requirements for
reports submitted by Industrial users to
the Control Authority. This requirement
I . designed to provide accountability on
the part of the Industrial user for the
contents of any report including
required reports of noncompliance. In
stgnb g the report, the person so signing
has confirmed that the report is
complete and accurate In all respects.
Any failure to report accurately Is
su dent justification to list the
Industrial user as a significant violator.
As noted above, the Agency’s 1986
guidance on this subject referred to
“significant noncompliance” rather than
“significant violation’ (the term used In
the November 23. 1988 proposal). Since
that time EPA hu directed Control
Authorities and Approval Authorities to
use the “significant noncompliance”
criteria In determining appropriate
responses to industrial user
pretreatment violations. This term has
been employed In EPA workshops and
. intna , and Is also used isa basis for
tracking industrial user noncompliance
in the Pretreatment Permits Eafozu.saent
Tracking Systems trrms s), a computer
system which assists the Agency in
overseeing pretreatment program
implementation. For the sake of pro am
consistency, todays regulation therefore
refers to “significant noncompliance”.
c. Today’s ride. Today’s role provides
that an Industrial user Is In significant
noncom lance if Its violations meet one
or morn of the following criteria:
Clvothayfolatlons of wastewater
discharge limits, defined as those in
whIch sIxty-six percent or more of all of
the measurements taken during a six-
month period exceed (by any
• magnitude) the daily maximum limit or
the average limit for the same pollutant
parameten
• Technical review criteria (TRC)
violations, defined as those In which
thirty-three percent or more of all of the
measurements for each pollutant
parameter taken during a six-month
period equal or exceed the product of
the daily average maximum limiter the
average limit times the applicable TRC
(TRC—1.4 for SOD, TSS. fats, oil, and
grease. and 1.2 for all other pollutants
except pH):
• Any ether violation oft
pretreatment effluent limit (daily
maximum or longer-term average) that
the Control Authority determines has
caused, alone or in combination with
other discharges. Interference or pass
through (Including endangering the
health of POTW personnel or the
general public);
• Any discharge of a pollutant that
has caused Imminent endangerment to
human health, welfare or to the
environment or has resulted in the
POTWs exercise of its emergency
authority under paragraph (f)(1)(vi)(B) of
this section to halt or prevent such a
discharge:
• Failure to meet, within 90 days after
the scheduled date. a compliance
schedule milestone contained In a local
control mechanism or enforcement
order, for starting construction,
completing construction, or attaining
final compliance:
• Failure to provide, within 30 days
after the due date, required reports such
as baseline monitoring reports, 90-day
compliance reports, periodic sell-
monitoring reports, and reports on
compliance with compliance schedules;
• Failure to accurately report
noncompliance: or
• Any other violation or group of
violations which the Control Authority
determines will adversely affect the
operation or implementation of the local
pretreatment program.
6. Reporting Requirements for
Significant industrial Users (40 O ’R
a. Pfl,posed rule. 40 CFR 403.12
describes the reports that industrial
users must submit to their Control
Authorities, To demonstrate continued
compliance with pretreatment
standards, Industrial users sublect to
categorical standards must submit semi-
annual reports that Include effluent
monitoring data taken during the
reporting period, as provided In 40 CFR
403.12(e). The existing regulations
provide that Control Authorities must
require appropriate reporting from those
industrial user. with discharge . not
subject to categorical standards.
However, the regulations do not specify
a minimum frequency for reporting by
noncategorical industrial users to the
Control Authority regarding their
compliance with applicable
pretreatment requirements.
To provide for more effective
implementation of the existing
requirements and to ensure that this
reporting Is carried Out regularly. EPA
proposed on November 23. 1988 to
revise 40 dR 403.12(h) to require that
all significant industrial users (as
defined under proposed 40 CFR 403.3(u))
submit to their Control Authorities, at
least twice a year, a description of the
nature, concentration, and flow of
pollutants selected for such reporting by
the Control Authority. In addition, the
proposal would require all significant
Industrial users to base their reports on
data obtained through appropriate
sampling and analysis performed during
the period covered by the report.
Control Authorities may require more
frequent monitoring as appropriate.
The Agency solicited comments on
the proposed twice-yearly reporting
frequency. on limiting the reporting
requirements to significant industrial
user,, and on whether to require -
significant Industrial users to sample for
certain compounds, such as the RCRA
appendix VUI hazardous constituents.
b. Response to comments. The Agency
received many comments on the
proposed nile from States. POTWs,
environmental groups. and Industry. A
majority of the commenters favored the
proposal to require significant Industrial
users to report with the same frequency
as categorical industrial users.
A few of the commenteru expressed
concern that the rule would require
duplicative reporting for categorical
industrial users. The assumption was
that this provision would require
categorical industrial users to report
more often than Is currently required,
This was not EPA’s Intent in the
proposal. as indicated by the title of
proposed 40 dR 403.12(h)—”Reporting
Requirements for Industrial Users Not
Subject to Categorical Standard .”.
Today’s rule clarifies this Intent by
referring in 40 dR 4 0 3.12(h) to
“significant noncategorical industrial
users.”
A few other commenters stated that
the current reporting requirements under
40 CFR 403.12(h) were sufficient and
allowed for necessary flexibility in
establishing reporting requirements for
non-categorical Industrial users. There
was a concern that the current proposal
would restrict that flexibility. These
commenters believed that the current
regulation Is more suitable In dealing
with the highly variable group of
noncategoncal discharges.
-------
30128
Federal Register I Vol. 55, No. 142 I Tuesday, July 24. 1990 L Rules and Regulations
The Agency believes that the
reporting requirements for all significant
industrial users. including categorical
and non-categorical users. should
generally be the same. Since
noncategorical significant industrial
users are also likely contributors of
toxic and hazardous pollutants to
POV4Vs, EPA sees no reason for len
fre .zent reporting for this group of
discharger.. With respect to POTW
flexibthty. the Agency emphasizes that
todays rule establishe, only whet It
believes to be the minimum acceptable
frequency for sampling and reporting.
P0flN. are free to require additional
sampling and reporting as frequently as
is necessary for a particular discharger.
EPA bclieves that these requirements
will give POTWs much more accurate
knowledge of non-categorical wastes
entering their treatment and collection
systems. This knowledge Is particularly
important because many toxic and
hazardous pollutants are not covered by
categorical standards. EPA also believes
that establishing minimum monitoring
frequencies is the only way to ensure
that the samples submitted to the POTW
are representative and upto date. In
order to help ensure that sampling Is
conducted once every six months
instead of twice in one month (as the
proposed rule would technically have
allowed), the Agency is today requiring
sampling reports to be submitted at
least once every six months on dates
specified by the Control Authoritl’,
instead of at least twice a year as was
proposed.
Two commenters stated a belief that
POTW monitoring should be specified
as an acceptable alternative in lieu of
industrial user monitaring. as is
currently stated in 40 CFR 403.12(g).
Since the intent of the regulation Is to
provide parity between categorical and
significant non-categorical discharger..
EPA has amended 40Q’R 4 03. 12(b) to
specify that POTW monitoring Is
acceptable in lieu of industrfil user self.
monitoring.
With respect to requiring ‘Ignificant
industrial users to sample for certain
compounds or classes of compounds
(such as RCRA appendix V I II hazardous
constituents), there was almost
universal opposition to this suggestion
from the commenters. EPA does not
believe that monitoring for these
constituents is necessary on s routine
basis to prevent pass through or
Interference. POTWs may require an
industrial user to monitor for any or all
of these constituents if appropriate on
an individual basis. Therefore, this
requirement Is not part of todays rule.
Howe rer. EPA has added a requirement
to 40 CFR 403.8(fl(1)(iii) that any
pollutants required to be monitored
must be identified in the individual
control mechanism Issued to the
significant industrial user.
c. Todoy’s tide. Todays rule require.
noncategorlcal significant Industrial
users to submit to the Control Authority
at least once every six months (on dates
specified by the Control Authority) a
description of the nature, concentration,
and flow of the pollutant.. required to be
reported by the Control Authority. The
reports shall be based on sampling and
analysis performed In the period
covered by the report. sad. where
possible, performed In accordance with
the techniques des ibed in 40 CFR part
136. The sampling and analysis may be
performed by the Control Authority in
lieu of the significant noncategorical
industrial user.
H. Misceioneous Amendments
In addition to the substantive
regulatory changes proposed on
November 23. 1968, EPA also proposed
to clarify certain of the general
pretreatment regulations. These
proposed non.substanlive revisions are
discussed below.
1. Local Limits Development and
Enforcement
a. ProposeJ change. 40 Cl R 403.5(c)
provide, that P01W. “developIng”
pretreatment programs must develop
and enforce specific limits to Implement
the general and specific discharge
prohibition,. In order to clarify that
POTW, with already approved
pretreatment programs must also
develop and enforce local limits. EPA
proposed to revise 40 CFR 403.5(c) to
provide that POTWs shall continue to
develop and enforce appropriat, local
limits after developing an approved..
pretreatment program.
b. Response to comments. No
significant comments were received on
this proposed revision.
C. Today’s rule. Today’s rule revise.
40 CFR 403.5(c)(1) to provid, that
P01W. with approved pre eatmeat
programs shall continue after
pretreatment program submission and
approval to develop local limits as
necessary and effectively enforce such
limits.
2. EPA Enfurcament Action
a. Proposed change. 40 R 40 5 .5(e)
summarizes procedures that EPA
follows to bring certain enforcement
actions against an industrial user that
has caused Interference or pass through
at a POTW. I.e., give the POTW 30 days
notice to Initiate Its own enforcement
action. However, 40 QR 403.3(e) may be
misleading in not stating that this notice
requirement only applies to federal
enforcement under section 309(f) of the
Act and not to State or other federal
enforcement actions. In order to avoid
misunderstanding, the Agency proposed
to revise the title of 40 CFR 403.5(e) to
indicate that these notice procedures
only apply to actions brought under
section 309(i) of the Act.
b. Response to comments. No
significant comments were received on
this proposed revision. EPA notes that in
addition to the above-mentioned title,
the text of 40 CFR 403.5(e) Is also
misleading In that it refer, to NPD
States in the context of enforcement
actions. Since this provision is intended
to apply only to actions brought under
sectmn 309(l) of the Act, EPA has
deleted all references to NPDES States
from 40 C} 403.5(e).
c. Todoy ’s iv!e. The title of 40 CFR
403.5(e) has been ehanged to read “ WA -
enforcement actions under section 309(1)
of the Clean Water Act”, and the text of
40CFR4 035(e)haabee nrevisedto
delete all references to NPDES States.
3. National Pretreatment Standards:
Categorical Standards
a. Proposed change. 40 R 403.8
provides that categorical pretreatment
standards, unless specifically noted
otherwise, shall be In addition to
general prohibitions established Ia 40
CFR 403.5. There Was an unintentional
omission from this provision of a
reference to the specific dLscharge .
prohibitions. In order to rectify this
omission, the Agency proposed to revise
(0 CFR 403.6 to add that national
pretreatment standards, unless . ‘-
specifically noted otherwise, shall be in.
addition to all prohibition. and limit,
established under 40 CFR 403.5(c).
b. Response to comments. No
significant comments were received on..
this proposed revision. The Agency has.
noted, however, that the proposed
modification could be interpreted as. -
being in conflict with requirements In
part 403. other than the general and
specific prohibitions, that apply to
categorical dischargere. Since this was
not the Agency’s intent. EPA Is today
clarifying in 40 CFR 403.6 that
categorical Industrial users must comply
with all applicable pretreatment
standards and requirements set forth in
part 403. as well as national categorical
pretreatment standards.
c. Today’s p.r/c. Today’s rule revises
40 CFR 403.6 to provide that categorical
industrial users must comply with all
applicable general pretreatment
standards and requirements set forth In
40 CFR part 403.
-------
Federal Registan / Vol. 55, No. 142 / Tuesday, July 24. 1990 / Rules and Regulations
30127
s. ..ITW Pretreata ent Program -
Requirementi Implementat ion
a. Proposed change 40 CFR 403.8(f)
establishes the requirements that a
POTW pretreatment program must
satisfy. Section 403.8(fl(1) provides that
a POTW must have the legal authority
which enables It to deny, condition and
control pollutant contributions, require
compliance by industrial users, conduct
inspections of Industrial users. and
perform other essential attributes of a
pretreatment program. The rule does not
specifically state that P01W. must
implement these procedures. although
this has been EPA’s consistent
interpretation of the rule. To avoid any
possible misunderstanding, the Agency
proposed to revise the Introductory
sentence of 40 CTR 4038(f) to state that
“a P01W Pretreatment Program shall be
developed and implemented to meet the
following requirements”. EPA also
proposed to amend the title of 40 DR
403.8 to read POTW Pretreatment
Programs: Development and
Implementation by P01W ” (emphasis
added).
b. Response to comments. Several
‘nmenters specifically endorsed the
‘osed changes to CFR 403.8(f)
ding implementation of approved
pretreatment programs, stating that the
proposed language darifled an
important requirement To further clarify
this requirement the Introductory -.
language 1040 CFR 403.8(f) has been’
changed from the proposal to read; “a
P01W pretreatment program must be
based on the following legal authority
and include the following procedures.
These authorities and procedures shall
at all time . be fully and effectively
e ier sed and implemented”.
c. Today’. rule. Today’s rule amends
the title of 40 CFR 403.8 to read; “P01W
Pretreatment Program Requirements:
Development and Implementation by
P01W”. The introductory paragraph to
40 CFR 403.8(f) now provides that-
P01W pretreatment programs must be
based on legal authorities and
procedures which shall at all times be
fully and effectively exercised and
Implemented.
5. Development and Submission of
NPDES State Pretzeatme1lt Programs
a. Proposed ciiange. 40 CFR 403.10(c)
states that “the EPA shall ‘ apply
and enforce Pretreatment Standards and
qulrementa until the necessary
lementing action is taken by the
a.” This sentence might give the
wrong Impression that the Agency will
cease to enforce pretreatment
requirements when a State has received
program approval. Since this Is not the
case. EPA proposed to delete this
sentence from 40 CFR 403.10.
b. Response to comments. No
significant comments were received on
this proposed revision.
c. Today’s rule. Today’s rule deletes
the first sentence of 40 CFR 403.19(c).
6. AdmInistrative Penalties Against
Industrial User,
a. Proposed rule. The second to last
sentence In 40 DR 403.8(f)(1)(vl)(B)
states that “the Approval Authority
shall have authority to seek judldoi
relief for noncomplian by Industrial
Users when the P01’W ha.s acted to
seek such relief but has sought a penalty
which the Approval Authority finds to
be In.suiliclent (emphasis addedr. This
provision could arguably be read to
preclude the Agency from seeking
administrative penalties in such
Instances. In order to clarify that EPA or
a State Approval Authority may use any
of their enforcement authorities In
Instances where a P01W has sought
relief for Industrial user noncompliance
that the Approval Authority finds to be
insufficient, the Agency proposed to
revIse 40 DR 403.8(fl(1)(vi)(B) to
provide that the Approval Authority
shall have the authority to seek judicial
relief and may also seek administrative
relief when the P01W has acted to seek
such relief but has sought a monetary
penalty which the Approval Authority
finds to be Insufficient.
b. Response to comments. Some
commenters did not support this . -
proposed revision. These commentazs
believed that the Control Authority was
the only proper entity to establish
monetary penalties for discharges under
its jurisdiction. One commenter pointed
out that state and local ordinances limit
most P01W. In the fines that they can
levy. This commenter also stated that
the proposed d nge would encourage
Industrial users to attempt to deal
directly with the Approval Authority In
cases of vIolation, bypauing the P01W.
The commenters appear to have been
confused about the extent of the
Approval Authority’s existing authority
to levy fines against industrial users
when the P01W has sought an
insufficient monetary penalty. Under the
authority of sections 309(b) and 309(d) of
the Clean Water Act EPA has always
been able to seek a judicial penalty
against noncomplying Industrial users
when the P01W has sought an
Insufficient monetary penalty. including
Instances where the Insufficiency was
due to State or local limitations on fines
that could be levied. The proposed
amendments merely darifled that EPA
may now seek a 4nr.tmUve penalties
as well, under the authority of section
309(g) of the Water Quality Act of 1987.
his clear that Congress intended to gwe
the Administrator the authority to seek
Judicial or administrative penalties
directly against noncomplying industrial
users.
C. Today’s mm Today’s rule revises
40 CFR 403.8(fl(1)(vf)(B) to provide that
the Approval Authority shall have the
authority to seek judicial relief but also
may use administrative penalty
authority when the P01W has sought a
monetary penalty which the Approval
Authority finds to be insufficient
7. Provisions Governing Fraud and False
Statements
a. Proposed change. 40 DR 403.12(n)
regarding fraud and false statements
incorrectly states that certain reporting
requirements are subject to the
provisions of section 309(c)(2) of the-
Clean Water Act. The reference should
have been to sectIons 309 (c) (4) and (6)
of the Act, as amended. EPA therefore
proposed to revIse 40 DR 403.12 (n)
accordingly.
b -Response to commanLs..No
significant comments were received on,.
this proposed revision. To further da ilEy
the existing requirements, th. language-
of 40 CFR 40342(n) has been rh ged
from the proposal to read; , .
‘S tbereporsandothezdo ””ts. - ,,
required to be submitted or maintained undeç
this section shaD be subject tm 1) the : ‘ •
provisions of 18 U.S.C. section 1001 relating -
to fraud and false statements: 2) the- ‘:
provisions of section 309(cg4) of the Act. as -
amended, governing fala. statements. -
representation or certiflcation and 3) the:
provisions of section 309(c)(O) regarding
responsible corporate officer,.
c. Today’. rule. Today’s rule rev see
40 CFR 403(n) to y that reports and
other documents submitted under 40. ,
CFR 403.12 are subject to sections . ..
309(c)(4J and 309(c)(6) of the Clean -‘—‘-
WateAct. - -:
Under Exeartive Order 12291. EPA -
must judge whether a regulation Is
“Major and therefore subject to the
requirement of Regulatory Impact i’.
Analysis. Major rules are those which -
impose a oust on the economy of 5100
million or more annually or have certain
other economic impacts. The Agency -
completed a general estimate of the -
annual costs to industrIal users and
POTW5 of the revisions proposed on -
November 23, 1988, whIch Is included in
the administrative record for this
rulemaking, and which showed
compliance caste at well below $100
million. Todays rule contains certain
changes from the proposal which
-------
30128
Federal Register / Vol. 55, No. 142 I Tuesday, fuly 24. 1990 / Rules and Regulations
increase costs to P01W. and industrial
users. For example, the cost for the
notification requirements has risen from
approximately 3250.000 In the proposed
rule to approximately $800000 ut the
final rule. Similarly, the cost for PODN
inspections and sampling of significant
Industrial users has increased from
approximately 31.160.000 in the
proposed rule to $10,000,000 in the final
rule. However, other changes from the
proposal decrease such costs to POTWs
and Industrial users. For example. the
cost of toxicity testing by POTWs has
decreased from approximately
37.500.000 in the proposed rule to
approximately 31.200.000 in the final
rule, end the cost of technology.based
limits for CWTs has decreased from
approximately 321.000.000 in the
proposed rule to no cost in the final rule.
These changes are detailed in the
Information Collection Request (ICR) for
_this rule submitted to the Office of
Management and Budget (0MB)
pursuant to the Paperwork Reduction
Act. Since the net effect of these
changes does not cause the annual
economic Impact of today’s rule to
approach $100 million, this rule does not
meet the criteria of a major rule as set
forth In section 1(b) of the Executive
Order. This regulation has been
approved by 0MB pursuant to Executive
Order 12291.
IV. Regulatory Flexibility Analysis
The Regulatory Flexibility Act. 5
U.S.C. 601 et seq.. requires EPA and
other agencies to prepare an initial
regulatory flexibility analysis for all
proposed regulations that have a
significant impact on a substantial
number of small entitles. No regulatory
flexibility analysis is required, however,
where the head of the Agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Most of the
amendments promulgated today will
affect larger 1Ws (thou, with
approved pretreatment programs and
design influent flow of more thin one
million gallons per day) and significant
industrial users, who are less likely than
the average industrial user to be a small
business, Those requirements which
affect small industrial users do not
Impose sigiuficant costs. I hereby
certify. pursuant to 5 U.S.C. 605(b) that
this regulation will not have a
significant impact on a substantial
number of small entities.
V. Paperwork Reduction Act
The information collection
requirements contained In this rule were
approved by the Office of Management
and Budget (0MB) under the provisions
of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
Public reporting burden for this
collection of information Is estimated to
average 49 houri per responsa for
P01W. and 6 hours per response for
industrial users, Including time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed. and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of Information. Including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-.
223, U.S. Environmental Protection
Agency. 401 M SL SW., Washington, DC
20460’ and to the Office of Information
and Regulatory Main. Office of
Management and Budget, Washington.
DC 20503, marked “Attentioni Desk
Officer for EPA’.
List of Subjects
IOCFRPorU22
Administrative practice and
procedure. Reporting and rucordkeeplng
requirements. Water pollution controL
Confidential business information.
IOCFRPartlCe3
Confidential business Information. -
Reporting and recordkeeping
requirements. Waste treatment and
disposal. Water pollution Control.
Dateth luly 3 1990.
W ’illham K. Reilly,
Administrator. -
40 CFR chapter lie amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS THE NATIONAl.
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for pert 122
continues to read as follows:
AuthorIty. Clean Water Act, U.S.C. 1251
at seq.
2. Section 122.2111 amended by
adding paragraphs (j)(1), (j)(2), (ili3). and
W(4) to read as follows:
I 122.21 Apatlonforspernlt ,’
(application to State pro ,.ms , see
S . • S S
(j)••S
(1) The following P01W. shall ‘ &.
provide the results of valid whole
effluent biological toxicity testing to the
Director
(i) All P01W. with design Influent
flows equal to or greater than one
millIon gallons per day;
(u) AU P01W. with approved
pretreatment programs or POTWs
required to develop a pretreatment
program;
(2) In addition to the POTWs listed
paragraph (j)(1) of this section. the
Director may require other P01W. to
submit the results of toxicity tests with
their permit applications, based on
consIderation of the following factors:
(I) The variability of the pollutants 0:
pollutant parameters in the P01W
effluent (based on chemical ’specdlc
information, the type of treatment
facility, and types of industrial
contributors):
(ii) The dilution of the effluent in the
receiving water (ratio of effluent flow tc
receiving stream flow);
(iii) Existing controls on point or
nonpoint sources, including total
maximum daily load calculations for th
waterbody segment and the relatiye
contribution of the POTW; —
(lv) ReceIving stream characteristics.
Including possible or known water
quality impairment and whether the
P01W discharges to a coastal waters
one of the Great Lakes. or a water
designated as an outstanding natural
resource: or
(v) Other considerations (including
but not limited to the history of toxic -
Impact and compliance problems at the
P01W), whIch the Director determines
auld cause or contribute to adverse
water quality Impacts. -
(3) For POTWs required under
paragraph (J)(l) or 01(2) of this section tc
conduct toxicity testing. POTWs shall
use EPA’s methods or other established
protocols which are scientifically
defensible and sufficiently sensitive to
detect aquatic toxicity. Such testing
must have been conducted since the last
NPDES permit reluuanca or permit
modification under 40 CFR 122.82(a),
whichever occurred later.
(4) All POTWs with approved
pretreatment programs shall provide the
following information to the Director a
written technical evaluation of the need
to revise local limits under 40 CFR
403.5(cj(1).
PART 403—GENERAL
PRETREATMENT REGULATIONS FOR
EXISTiNG AND NEW SOURCES
1. The authority citation for part 403
continues to read as follows:
Authority; Sec. 54(c)(2) of the Clean Water
Act of 1977 (Pub. L 95—217). sacs. 204(b)(Il(CJ.
208(bX2l(C)(iii). 301(b)(lffA)(ii). —
3Ol(b)(2)(AXIi). 3o1(b )(2)(C). 301(l i)(5),
301(l)(2). 304 (a) and (g). 307. 3 . 309. 402(b).
405 and 501 (a) of the Federal Water PoUution
Control Act (Pub. 1.. 92—500). a. amended by
the Clean Water Act of 1977 and the Water
-------
Federal Register I Vol. 55. No. 142 / Tuesday. uly 24. 1990 / Rules and Regulations
30129
Quality Act of 1957; sacs. 2002 and 3018(d) of
the Solid Waste Oiiposil Act as amended.
2. Section 403.3 is amended by
redesignating existing paragraph (I) as
paragraph (u) and adding new
paragraph (I) to read as follows:
403.3 Difketlcna
S S S •
I
(t] Sip,nhficanl Industnal User. (1)
Except as provided In paragraph (t)(2) of
this section. the term Significant
Industrial User means
(I) All Industrial users subject to
Categorical Pretreatment Standardi
under 40 CFR 403.0 and 40 CFR Chapter
I. Subchapter N; and
(ii) Any other Industrial user that
discharges an average of 2S.000 gallons
per day or more of process wastewater
to the POTW (excluding sanitary.
noncontact cooling and boiler
blowdown wastewater): contributes a
process wastestream which makes up 5
percent or more of the average dry
weather hydraulic or organic capacity of
the POTW treatment plant or Is
designated as such by the Control
Authority as defined In 40 CFR 403.12(a)
on the basis that the Industrial user has
a reasonable potential for adversely
affecting the P01W’. operation or for
violating any pretreatment standard or
requirement (in accordance with 40 CFR
403.8(0(6)).
(2) Upon a finding that an Industrial
user meeting the criteria In paragraph
(tJ(1)(ii) of this section has no
reasonable potential for adversely
affecting the P0fl V ’s operation or fur
violating any pretreatment standard or
requirement, the Control Authority (as
defined in 40 CFR 403,12(a)) may at any
time, on its own initiative or In response
to a petition received from an industrial
.user or POTW, and In accordance with
• 40 CPR 403.8(fl(8). determine that such
industrial user is not a significant
Industrial user.
S • • S •
3. Section 403.3 is amRudd by
revising paragraphs (aX2) hatzodiictory
ten?, (b)(1), and (e). adding tmct to the
end of (c)(1). and adding new
paragraphs (b)(8), (b)(7), and (b3(8) to
read as follows:
f 403.3 National Pretreatment Standards:
ProhIbited Discharges.
(a) ‘ ‘ .
(2) Affirmative Defenses. A User shall
have an affirmative defense In any
action brought against It alleging a
violation of the general prohibitions
established In paragraph (a)(1) of this
section and the specific prohibitions in
paragraphs (b)(3). (b)(4J, (b)(5), (b)(6J.
arid (b)(7) of this section where the User
can demonstrate that:
I I S I S
( b ) ’
(1) Pollutants which oreate a fire or
explosion hazard in the POTW.
including, but not limited to.
wastesfrearns with a closed cup
flashpoint of less than 140 degrees
Farenheit or 60 degrees Centigrade using
the test methods specified in 40 CFR
26121.
S S S S
S
(6) Petiolewn oil. nonbiodegradable
cutting oil, or products of mineral oil
origin in amounts that will cause
interference or pass througji
(7) Pollutants which result in the
presence of toxic gases. vapors, or
fumes within the POTW in a quantity
that may cause acute worker health and
safety problems:
(8) Any trucked or hauled pollutants.
except at discharge points designated by
the P01W.
(c) ‘
(1)’’ ‘EachPOTWwithan
approved pretreatment program shall
continue to develop these limits as
necessary and effectively enforce such
limits.
S I S S S
(e) EPA enforcement action.I under
section 309(f) of the Clean Water Act.
I L within 30 days after notice of an
Interference or Pass Through violation
has been sent by EPA to the P0TW, and
to person, or groups who have
requested such notice, the P01W fail,,
to commence appropriate enforcement
action to correct the violat.i u. EPA may
take appropriate enforcement action
under the authority provided in section
309(0 of the Clean Water Act.
4. Section 403.8 Is amended by
revising the Introductory text to read as
follows:
403S Nall naI Prstrubnent Standards:
CIts. afl
National pretreatment standards
specifying quantities or concentrations
of pollutants or pollutant properties
which may be discharged to a P01W by
existing or new Industrial users In
specific Industrial subcategories will be
established as separate regulations
under the appropriate subpart of 40 R
chapter 1, subchapter N. These
standards, unless specifically noted
otherwise, shall be in addition to all
applicable pretreatment standards and
requirements set forth in this part.
• I • I I
5. SectIon 403.81. amended by
revIsing the section heading, the
Introductory text to paragraph (I),
paragraphs (fl(1)(tU), (fl( 1)(vi)(B).
(fl(2)(v). and (fl(2)f vii). adding text to the
end of(fl(2j(iij). and adding new
paragraphs (fl(5) and (fl(6) to read as
follows:
0103.1 Pretmatment Program
Requiremento Develo9rnent and
lmplementatioi, by P01W.
S S I I I
(F) POrWpretreawent Ieqwreorents.
A POTW pretreatment program must be
based on the following legal authority
and include the following procedures,
These authorities and procedures shall
at all times be fully and effectively
exercised and implemented.
(1) ‘ ‘ S
(iii) Control through permit, order, or
similar means, the contribution to the
P01W by each Industrial User to ensure
compliance with applicable
Pretreatment Standards and
Requirements. In the case of Industhal
Users Identified as significant under 40
CFR 403.3(t), this control shall be
achieved through permits or equivalent
individual control mechanisms Issued to
each such user. Such control
mechanisms must be enforceable and
contain, at a minimum, the following
conditions:
(A) Statement of duration (in no case
more than five years)’. -
(B) Statement of non-transferabilIty
without, at a minimum, prior notification
to the P01W and provision of a copy of
the existing control mechanism to the
new owner or operaton
(C) Effluent limits based on applicable
general pretreatment standards in part
403 of this chapter. categorical
pretreatment standards, local limits, and
State and local law:
(D) SeU.morutoring. sampling,
reporting, notification and recordkeepuig
requirements, Including an identification
of the pollutants to be monitored,
sampling location, sampling frequency,
and sample type, based on the
applicable general pretreatment
standards In part 403 of this chapter,
categorical preneaunent standards.
local limits, and State and local law:
(EJ Statement of applicable civil and
criminal penalties for violation of
pretreatment standards and
requirements. and any applicable
compliance schedule. Such schedules
may not extend the compliance date
beyond applicable federal deadlines.
I S S S I
(vi) S
(B) Pretreatment requirements which
will be enforced through the remedies
set forth In paragraph (fl(1J(vl)(A) of this
section, will Include but not be limited
to, the duty to allow or carry out
Inspections, enny, or monitoring
activities: any rules, regulations, or
-------
30130
Federal Register I Vol. 55, No. 142 I Tuesday. July 24. 1990 1. Rules and Regulations
orders Issued by the P07W: any
requirements set forth in individual
control mechanisms issued by the
P07W; or any reporting requirements
Imposed by the P07W or these
regulations. The POTW shall have
authority and procedures (after Informal
notice to the discharger) immediately
and effectively to halt or prevent any
discharge of pollutants to the P07W
which reasonably appears to present an
imminent endangerment to the health or
welfare of persons. The P07W shall
also have authority and procedures
(which shaU Include notice to the
affected Industrial users and an
opportunity to respond) to halt or
prevent any discharge to the P07W
which presents or may present an
endangerment to the environment or
which threatens to Interfere with the
operation of the P07W. The Approval
Authority shall have authority to seek
judicial relief and may also use
administrative penalty authority when
the P07W has sought a monetary
penalty which the Approval Authority
believes to be Insufficient
• I I • I
(2)
(iii) • Within 30 days of approval
pursuant to 40 CFR 403.8(fl(6). of a list of
significant Industrial users, notify each
s ‘.Jcant idustriaI user of its status as
such and of all requirements applicable
to It as a result of such status.
• I I I I
(v) Randomly sample and analyze the
effluent frum Industrial users and
conduct surveillance activities In order
to Identify. Independent of information
supplied by Industrial users, occasional
and continuing noncompliance with
pretreatment standards. Inspect and
sample the effluent from each
Significant Industrial User at least once
a year. Evaluate, at least once every two
years, whether each such Significant
Industrial User needs a plan to control
slug discharges. For purposes of this
subsection, a slug discharge is any
discharge of a non-routine. episodic
nature, Including but not limited to an
accidental spill or a non-customary
batch discharge. The results of such
activities shall be available to the
Approval Authority upon request. If the
P07W decides that a slug control plan
Is needed, the plan shall contain, at a
minimum, the following elements:
(A) Description of discharge practices.
Including non-routine batch discharges:
(B) Description of stored chemicals;
(C) Procedures for Immediately
notifying the P07W of slug discharges.
including any discharge that would
violate a prohibition under 40 CFR
403.5(b), with procedures for fdllow.up
written notification within Eve day.;
(D) U necessary, procedures to
prevent adverse impact from accidental
spiiis. Including Inspection and
maintenance of storage areas. handling
and transfer of materials, loading and
unloading operations, control of plant
site run-off, worker training, building of
containment structures or equipment.
measures for containing toxic organic
pollutants (including solvents), and/or
measures and equipment for emergency
response;
• I • I S
(vii) Comply with the public
participation requirements of 40 CFR
part 25 In the enforcement of national
pretreatment standards. These
procedures shall include provision for at
least annual public notification. In the
largest daily newspaper published in the
municipality In which the P01W Is
located, of industrial users which, at any
time during the previous twelve months.
were In significant noncompliance with
applicable pretreatment requirements.
For the purposes of this provision, an
industrial user Is In significant
noncompliance if Its violation meets one
or more of the following criteria:
(A) Chronic violations of wastewater
discharge limits, defined here as those in
which sixty-six percent or more of all of
the measurements taken during a six-
month period exceed (by any
magnitude) the daily maximum limit or
the average limit forthe same pollutant
parameteri
(B) Technical Review Criteria (TRC)
violations. defined here as those in
which thirty-three percent or more of all
of the measurements for each pollutant
parameter taken during a six-month
period equal or exceed the product of
the daily maximum limit or the average
limit multiplied by the applicable TRC
(TRC—1.4 for 800, TSS, fats, oil, and
grease. and 1.2 for all other pollutants
except pH.
(C) Any other violation of.
pretreatment effluent limit (daily
maximum or Ioriger.term average) that
the Control Authority determines ha.
caused, alone or in combination with
other discharges. Interferenc, or pass
through (including endangering the
health of P07W personnel or the
general public);
(0) Any discharge of a pollutant that
has caused Imminent endangerment to
human health, welfare or to the
environment or has resulted In the
POTW’s exercise of its emergency
authority under paragraph (fl(1)(v i)(B) of
this section to halt or prevent such a
discharge:
(E) Failure to meet. within 90 days
after the schedule date, a complianc*
schedule milestone contained in a lo
control mechanism or enforcement oi
for starting construction. ccmp!eting
construction, or attaining flr.aI
compliance;
(F) Failure to provide. with:n 30 da-
after the due date, required reports s
as baseline monitoring reports, 90.da
compliance reports, periodic self.
monitoring reports. and report, on
compliance with compliance ucheduir
(C) Failure to accura:ely report
noncompliance:
(H) Any other violation or group of
violations which the Control Authorit’
determines will adversely affect the
operation or implementation of the bc
pretreatment program.
• I • I S
(5) The P07W shall develop and
Implement an enforcement response
plan. This plan shall contain detailed
procedures Indicating how a P07W w
investigate and respond to instances o
industrial user noncompliance. The pk
shall, at a minimum:
(i) Describe how the P07W will
Investigate Instances of noncomplianci
(ii) Describe the types of escalating
- enforcement responses the POTW will
take In response to all anticipated type
of Industrial user violations and the tiff
periods within which responses will
take place.
(iii) Identify (by title) the official(s)
responsible for each type of response:
(iv) Adequately reflect the POTW’s
primary responsibility to enforce all
applicable pretreatment requirements
and standards, as detailed in 40 CPR
403.8 ( 0(1) and (fl(2).
(6) The P07W shall prepare a list of
Its Industrial users meeting the criteria
In 40 CFR 403.3(t)(l). The list shall
Identify the criteria in 40 CFR 403.3(t)(1)
applicable to each Industrial user and.
for Industrial users meeting the criteria
In 40 CFR 403.3(t)(1)(iJ). shall also
indicate whether the P07W has made a
determination pursuant to 40 CFR
403.3(t)(2) that such Industrial user
should not be considered a significant
industrial user. Thu list, and any
subsequent modifications thereto, shall
be submitted to the Approval Authority
as a nonsubstantial program
modification pursuant to4O CFR
403.18(b)(2). Discretionary designations
or de-designations by the Control
Authority shall be deemed to be
approved by the Approval Authority 90
days after submission of the list or
modifications thereto, unless the
Approval Authority determines that a
modification is in fact a substantial
modification.
-------
Federal Register I VoL 55. No. 142 I Tuesday, July 24. 1990 / Rules and Regulations
30131
1403.10 EAasasidsJl
I. Section 403.101. amended by
removing the first sentence In paragraph
(c).
7. Section 403.12 1a amended by
adding text to the end of paragraph (b),
by revising paragraphs U) and (n), and
adding new paragraph (p) to read as
follows:
I 403.12 R.per6n requirements for
POTW5 end Induslt Users.
• • • • •
(h)’ ‘ Significant Noncategorical
Industrial Users shall submit to the
Control Authority at least once every six
months (on dates specified by the
Control Authority) a description of the
nature. concentration, and flow of the
pollutants required to be reported by the
Control Authority. These reports shall
be based on sampling and analysis
performed In the period covered by the
report and performed In accordance
with the techniques described In 40 CFR
part 138 and amendments thereto.
Where 40 CFR part 136 does not contain
sampling or analytical techniques for the
pollutant In question, or where the -
Administrator determines that the part
136 sampling and analytical technique.
are inappropriate for the pollutant In
question. sampling and analysis shall be
performed by using validated analytical
methods or any other applicable
sampling and analytical procedures.
including procedures suggested by the
POTW or other persona, approved by
the MmJnI*trator. This sampling and
analysis may be performed by the
Control Authority In lieu of the
‘Ipificant noncategorical industrial
user. Where the POVN Itself collects all
• the Information required for the report
the noncategorical significant industrial
user will not be required to submit the
• I • • I
(II Notification of changed dlscbargs.
All Industrial User shall promptly
notify ths POTWinadsunca of any
substantial change In th. volume or
character of pollutants In their
discharge. Including the listed or
characteristic hazardous wastes for
which the Industrial User has submitted
Initial notification under 40 R
40 3 .12(p).
• I I I I
(a) Provisions Governing Freud and
False SlatementL The reports end other
documents required to be submitted or
maintained under this section shall be
subject to
(1) The provisions of 16 U.S.C. section
1001 relatIng to fraud and false
statements
(2) The provisions of sections 309(c)(4)
of the Act, as amended. governing false
statements, representation or
certlflcatloo: and
(3) The provisions of section 309(c)(6)
regarding responsible corporate officers.
(p)(1) The Industrial User shall notify
the POTW, the EPA Regional Waste
Management Division Director, and
State hazardous waste authorities La
writing of any discharge into the P01W
of a substance, which, if otherwise
disposed of. would be a hazardous
waste under 40 CFR part 261. Such
notification must include the name of
the hazardous waste as set forth In 40
CFR part 281. the EPA hazardous waste
number, and the type of discharge
(continuous, batch, or other). If the
Industrial User discharges more than 100
kilograms of such waste per calendar
month to the POTW. the notification
shall also contain the following
information to the extent such
Information Is known and readily
available to the Industrial User An
Identification of the hazardous
constituents contained In the wastes, an
estimation of the mass and
concentration of such constituents In the
wastestream discharged during that
calendar month, and an estimation of
the mass of constituents La the.
wastestream expected to be discharged
during the following twelve months. All
notifications must take place within 180
days of the effective data of this rule.
Industrial users who commence
discharging after the effective date of
this rule shall provide the notification no
later than 180 days after the discharge of
the listed or characteristic hazardous
waste. Any notification under this
paragraph need be submitted only once
for each hazardous waste discharged.
However, notifications of hanged
discharges must be submitted under 40
R 400.12 (fl. The notification
requirement Ia this section does not
apply to pollutants already reported
under the seLf .monitoring requirements
of 40 CFR 403.12(b), (d), and (e).
(2) DIscharger. are exempt from the
requirements of paragraph (p)(1) of this
section during a calendar month In
which they discharge no more than
fifteen kilograms of hazardous wastes.
unless the wastes are acute hazardous
wastes u specified in 40 CFR 281.30(d)
and 261.33(e). DIscharge of more than
fifteen kilograms of non-acute
hazardous wastes In a calendar month.
or of any quantity of acute hazardous
wastes as specified in 40 CFR 281.30(d)
and 261.33(e). requires a one .tIme
notlflcatlon.
Subsequent months during which the
Industrial User discharge. more than
such quantities of any hazardous we ste
do not require additional nobuicatioo.
(3) In the case of any new regulations
under section 3001 of R .A Identifying
additional characteristics of hazardous
waste or listing any additional
substance as a hazardous waste, the
Industrial User must notify the POTW.
the EPA Regional Waste Management
Waste Division Director. and State
hazardous waste authorities of the
discharge of such substance Within 90
dayi of the effective date of such
regulations.
(4) In the case of any notification
made under paragraph (p) of this
section, the Industrial User shall certify
that It has a program In place to reduce
the volume and toxicity of hazardous
wastes generated to the degree It has
determined to be economically practicaL
Editorial Noim This sppendlz will not
appear In the Code of Federal RegulaUons.
Apps dIz—Rawdous Wilt. Authorlt lsc
Notifications under 40 CFR 403.12(p)
Envlroe.m.aIal Pretsctlca Agency
Regioni
Director. Waste Management Dlviii on, -
Environmental Protection Agency. John P.
Kennedy 3i .Ildlag , Boston. Massachusetts
Regionil ‘
Director. Air & Waste Management Division.
Environmental Protection Agency. 25
Federal Plaza. t 4ew York, New York IOVS
Region W
Director. Hawdous Waste Management
Division. Environmental Protection Agency.
141 estnut Street. Philadelphia.
PennsylvanIa 19107
Region I V
Director. Waste Management Division.
Environmental Protection Agency. 343
Cmirtland SL N.L Atlanta, Georgia 39185
Regime V
Director. Waste Management Division.
Environmental Protsulca Agency. o
South Dearborn Street. 1cago, Illinois
R.gion’vT
Director. Ilasardova Wuts Management
DivisIon. Ensironmental Protection Agency.
1445 Rosa Avenue, Suit. 1300, Dallas.
Texas 7S
Region Ill
Director. Waits Management DIvi.Ion,
Environmental Protection Agency. 725
Minnesota Avenue. Kansas City. Kansas
0 5102
Region Viii
Director. Haurdoua Waste Management
Division. Environmental Protection Agency.
On. Denver Place. 909 lath SL Suite 500,
Denver. Colorado 50302—2405
-------
30132 Federal Register! VoL 55, No. 142 / Tuesday, July 24. 1990 I Rules and Regulations
Rag /aoL?
Director. Hazardous Wuts Managemzat
Division. EnVIZVSm i nW Protection Agency.
1238 MissIon Street, Sin Francisco,
California 94103
Region X
Director. Hazardous Waste DIvtaIon.
Envunmental Protection Agency. *2006th
Avenue. Seattle. Washington eeioi
Alabama
Chief. Land Division. Alabama Department .1
Environmental Management. 1751 Federal
Drive. Montgomery. Alabama 31130
Alaska
Chief. Solid and Hazardous Waite
Management Program. Division of
Envonmantal Quality. Department of
Environmental Conservation. 3200 HospItal
Drive. P.O. Box 0. Juneau. Alaska 99811-
1300
Arizona
Militant Director. Office of Waits and
Water Quality Management. Arizona
Department of EnvIronmental Quality. 2003
N. Central Avenue. Room 304. PhoenIx.
Arizona 85004
Arkansas -
Chief. Hazardous Waste Division, Arkansas
Department of Pollution Control and
T.chaolo . 8001 National Drive. P.O. Box
6583. LIttle Rock. Arkansas 72205
California -
Chief. Deputy Executive Ofilcar. California
Waits Management Board. *0209th Street!
Suite 300, Sacramento. Cahlonula 95814
Colorodo
Director. Waite Management Division.
Colorado Department of Health. 4210 E.
11th Avenue. Denver Colorado 30320
Connecticut
Chief, Bureau of Waite Management.
C ” rticut Department of EnvIronmental
Protection. Hazardous Material.
Management UnIt. 108 CapItal Arson..
Hartford, Connecticut 08108
Delawnr
Director. DIvision of Afra Wait.
Management. Department of Naturul
Resources and Environmental Control. P.O.
Box 1401.89 K 1ns Khi..y . Dover,
Delaware 19903
Oi trict of Columbia
Chief. Pesticides and Hazardous Materials
Dtvlslon/Superfund. Department of
Coninmà and Regulatory AffaIrs, 014 H
Street NW.. Room 505 Washington, DC
30001
Flonda
Director. Divisiori of Waste Management,
Underground Storage Tanks. Department of
Environmental Regulations, Twin Towers
omc. BuIlding. 2800 Blair Stone Road.
Tallahassee. florida 32301
C-
Chief. Lund Protection Branch. Industrial and
Hau,dous Wait. Management Program.
lloyd Towers East/Room 1134.305 Butler
Street. SE.. Atlanta. Georgia 30034
Hawaii
Manager. Solid and Hazardous Waste
Brunch, Hawaii Department of Health.
Hazardous Wait. Program, P.O. Box 3373
Honolulu. Hawaii 96801
ldaf,.e. Chief. Hazardous Materials Bureau.
Department of Health and Welfare. Idaho
State House, 450W. State Street. Boise. Idaho
85730
ma ,oi.
Manager. Illinois Environmental Protection
Agency. 2200 Churchill Road. P.O. Box
19 0. Sprin 1.ld, ihlinola 6 64- ’S
frdjona
Assistant Director. Indiana Department of
Environmental Management. 103 S.
Meridian Street P.O. Box 0013.
Indianapolis, Indiana 46223
Iowa
Chief. Air Quality and Solid Wute
Protection. Department of Water. Air, and
• Waite Management, East Grand
Avenue. Henry A. Wallace Building. Des
Moines. Iowa 50316-0034
Kansas
Director. Bureau of Waste Management. -
Department of Health and Environment, -.
• Forbes Field. Building 321. Topeka. Kansas
08630
Kent ucky -
Director. Division of Waite Management.
Department .f Environmental Protection.
Cabinet for Natural Resource, and
Environmental Protection. 18 Reilly Road.
F,snkfori, Kentucky 40601
louisiana
Militant Seemlazy. Hazurdooe Waste
Division. Office of Solid Waite and
Hazardous Waite. lo uisiana Department
of Environmental Quality. P.O. Box 44307.
N. Fourth Sireet. Baton Rouge. Louisiana
e04
Mo ms
Director. eau of Solid Wute Management.
Department of Environmental Protaction ,
Slats House #17. Augusta. Maine 04333
Maryland
Dlrectm. Hazardous and Solid Waste
Management Aab .th .iatratloc. Maryland
Department of the Environment 301W.
Preston Street. room 213. Baltimore.
Maryland Z1301
Mossochuieus
Director, Division of Solid and Hazardous
Waste. Mesaachus.tts Department of
Environmental Quality Engreesruig. One
Winter Street. sib floor. Boston.
Maiiachusetta 02108
MicJiigan
Chief. Technical Services Section. West.
Management Division, Department of
Natural Resource,, Box 30038. Lanaing.
Michigan 48905
Minnesota
Director. Solid and Hazardous Waste
Division. Minnesota Pollution Control
Agency. 530 Lafayette Road. North. St.
Paul. Minnesora 55155
Mississippi
Director. Division of Solid Waste
Management. Bureau of Pollution Control.
Department of Natural Resources. P.O. Box
10385 Jackson, MississippI 39209
Missouri
Director. Wuts Management Program.
Department of Natural Resources. Jefferson
BuildIng. 203 Jefferson Street (131b-14th
floors). P0. Box 170. Jefferson CItY.
Missouri 65102
Montana
Chief, Solid sad Hazardous Waste Bureau.
Department of Health and Environmental
Silences, Cogswsll Building. Room B-201.
Helena, Montana 59620
Nebraska
Chief. Hazardous Waste Management
Section. Depa aent of Environmental
Control. State House Station, P.O. Box
98427. Lincoln, Nebraska 68508
Nerv2do
Director. Waste Management Program,
Division of Environmental Protection.
____ Department of Conservation and Natural
Resources, Capitol Complex. 201 South Fall
Carson City. Nevada 89710
New Hampshire
ChIef. Division of Public Health Services
Office of Waste Management. Department
of Health and Welfare. Health and Welfare
Building. I Hezen Drive. Concord. New
Hampshire 03301
N o w Jersey
Assistant Commissioner. Division of HQ
Waste Management, Department of
Environmental Protection, 40* East Stat.
Street. Ttenton. New Jersey 08623
New M e xi c o
Chief, Groundwater and Hazardous Wut.
_____ Doreen, Environmental Improvement
Division. New Mexico Health and
Environment Department. P.O. Box 808.
Santa Fe. New Mexico 00504-0908
New York
Director, Division of Hazardous Substance
Regulation. Department of Environmental
Conanri,atlon, 50 Wolfe Road, Room 304.
Albany. New York 12233
- North Cwvlina
Head. Solid and Hazardous Wssta
Management Drench. Division of Health
Services. Department of Human Resources,
P.O. Box 3091. Raleigh. North Carolina
V 002
North Dakota
Director. Division of Hazardous Waste
Management. Department of Health, izr
-------
Federal Register I Vol. 55. No. 142 I Tuesday. JUly 24, 1990 I Rules and Regulations
30133
Missouri Avenue. Room 302. Elsmarck.
North Dakota 585024520
Ohio
Chief. Division of Solid and Hazudous
Waste ManagemeaL Ohio EnvIronmental
Protection Agency. 1800 Watermark Drive,
P .O. Box IOU Columbus. Ohio srna ’ .oiia
Oklahoma
Chief. Waste Management Service.
Oklahoma Stats Department of Health.
P.O. Box 53551.1000 Northesst 10th Street.
• Oklahoma, Oklahoma 73152 -
South Dakoto
Director. 0 11 k. of Air Quality and Solid
Waste. Department of Water and Natural
Resources. 523 F. CapitoL Foes Building.
Room 416. Pierre. South Dakota 37501
Tennessee
Director. Division of Solid Waste
Management, Tennessee Department of
Public Health. 701 Broadway. Customs
House. 4th floor. Nashville. Tennessee
Texas
Director. Haza,doua and Solid Waste
Division. Texaa Wster Commission. P.O.
Box 130g. Capitol Station. Austin. Tense
Wisconsin
Director. Bureau of Solid Waste. Depailnient
of Natural Resources. P.O. Box 7921.
Madison. W consln 537w
Wyoming
Supervisor. Solid Was:. Management
Propani. Department of Environmental
Quahty. 122 West 25th SireeL Herschler
Building. Cheyenne. Wyoming
American Samoa
Dtrectos Solid Waste Division.
• Environmental Quality Co ufoa.
Government of American Samoa. Psgo
Pugo. American S”s 99
Guam
Director. Hawdoua Wait. Man.gement.
• Program. Guam Environmental Protection
Agency, P.O. Box 2090. Agana, Guam 09010
• Commonwealth of Northern Man ano Islands
Chief. Division of Envl,unznentai Quality.
Department of Public Health and
EnvIronmental Services. Commonwealth of.
• the Northern Martana Islands. Oflic. of the
Governor, Saipan. Mailona Islands a50
Pt,ezto Rico
President. Environmental Quality Board. -
:. Santurce. Puerto Rico 00910-148 5
• Vugzn Islands -
Director, Department of Conservation end
Cultural Affairs, P.O. Box 4300. Charlotte.
St. Thomas. VIrgin 1a1”d , 00801
IFR Doc. -10523 Pllsd 7- .23-0 &45 am)
— ‘ a coec -
Vermont -
Chief. Waite Management Division. Agency
• of Environmental Conservation. 105 South
-. Main Street. Waterbwy, Vermont 05670
Otvgun
Director. Hazardous and Solid Waste
Division. Department of Environmental
Quality 511 Southwest 6th Avenue.
Portland.Oregon 97204
Pernsylvonio
Director. Bureau of Waste Management. Virginia
• Pennsylvania Department of Enacedve Director. Division of Technical
Environmental Resources. P.O. Box Services. Virginia Department of Waite
• Fulton Building, liarrisbuig. Pennsylvania Management, Monroe Building. 11th Floor.
-.101 North 14th Street. Richmond. Virginia
•Rhode lsknd • —. , 23219 . .. • ,
Director. Solid Waits Management Program. : Washington S
- Department of Environmental - Solid and Hazardous Waste
• Management. 804 Canon Buildhtg. 75 Davis• Msnagement Division Department of
- SUeet. Proldenc.. Rhode Island 0S . Ecology. Mail Stop PV-11 Olympia.
• Washington 95504
:W&Vaykila . •.•.
Chief. Wasts Management Division.
- Department of Natural Resourcu. 1200
Greeobrier Sweet. Charieuton, West.
Virginia 25311 . -.
South Cojelina
Chief. Bureau of Solid Waste Management.
Hazardous Wait. Management.
Department of Health and Environmental
ControL 2000 Bull Street. Columbia. South
• Carolina 29201 •
-------
Federal Register I Vol. 55. No. 124 I Wednesday. june 27. 1990 ‘ Rides and Regulations
26201
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 123 and 130
(FRI. 37 10- 1 3
EPA Action on Individual Control
Strategies Under the Clean Water Act
AOENCY Environmental Protection
Agency (EPA).
ACTIOPt Notice of final agency
Interpretation.
$UMMARTI EPA I. clarifying when its
final agency action on an Individual
control strategy (ICS) under section
304(1) of the Clean Water Act occurs.
Further. EPA is providing notice of what
judicial forum EPA believes Is
appropriate for review of approvals and
disapprovals of ICSs, In cases in which
•such decisions are reviewable. Finally.
EPA Is providing notice of its position
regarding the reviewability of EPA ’s
decisions to list waters under section
304(1).
FOR FURThER INFORMATION coNTACr
For questions regarding this notice.
Diane Regas or Roland Dubois. Office of
General Counsel (LE-132S). U.S.
Environmental Protection Agency. 401 M
Street SW.. Washington. DC 204co. (202)
382—7700: or. for questions regarding
partici...: decisions, the Water
Management Division In the relevant
regional office: Region 1. (617) 585—3478;
Region 2. (212) 284-2513: Region 3. (215)
597-9410: Region 4. (404)347-4450:
Region 5. (312)353—2147: Region 6. (2143
655-7100: Region 7. (913)551—7030:
Region 8. (303) 293-1542: Region 9. (415)
705-2078; Region 10. (206)445-1237.
$UPPLIMEI(TARY INFORMATIOPC.
On June 2. 1989. EPA published final
rules implementing section 304(1) of the
Clean Water Act (CWA). 54 FR 23868 .
Those rules specified the bases on
which EPA would approve or
disapprove lists and ICS submitted by
the states pursuant to section 304(1). In
addition, the rules established EPA’.
procedures fur involving the public in
making section 30$(1) decisions.
SInce then. EPA has made initial
approvals or disapproval. of all of the
states’ lists and ICSs, and has requested
public comment on most of these
decisions. At the same time EPA and the
states. in cooperation, have been
developing final lists and ICSs.
In the preamble to the final
regulations EPA Interpreted section
609(b)(1)(G) of the CWA by saying.
“EPA believes that the permits that EPA
issues as ICSs reviewable in the court of
appeals. Review of any other actions by
EPA under section 304(1) must be
obtained In district court” 54 FR at
23895. Various questions have arisen
regarding when EPA’s actions taken
under section 304(1) are final for the
purposes of judicial review and
regarding the above interpretation of
section 509(b)(1)(G).
The purpose of this notice is to clarify
when EPA believes that decisions made
by it under section 304(1) of the CWA
are final agency actions for purposes of
judicial review. Identifying the date of
final agency action will ensure more
orderly Judicial review of those Agency
decisions that are judicially reviewable.
The date of final agency action with
respect to ICS.related decisions is
Important because it Is now the
Agency’s position that any judicial
challenge to lCS.related actions must be
filed in the courts of appeals pursuant to
section 509(b)(1)(G) of the CWA. Section
509(b)(1) requires petitions for review to
be flied wIthin 120 days of final agency
action. This notice does not address
defenses to judicial review that the
Agency might invoke, but only the
timing for bringing such action.
EPA ’s regional offices made initial
decisions approving or disapproving
lists ‘and ICSs submitted by the states
on or about June 4. 1989. The Regions
requested public comment on all of their
disapproval declsion and on most of
their approval decisions. EPA’s
regulations require that when a Region
seeks public comment on Its decision.
the Region must issue a subsequent
decision and respond to public
comments by June of liflO. (54 FR 2 868.
23897—23899, 40 CFR 123.48(e)(3).) It is
the Agency’i position that when a
Region solicited public comment on its
Initial decision, that decision was not
finaL
L Finality of ICS Decision.
ICSa , like NPD permits. may be
developed by the states or by EPA.
NPDES permits. however, are the only
vehicle under the CWA for imposing
effluent limitations on point source
dischargers. An ICS consists of a draft
or final NPD permit with supporting
documentation showing that the
limitations In the permit would be
sufficient to meet the water quality
standards within the statutory
deadlines. 40 G’R 123.46(c) (1989).
Changes In NPDES permits because of
the section 30 1(1)-program are only
effective after the permitting authority
has determined, as a part of the
permitting process. that limitations are
necessary to meet water quality
standards as required by CWA section
301(b)(1)(C). Until the permitting
authority issues a new permit or
modifies an existing permit. a discharger
‘ml. notfc. racy..., in EPA d.d.laai regsrdku 5
IC3s b.ciu. this. d.dutens utsi be cbsflcn II
Judicially ..vi.w.bl.. In the isw a if appisli within
iZO di ). if flail .swicy scifon.
listed on a section 304(1) list must only
comply with its pre-existing permit
requirements. even if an iCS has been
developed. Therefore approvals and
disapprovals of ICSs do not themselves
affect the legal obligations of
dischargers. Given that EPA’s actions on
ICSs do not impose or alter legal
obligations. EPA believes that the
aitfcal factors in determining whether
the Agency ha, taken final agency
action on an ICS are (1) Whether EPA
has made its definitive pronouncement
on what limitations will be sufficient to
comply with water quality standards,
and (2) whether EPA intends to take any
further action. The timing of this
definitive decision in turn depends on
‘whether the state or EPA Is issuing the
permit.
.4. S€ote.Issued Permits
1. After an Approval
- EPA will consider regional decisions
approving state-developed ICSa to be
final agency actions if the Region issues
its decision and does not seek further
public commenL The decision shali be
final on the date the Region publishes
notice of the decision pursualt to the
June 2.1989 regulations. 40 CYR
123.46(e)(2) (1989). 54 FR 23897
EPA approvals of state draft or final
permits that constitute ICSs represent
EPA’s final determination that the
limitations in the permit or draft permit
will be sufficient to attain and maintain
water quality standards. To the extent
such a determination may be reviewed
at all, the time for seeking Judicial
review of EPA approvals of ICS. begins
on the date of the approval, and is not
dependent on issuance of a final permit
by the state. The precise permit
limitations may be determined only
through the state permitting process.
including any evidentiaiy hearing. (If the
state unacceptably modifies the permit
during that process. EPA may reconsider
Its approval decision or review the
permit pursuant to section 402(d) and
object to the permit in accordance with
that section.)
When EPA approves a state draft or
final permit as an ICS. EPA has made a
determination. as required by section
304(1), that the limItations will be
sufficient to protect water quality
standards. This finding Is not a
substitute for the normal permitting
process In which the necessity of
particular limitations is determined by
the permitting authority. A
determination to impose limitations In
the permit must be supported by an
administrative record showing that there
Is a reasonable potential for an
-------
26202 Federal Register I Vol. 55. No. 124 / Wednesday, June 27. 1990 I Rules and Regulations
exceedance of the waler quality
standard, caused or contributed to by
the discharger and thus the limitations
are necessary. See 40 CFR 122.44(d).
Thus. EPA believes that its approval of
an ICS can be challenged. if at alL only
on claims that the Agency’s finding
under section 304(1) is in error; this
means reviewing EPA’. determination
that the limitations will be sufficient to
satisfy the requirements of that section.
On some initial decisions issued on or
about June 4. 1989. the Regions approved
ICSs without seeking public comment.
finding that there previously had been
adequate notice and opportunity to
comment. However, in some cases, the
regional decisions did not make clear
that the Region intended these decisions
to be final agency actions. To prevent
pretudice stemming from any resulting
confusion. EPA is publishing this
Federal Register notice that the Agency
considers those actions final agency
actions. Therefore, those regional
approvals of state draft or final permits
as ICSs, that were initially issued
without seeking public con t inent, are
final decisions representing final agency
actions for the purpose of judicial
review as of the date of publication of
this notice. EPA believes the 120-day
judicial review period in CWA section
509(b)(1) will start with the publication
of this notice.
2. After a Disapproval
After EPA makes a final disapproval
decision, the state still may draft a
permit that satisfies EPA’s reasons for
disapproving the state’s initial ICS.
Where EPA has disapproved a state’s
initial ICS (or the state’s failure to
submit an ICS) and the state
subsequently drafts an NPDES permit
that EPA determines to be an acceptable
ICS, EPA intends to revise it.
diSapproval decision and Issue an
approval decision. Because there Is
uncertaintly with respect to which path
will be taken and because further EPA
action Is contemplated, EPA believes
that Its disapproval decision would not
be directly reviewable. (See the
discussion of this Issue below at B. 2.)
EPA’s revised approval decision
would constitute final agency action
wiles. EPA solicits public comment on
the approval, In which case final agency
action would occur when the Agency
Issues a decision after considering
public comment
B, EPA—Issued Permits
1. In Unauthorized States
Where EPA is the permit Issuing
authority, EPA’s action in establishing
the ICS is not final agency action until
EPA’. administrative review process
regarding the underlying NPDES permit
is complete. 40 CFR 124.91(e). Until that
time, the Agency will not have made
any final determination regarding what
limits must be included in the permit
that will serve as the ICS.’ Therefore, a
permittee or other Interested party in a
state not authorized to issue permits
must exhaust its administrative
remedies on the permit before It can
obtain judicial review of any EPA
decision regarding the permit limitations
including EPA’s actions under section
304(1). (This same reasoning would
apply to any permit where EPA is the
permitting authority. e.g.. where EPA
has assumed permit Issuance authority
under section 402(d).) This view has
support in a recent decision of the
Fourth Circuit Court of Appeals.
Champion Int’l Corp. v. United Stales
£iv,ronmento/ Protection Agency. No.
89—2463 (4th Cii. March 12. 1990). In that
case the court dismissed as premature a
challenge to EPA’. ICS for Champion
where EPA has not yet completed the
full administrative process on the
permit.
2. In Authorized States
Similarly, where EPA disapproves an
authorized state’s ICS and EPA
subsequently issues the permit to the
discharger, it is EPA’. position that
judicial review of EPA’s action is not
appropriate until EPA takes final action
on the underlying permit. Thus. EPA’s
disapproval would never, by itself;
constitute reviewable final Agency
action.
Until EPA completes the
administrative review process, the
Agency will not have taken a definitive
position regarding what limitations are
necessary and sufficient to meet water
quality standard.. When EPA is Issuing
the permit, it will ultimately make only a
single decision, i.e.. that the limitations
In the final permit are necessary and
sufficient to meet water quality
standards. Where EPA I. making both of
these findings (i.e., is the permitting
authority), neither will be definitive until
the other is made. Therefore, the
Agency’s tentative decision, regarding
the limitations thai are appropriate will
not be final agency action until the end
of the permitting process, including the
administrative appeal processes. This
view was recently endorsed in a case in
which the litigant challenged EPA’.
‘Just is so A4. ,usd permjt’. ulshiu .s in ICS
doss noi dung. Ii. liming of jud casI ,evs.w of th.
p 5011 1 1. wh.,. ICS a p.ri of. iieoid of d,ci,uou,
und.t iii. Co prehensiv, £nvuon,n.ns.I Res n,e,
Compsnutzos sod Liability Act (C CLAI (hi CS
Is rot aubj.ct I. ivi.w soy dilfsswutly from olh.r
rsco,d. of deciaae. wtd., C O.A.
initial disappro%al of an ICS. Westvoco
C ’orp. v. United States Environmental
Protection .4gency. el 01.. Nos. 89-2180,
89 —2 81. slip op at 15 (4th Cii. Feb 13.
1990). In addition EPA’. position
regarding when final agency action on
disapproval. of ICSs occurs is
consistent with the Agency’s position
regarding the finality of permit
objection, under section 402(d). See
Champion Int’l Corp. v. EPA, 850 F 2d
182 (4th Cit. 1988): American Poper
Institute v. EPA. 890 F.2d 873 (7th Cii.
1989).
II. Review of ICS Decision, in Federal
Court
As discussed above, it is the Agency’s
position that any judicial challenge to
ICS-related decisions must be fled In
the courts of appeals pursuant to section
509(b)(1)(C) of the CWA.’ EPA’.
position that its approvals of state ICSs,
if judicially reviewable. would be
reviewable in the courts of appeals
under section 509(b)(1)(G) of the Clean
Water Act differs from the statement
made in the preamble to the section
304(1) regulation. See 54 FR 23895.
However, for the following reasons EPA
believes challenges to EPA’. approval of
state ICSs must be brought in the courts
of appeals.
Section 509(b)(a)(G) allows review in:
the courts of appeals of the -
Administrator’s action “in promulgating
an individual control strategy undei .— -
section 304(1).” The use of the term
“promulgating” to describe EPA actions
on ICSs is ambiguous because there is
no action required under section 304(1).
that is expressly described as
“promulgation.” Furthermore, the.
legislative history does not specify what
actions Congress intended to be
reviewed in the courts of appeals.
Section 304(1) speaks of disapproval..
which may be followed by additional
state or federal action, and of approvals
which may be followed by additional
state action, All of these actions are
federal actions with legal effect that -
may appropriately be categorized as
“promulgations,”
EPA believes that it would create an
Irrational bifurcation of review between
federal courts of appeals and district
courts to interpret section 509(b)(1)(G) to
grant the courts of appeals jurisdiction
to review some, but not all, federally
reviewable final EPA actions on ICS ,.
The reasoning of the Supreme Court in
Crown Simpson Pulp Co. v. Costle, 445
U.S. 193 (1980). supports this view. In
Crown Simpson, the Court held that
• R.vI.w of lusling d au.ons a d,cu,..d
•cpMsIsIy in uSd 100 IlL
-------
Federal Register I Vol. 55, No. 124 I Wednesday. June 27. 1990 I Rules and Regulations
26203
where the effect of art EPA permit
objection was to deny the issuance of
the permit, review should be in the
courts of appeals under section
509(b)(1)(F) in part to avoid allowing
review of ‘imilar actions in different
courts depending on whether EPA or the
state is the permit-issuing authority. A
similar result should be reached
regarding EPA’s decisions under section
304(1). If. for example, review of EPA
action were allowed under section
509(b)(1)(G) only if EPA disapproved act
ICS and issued the underlying permit.
then Junsdiction of the courts of appeals
would be dependent “on the fortuitous
circumstance of whether the State in
which the case arose” issues the permit
Crown Simpson. 445 U.S. at 197-98.
Similarly, if approvals could be
challenged In district court and
disapprovals in the courts of appeals.
then an approval that was rerndnded by
the district court could be re.litigated In
a court of appeals if it subsequently
became a disapproval. EPA does not
believe that Congress intended to create
such a system.
Ill. Finality and Revlewabll lty.of Usting
Decisions
Unlike decisions related to ICSs,
decisions regarding lists do not fall
within the ambit of section 509(b)(1).
Nonetheless, because of the amount of
Interest that has been expressed in these
lists, the Agency Is announcing its
position on the reviewability of EPA
approvals of state listing decisions, and
EPA’s decisions to list water segments
an the lists required by section
304(1)(1)(B) (“0 lists”) and dischargers
on the section 304(1)(1)(C) lists (“C
• lists”). Initial listing decisions were, for
the most part. made in June of 1989.
These decisions included both approvals
and disapprovals of state listings as well
an the ldennflcation of the waters EPA
expected to add to or delete from the
lists. (Referred to below as “listing
deas1on& At that time EPA requested
comments on most of It. listing
decisions.
EPA will provide notice of its
responses to comments. along with any
revisions to the B and C lists, in most
cases, by June of 1990. Although these
lists will represent EPA’s decisions
regarding listing (and may be called
“final lists” or “final agency actions” in
some contexts, see e.g. 34 FR 23894),
EPA does not believe that decisions to
include waters or dischargers on lists
are reviewabte final agency actions
within the meaning of the
Administrative Procedure Act or are
otherwise ripe for review.’
The listing of a water segment or a
point source identifies that segment or
point source as one that EPA or the state
expects will need additional controls in
order to attain and maintain water
quality standards. It is not until the
permit process Is completed. however,
that a definitive determination is made
regarding what limitations, if any, will
be necessary, and at is only through
permit limitations that dischargers are
obliged to act Therefore, listing a
‘facility has no concrete impact on the
facility only the modlification of permit
limitations does.
Accordingly. EPA believes that the
basis for a determination to list a water
segment or discharger is not ripe for
review until EPA changes a permit on
that basis. When the state issues the
modLfied permit, the finding that
additional limitations are necessary
would only be reviewable in a state
forum. In addition, because limitations
are only imposed through permits,
where EPA does not issue the permit, a
discharger would not have standing to
challenge EPA’s decision because any
harm suffered would not be traceable to
EPA nor could a court reviewing the
listing remedy limitations that a
discharger claimed were unnecessar.ly
stringent Finally. EPA believes the
statute’s specific allowance for re iew
of the promulgation of ICSs, but not of
the lists, Indicates that the intermediate
steps leading to permit modifications.
including the listing or approval of
listing. w’ere only intended for review at
the end of the process—when the permit
is finalized.
The section 304(1) listing process is an
important step in the development of
water quallty.based limitations in
permits and thus in ensuring that water
q’iality standards for toxic potiutants
are met. The Inclusion of a water
sPgment or a facility on a list does not.
however, Impose obligations on
dtschargers and is therefore not
reviewable.
IV. Effect of Today’s Notice -
Today’s notice is not a legislative rule
binding on particular parties: Instead, it
simply provides persons affected by
EPA’s actions a clarification of the
Agency’s position regarding when and
where EPA’. actions under s ctlon
304(2) of the CWA may be judicially
reviewable. Accordingly, this notice is
an interpretative rule which Is exempt
from the notice and comment
• The dlecu.uton below doe. Qot eddies.
ch.II.ngc. to D’A’s action, based on A. failure
to list spaciflc willie.
requirements of the Administrative
Procedure Act. 5 U.S.C. 553(b) and from
the requirement that publication of the
r .ile occur not less than 30 days before
its effective date. 5 U.S C. 553(d).
Dated: June 15. 1990.
F. liemy Habidit.
Deputy Adm,n,s1rr :or.
(FR Doe. 90-i49 l Filed 6-28-9&, 8.43 aml
SILUISO emS a6iS-5O .
40 CFR Part 180
(PP sF3579/fl 1081; FRL.-3766-2 1
Pseudomonas Fluorescens EG. 1053;
Exemption From the Requirement of a
Tolerance
*OENCY Envirorunental Protection
Agency (EPA).
ACT10N Final rule.
SUMMARY: This document establishes a
permanent exemption from the
requirement for a tolerance for residues
of the biofungicide Pseudomonas
fluorescens EG-1053 in or on cottonseed
and cotton forage. This exemption was
requested by Ecogen. Inc.
DATES This regulation becomes
effective June V. 1990,
AOORESU Written objections.
Identified by the document control
number. (PP 8F3579/R10811. may be
submitted to Hearing Clerk (A-no),
Environmental Protection Agency. Rin.
3708.401 M St.. Sw.. Washington. DC
20460.
FOR FtJRTNER INFORMATiON CONTACT By
mail: Susan T. Lewis, Product Manager
(PM) 21, (H7505C), Registration Division.
Environmental Protection Agency, 401 M
SL Sw,. Washington. DC 20460. Office
location and telephone number. Rm. 227.
CM 2. 1921 Jefferson Davis Highway.
Arlington. VA 22202 . (703)-557-1900.
1UP LIMINTARY INFORMATION In the
Federal Register of April25. 1990 (55 FR
17460). EPA Issued a proposed rule that
gave notice that Ecogen. Inc.. 05 Cabot
Blvd. West. Langhorn. PA 19047-1810,
had submitted pesticide petition (PP)
SF3579 to EPA proposing to amend 40
CFR part 180 by establishing a
regulation to exempt fr3m the
requirement of a tolerance the residues
of the biofungicide Pseudomonos
fluorescens EG-1053 in or on the raw
agricultural commodity cotton. In the
Federal Register of February 24. 1988 (53
FR 5458), It was announced that Ecogen.
Inc.. had amended PP SF3579 to replace
cotton specifically with cottonseed and
cotton forage for exemption from the
requirement of a tolerance. Ecogen’s
s’.raln of the bacterium Pseudomonas
-------
22748
Federal Register / VoL. 5.5. No. 106 /Frtday. June 1. 1990 I Rules and Regulation.
ENVIRONMENTAL PROTECTiON
AGENCY
40 CFR Parts 123 and 130
( RL-37S3-4 I
EPA Action on Individual Con ot
Strategies Under the Clean Water Act
AGINCY: Environmental Protection
Agency (EPA).
ACTION Jotice of final agency
interpretation.
IIJMNAPY: EPA is clarifying when its
final agency action on an individual
control strategy ((CS) under section
304(1) of the Clean Water Act occurs.
Further. EPA is providing notice of what
judicial forum EPA believes is
appropriate for review of approvals and
disapprovals of lCSs. in cases in which
such decisions are reviewable. Finally.
EPA is providing notice of its position
regarding the reviewability of EPA.
decision to list waters under section
.304(1).
FON FUNYNIS INFONMAT1ON CONTAC1
For questions regarding this notice.
Diane Regas or Roland Dubois. Office of
General Counsel (LE—I32S1. US.
Environmental Protection Agency. 405 M
Street SW.. Washington. DC zosao. ( )
382—7700: or. for questions regarding
particular cecisions. the Water
Management Division in the relevant
regional office: Region 1. (SV M5-847
Region 2. (212) 2&1-2313 gian3.
597.4410. Region 4. (404)347-4430.
Region 5. ( 21 l inn & ( 47
655-7100. Region 7. (P1* 5I1-7U30.
Region & (3001 203-1$4 * gwn t
705-2075 Region 10. (20 4en-1 .
5UPPLèMSN?ANY i mo* ios On lime
2. 198& EPA published final lolee
implemei ng — 3*1) of Qe
Water Act (CWA) 54 FR 2386&flos.
rules specified the bases on which EPA
would approve or disapprove lists and
lCSs submitted by the sta ss pursuant to
sect:on 304(1). In addition, th. isles
established EPA. pro,..digus far
involving the public In maioiip section
304(1) decisions.
Since then. EPA hu mede Initial
approvals or disapprov.ls of all of the
states’ lists and lCSs. and has requested
public comment on most of the ..
decisions. At the same time EPA and the
states, in cooperation. have bees
developing final lists and (CS..
In the preamble to the final
regulations EPA interpreted section
509(bl(1)(G) of the CWA by saying.
EPA believes hat the permit. that EPA
issues as lCSs are reviewable In the
court of appeal.. Review of any other
ac’is’ns by EPA under sectIon 304(1)
must be obtained in district coujt 54
FRa* 23895. Various questions hay.
arisen reg.rdlng when EPA’s acti
taken under section 304(1) are final lee
the purposes of judicial review and
regarding the above interpretation of
section 509(bl(1)(G).
The purpose of this notice is to clarify
when EPA believe, that decmsioon made
by it under section 304(I) of the CWA
are final agency actions for pur se of
judicial review. Identifying the date of
final agency action will ensure m
orderly judicial review of those Agency
decisions that are judicially revi,wabl..
The date of final agency action with
respect to ICS-related decisions
important because it is now the
Agency’s position that any judicial
challenge to (CS-related actions mmt be
filed in the courts of appeal. sss to
section 509(b)(l)(G) of the CWA. 5 4
509(b)(1) requuns petition. for ieu to
be filed within 120 days ol ’ al j
action. This notice does not sd se
defenses to ludicial review that the
Agency might invoke, but only the
timing for bringing such action.
EPA’. regional offices made in
decisions approving or dlsapprovu
liit,& and ICS submitted by the states
on or about June 4. Ige.. The Re
reque d public comment on al l d
disapproval decision. and on m of
their approval decisions. EPA ’.
regulations requite that when a Region
seaks public coint on Its de n
the R comt lens. a subsequ
decision and respond to public
w by .of 1900. (54 FR “
40 R 123.466(e)(3 I ic
the Agwy’.poeinon that when n
Is.on ± i public onminenlen Its
hudal decision, that dicision w
L p of
(CS.. like permits. mayhe
developed by the statas orby
NPD permits. however, are ths
vehicle under the CWA fat tmp
effluent limitations on point emmm
discharger.. An (CS consists of.
or final NPD perput with su J
dacwnentauon showing that the
linutations in he permit would he
sufficient to meet th. water quaL
standards within the statutory
deadlines. 40 CFR 123.4 5(c) (1 5
Changes in NPD permit. becemmof
the section 304(1) proçam are oal
effective after he permitting autLil
has determined, as a past of the
permitting process, what llmlta .asg.
‘Thianstiwl —.. A
ics. tea . .. then - -—- mom
lvdioslly ,,v,ewsbl..
.thsa i day. .1 flail quip .cUu.
nmassuy to meet water quality
s ards as requited by CWA section
K1)(CJ. Until the permitting
au onty issues a new permit Dr
modifies an existing permit. a discharger
listed on a section 304(1) list must only
co Iy with its pre-ex sting permit
reqaireinents. even if an ICS his been
dewiloped. Therefore approvals and
ths y,uv als of ICS. do not themselves
affect the legal obligations of
discharger.. Given that EPA’s actions on
l do not impose or alter legal
ot ations, EPA believes that the
cri al factor. in determining whether
the Agency has taken final agency
action on an ICS are (1) whether EPA
he. made its definitive pronouncement
on wh Ejnitations will be sufficient to
ply with water quality standards.
(2) whether EPA intends to take any
further action. The timing of this
de<lve decision in two depends on
wI ther the state or EPA is issuing the
purmiL
‘A 3tat.-luu.dhrmut.
1. Mter an Approval
WA will consider regional duids4 uS
oving state-developed (CS. to b
agency actions if the Region e
deas1on and doss not seek further
p lIc comment The decision shall be
final on the date the Region publish..
notice of the ds a. pursuant to the
imen2. 1909 regulations. 40 R
U ) (1900), 54 FR 23107.
EPA ..,, vals of state daft or final
purmits that constitute (CS. . ., ant
fl determination that the
I1 ations In the permit or daft pmit
i be , ffi&ut to attain and um
er quality standards. To the — i—i
a dst.rminado. may be rev
us all, the time for seeking ndldaI___
of EPA approvals of (CS. b-gins
moth. data of the approval, and is not
Ii,.iiiI.ut c c lIr . .11 of a Real permit
JbS stats. The prodse permit
atime may be determined only
‘ h the state permitting prij a .
dlng a svidendazy basing. (TI the
1a enneceptably modifies the permit
pro - EPA may rec sider
or review the
pmm&t psonant to c 11 4i d) and
to the mI ’ to ummdmms with
secdopi)
When *A a pro,es a state d i i
minedns. a. requited by
3 ), thus the lImitations enS he
_____to , 1 tac1 we
ThieRedhI l .aota
moasi pmmititng
which the twwltyd
r limitations Is determined by
-------
Pederal Register VoL . So. 106 /Fr’day. Tune 1. 1990 / Rules and Regulations
the permitting authority. A
determination to impose Iim 1ations in
the permit must be supported by an
administrative record showing that there
is a reasonable potential for an
exceedance of the water quality
standard. caused or contributed to by
the discharger. and thus the limitations
are necessary. See 40 CER 122.44(d).
Thus. EPA believes that its approvaL of
an ICS can be challenged, if at all, only
on claims that the Agency. finding
under section 304(1 1 is ri error this
means reviewing EPAs deterimnation
that the limitations will be sufficient to
satisfy the reqwrements of that section.
On some initial decisions issued on or
about 1w ,. 4. 1989. the Region. approved
ICS. without seeking public comment.
finding that there previously had been
adequate notice and opportunity to
comment. However, in some cases. the
regional decisions did not make clear
that the Region intended these decisions
to be (mat agency actions. To prevent
prejudice stemming from any resulting
confusion. EPA is publishing this
Federal notice that the Agency
considers those actions tinal agency
actions. Therefore. those regional
approvals of state draft or final permits
aslCSs. that were initially iisued
without seeking public comment are
final decisions representing final agency
actions for the purpose of ludicial
review as of the date of publication of
this notice. EPA believes the t dsy
4 ctat review period in CWA section
509(bJ(l) will start with the publication
of this notice.
2. After a Disapproval
After EPA makes a final disapproval
decision. the state still may draft a
permit that satisfies EPA. reasons for
disapproving the states initial ICS.
Where EPA has disapproved a states
initial ICS (or the states failure to
submit an ICS) and the state
subsequently drafts an N ES permit
that EPA determines to be an acceptabls
ICS EPA intends to revise Its
disapproval decision and Issue an
approval decision. Iscauss this, in
uncertainty with ; t to which path
will bs taken and because further EPA
sction Is contemplated, EPA believe.
that its disapproval decision would not
be directly revtewsbli. (See the
discussion of this Issue below at 5.2.)
EPA. revised approval decision
would conItit te (hut agency action
unleu EPA solicits public comment on
the approval. In which case final agency
action would occur when the Agency
issues a decision after considering
public comment
8. EP.4.tssued Panmit
I. In Unauthorized States
Where EPA is the permit issuing
authority. EPA’. action In establishing
the ICS is not final agency action until
EMs administrative review process
regarding the underlying NPDES permit
is complete. 40 CFR 124.91(e). Until that
time, the Agency will not have made
any final determinatiOn regarding what
limits must be included in the permit
that will serve as the ICS.’ Therefore, a
permittee or other interested party in a
state not authorized to issue permits
must exhaust its adsninistiatzve
remedies on the permit before it can
obtain iathcial review of any decision
regarding the permit limitations
including EPA’s actions under section
304( l). (This same reasoning would
apply to any permit where EPA is the
permitting authority. e.g.. where EPA
has assucied permit Issuance authority
under section 402(d).) This view ha.
support in a recent decision of the
Fourth Circuit Cowl of Appeals.
Champion Intl Corp. v. United States
Enviranmenta! Protection Agency. No.
89-2483(4th CIt. March 12. 1950). In that
case the court dismissed as premature a
challenge to EPAs ICS far Qiampion
where EPA had not yet completed the
full ad nistratlve process on the
permit
2. lii Authorized States
Similarly, where EPA disapprove. so
authorized state’s ICS and EPA
subsequently issues th. permit to the
discharger, it Is EPAs position that
WLiCIII review of EPA ’s action is not
appropriate until EPA takes final action
on the underlying permit Thus. EPA’s
disapproval would neven by ItasiL
constitute reviewable final Agency
action.
Until EPA completes the
edminisirative review proce.a. the
Agency will not have taken a definitive
position regarding what limitations are
necessary and sufficient to meet watir
quality standards. When EPA Ii umifn$
th. permit I I will ultimately make o Iy a
single decision. ia. that lb. Limitations
In the final permit are necessary and
sufficient to meet water quality
standards. Where EPA is making both of
these findings C’... a the permitting
authority). neither will be t”tive until
the other is made. Therefore. the
Agency’. tentative decisions regaiding
sa A.ssui4 s I’ 5 naim . a.
4. .. on u. iS. ses I I IU
51a.it. whs i I is pstl da
i e _ iai L
is on isbIon te iast .e dift.on17 b
the limitations that ate appropriate wt
trot be.fl al egepcy action until the enc
of the permitting process. uicludin° “ ii
admwiatrRtlVi sppe•l processee
view was recently endorsed in a 41
which the litigant challenged EPAs
initial disapproval of an ICS. Wesn’aci
Corp. versus United Stores
£nvlronniefl c c l Protection Agency. ot a
sos. ag—2le0. 89-2181. slip op. at 15 (ati
Cit. Feb. 13, 1990). In addition EPA’.
position regarding when final agency
action on disapprovals of lCSa occurs i
consistent with the Agency’s position
regarding the finality of permit
objections under section 402 d ). See
Champion Int ’l Corp. versus £PA. 850
F.Zd 182(4th Ci ,. 1958): American Pope
Institute vermin EPA. 550 F.zd ir3 (7th
Cit. 1989).
IL Review of ICS Dr’ La Federal
As discussed above. it is the Agency’
position that any judicial challenge to
ICS.relatad decisions must be filed in
the courts of appeal. pursuant to sectlo
505(b)(1)tG) of the CWA.’ EPAs
position that Its approvals of state ICS
LI judicially reviewabis. woul4 be
reetewabla In the courts of sp,eala
under section 5*b)(IXG) of $s ( 2a
Water Act differs from the .
mad. in the preambl . to the eecti
304(1) regulation . See 54 IP . “
for the foilawing . ‘A
believes challe’ies to EPA s u
stats ICS. mast be brought In lbs omits
of appeals
Section ias(bXIXG) allows review In
the cowls of appeals of
5 1 ,VIin tt0I $ action hi
an individuaLcOfltlVl .trst
section 4(l). ’ The use of the t
to desa1b EPA - ‘
on ICS. is ambiguses beca there I.
on action required und sec 3*1)
that Is .qeesaly duscitbed u
“ 1O U dO Fwtheemaa . th
Legislative history does not i ’1 y what
actions Conpese Intended to be
reviewed in the omirts of a p p i
Section 304(1) speaks of
which may be followed by addiM
state or federal action. and of apprtvsl&
which may be followed by addI”
•tate action. All of these action. are
federal actions with I i effust t
may appropetataly be catagminod us
“prom i lgatlon&
EP believe, that It woold cents an
iraft ’ ’ 1 bifurcation of review but —urns
f.darel marts of appeals sad disutct
10 Iit.. #SI Uftl4P’ goe(bXIXG to
pent the taof ap ” ) ts ,&tt’
-------
Fede ,e4 Re ler! V . 1. 5 No. i /T ay. JLIt. 1. I9 I 1es _____
to review some. bee net aR. l deea4Ty
rrnewa Ie flnef EPA aettests an ICS..
The roe of the Supreme Cain in
Crvi’n Simpson P C a ve CosWe
445 U S. 193 (19eO . supportv this siew.
In C.’vwn Simpson. the Co held thee
where the effect of an EPA Pmmt
obiecuon w s to deny the issuance of
the permit. review should be in the
courts of appeals under sectton
509(bl(1)fF) in part to avoid allowing
re tew of similar actions itt different
courts dependrng on whether EPA or the
state is the permit-issuing authonty. A
similar result should be reached
regarding EPA. decision, wide, section
304 (l ). If. for ezampi.. review of EPA
action were allowed wider section
5O bJ(1)(C) only if EPA disapproved an
ICS and issued the underlying permit.
then jurisdicuou of the connie of appeal.
would be dependent on the fortuitous
circumstance of whether the State in
which the case arese issues th. permit.
Crown Simpson. 445 U.S. at 197-el.
Similarly, if approval. could be
challenged in dieumt coort and
disapprovais in the courts of appesle.
then an appru’vel that was sided by
the dismct coert could be re-Iltiguted in
a coert of appeal. if it subeeqeently
became a disappeosal. EPA does net
believe that Congress intended toereate
such a system.
Ifl. Ftaa ty L sL iIity of
Unlike decisions related to !CSs.
decisions regarding lists do not faR
withm the ainbit of s..iJk 1 n S(blffl.
Nonetheless. because c i the amoont of
mterest that has been e ... .d ii these
List ,, the ency it Ito
position on the. ..l li, ef EPA
of rate listhig doclMui is . ond
EPAs decision, to list water . . te
on the hits req ed by soeffim
304(1) 11 1(9 ) ( !ftito1 and disehargees on
the section 391(fl(1)(C7 List. rc bet.)
liotlal h.u decisions foe the t
part. mad. in June ci 1. ‘These
decisions included beth appssvala and
disapproval. of state listings as well as
the u ft catten of the waters EPA
e ivct d to add to or delete fr the
lisit. (Referted to )*4aw ii 1h
decisions.) At that three EPA requested
comreeton on most of it, Hstmg
decisions.
EPA will provide notice at its
responses to comment.. aloag with any
revision_s to the B and C lists. in moat
cases. by June of 1 . Although these
lists will represent EPA ’s decision..
regarding listing (and may be cal1ed
‘final us i a” or ‘final agency actloaa In
some co” ”- see ag. 54 FR 4J.
EPA does not belies . that decision. to
include watare or discha.rgus on Ate
are reviawabla final agonq ac on.
witháa the me ”gof the
Admimstrakva Procedure Act or am
oth.rwtu ops for re,iaw.’
The basing of. wet ly se at or a
point seneca idoati& that se sZ or
point source an one that EPA or the
expect. will seed addi io ceo in
o t. atza.n s t.on
q .lMy , erd& 1$ it set u1
p S_s is bonsuse .
that. defisti,. dois on in —
regsrth whet L (h If
be neorsasey. sad is onlg
permit Limitations that dlschazgess
obliged to act. Therefore. lis nga
facility has no pacr on the
heá — --t.ia of
IImitaUo dna.
Ac flr fy. WA klsv that
basis fee - .1. .
or uger is r . f
.,,,l ontlJQA changet a
th at burns
inod ed psa tie
addi taflm we.
wouid only be reviewabi. in a stte
________ in ‘, .i NI S
forum. In addkon. I L - -
are peem .
whe. EP — .sa the ,. . . a
mid — u —‘i— te
challenge EPAs t’—-un —
harm su iad i .._id be t,
EPA net onnid a coins •wew the
Ineag iwaedir
discinrger c were w ar1Ly
iagsae. F iedy. W A báeves the
sto .tes eponk sllawonca for eew
of the peimiulgasuca .1 L bit on’ of
the lists. n 4 tas that the wiarm ua
steps. ludi g to psmit
iouhi4in the Listing or approval or
tiaIwg,, warn saly .endnd for review at
the end of the process—when the pennit
I. ftnallzed.
Tb, cUoe Listing na .m II
step et the development of
water que .y-bned mitetime in
pets end thus is water
qse ty atmidstk for io pe1PJ. .t
are wet. The i . .J ..4eo of.
s. .t ore f.cthly on a et does n e t.
however. upon. . b ge o en
L..JL. . net
reviawabis.
IV. of
a itcat a
w 5 sa “ p... —
simply , .—‘- --,-——-— — --- -
- . ______
-
— ‘I-— — s sa
to
sa __ LL _ k -
- I — J-——— 4
reqinnemants of th e A
Procedure Act. $ U.S.C 5l (b3 and
the requirement thee p ne d
rids not 1am t ae u k s
it. r a.t.. i
i a m
,A .k..JJ...I -.
(FR Don I4t- aes
— I— — —
-------
F.dsJ Rei itar I VoL 55. No. 06 / Thursday. May17 . 1900 7 Notices
2s 1
___ In the petittue m b the Class 1
doua waits Injscti. . well at the
t Mhui Texas facility. loris long as
the bails for grmnting an approval of the
petition remains valid, under pivv uicns
of 40 R 146.26. As required by 40 CFR
1.24.10. a public notice was Iuued
February ie. 1990. A public busing was
held March m logo, and a public
commait period ended on April 2.1990.
All comments have been addressed and
hue, been considered In the final
decision. TMa decision constitutes final
Agency action sad there is no
d ntnistyatI,, appeal.
D*Ti .ThIs action Is contingent on
modification of Underground injection
Control permit WDW—i60 to authorize
disposal In the injection zone identified
in the petition. I.e.. an Injection zone
ranging in depth from 6.130 feet to 7.200
feet. and will not become effective until
and wilaa , said permit modification
become. effective.
soo.rn1 Copies of the petition and
all pertinent information relating
thereto, including the Agency’s response
to comments. are en file at the following
locatlom Environmental Protection
Agency. Region 6. Water Management
Division. Water Sopply Branch (OW-
SU). 1445 Ross Avenue. Dallas, Texas
PC I $WOI AT10N C0N?AC1
Oscar Cabin. Jr.. Chief Water Supply
Branch. EPA—Region 6. telephone (214)
655-7150. (Fl ’S) 255-7150.
Myrom 0.
Dfrrscron Wa ger Monoiement Division (8W ).
(FR D x. 90-11312 Filed 3-1O-5 &43 ami
— . — coos em
IPRL—377$-7 1
Underground snIe’uon CoaV 4
Progrum, Hawdous Waste flhem.i
Injection Ru*jlcuwiet Petition for
Exsn tion’-c s I H Ja.is Waste
NUon I.LdePsntdsNemosn&
Co mo., UPmU , LA
& T . Environmental Protection
Agency.
* TiUii Notice of final decision on
petition.
mrouriv Notice Is hereby given that an
exemption to the land disposal
restrictions under the 1964 Hazardous
and Solid Waste Amendments to the
Resource Conservation and Recovery
Act his bean granted to Do Pont
Ponichamie Works. for the Class I
Injection weB incited at LaPlace.
As soqaued by 40 n part
140, the - pmy has adequately
danoi ot. ts the uddaction of the
EnvIronmental PzotecdanAgsncy by
petition and supporting documentation
that, to a reesonable degree of certainty.
there will be no migration of hazardous
constituents from the injection zone for
as long as the waste remains hazardous.
This flaal decision allows the
underground injection by Do Pont of the
specific restricted hazardous waste
identified In th. petition. Into the Class I
hazardous waste Injection well at the
Poutchastrain Works facility in LaPlace.
Louisiana. for as long as tha basis 101
granting an approval of the petition
remains valid, under provisions of 40
R 146.24. As required by 40 ‘R
124.10. a public notice was Issued
February 13.1090. A public hearing was
held March . 1990. and a public
comment period ended on April 2. 1990.
All comments have been addressed and
have been considered In the final
decisIon. This decision constitutes final
Agency action and there Is no
Administrative appeaL
oan This action is effective as of My
7.1906. for Well Nos. 3.4. and?
identified in Underground Injection
Control Permit WD 85-3. This action for
Well No.8, Identified In Underground
Injection Control Permit WD 86-4. Is
contingent on modification of the permit
to authorize disposal in the injection
zone identified In the petition. i.e.. an
injection sons rag”g in depth from
3.200 feet to 6.550 feet. and will not
become effective until and wiles. said
permit modification becomes effective.
aooutesnm Copies of the petition and
all pertitent Infcnziatlon relating
thereto. including the Ag ncy’s response
to comments. are on file at the following
locatiom Enyironwental Protection
Agency. Region 6 Water Management
Division. Water Supply Branch (OW—
SU). 1445 Ross Avenue. Dallas. Tezu
75202-3733.
uanem poem*nou CQNTAC
Oscar Cabin. Jr., ChieL Water Supply
Branch, EPA.-.Regiou 6. telephone (214)
655-7150, (Fl’S) 255-7156.
—
Director. WagerManogementD,visica (OWL
(FR Dec. 9041313 FlIed 3-1-Is 64$ amJ
aise coos — mu
Notice of R.giilsto.y mntarprstatlon
*aiecv Environmental Protection
Agency.
actiosa Notice of regulatory
Interpretation.
sunn*nv EPA Is providing notice of Its
interpretation of Its Nationsi Pollutant
Discharge Elimination System (NPD )
regulations as they relate to log .crtyard
facilities. Log sortyard facilities, as
defined In the regulations. are
silvicuttui’aI point sources and.
therefore, subject to the NPDES
program. EPA is publishing this notice in
partial htiflhlnient of a stipulation and
settlement dated August 1. 1988
regarding a NPDES permit appeal of
Shee Atika. Inc.
oe ptjamgn INPOnMATION CONTACr
Kevin Smith. Office of Water
Enforcement and Permits (EN-336):
Environmental Protection Agency 401 M
Street. SW. Washington. DC 2O460
telephone Z00JF1 ’S 475-9516.
sup ‘ uv .oema o
Clarification of applicability of NPDES
regulatloneto log sortyard facilities.
On June 18.1976. regulations were
promulgated for application of the
NPOES permit program to silvicultural
activities, See 41 FR 24709. June 16. 19?O .
With respect to the coverage of point
sources, these regulation, provided, in
part
(1) The term “salvtcultural point source”
means any disceriuble, confined and discrete
conveyance related to rock crushing, çave l
washing, log soiling or log storage facilities
which are operated in connection with
silvicultural activite. and from which
poilutants are discharge into navigable
waters.
The regulations further provided that
(3) Tb. term log .orting and log storage
facilities” means those facthtiss wherein
diacitaips result from the holding of
unprocessed wood. I . ... loge rounded with
bark or after removal of bark in self-
contained bodie. of water (tutU ponds or log
ponds) or log storage where water * applied
intentionaily on the logs (wet decking).
41 FR at 24711. 40 R 124.85(a) (1) and
(3) (1975) (currently codified. as
amended. at 40 CFR 122.27(b) (1) and (3)
(1988)).
In 1980. EPA made minor changes to
these regulations. including substitution
of the phrase “for example” for the word
i.e..” In the Wustration given for “log
sorting and log storage facilitIes.” 45 FR
at 33348.3372.33446-87. May 19.1980.
EPA Issued its first NPD permit
under these regulations in 1985. During
the course of the related administrative
challenge to this premit. the permitlee
suggested that EPA’s regulations applied
only to log sorlyard facilities where
water was applied intentionally on the
logs (referred to as “wet deck” sortyard
facilities), and that EPA otherwise
lacked the authority to regulate “dry.
deck” sortyard facilities, where the
discharge Is due pnmarily to storm
water runoff. In other words, the
permftteeugusd that the NPD6
regulations limited the epplicebdhty ef
EPA’. permit requirements to the two
-------
Fsà.ii 1- - i I VoL 55 No. i j Thursday . May
No
types of fa lizi.s listed it
122.27(bJ(3J £ .. Jog poo
sortyards. ail thai dIecka a fr thy
dick soetyuds Win, po ao r
urn r the NP ‘.n,.
The pioni(lee ha. a.w eatored into a
stipuinzioi with WA. V eby IL Am
agreed that Its facilities holáng
unprocessed wood are subject to the
requfre 1 ta of the fW progr am.
regardless of whether ,, , fiofifie,
employ a thy erwet-d 1 4j pr ess.
The 91.,,, to the p... . .it
appeal. rss . J that EPA pebilalta
clanfication to the Fsdu ,uI Rugiuus,,,
pail of the.gflL to w
rsgsidlag MII O
silsicei son
EPA isp’ Wiihiog &hispahh a $
presode the falhousseg cleri&aiJon mad
to fi lpctdMao Jlg,a1nhj 4 ied , , the
settlemiat si ed A u.i 1.
1980 Todays notice is designed to
restate EPA ’. loegstandaiig view
regarding the sppflcatloa of Ils
sflvlcujtur ,j point monroe i u1a6ons
found at 1 .V. Tedq’.
imposea an a 1 IaLa1 ry utom
oil any
regulation, In 40 G ’R I 1 .27
disringujab point souso. activl es in be
silvfcuftuy ostegory from non.poóa
sown, ectsition oseespi from the
NPD program (e.g.. ranoff from
orchards and and ( Orrut lands
* 1 22.3(efl). When these regulations
w promuigatad In 1974 EPA
ciwlud _ ad that discharges a h as the ..
(e.g.. naoff from o,c ds sad kioss
lands), although sometimes channeled,
we non-point Iowce In nature. They
were caused su4e4 by naturel
processes. including pre ta n, mad
drainage. were not otherwise traceali e
looiiy uiegl. ld ,ntifi so n,, and
were best by nsa-point ma.
caifliels. DIscharges wb th,
lntentj n.l oe Ie of _____
nznolfand Its ___________
diaciatm and snz1lIsd pstot, on the
other hand, were to hedw4fl as
point so dockai aidiltet to
NPO p . .se.
in p’omuigsw the iwo
the agency ‘elected a stioii that the
regulation, litoit the defim n, of
sulvicuttw ,I point soimon to tho.,
sosrce (torn which th discharge of
pollutants iesufta from the oon*,,jhed
applicatio, of wa by any pers . EPA
detennised that this dlstgactjon does sot
always apply, pemeularly where the,.
ore dischaa , ,sf maid chitis and bmfr
regardle,. of any ns IJed .pphoes.s
of wst , 41fl Z47i , lees M. 1970 The
1980 werdmg cMi , .
regulation, further redIest
thu the iatentm.aJ
ap ioe of t , , is not th_____
factor.
EPA . ass iof wet fadtftesa,
an example of tb, to,,. leg seulmg and
leg s age facigie,” Is thus Issended
only on lhhmaso,,, The ? egulaOons
art ant Intended to tintit the Ml!
pru t. hc iies uho,, discharge,
are a vomit of the controlled ‘pp4k on
of weter . Rather, an, f .cl qy mentlu
the delin i.,. .
storage f i;t , , facmty w1, tn
discharge, result from the holding of
unprocessed wood , I , , .‘f .je
point wu and Is ‘object to the
permitting reqtdieme of the NP 3
P1° uw .
EPA has intended for di sllwhi4t aj
point .oiwca tamjlatlnn. to be on toad
and wifl contioue to interpret them in
accordance with th, above diansasian,
Ro t H. W’p1isi .
Actuig
(FR De e. IS-imsi
(FRL
Davin fa,n 91to
AQ.Ic, Piotection
Agancy.
*crto, Nodc of proposed settlement
5 a Under ae ft n 122 hJ of the
Ceprehrnafve Ea’froitment ,l
Response, Cornp. . ,, . ,tio, 1 , mid Uabflfty
Act (C a ,Al:the !nvwomnent,l
Protection A , (EPA) ha, agreed to
settle daim . for response costs at Davis
Farm Site. Gordon County, Georgia with
the Teaneoms Ve!ey Aetherity,
LettoiIL_ .. , Aimy Depot, Annint ii
Army Depot 141’sl Air Engines, Cinte,,
and Pittsburgh Energy Techeology
Center. EPA will considti’ public
co ,j 01 oposs seulanient
for tiEty day.. WA may withdraw be.
the proposed settlement should such
comments disclose facts or
conaideratior.s which indicated the
propod setilegiant is mawlI , ,
improper or inadequate. Copies of the
proposed settlement are available from:
Ms. Carolyn McCall, Weste Programs
Branch. Waite Management Dtvesion.
U.S. EPA, Region IV. 343 Counland
Street NE. Mlaoto . Georgia 3(X38& 404-
Wnnane.u.,.,ets a my be ssbanued
to the pczz abe. by 40 days from
date of &bhen c_ .
J• r— 1 ,
Acig,g
(FR Doc. 50-11514 FtIed S. . Ie.e. t43 a! J
10 T I42 a FRL-$74 1.7,
Aib,.t of Identifying
hiS , Corrç
£ *on,om Pvutectiom
Agency ( .;,
*Cn Notice.
In the Tidied of
Febrva ,y 9981 EPA pnblu,hed
sin an.. I, . of the bifonaatjn, submitted
to EPA by msn .e n,eru end proc.s,o,,
of cen sibisios product, In
accordance wfth the Asbe,to,
Inform a tion Act of iget This notice
corrects several ei on m the
Infs,mati included in the Fidwel
Register of February 13. 2950
anitu £ F i A750N COIITACl
?‘Ochael M. Slabi. Director.
Envtroni, .nt j Assistance Division ITS.-
fltoce of Toxic Substances, -
Envfrona , Protection Agency, Rin.
E-&43. 401 M SL SW .. Washington, DC
2O460 (402) 382-3949, -TDD: (202) 554-
0551.
$UP .IMINyany “ 7lO
I. Backgrcond
In the Federal Regist of February 13.
1990 (55 FR 5144). EPA published
summaries of the Informat ion submitted
to EPA by rnanufacture,’s end processors
of certain asbestos products in
accordance with the Asbestos
Information Act of 1980 Pub. L. 10o-.5
As of April *1990 EPA has received
left., from fit, of the oempsuies flsted
In the Psd 1 .J legieter of 13,
1980. Asvnstsoeg World hidustiles. Inc..
Gergin-Pacilk CciporatIo , kaise,
Cement Corporation, Kim.
Coiporatl ii, and United States Gypsum
Company, which request that certain
errors In the Fad .aI Register notice be
corrected. These errors are corrected
below in Unit U.
U. Coimctloos
On page 5144. column 3. item in
the sixth line (rem the bottom of the
page. EPA thc ar . ..Uy hats Forms +
Surfaces. . and The W.W. Henry
Company as pdecesaor, of Armstr g
World li’. ’’ Mc. Azmstroeg
cont a t 1 F . m. + Sudan,g,
Inc. andJs , .lI ,r.— , ,
were its -E. _ Il, od adoi n,.
its prsdi’- —
-------
1 1 )662
Federal Register I Vol. 55. No. 91 I Thursday. May 10. 1990 / Notices
REFUND APPUCA11ONS RECEIVED
(Weet of Mar.23 to Mar. 30. 19903
Dale received
Name of refind
tuceeJngImens
of refund r -ii
Case N
01123/g0..._ ._
03126/90.......
Pale, Beyko.........j
Lop MItChSI Gi ..
RF225-I 1099
RF300- 11067
03126/90
Bogata Gufl..._.
RF300-I 1098
03/26/90.......
Maunce Mignea&it
Gulf.
RF300-i 1069
03 126 190. . ......
Schm,dra Groce , -
RF300 -I 1070
0V26/90..._
Paul’s Gulf ......_..
RF300-11071
03/28 190.........
Odan sGuIf_
RF300-11072
03 126 190..
Ford Te l ShelL..,,.
RF315-9901
03 126 190.._
WR.Noms.,......
RF3IS-9902
03J25/90.._
Shervowe
Rid mond Road.
RF315-9993
0V27 190.._..
Lopulato$
choccw e l
RF3 IS-99 04
C3IV/9O._ ,. .
SheO .,.
RF315.99 09
03/ VI90. ,. .
Pine Brocli 511511,
RF315-99o6
03J28 190.. . .....
Roy’s Auto
S y. —-
RF318-9
03 129 190._
W. C aes Vaughn..
RF307-10118
03 130 190_
Longios Gulf...,......
RF300-I 1075
03/23/90
Texaco OJ Refw d
RF321-2511
Cvi i 03 /
A gUcabone
Us ia RF321-
30/90.
Received.
2547
03/23/90
Atlantic Richfield
RF304-11660
thni 03
A phcatIcne
Cv i i RF304-
30/90.
Received.
11671
03/23/90
Cnade Cd Refund
RF272-7 5529
Usui 03/
Applicaxne
tIv i, RF272-
30190.
Received.
78851
IFR Doc. 90-10962 Filed 5-9-00 &45 amj
Ul&uNQ COOS 5460-O$-M
Issuance of a Proposed Decision and
Order by the Office of Hearings and
Appeals
During the week of April 2 through
April 6. 1990. the proposed decision and
order summarized below was issued by
the Office of Hearings and Appeals of
the Department of Energy with regard to
an application for exception.
Under the procedural regulations that
apply to exception proceedings (10 FR
part 205. subpart D). any person who
will be aggrieved by the issuance of a
proposed decision and order in final
form may file a written notice of
objection within ten days of service. For
purposes of the procedural regulations,
the date of service of notice is deemed
to be the date of publication of this
Notice or the date an aggrieved person
receives actual notice, whichever occurs
first.
The procedural regulations provide
that an aggrieved party who fails to file
a Notice of Objection within the time
period specified In the regulations will
be deemed to consent to ihe issuance of
the proposed decision and order in final
form. An aggrieved party who wishes to
contest a determination made in a
proposed decision and order must also
file a detailed statement of objections
within 30 days of the date of service of
the proposed decision and order. In the
statement of objections. the aggrieved
party must specify each issue of fact or
law that It Intends to contest In any
further proceeding involving the
exception matter.
Copies of the full text of this proposed
decision and order are available in the
Public Reference Room of the Office of
Hearings and Appeals, room IE-.234.
Forrestal Building. 1000 Independence
Avenue SW.. Washington. DC 20585.
Monday through Friday. between the
hours oft p.m. and 5 pin., except
federal holidays.
Datedi May 4. 1990
George 5. Dismay,
Director. Office of Hearings andAppeals.
Muigrew Oil Company. Dubuque. L4.
LEE-W12. Reporting Requirements
Muigrew Oil Company. Inc.. filed an
Application for Exception from the
Energy Information Administration
(EIA) reporting requirement. The
exception request, if granted. would
relieve Mulgrew of its requirement to
file Form EIA—782B, “Resellers’!
Retailers’ Monthly Petroleum Products
Sales Report.” On April 6. 1990. the
Department of Energy issued a Proposed
Decision and Order which determined
that exception relief be denied.
LFR Dcc. 90-10963 Filed 5-O-90 &45 emj
98AS COOS SI5O.OI-M
ENVIRONMENTAL PROTECTION
AGENCY
IOW-FRL-3764 -e)
Technical Support Document for
Water Ouality-3ased Tonics Controli
Draft Guidance Availability
AGENCY Environmental Protection
Agency.
ACTIOPC Notice of availability .
SUMNARY This notice announces the
availability of the draft guidance
document entitles “Technical Support
Document for Water Quality-Based
Toxins Control” (TSD).
DATES Copies of this draft guidance
document are available beginning today.
Comments must be received on or
before 145 days from date of Notice
publication).
ADDRESSES Copies of this document
can be obtained by writing Mr. James
Taft, Office of Water Enforcement and
Permits. EN—336. U.S. Environmental
Protection Agency. 401 M Street SW..
Washington. DC 20460.
FOS FURThER INFORMATION CONTAC’fl
U.S. Environmental ProtectIon Agency.
at the above address.
SUPPLEMENTARY iNFORMATION The U.S.
Environmental Protection Agency’s
(EPA) national “Policy for the
Development of Water Quality-Based
Permit Limitations for Toxic Pollutants”
(March 1984) states that to control
pollutants beyond Best Available
Technology Economically Achievable
(BAT), secondary treatment, and other
Clean Water Act technology-based
requirements and in order to meet water
quality standards, the EPA will use an
integrated strategy consisting of both
biological and chemical methods to
address toxic and nonconventional
pollutants from industrial and municipal
sources.
In addition. EPA’s surface water
toxics control regulation (54 FR 23868
(June 2. 1989)). established specific
requirements for assessing and
controlling point source discharges of
pollutants which cause, have the
reasonable potential to cause. or
contribute to an excursion above any
State water quality standard.
The revised guidance document
announced in today’s notice is intended
to support the implementation of both
the policy and the regulation. The
overall approach taken its this revised
document is to provide additional
explanations and clarifications based on
accumulated experience and data
related to the various recommendations
which were made in the original TSD.
Additional data is provided to support
the scientific basis for whole effluent
toxicity testing and the control of the
discharge of toxic pollutants through the
“Integrated strategy”. The TSD strongly
recommends the use of an integrated
water quality-based approach (i.e..
employing both chemical-specific. whole
effluent, and biocriteria components) for
controlling toxic discharges. The
document also discusses mixing zones
for toxicity, non-persistent toxicants,
and bioaccumulative pollutants; effluent
characterization with and without data:
exposure assessment methods: permit
issuance procedures: toxicity reduction
evaluations (TREs): and
recommendations for enforcing water
quality.based permits. An overall
summary of each chapter as well as the
most significant changes since the
original TSD are provided below:
Chapter 1: Approaches to Water
Quality.Based Tonics Control
This chapter describes the regulatory
and scientific basis for water quality-
based toxics control. In particular, the
“Integrated” approach to water quality-
-------
Federal Register I Vol. 55, No. 91 I Thursday, May 10. 1990 / Notices
1i S83
based toxics control (I.e.. use of
assessment and control techniques for
individual chemical,, whole effluent
toxicity, and blocriteria) and the
relationship of each technique to the
other is strongly emphasized. However.
the chapter is now supported by new
documentation and data as compared to
the old TSD.
Chapter 2: Water Quality Criteria and
Standards
The discussions in this chapter lay the
groundwork for the “standards-to-
permits” process by describing key
features of water quality criteria and
standards for both aquatic life and
human health protection. A key feature
in this chapter is the discussion of
magnitude, duration, and frequency of a
pollutant or pollutant parameter for
human health and aquatic life
protection. The presentation of specific
procedures for deriving acceptable
ambient concentrations (AACa) for
human health protection has been added
to this document. The definition of
mixing zones for both persistent and
non-presistent toxicants is also
introduced in this chapter.
Chapter 3: Effluent Characterization
This chapter describes the procedures
for determining whether an effluent Is
causing. has the “resonable potential” to
cause, or contributes to an In-stream
excursion above a narrative or numeric
criterion within a State water quality
standard. The effluent characterization
recommendations described in this
charter have been revised and
streamlined as compared to the original
TSD. Where effluent data are available,
effluent characterization can now be
performed in a single step with limited
effluent data and no longer requires
initial screening followed by data
generation. This chapter also presents a
new protocol for assessing wastewaters
for the presence of bioconcentratable
polutants.
Chapter 4: Exposure Assessment and
Wasteload Allocation
Where effluent characterization
indicates the need for a water quality.
based permit lImitation, the water
quality analyst proceeds to develop a
wasteload allocation (WLA) using the
procedures described in chapter 4.
Information is provided for modeling
both near field and far field exposure of
an effluent. Recommendations for both
steady state and dynamic models are
provided. As with the original TSD,
ambient criteria to control acute toxicity
to aquatic life may be met within a short
distance of the outfall. However, the
TSD no longer recommends this
provision be restricted to outfalls which
have high rate diffusers. It now
recommends this be allowable for any
type of outfall for which it can be
demonstrated that the criterion
maximum concentration (CMCJ is met
within the short distances specified.
Chapter 5: Permit Requirements
Chapter 5 provides procedures for
translating various types of WLA
outputs into permit limitations. Other
permit-related issues such as permit
documentation and toxicity reduction
evaluations are also presented. No
major changes have been made from the
substantive recommendations in the
original TSD. however, numerous
clarifications and supporting tables and
figures have now been included. In
addition, this chapter gives detailed
information on the components of TRE
recommendations and how to use them
in the permitting context.
Chapter 6: Enforcement
Compliance monitoring and
enforcement considerations for water
quality.based permits are summarized
in this chapter. The TSD provides a
more comprehensive discussion on
compliance monitoring in comparison to
the old TSD. The discussions emphasize
the regulatory principle that any failure
to meet a permit limitation is a violation
subject to the full range of possible
enforcement responses.
Summary
The goal of this document Is to
provide comprehensive technical
recommendations for water quality.
based toxics control. These
recommendations are intended to
provide scientifically sound and useful
procedures to regulatory authorities and
the regulated community. EPA solicits
comments on whether this document
achieves it goal.
Dated: May 3. 1990.
La uan.S. WIIcher,
Assistant Adm,nistmtar.
IFR Doc. 90-10965 Filed 5-9-90 &45 amj
L1NS COOS 1515.50
FEDERAL MARITIME COMMISSION
Agreement(s) Flied
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 L Street.
NW., room 10325. Interested parties may
submit comments on each agreement t3
the Secretary, Federal Maritime
Commission. Washington. DC 20573.
within 10 days after the date of the
Federal Register in which this notice
appears, The requirements for
comments are found in 572.503 of title
48 of the Code of Federal Regulations.
Interested persons should consult this
section befure communicating with the
Commission regarding a pending
agreement.
Agreement No.: 003-010071-011.
Title: The Cruise Lines International
Association Agreement.
Parties. Admiral Cruises. American
Hawaii Cruises, B.S.L, Cruises. Carnival
Cruise Lines, Chandris Cruises, Clipper
Cruise Line. Commodore Cruise Line.
Ltd., Costa Cruises, Crown Cruise Line,
Crystal Cruises. Custard Line. Ltd..
Custard/Norwegian American Crtis ’s,
Custard Sea Goddess. Delta Queen
Steamboat Co., Dolphin Cruise Line,
Dolphin Hellas Cruises. Epirotiki Lines,
Inc., Holland America Line, Norwegian
Cruise Line, Ocean Cruise Lines. ln ..
Ocean Quest International, Oceanic
Cruises, Premier Cruise Lines. Princess
Cruises, Regency Cruises. Royal
Caribbean Cruise Line. Inc.. Royal
Cruise Line, Royal Vikinq Line,
Seabourn Cruise Line, Society
Expeditions Cruises, Sun Line Cruises,
Windatar Sail Cruises. World Explorer
Cruise..
Synopsis: The proposed amendment
would provide the current level of
application and renewal fees for
independent travel agent affiliation.
Agreement No.: 212-010389-013.
Title: u.S. Cult Ports/Argentina
Agreement.
Parties: American Transport Lines,
Inc.. Empress Lineas Maritimas
Argentinas S.A.. A. Bottacchi S.A. da
Navegacion CS.Ll.
Synopsis.’ The proposed amendm,,tt
would extend through December 31.
1390, certain provisions related to space
chartering. It would also permit the
parties to charter space with any carrier
who is also a party to Agreement No.
212-010382 ((he Argentina/U.S. Gulf
Ports Agreement).
Agreement No: 203-011268-001.
Title: New Zealand/United States
Interconference and Carrier Discussion
Agreement.
Parties: New Zealand-Pacific Coast
Rate Agreement. New Zealand/U.S.
Atlantic & Cult, Shipping Lines Rate
Agreement. Associated Container
Transportation (Australia) Ltd..
Autstralia.New Zealand Direct Line.
Columbus Line. Blue Star Line. Ltd.
-------
6o
Federal Register I Vol. 55. No. 33 / Friday, February 16, 1990 I Notices
Approval of North Dakota’s National
Pollutant Disdtarg. Elimination
Syatam (NPOES) General Penitit
Program and of the North Dakota
Authority To Issu NPOES Permits to
Federal FacIlities
AOENCY En ,iroiunental Protection
Agency.
acnotc Notice of final approval of
modifications to North Dakota’s General
NPDES Program and North Dakota’s
authority to issue NPDES permits to
Federal facilities.
SUMMAWE On January 22. 1990. the
Regional Administrator of Region VUI of
the Envu’onmental Protection Agency
(EPA) approved modifications to the
State of North Dakota’s National
Pollutant Discharge timinatlon System
(NPDES) permit program thereby
authorizing the State to issue general
NPDES permits and to Issue NPDES
permits to Federal facilities. Under the
general permit authority, North Dakota
may now Issue general permits in lieu of
Individual permits consistent with the
requirements of the North Dakota
NPDES program and the Federal NPDES
Regulations at 40 CFR ie. a EPA ’s
recognition of North Dakotas authority
over Federal facilities provides that the
State will begin lssu nce of individual
permits to Federal facilities in lieu of
EPA’s issuance of such permits. This
delegation of the responsibility to Issue
permits to Federal facilities does not
include permits Issued to either Indian
Tribes otto persons located within
Federal Indian Reservations. Such
Indian permits shall continue to be
Issued by EPA.
FOR FURThER INFORMATION CONTAC1 .
Marshall Fischer. Compliance Branch
(8WM-C), Water Management Division,
U.S. Environmental Protection Agency,
999 18th Street, Denver, Colorado 80202-.
2405.
SUPPWIV4TARY INFORMAT1OIC Section
402(b) of the Clean Water Act provides
that a State may be approved to operate
a permit program in lieu of the Federal
NPDES permit program. North Dakota
Initially received such approval on June
13.1975. The NPDES program
regulations at 40 CFRI23.62 set forth the
procedures for EPA to proëess
modifications to an approved state
program. Oh September 20, 1989, the
State of North Dakota submitted two
separate package. requesting
modification of its NPDES program to
Include authorization to issue general
permits and to issue permits to Federal
facilities. Pursuant to those regulations,
EPA determined the request for general
permit authority to be a substantial
program modification requiring the
opportunity for public participation. EPA
determined requests for authorization to
Issue Federal facility permits to be a
non-substantial program modification as
defined by these regulations.
1. General Permits
EPA published an October 18. 1989
Federal Register notice requesting
comments on the State of North
Dakota’s general permit package
submitted on September 20, 1989 (see 54
FR 42981). The package contained a
letter from the State asking for approval.
a copy of a revision to the Memorandum
of Agreement (MOA) between EPA and
the State regarding how the general
permit program would be implemented.
a supplement to the NPDES program
description specific to the general permit
program activities, and copies of
relevant State statutes and regulations.
North Dakota’s general permit program
was designed to address short term
discharges. as well as discharges with
substantially similar character and
requiring similar regulatory controls.
Types of discharges which might be
covered by the North Dakota general
permit program include hydrostatic
testing and dewatermg activities.
backwash water discharges from
portable water treatment plants, and
certain types of storinwater discharges.
North Dakota’s general permit
program submittal also included a
statement by the Attorney General
certifying, with appropriate citations to
the statutes and regulations, that the
State has adequate legal authority to
administer a general permit program. An
additional Attorney General’s
statement, dated November 22, 1989,
provided supplementary information
regarding the States authority to
Implement a general permit program.
During the thirty day public comment
period EPA received only one written
comment letter. That letter fully
supported approval of the general
NPDES program authority. After having
reviewed each of the documents
prepared and submitted and having
considered all comments received, on
January 22. 1990, EPA notified the State
that modification of its NPDES program
to include general permit authority was
approved.
2. Federal Facilities
In 1977 Congress amended section 313
of the Clean Water Act (33 U.S.C. 1251
et seq.) to authorize States to regulate
federally owned or operated facili ties
under their own water pollution control
program. Prior to that amendment.
States, including North Dakota. were
precluded from regulating Federal
facilities and EPA remained responsible
for issuing NPDES permits. as required.
to these Federal facilities.
On September 20, 1989. North Dakota
submitted a request for modification to
its approved NPDES permit program to
include authorization by EPA to issue
permits to federally owned and/or
operated facilities. The modification
request included a letter from the State
asking for approval. a copy of a revision
to the MOA between EPA and the State
clarifying that Federal facilities would
be subject to the same requirements as
any other facility in North Dakota. a
description as to what affect this change
will have on the North Dakota program.
and an Attorney General’s statement
certifying as to the authority being relied
upon by the State to assert jurisdiction
over Federal facilities. Because of the
structure of the existing North Dakota
statutes and regulations, no specific
regulatory modification was deemed
necessary for North Dakota to make
such a demonstration. Consequently.
this change was determined to be a non-
substantial program modification. Alter
having reviewed each of the documents
prepared and submitted and having
considered all comments received, on
January 22. 1990, EPA notified the State
that modification of its NPDES program
to include Federal facility authority was
approved. EPA has concluded that the
State will have the necessary
procedures and resources to administer
the general permits and Federal
facilities programs.
Federal Register Notice of Approval of
State NPDES Programs or Modifications
EPA will provide Federal Register
notice of any action by the Agency
approving or modifying a state NPDES
program. The following table provides
the public with an up-to-date list of the
status of NPDES permitting authority
throughout the country.
-------
Review Under £cecutivo Order 2 9l
and the Regulatory Flexibility Act
The Office of Management and Budget
has exempted this rule from the review
requirements of Executive Order 12 9l
pursuant to section 6(b) of that Order.
Under the Regulatory Fle,dbilit Act.
EP. Is required to prepare a Regulatory
Fexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities.
Approval of the subject modifications to
the Nuth Dakota NPDI S permit
program ettabiishes no new substantial
requfrements. nor does It materially
alter the tegulatory control over any
municipal or industrial category
Because this notice does not have a
significant impact on a substantial
number of small entities, a Regulatorj
Flexibility Anal ,’sis is not necescary.
Accordinqly. I hereby certify pursuant to
5 U.S.C. 605(b) that approval of these
two program (i.e.. general permits and
Federal facilities) changes to the North
Dakota NPDES delegation will not have
a significant impuct on a substantial
number of small entities.
Oateth February 7.1990.
fac¼ W. McGraw,
Acthig Regic.nolAdministrotor. Re9ion VIII.
(FR Des. 90-3733 FlIed 2-15-Ol &45 aml
ULLfl82 COOS M
(PP 0F3843 ’PF-53i; FRL .-37 10-23
Pesticide Tolerance Petition for
Oldoran
AGENCy Environmental ProtectIon
Agency (EPA).
ACTIO* Notice.
SUMMARy This notice announces the
filing of a pesticide petition proposing to
establish a tolerance of 2.0 parts per
million (ppm) for residues of the
fungicide dicloran. 2.6.dichioro-4-
nitroaniine. in or on the raw agsicul urail
commodity apples for 1 year.
DATES Comments, identified by the
documilut control number. (PP 0F3843/
PP .5311. must be received ot or bafore
February 26. 1990.
ADORrnSEs: By mail, submit .i: ’n
comments to: Information Branch. Field
Operations Division 1H—750GC , Office
of Pesticide Programs. Environmental
Protection Agency. 401 M SL SW.,
Washington. DC 2(W 4 0. In person.
deliver comments to: Em. 246, D v i 2,
Environmental Protection Agency. 1921
Jefferson Davis Hwy.. Arlington. VA
Information submitted as a comment
concerning this notice may be claimed
confidential by marking any part or all
of that information as “Confidential
Business tnformatloi ” (C DI).
Information so marked will not be
disclosed except in accordance with
procedures set forth in 40 CPR part 2. A
copy of the comment that does not
contain CDI must be submitted for
incluáion in the public record.
Information not marked “confidential’
may be disclosed publicly by EPA
without prior notice. AU written
comments will be available for public
Inspection in Em. 246 at the addross
given above, from 8 a.m. to 4 p.m..
Monday through Friday, excluding lc ai
holidays.
FOR PJRThS I’W0 AT10N CCNTACF By
mail: Susan T. Lev.is, Product Mar.;prar
(PM) 21. R g str:it1on Division,
Federal Register / VoL 55. No. 33 / Friday, February 18,1990 / Notices
State
stale P4PCES
=
*1,pIowed gener NPOES pemvt
pmpew
5661
A O Ofovsd
state
pretreament
10119179
“ lot’s.
05104173
03/27/73
09/28173
10119179
11/01/85
05 105/73
01109103
No..
Ye’-
Yes..
Yes..
‘ in
U ’Ul1f4 I —. —
un
10110179
‘1 /O I/s.
09/22/89
0 6 1 0 3 / U I
New Jerev.
New Yoe _
Nor8l Caroil
No._. . ..............._........
,..
03I12181
03/12183
——
•.
No......_...._. .._ . ..__...._
06103161
No_____
Yes......
No
09/301 83
09l30/05
05I07/ 83
07/16/79
05/12.32
06103/SI
05123/7*
11/2014
01/23/fl
01101/75
061 3l73
06/23/74
09!30/93
09/09174
10/17/73
06/30/74
05101/74
10/30179
06 1t0/?4
08/12/74
08I19173
04/23/82
10126173
10/19/75
06/13/75
03/11174
00/26.73
06 /30I18
09I17/3.4
0 5 110l75
12/20/77
0 7 /07/ 67
03/11/74
08/20/78
03/31/75
11/14173
05110/82
02/04174
01/30/75
12/08/80
06/01/79
09/20/19
12/09/78
08/10 1 76
08/28/85
09/30/93
11/10/87
12/Oq/79
12/09/78
01/28/83
06/26179
08/23181
11102/79
08/31/73
04/13/82
06/13/80
09/28/84
01/22/90
01l28!83
03102/79
00/JO/TO
09/17/84
09126/60
07/07181
02/00/82
05110182
11/26179
05/18/81
Scum Cacti
T inesiee..
WaI I..
Yegri sfand
W3efl .g a
West Vb es.
—
09/07/64
04/13/83
06/14/62
V .’..
‘ in
07/27.93
03/12.31
Oøi li. 84
04.09/32
08/10/83
01/07/87
03/16i82
04/14/89
03/20/ 3 4
05/10/82
12121180
-------
2550
Federal Register I Vol. 55. No. 17 I Thursday. anuary 25. 1990 / NotIces
(FRL 3706-51
Revision of Washington’s National
Pollutant Clscharge Elimination
System (NPOES) Program
Memorandum of Agreement
AGENCY: Environmental Protection
Agency.
ACTION: Notice of approval of
Washington a Revised NPDES
Memorandum cf Agreenent .
SUMMARY On January 9. 1990. the
Re gional Administrator approved
Revision of Washington’s NPDES
Program Memorandum of Agreement
(MOA). The MOA serves to outline
respective program responsibilities of
EPA and the state. Document revision
ensures continuing validity of EPA’.
approval of Washington’. NPDES
program.
FOR FURTHER INFORMATiON CO’ITAC ’fl
Ms. Andi Manzo, Environmental
Protection Agency. 1200 Sixth Avenue.
WD—134. Seattle, Washington 98101.
SUPPLEMENTARY INFOnMATION: The
original MOA for the National Pollutant
Discharge Elimination System was
entered into by EPA and Ecology on
November 9, 1973. Ecology has been
carrying out the NPDES program as a
delegated State for the past 16 years.
Washington’s MOA has been updated
to reflect recent changes in the Federal
Clean Water Act (CWA) and 40 CFR
parts 122 through 125. This MOA
includes a new section (section XIV)
addressing Indian Issues, which makes
cLear that IPA is not delegating
authority over Indian lands to the State
of Washington.
Additionally, the NPDES Program
Description for the SLate of Washington
was updated to reflect the revised MOA.
Day to diq operations under ths MOA
are delineated In a compliarce
assurance ogreement.
EPA determined that the state’s
submittal was complete and, as required
under CFR 123.82. issued 30 .day public
notice of the proposed MOA revision.
No comments were received during the
public comment period. Based upon the
contents of the submittal and upon
meeting the requirements of 40 CFR part
123. EPA has approved the modification.
Review Under Executive Order 12_ 91
and the Regulatory Flexibility Act
The Office of Manaqetr.ertt and Budget
has exempted this nile from the review
requirements of Executive Order 12291
pursuant to section eIb) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis lot all rules which
may have a significant impact on a
eubstantlal number of small entities.
Revision of Washingtons MOA
establishes no new substantive
requirements. rot does it alter the
regulatory control over any municipal or
industrial category. flec use this notice
does not ha ’e a sign:ficart impact on a
substantial number of smal’ entities. a
Regulatory fle ibi1ity Analysi3 is not
neceasary.
Da:ed: Janu.iry 9. 1990.
Robis G. Russell,
Reg:onalAdn i in is uc cot. EPA Region AU
IFR Doc. 90—1281 Filed 1—24—90. 8.45 am l
ua a coos - --i --
FEDERAL COMMUNCATIONS
COMMISSION
ICC Docket No. 87-333, FCC 89-3381
EstablIshment of a Program To
Monlt r the impact of Joint Board
Decisions
AGENCY! Federal Communications
Commission.
AcnOtc Notice.
SUMMARY! The Commission adopted the
Common Carrier Bureuu’s prescribed
reporting format that all carriers must
use when filing jurisdictional revenue
requirements shifts that are five percent
or greater.
EFFECTIVE DATE.’ January 25. 1990.
ADORESSI Federal Communications
Commission. Washington. DC 20554.
FOR FURTHER INFORMATION CONTACT ’
Michael Wilson. Accounting and Audits
division. Common Carrier Bureau, at
(202) 632—7500.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
Memorandum Opinion and Order. CC
Docket 87—339, FCC 89—338. adopted
December 5. 1969. ann released
December 8. 1989.
The complete test of this Order is
avadablit for inspection and copying
during normal business hours in the FCC
Dockets Branch (Room 2301, 1919 M
Street NW., Wasiii:igton. DC. The
‘complete text of th:s Order may alan be
purchased from tue Commission a copy
contractors, L’iterr.ational Tariscrfption
Services, Inc.. 200 M Street NW.. Suite
140. Washington. DC Z0037, (20 ) 857—
3800.
Summary of Memorandum Opmio and
Order
In this Order the Commitsion requires
Tier I carriers that experience a shift In
their jurisdictional revenue requirement
of 5 percent or greater to file a report
prescribed by the Commission that
shows the impact of this shift. This
Order also allows other camera
experiencing shifts in their uri.dictional
revenue requirement of 5 percent or
greater to file reçorts on an optional
basis. These report I are due t) days
.ifter the rclease of the Ordor.
Poper.vork R.’th,ctlon .4cc
The Office of Managcminc and Budget
(OME) has approved the collection of
information contained La this Order. The
0MB control number for this collection
of information is 3060-0391, which
expires September 30. 1990.
Piling Requirenients
The Commission requires that all
reporting camera file the report
contained in Appendix A of the Order
using the instructions set forth in
Appendices A and B of the Order. To
facilitate the submission of the GnLL the
Commission has provided a computer
disk that contains the data request in
the format of a spreadsheet file. The first
page of the data request contains
specific instructions for the completion
of the worksheet. The Commission
requires that all reporting camera file
two hard copies of the report with the
Secretary of the Commission. deliver
one hard copy and one diskette to the
Commission’s copy contractor.
Internntional Transcripticn Service. 2100
M Street NW.. Suite 140. Washington.
DC 20037. (202) 857-3800 and deliver
one hard copy and one diskette to Alicia
Dunnigan. Accounting and Audits
Division. Common Corner Buresu.
Federal Communications Commissiwi.
2000 L Street NW.. Suite 212,
Washington, DC 20554: and one hard
copy to each Joint Board Commissioner
and staff person listed in Appendix C of
the Order. -
Ordering Clauses
Accordingly. It is ordered. That the
jurisdictional revenue requirements
monitoring report Is adopted.’
It is further ordered, mitt all Tier 1
carriers with jurisdictional shifts in total
study area unseparated revenue
reqwrements of 5 percent of greater
shall file reports as specified in
Appendices A. B. and C of the Order
within 30 days of release of the Order
Federal Communication. Ccmmisaion.
Donas R. Search.
Secretary.
(FR D cc. 90-1527 Filed 1-24-9U a45 .zm
m.uiss coca sr,,.oi-d
‘This aciton ii ti&ksg , puiluont 1047 U.S.C. i54 ,j
and (U. m l. ml. ma. 403. and 4 10.
-------
11991
-------
Tuesday
November 5, 1991
Part II
Environmental
Protection Agency
40 CFR Part 122
National Pollutant Discharge Elimination
System Permit Application Regulations
for Storm Water Discharges; Application
Deadlines; Final Rule and Proposed Rule
-------
348 !ederal Register I Vol. 56. No. 4 I Tuesday. .uvr be 5. i9S1 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Port 122
I FRL-3994—8 1
fIN 2040-A889
National Pollutant Discharge
Elimination System Pcrmit Application
Regulations for Storm Water
Discharges; Application Deadlines
AGENCY: Environmental Protection
Agency (EPA).
ACtION: Final rule.
SUMMARY: EPA is extending the
deadline for submission of National
Pollutant Discharge Elimination System
(NPDES) individual permit applications
for storm water disctiarges associated
with industr:al activity from November
18. 1991. to October 1. 1992. EPA is also
establis ung a fixed deadline of no later
than October 1. 1992. for submission of
individual pprmit applications from
dischargers re ected from group
applications. These changes will reduce
confusion in the regulated community
o er ripplication requirements and
deadlanes. The changes made by this
final rule will also serve to treat all
regulated facilities as equitably as
possible. and help to avoid serious
delays in the issuance of storm water
permits and the implementation of
necessary controls leading to the
desired water quality benefits.
EFFECTIVE DATEr November lB. 1991.
FOR FURTHER INFOIATION CONTACT
For .nfortnation on this rule contact the
NPDES Storm Water Hotline at (703)
821—4823. or Thomas J. Seaton. Office of
Wactewater Enforcement and
Compliance (EN—33G). United States
Environmental Protection Agency. 401 M
Street. SW.. Washiri9ton. DC 20450.
(202) 280—9518.
SUPPLEMENTARY INFORMAT1OI
I. Background
The 1872 amendments to the Federal
Water Pollution Control Act (FWPCA.
also referred to as the Clean Water Act
or CWA). prohibited the discharge of
any pollutant to r.avigabe waters from a
point source unless the discharge is
author::ed by a NPDES permit. The
appropr.ate means of regulating storm
water discharges under the NPDES
program has been a matter of serious
concern and controversy since thai time.
EPA promulgated PDES storm water
regulations :n 1973. i t )76. 1979. 1980. and
1984. These re ulatiuns have resulted in
much litigation and none wore
successfully implemented despite EPAs
efforts.
,l E:zrzronrnenga/ lni,iact
Several Natibnal assessments have
been c.onducted to etaluate impacts en
recei ing water qualiiy. F ’ir the purpose
of these assessments. urban runoff was
considered to be a di!lute suurce ir
nonpoint source poiLition. aItl’.ough
legally. most urban runoff s discharged
through conve’.ances such a: separate
storm sewers or other conveyances
s hich .jre point sources under the CWA
and subject to the NPDES program.
The ‘Nationbl Water Quality
Inventory. 1988 Report to Congress”
provides a general assessment of water
quality based on biennial reports
submitted by the States under section
305(b) of tne CWA. In preparing section
305(b) Reports, the States were asked to
indicate the fraction of the States’
waters that were assessed, as well as
the fraction of the States’ waters that
were fully supporting. partly supporting.
or not supporting designated uses. The
Report indicates that of the flyers, lakes.
and estuaries that were assessed by
States (approximately one-filth of
stream miles. one-third of lake acres and
one-half of esturine waters). roughly 70
percent to 75 percent are supporting the
uses for which they are designated. For
waters with use impairments. States
were asked to determine impacts due to
diffuse sou.”ces (agricultural and urban
runoff and other categortes of diffuse
sources), municipal sewage. industrial
(process) wastewaters. combined sewer
overflows, and natural sources, then
combine impacts to arrive at estimates
of the relative percentage of State
waters affected by each source. In this
manner. the relative importance of the
various sources of pollution causing use
impairments was assessed and weighted
national averages were calculated
Based on 37 States that provided
information on sources of pollution, the
Assessment also concludad that
pollution from diffuse sources such as
runoff from agricultural, urban areas.
construction sites, land disposal
activities, and resource extraction
activities is cited by the States as the
leading cause of water quality
impairment.’ Diffuse sources appear to
be increasingly important contributor,
of use impairment as discharges of
industrial process wastewaters and
municipal sewage plants come under
control and intensified data collec:lon
efforts provide additional information.
Some examples wi’ere use impairments
are cited as being causrd by diffuse
M. or c lues .. of di:f se su.lrce. Ittal include. in
part. storm water point sour ,’.. dlsLharQe . ale’
Urban naniiff conveyance. construCtion site..
nRTicuiture (fi’ediol .I. r.sourr. estraclion sites. o v id
isnu duapc.iui lucilutip.
sources include: Rivers and strenms.
where 9 percent are caur.ed by separate
storm sewers. 4 percent are cau:cd by
construction arid 11 percent are caused
by resource extraction: lakes where 0
percent are cauced by sepurat storm
.sewers and 7 perccnt are caused by land
disposal; t)’e Great Likes shoreline.
where 35 percent arc cauced by separate
storm sewers. 46 percent are cduscd by
resource extruct:on. and 19 percent are
caused by land disposal. for estuanes
where. 41 percent are caused by
separate storm sewers: and for coastal
areas, where 20 percent are caused by
separate storm sewers and 29 percent
are caused by land disposal.
The States conducted a more
comprehensive study of diffuse pollution
sources under the sponsorship of the
Association of Slate and interstate
Water Pollution Control Administrators
(ASIWPCA) and EPA. The study
resulted in the repurt “Americas Clean
Water-The States’ Nonpoint Source
Assessment. 1985” which indicated that
38 States reported urban runoff as a
major cause of beneficial use
impairment. In addition. 21 States
reported construction site runoff as a
maior cause of use impairment.
Studies conducted by the National
Oceanic and Atmospheric
Administration (NOAA) 2 indicate that
urban runoff is a major pollutant source
which adversely affects shellfish
growing waters. The NOAA studies
identified urban runoff as affecting over
578.000 acres of shellfish growing waters
on the East Coast (39 percent nf harvest.
limited area). 2.000.000 acres of shellfish
growing waters in the Gulf of Mexico
(59% of the harvest.limited area): and
130.000 acres of shellfish growing waters
on the West Coast (52% of harvesi.
limited areas).
B. Waler Quality .4mend.,ients of 1087
In an attempt to resolve the
controversy over the proper regulation
of storm water discharges. Congress
enacted the Water Quality Act of 1987
which. among other things. added
Section 402(p) to the CWA. Section
402(p) of the CWA was enacted in
recognition of the Agency s inability to
implement comprehensive requirements
for storm water discharges under the
NPDES program. Section 402(p) provides
a framework for EPA to implement
NPDES program requirements for storn
water discharges. Section 402(p)(1)
‘See ‘The Quality of Shellfish Growng Waicr,
on the Eaa Coast of the Ur, ,ted State. . NOA.A
is “The Quality of Sheilfiali Crowing Waters in
the Gulf of Mevico’. NOAA. 2988. and ‘lit. Quality
of ShetHisi i Ctowin Water. on the West Consi oI
the United States’. NCAA, ISSO.
-------
Federal Register / Vol. 58. No. 214 / Tuesday, November 5. 1991 I Rules and Regulations
56549
provides that EPA or authorized NPDES
Stales cannot require a permit for
certain storm water discharges until
after October 1. 1992. except for storm
water discharges listed under section
402 p)(Z) Section 4 OZ p )(2) lists five
types of storm water discharges which
are required to obtain a permit before
October 1. 1992.
(A) A discharge with respect to which
a permit has been issued prior to
February 4. 1987.
(8) A discharge associated with
industrial activity;
(C) A d:scharge From a municipal
separate storm sewer system serving a
populatian of 250.000 or more:
(D) A discharge from a municipal
separate storm sewer system serving a
population of 100.000 or more, but less
than 250.00&. or
(E) A discharge for which the
Administrator or the State. as the case
may be. de’ermines that the storm water
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to the waters of
the Uruted States.
With respect to storm water
discharges associated with industrial
activity. section 402(p)(4)(A) of the
CWA requires EPA to promulgate
regulations governing permit
applications requirements by ‘no later
than two years after the date of
enactment (i.e. no later than February 4.
1989). Section 402(pJ(4(A) also provides
that permit applications for storm water
discharges associated with industrial
activity “shall be filed no later than
taree years” after the date of enactment
(i e no later than February 4. 1990)
Permits far these discharges are to be
issued by no later than four years after
the date of enactment (i e. no later than
February 4, 1901). Permits must provide
for compliance as expeditiously as
practicable. but in no event later than
three years alter the date of permit
issuance.
C. November 16. 1999 Permit
Application Requirements
EPA promulgated permit application
regulations for the storm water
discharges identified under section
4C2(p)(2)(B). (C). and (I)) of the CWA.
including storm water discharges
associated with industrial activity, on
November 18. 1990 (55 FR 47990). The
November 16. 1990 regulations address
req iirements. including deadlines, for
two sets of application procedures for
storm water discharges associated with
industrial activity’ Individual permit
applications and group applications. in
addition, the notice recognizes a third
set of application procedures for storm
water discharges associated with
industrial activity. Those associated
with general permits. With these
requirements. EPA is attempting to
implement a flexible. cost-effective
approach for storm water permit
applications
The requirements for individual
applications for storm water discharges
associated with industrial activity are
Set forth at 40 CFR 12.28(c)(l).
Generally. the applicant must provide
comprehensive facility specific narra Live
ir.formauon including’ (1) A site map: (2)
an estimate of impervious areas. (3) the
identification of significant materials
treated or stored on site together with
associated materials management and
disposal practices: (4) the location and
description of existing structural and
non-structural controls to reduce
pollutants in storm water runoff. (5) a
certification that all storm water outfalls
have been evaluated for any
unperm:tted non-storm water
d:scharges: and (6) any existing
information regarding significant leaks
or spills of toxic or hazardous pollutants
within three years prior to application
submittal. in addition, an individual
application must include quantitative
analytical data based on samples
collected on site during storm events.
Under 122.26(ej(1) of the November 16.
1990 rule, individual applications must
be submitted by November 18. 1991.
The group application process allows
for facilities with similar storm water
discharges to file a single two part
permit application. Part I of a group
application includes a list of the
facilities applying, a narrative
description s iniznarizing the industrial
activities of participants of the group. a
list of significant materials exposed to
precipitation that are stored by
participants and material management
practices employed to diminish contact
of these materials by precipitation (see
40 CFR 122.28(cJ(2)(iJ). Under the
November 16. 1990 regulations. part I of
the group application was to be
submitied to EPA no later than March
18. 1991. The regulation provides that
EPA has a 60 day period after receipt to
review the part I appl’cations and notify
the groups as to whether they have been
approved or denied as a properly
constituted “group” for purposes of this
alternative application process Part 2 of
the group application contains detailed
information, includtng sampling data, on
roughly 10 percent of the facilities in the
group (see 40 CFR 1.28(cJ(2J(ii) for a
complete description of the
requirements of part 2 group
applications). Under the November 18,
1990 regulations. part 2 applications
were to be submitted no later than 12
months after the date of approt al of the
part 1 application. Also under the
November 16, 1990 regulation. facilities
that are re ected as members of a group
were to have 12 months from the date
they receive notification of their
re)ection to file an individual permit
application (or obtain coverage under an
appropriate general permit)
The group application process has
been designed by EPA as a one-time
administrative procedure to ease the
burden on the regulated community and
permitting authorities in the initial st .i e
of the storm water program.
The third application procedure
entails seeking coverage under a general
permit for storm water discharges
associated with industrial activity
Dischargers covered by a general permit
are excluded under 40 CFR 122.21(a)
from requirements to submit individual
or group permit applications. Condttior.s
for filing an application to be covered by
a general permit (typically called a
Notice of intent (NOl )) are established
on a case-by-case basis. in almost all
cases, general permits require the
submittal of NOb containing basic
information such as the name and
address of the facility and a brief
description of the discharge and
receiving water.
The November 16. 1990 regulations
also estab!ish a two part application
process for discharges from municipal
separate storm sewer systems serving a
population of 100.000 or more. The
regulations lists 23) cities and counties
that are defined as having municipal
separate storm sewer systems serving a
population of 100.000 or more and
allows for case-by-case designations of
other munic pal separate storm sewers
to be part of these systems (55 FR 48073
48074). The regulations provide that part
I apclications for discharges from large
municipal separate storm sewer systems
(systems serving a population of 50.000
or more) are due November 18. 1991.
Part 2 applications for discharges from
large systems are due on November 16.
1992. Part I applications for dischorges
from medium municipal separate storm
sewer systems (systems serving a
population of 100.000 or more, but less
than 250.000) are due May 18. 1992. Part
2 applicaticris for discharges from
medium systems are due on May 18.
1993.
o March 21. 1991 Final Rule
Despite extensive public outreach
efforts. EPA received a significant
number of requests to extend the March
18. 1991. deadline for filing part 1 of the
group application. Numerous parties
expressed concern that although they
were currently forming groups. they
-------
56550 Federal Register / Vol 56, No 214 / Tuesday. November 5. 1991 I Rules and Regulations
would not be able to file the part 1
application by the March 18. 1991
deadline In particular, concerns were
raised by municipal governments ‘ EPA
learned that a number of small
mumcipatities were largely unaw 0 re of
the impact of the new storm water
regulations Many of these
municipalities apparently mistakenly
believed that since their municipal
separate storm sewer syStems were riot
covered by the November 16. 1990 rule.
they were also not required to submit
applications for storm water discharges
associated with industrial activity that
they owned or operated.
EPA also became aware that many
industrial facilities were having
difficulty determining whether the new
regulations apply to them. EPA defined
the scope of coverage in the November
16. 1990 rule on the basis of SIC codes.
However, many facilities engage in
operations that can be classified under
more than one SIC code: some of these
operations are covered, while others are
not The Agency estimates that over half
of the twenty-three thousand phone
inquiries received by the storm water
hotline asked questions about the scope
of the final rule as it applies to industrial
activity Since many facilities could not
quickly determine whether they were
covered by the regulation. many got a
late start in developing applications to
meet the requirements and deadlines of
the November 16. 1990 storm water rule.
To address these concerns. EPA
e’ctended the part I group application
deadline from March 18. 1991 to
Seotember 30. 1991. (56 FR 12098 (March
21 1591)) EPA indicated that it believed
that a six month extension to the part 1
group application deadline was an
appropriate amount of time for members
of the regulated community to determine
their status under the November 16. 1990
rule, to organize groups. and to submit
part 1 applications. In making this
aeterinination. the Agency noted that
the part 1 application require. a list of
facilities applying, a narrative
description summarizing the industrial
activities of participants of the group, a
list of significant materials exposed to
precipitation that are stored by
participants and material management
practices employed to diminish contact
of these materials by precipitation
The Nover’.ber iS i990 rule establishes permit
.ippiications toe storm wsler discharges isasocialed
with inOusinal activity including such discharges
ownpa or r)peratpd by Federai Slate or municipal
.nhi;ie, see 40 CI’R 1 .:e4bi 11411
Several commernev, on Ifle March 21 1991
‘ioilcet. espreased confusion over the requirements
of I sri I ni he group sppiicai.on The Agency
wants to ‘Ignty thai Ih NPOF.S Form i ,ippii aiton
As part of the March 21. 1991 final
rule. EPA also established May 18. 1992
as the fixed deadline for submission of
part 2 of the group applications The
November 16. 1990 regulation had not
established a fixed deadline for
submitting part 2 of the group
application but rather provided that
part 2 applications were not due until
one year after the part 1 was approved
by EPA Under the March 21. 1991 final
rule, part 2 applications were to be
submitted by no later than May 18. 1992
even if EPA’s approval of the part I
occurred after May 18. 1991 In other
words, groups that take advantage of
the part 1 group application deadline
extension would have less than the full
year to complete their part 2.
E. March 21. 2991. Proposal
EPA also published a proposed rule
on March 21. 1991. addressing two other
deadlines for submitting permit
applications for storm water discharges
associated with industrial aciivtty. The
proposal requested comment on
extending the deadline for submitting
individual applications from November
18. 1991 to May 18. 1992. In addition, the
notice proposed to provide that
members of group applications that are
rejected from the group application must
file an individual application or obtain
coverage under an appropriate general
permit by no later than May 18, 1992. (56
FR iz ’im. (March 21. 1991)).
The objective of this proposal was to
address and solicit comment on the
relationship between extending part I
group application deadlines and revising
other application deadlines for storm
water discharges associated with
industrial activity
EPA noted several goals associated
with the proposed changes: to reduce
confusion in the regulated community
over what application requirements
affect which facilities on which dates. to
treat all regulated facilities as equitably
as possible. and to avoid serious delays
in the issuance of permits for storm
water discharges and the
implementation of necessary controls
leading to the desired water quality
benefits.
P Progress to Date
As discussed above. EPA has
wrestled with storm water issues for 20
years. Since the adoption of the 1987
amendments to the CWA EPA has been
committed to prompt and effective
implemcnta ion of section 402(p) The
November 16. 1990 reguld lions reflect
EPA s goal of addressing high risk
is no, required Irom each facility Puit is
participating in d SIOUP .ippiicaiiori
sources of storm water quickly and
without excessive burdens to the
regulated community To that end, the
November 16 regulations established .
flexible regulatory framework by
prcvidtng dischargers with the option oF
p.i ticipating in a group apphcation aria
by encouraging the issuance of general
pe”mtts through the development of a
risk-based four tiered strategy for
permitting storm water discharges
associated with industrial activity
EPA believes Congress. in adopting
section 402(p). wished to strike a
balance between the risks associated
with industrial storm water discharges
and the burdens of controlling the large
number of industrial sources in a short
time frame, and that the November 16
1990 regulations represent a good faith
effort to achieve Congress’ intent
Nonetheless. EPA is aware that the
regulated community has already
encountered significant difficulties in
attempting to comply with the
regulations, as further discussed below
Despite what EPA believes to be a
general acceptance in the regulated
community of the need to address r:s c
associated with storm water, the
implementation problems discussed
below have caused confusion and
frustration.
EPA has taken a number of steps to
improve the implementation of the storm
water program since the adoption of the
November 16. 1990 regulations.
Processing permit applications for the
large number of storm water discharges
associated with industrial act vity is
expected to place significant burdens on
EPA and authorized NPDES States In
response to concerns about these
burdens. the Agency has developed a
preliminary four.tiered permit issuance
strategy for storm water discharges
associated with industrial activity (see
55 FR 48002. (November 16, 1990))
General permits are expected to play an
important role in the strategy
On August 18. 1991 (58 FR 40948). EPA
published draft general permits for the
majority of storm water discharges
associated with industrial activity in
those States where the Agency is the
permitting authority. A major emphasis
of the draft general permits is to
establish requirements for storm waler
pollution prevention measures and best
management practices. The commeni
period for these permits closed on
October 15. 1991 The Agency intends io
issue final general permits for storm
wdter discharges associated with
industrial activity as soon as possible
after the comment period closes EPA is
also developing a form for NOIs for the
draft general permits that can be read
-------
Federal Register I Vol. 56. No. 214 1 Tuesday. November 5. 1991 I Rules and Regulations 56531
by automatic data processing
equipment. This will assist the Regional
‘)ffices and authorized NPDES States
hich use the NOl form in handling and
.ilrng the NOls.
EPA cannot issue a general permit in
an authorized NPDES State. In addition.
general permits can only be issued for
discharges in States with authorized
NPDES programs where the State is
authorized to issue general permits. EPA
has worked closely with authorized
NPDES States to assist them in
obtaining the necessary authority to
issue general permits. During 1991. 11
authorized NPDES States obtained
general permit authority. Currently an
additional 11 authorized NPDES States
do not have authority to issue general
peri its. EPA is working closely with the
ii authorized NPDES States without
general permit authority to assist them
in obtaiung the necessary authority to
issue enera1 permits. Appendix A of
this notice provides a list of authorized
NPDES States, and the status of general
permit approval. Those 28 States that
presently have authority to issue general
permits for storm water discharges may
ao so without ait1ng for EPA to issue
EPAs general permits. Initial
information from authorized NPDES
States indicates that at least 23 of the
authorized NPDES States are in the
ocess of developing or have already
sued general permits for storm water
discharges.
EPA also received over 1.200 group
applications by the September 30, 1991
di adline for part I of the application.
The Agen y 1 estirnates that these group
apol:catior1 represent over 45.000
industrial 1ac lities. Currently, the
Agency has completed an initial review
of over 900 part I applications. The
Agency anticipates that the part I
rev:ew process for all applications will
be completed by December, 1991.
As part of the process of
implementing the national storm water
initiative called for by section 402(p) of
the Clean Water Act, the Agency has
undertaken substantial efforts to
provide the public with notice of the
new storm water program requirements
arid explain the different application
alternatives. As part of this outreach
effort. EPA’s Office of Wastewater
Enforcement and Compliance (OWEC)
established a hotline which has fielded
cver twenty-three thousand telephone
inquiries on the scope of the program.
application requirements. and related
issues Over ten thousand copies of the
November 16. 1990 rule were pnnted
md distributed to States. EPA regions,
iterest groups and members of the
kjubllc. In addition. OWEC has held full
day workshops in ten cities across the
country dunng the first six weeks of
1991 and has addressed storm water
requirements at over 30 other
conferences and speaking engagements.
State and EPA regional representatives
have also contributed to this effort by
participating in numerous local
workshops and conferences on storm
water discharge permit application
requirements.
C. Future D:rect ons
EPA will increase its outreach efforts
to work with and listen to the States.
regulated community, environmental
groups and other customers to more
fully identify issues and problems with
storm water regulatory requirements.
EPA has already outlined above a
number of activities to be taken in the
next year to assist program
implementation. These activities include
issuances of general permits.
development of automatic data
processing equipment for handling
NOls. assisting authorized NPDES
States to obtain general permit authority
and to issue general permits. and review
of group applications, in addition, the
Agency will continue its outreach efforts
by developing guidance and conducting
and attending additional workshops.
The Agency is actively working on
improving the efficiency and scope of
the storm water hotline. In addition. the
Agency is developing a question and
answer document and information
brochures for public dissemination. The
Agency is also developing two permit
writer’s guidance documents for
preparing industrial and municipal
storm water permits.
These and other broader efforts will
assist the Agency in identifying major
issues of concern with implementation
of the storm water permitting program.
such as, whether the program is
appropriately targeting high risk
discharges, the potential for pollution
prevention alternatives, the potential for
cross-media impacts. and whether
further adjustments to the program are
needed. EPA will use the feedback from
its outreach efforts to enhance the
ability of all the key players to succeed
in accomplishing the important goal of
reducmg nsk from contamtnat d storm
water.
II. Today’. Final Rule and Response to
Comment
EPA received over 120 comrcz.’n s an
the March 21. 1991 proposaL Alter
careful consideration of these
comments, the Agency is extending the
deadline for submitting individual
applications for storm water discharges
associated with industrial acti% try from
November 18. 1991 to October 1. 1992
Today’s rule also establishes a fixed
date of no later than October 1. 1992 by
which facilities rejected from group
applications must either file an
individual application or be covered by
an appropriate general permit for their
storm water discharges associated with
industrial activity.
EPA is granting these extensions to
allow rejected members of groups
additional time to obtain sampling data.
and to ensure that all individual
applications for storm water discharges
that are currently not authorized by a
permit are due at the same time to avoid
further confusion in the regulated
community. The extension for individual
applications will also provide facilities
that are currently unaware of their
responsibilities under the storm water
program additional opportunities to
comply with appropriate regulatory
requirements. Also, operators of storm
water discharges in many areas of the
country will have additional
opportunities to collect data during
summer months. EPA also notes that
establishing a deadline of October 1.
1992 for these applications will provide
additional time for permit isswng
agencies to issue general permits for
storm water discharges associated with
industrial activity.
This notice also provides a technical
amendment to 40 CFR 122.26(el(6l This
techn cal amendment is necessary to
avoid ambiguity. The technical
amendment provides thst facilities with
exisnr.g NPDES permits for storm water
uischa.’ges associated with industrial
activity which expire on or after May 18.
1992 shall submit a new application in
acca’.iance with the requirements of 40
CTR 22.21 and 40 CFR l .26(c) (Form
1. r m 21. and other applicable Forms)
i&a davc before the expiration of such
permits This technical amendment does
nor , epresent a substantive change from
the ‘. ;vember 18. 1990 rulemaking.
Under the November 16. 1990
rulemdking, facilities with existing
NPDES permits for storm water
discnarges that have to reapply for
pei’nit renewal during the first year
folloi .rig promulgation of the rule have
the uptiori of either applying in
ae’ordunce with existing Form I and
Form 2C req arements or applying in
accordance with Form 1 and the new
Form 7F requirements. However, the
existing regulatory language addressing
this rPquirement (at 40 CFR 122 26(a)(e’)
rek’r, hotii to May 18, 1992 s and 40 CF’R
• Note ihil 40 CFR i22.ifldj ,rnIu,,e Iecut,th’.,
wdh e iutin NPDI peinut. to auhini a new
(anIInw.’.i
-------
56552 Federal Register / Vol. 56. No. 214 / Tuesday. November 5. 1991 / Rules and Regulations
122.25(e)(1) (the deadline for submitting
individual applications changed by
todays rule).
The deadline for facilities with an
existing permit was primarily intended
to provide facilities with existing NPDES
permits for storm water discharges with
a period of one year during which they
could submit either Form 2C or Form 2F
(see 55 FR 48059). Thus it is necessary to
provide a technical amendment at 40
CFR 122.26(e)(6) to maintain the onginal
intent of the provision (i.e.. to require all
facilities with existing permits to start
using Form 2F one year after the
November ig, 1990 rule). EPA does not
believe that it is necessary to extend the
deadline for these facilities to use the
Form 2F requirements because facilities
with existing NPDES permits for storm
water discharges are generally familiar
with the NPDES program. In addition.
even if EPA extended this deadline.
these facilities would still be required to
submit Form 2C for their storm water
discharge.
El ewhere in todays Federal Register.
EPA is publishing a notice of proposed
rulemaking requesting comment on
extending the regulatory deadline for
submitting part 2 of a group application
from May 18. 1992 to October 1. 1992.
EPA wishes to emphasize that today’s
final rule does not affect the application
deadlines for discharges from municipal
separate storm sewer systems that are
specified in the November 16. 1990 rule.
Part I applications for discharges from
large munic;pal separate storm sewer
systems are still due by November 18.
1991. Part I applications for discharges
from medium municipal separate storm
sewer systems are due by May 18. 1992.
EPA has no information to suggest that
operators of these systems, which are
specifically enumerated in the final
regulation (see 55 FR .48073—74
(Appendices F—I to part 122)) or were
specifically designated on a case-by-
case basis. are unaware of the
November 16. 1990 regulations.
A. Deadline for IndividualApplicazion s
The vast majority of comments
received on the March 21. 1991 proposal
supported extending the deadline for
submitting individual permit
applications. A variety of reasons were
given to support the proposed extension.
A significant number of commentep,
identified the complexity of the permit
application requirements published on
November 16. 1990. as the reason for
their support of the proposed deadline
extension. Other commentej’s focused
application at east 160 diiys before th, eeplrauon
del, of ths existing prima. November 16. U191 is 180
days prior to May ii. 1992
on the need for additional lime to obtain
representative storm water samples to
complete the individual application.
Some cominenter, urged EPA to
extend the deadline for submitting
individual permit applications for storm
water discharges associated with
industrial activity beyond May 18. 1992.
to a suitable date after general permits
are issued for storm water discharges.
These commenter , indicated that such
an approach had the advantage of
ensuring that discharger, would have
three options for submitting applications
(e.g.. individual applications, group
applications, or obtaining coverage
under an appropriate general permit).
This would allow discharger, to select
the most cost.effective approach
allowable under the NPDES regulatory
framework.
Based on a consideration of these
comments. the Agency is extending the
regulatory deadline for submitting
individual permit applications for storm
water discharges associated with
industrial activity from November 18.
1991 to October 1. 1992. As discussed in
more detail below and in the proposed
rule appearing elsewhere in todays
Federal Register, the Agency also
believes that it is appropriate to extend
certain deadline, associated with the
group application process to October 1.
1992 to provide a full year for affected
facilities to conduct the necessary
discharge sampling. Establishing the
same deadline for individual
applications and applications associated
with the group application process will
provide equitable treatment of
discharger, while minimizing confusion
over the deadlines, Based on comments
received on the March 21. 1991 proposal,
as well as those received on EPA’s
storm w ter proposals in 1985 and 1988.
one year is generally an appropriate
minimum amount of time to assure that
the required sampling can be completed.
in light of arid conditions in some areas
In the summer, and cold conditions in
other areas in the winter,
The extension of the deadline for
individual applications will provide
facilitie, that are currently unaware of
their responsibilities under the storm
water program additional opportunities
to comply with appropriate regulatory
requirements. This extension will also
prnvide opera tore of storm water
discharges in areas of the country with
extended winter conditions a better
opportunity to collect representative
sampling data of their siorm water
discharge. A number of commenters
have expressed concerns that
difficulties may arise in collecting storm
water discharge sampling data during
the winter months due to the potential
for limited number, of discharge events
and adverse weather conditions coupled
with lack of sampling experience of
many facilities that are submitting
applications for the first time.
EPA notes that this extension will
also provide authorized NPDES States
with additional time to issue general
permit, for storm water discharges
associated with industrial activity
consistent with EPAs long-term
permitting strategy for storm water
discharges associated with industrial
activity.’ On August 18. 1991. (56 FR
40948), EPA published a proposal
requesting public comment on draft
general permits for storm water
discharges associated with industrial
activity in States and territories without
authorized NPDES programs.’ The
Agency intends to make every effort to
issue these general permits in the spring
of 1992.
However. EPA has decided against
basing the deadline for submitting
individual per:nit applic’ation, on the
date that general permits are issued
because of the potential confusion and
uncertainty that would anse. The
Agency is also concerned that
unacceptable delays may result under
this approach in States where the
issuance of a general permit is delayed.
Although the Agency is proposing
draft general permits for storm water
discharges in States without authorized
State NPDES programs in one notice. it
may not finalize all of these permits on
the same date. The Agency expects that
various region-specific. State-spec:fic. or
industrial category-specific issues may
take different amounts of time to
address, It should also be noted that the
August 16. 1991 proposal does not
address general permits in authorized
NPDES State,. Each authorized NPDES
State that will issue general permits for
storm water discharges associated with
industrial activity will have to go
through the procedures for issuing
‘ A has requested public comment on $ tout
tiered long-tern peilnhtting utrateajr (or shorn water
discha, 5 e, associated with iad stri,j scinily (see
August 16. 192i. 56 FR 409 51j and November1 5.
1550(55 FR 47590)). flee I of the strateer relie, on
baselin, general permits (or itt . matonty of storm
water discha,ges auocsaied with industgial ect:vity.
The notice addresses draft general permits in 1:
Stair, (MA ME. NH. FL LA. TX. OK. NM. SD. AZ.
AK. iDI. and air Territories (District of Columbia.
the Comntonwe.tth of Puerto Rico. Cuani. American
Samoa the Commonwealth of the Northern Manana
islands, and the Trust Temiory of the Psctl’ic
isiand I without auihort ed NPDES State pingram ,.
on indiijn lands in AL. CA. CA. ICY. Mi. MN MS.
MT. NC ND. NY. NV SC. Th. LIT. WI. and WY.
located within federal (aciiiiie. and indian land, in
CO and WAj and located within federal facilities in
Delaware
-------
Federal Register / Vol. 53, No. 214 I Tuesday. No ember 5. 1991 I R iles and Regulations
56553
general permits of that State. Different
oermit issuance procedures. along with
.n’rier factors, will result in these permits
being issued at different times. Au of
these factors indicate that a tremendous
amount of uncertainty and confusion
ould iesult if EPA attempted to tie
regul . tory deadlines for submitting
permit applications to the dates when
general permits are issued
lr. addition, the Agency anticipates
that there will be situations where the
permitting authority determines that
general permits are inappropnate for a
gi en class of storm water discharges.
Additional confusion would arise in
tnese situations if application deadlines
were tied to the dates of general permit
issuance.
One comment stated that EPA’s
extension of permit application
deadlines for storm water discharges
associated with industrial activity was
illegal in light of the deadline in section
402(pH4)(A) of the CWA. In response.
EPA first notes that section 402(p)(4)(A)
uf the CWA requires EPA to promulgate
regulations governing permit application
requirements for storm water discharges
associated with industrial activity by no
later than February 4. 1989. Section
402(p)(4)(A) also provides that permit
applications for storm water discharges
,qsociated with industrial activity shall
be filed within one year (i.e.. no later
than February 4. 1990).
EPA is fully aware of the deadlines in
section 402(p) of the CWA that address
w en EPA is to establish permit
aapiicaiion requirements for storm
v.ater d:scharges. when applications are
to e submitted and when permits are to
be issued. The Agency notes that.
despite its best efforts. it was not able to
promulgate application requirements for
storm water discharges associated with
ir.dus:rial activity by the February 4.
1989 deadline provided by the CWA.
F.PA cecogruzes that the deadlines
finalized in the November 16. 1990
notice, the March 21. 1991 final rule and
today’s rule do not synchronize with the
deadlines provided in the CWA. The
Agency believes that it is reasonable
and necessary to establish regulatory
deadlines for submitting applications.
which occur after the statutory
deadlines, to give applicants sufficient
time to comply with the regulatory
requirements for permit applications.
The Agency is convinced that this
approach is necessary for the
development of enforceable and sound
permits for storm water discharges. The
ublic s interest in a sound storm water
,ermitting program is best served by
establishing application deadlines that
will al!ow sufficient time to gather.
analyze. and prepare meaningful
applications. EPA believes this
extension of the application deadline is
necessary to accomplish this goal
because a significant number of
facilities have not had adequate time to
prepare applications because they were
unaware of the regulatory requirements
or because of uncertainty regarding the
scope and applicability of the regulatory
definition of storm water discharge
associated with industrial actrwty. or.
for some facilities, that they would be
rejected from a group application.
By establishing later regulatory
application deadlines, EPA is not
attempting to waive or revoke the
statutory deadlines established in
section 402(p) of the CWA. and the
Agency does not assert the authority to
do so. Dischargers concerned with
complying with the statutory deadline
should submit a permit application as
expeditiously as possible.
B Deadline for FaciliLies Rejected from
Group Applications
Some commenters supported an
extension of one year from the date that
facilities are rejected from a group
application. These cominenters argued
that such an extension was appropriate
to ensure that all facilities rejected from
a group application had a sufficient
opportunity to collect sampling data.
A number of coinmenters expressed
their belief that the deadline for
facilities that are rejected from a group
application to submit individual
applications should be extended beyond
the date proposed by EPA. May 18. 1992.
Several suggestions for a later deadline
were made, including providing one year
after the date EPA rejects the facility
from the group application, and basing
the deadline on when general permits
for storm water discharges associated
with industrial activity are issued.
EPA believes that establishing a fixed
deadline of October 1, 1992 for facilities
that are rejected from a group
application is warranted for the same
reasons that the Agency articulated
above and in the proposal. This
approach provides an equitable
deadline for these facilities, reduces
confusion and uncertainty in the
regulated community. and provides
sufficient time to complete the sampling
necessary to obtain quantitative data.
The extension will also have the side
benefit of giving permit issuance
authonties additional time to issue
baseline general permits for storm water
discharges associated with industrial
activity.
Commenters supporting the position
that the application deadline for
facilities that are rejected from a group
application be based on the date of
issuance of a general permit indicated
that such an approach would ensure
that dischargers would have three
options for applying for a permit. EPA
dec’lines to adopt this approach out of
the same concerns about potential
confusion and uncertainty indicated
above in the context of the indi idual
application deadline To reiterate. EPA
believes that such an approach 13
unmanageable because general perrnit
will be issued on different dates and
because the approach would not clearly
establish deadlines for discharges that
the permit authority did not intend to
co er with a general permit.
Again, one cornmenter contended that
this extension was illegal because the
deadline exceeded the statutory date of
February 4. 1990 for submitting
applications. EPA’s response on this
issue is noted above.
II I. Regulatory Requirements
Today’s rule makes no change in the
substantive requirements of the storm
water program. places no additional
information collection or record-keeping
burden on respondents. The rule meets
none of the criteria for a major rule
under Section 1(b) of Executive Order
12291. The information collection
requirements in this rule have already
been approved by the Office of
Management and Budget and been
assigned 0MB control number 2040—
0086. An additional inf irmation
collection request has not been prepared
and submitted to the Office of
Management and Budget (0MB) under
the Paperwork Reduction Act. Since this
rule does not change any existing
substantive requirements. I certify that it
will not have a significant impact on a
substantial number of small entities
under the Regulatory Flexibility Act.
Today’s rule is effective on November
18. 1991, EPA believes there is good
cause under the Administrative
Procedure Act to make this rule effective
in less than 30 days. Given the pie-
existing November 18. 1991 deadline, it
is necessary for this rule to be effective
on or before that date to avoid confusion
in the regulated community. (5 U.S.C.
553(d)).
List of Subjects in 40 CFR Part 122
Administrative practice and
procedure. Reporting and recordl eeping
requirements. Water pollution control.
Daied October 24, 1991.
William K. Redly,
Adm:nistmior
For the reasons set out above, part
122. chapter 1 of title 40 of the Code of
-------
6554 Federal Rei ister / Vol. 50. No. fl4 / Tuesday. Novemlier 5. 1991 / Rules und Regulations
Federal Regulations is amended as
Iollowm
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The euthority citation for part 122
cotitinues to read as follows
Authonty The Cidan W tcr Act. 33 U S.C.
151 el. seq.
Subart a—PerniIt Application and
Special NPOES Program Requirements
I 122.2$ [ Amend.dl
2. In § 1.ZSfe)(l). “November 18.
1991” is revised to read “October 1.
1992 ”.
3. In § 122.20. paragraphs (eJ(2)(iv)
and (el(0) are revised to read as follows:
§ 122.2$ Star ,. water dlachwgu
(applicabli to Stat. MPDES peo anto. us
§ 123.25).
(eJ
(2)
(iv) Facilities chat are re ected as
members of the group shall submit an
individual application no later than 12
months after the date of receipt of the
notice of re ecuon or October 1. 1992.
whichever comes first.
. . . . I
(6) Facilities with existing NPDES
pçrmits for storm waler thscharges
associated with industrial activ1ty shall
mainI in existing permits. Facilities with
permits for storm waler discharges
associated with industrial acnvity which
expire on or after May 18. 1992 shall
submit a new application in accordance
with the requirements of 40 CFR 122.1
and 40 CFR 12.26 1c( (Form 1. Form 2F.
and other applicable Forms) 180 days
before the cxpuratlon of such permits.
. I • •
Note: The followIng appendices will not
appear in the Code of Federal Regulations.
APPENDIX A—STATE NPDES PROGRAM
STATUS AS OF SEPTEMBEa 20. 1991
—
Stats
NPOES
penod
Apoiowd
general
iopsm
Delaware ._._. -
Georgia..... —
flfrtos..
tmte
Iowa...___
APPENDIX B
I D.. 4.I L J a, N.,.n IL 1990 RJ . . 4 I
R.wad D.siaaie
R .gi toiy DseoMwa Slam ’ water 0ia n& .. As.
1
so stad m Imlse
ii vGjal As —
i
No. 1 u 18 1991 ‘ .. —- —
12 mo lVt ( loin the date of notification cf re,scIion 3 - ..
I
Octcøer 1. 1992.
Octooer 1 1992.
Ifdvidual A ØCata,fl t, m laokiy ‘epected ( mm gie aggica.
ton
Groi Aoc4cssoie Psi i.....__...... . ........ —— M .oiI to. iso , .._ .._..... .
Gr ACOMaDOn. Psi 2__.._......__...._. 12 montns aftal- SIS data of ap vsi Cf Pan I aggx.eon ‘...
tr A99 1caia,n horn (aoliiy with eaaeiig NPOES pennn....., 180 days pnor to date that peittla s laves ... —
k vidu a) AcØcat ,on t o, tonsouceon activities di ftjt9 it 5 o, 90 ior l mm.ncsmeni of corsvucton.._... . ........... —
‘wee._
It mlial for new atom wets, dadtargs. (Other 100 deyi bela ,. tM daotIWgS ia (0 CeiflmsnCS.........
Utot cansthnsan acavatol.
Seotanteer 30. 1991
May IS. 1992.
Seine.
Same
Sane.
Regutatafy A p1icaDon OsadSne. (or d isdwgsl I rein Mwi al
S.oarste Stem, Swar Sywane
M&jtim’al s .i Sic ,, ,, s. ..- p .
ton Cf 200.000 a, resw.
ps, ••.. __. ..
r ...uc. IL 1991
Do .
MuSareal Sagarwa Stan. S Systame S..wig a Poguta.
eon of 100000 or mmw. laS lees ene, 250.000.
eu a.._______________________________
Pan I —
ri.....ac.. to. 1992
May 18. 1992.
00....... .
Psi 2..
May 17. ¶993
Noes Pwaorw sd by guns’al ps,mts .s — ‘--l from r anrneme to setnia N a p 5mM a pNcaDsni wa 10 CFR 122.21(a)) . W . toOI DOn
teteeinsnte aiM U.a ( flha (or a giner panto. , .l ..J to to a mx . Cf Iflusm (NOl). its ssttolunsd ii ths garesle pemia. Of STem’ $tif tesowges
wt 5d with unthiaDlal sTh ,ty w’ecfl ars asnetop not aM1 O by an NPOES camel nejel s , esl an m unduaJ . ppkweon . mn esSi Pam 2 gitem eccecation
rea,wsm.flte, or cotam 4la9 Midar all g.. .M 5 50 5 by May IS. 1992.
I Ponv ,q watesson iseiwumewa for stern wets, a_-_.ot.d me, ulinmeiltel scanty l us.vj rea,jtemelto tar owned or
Operated Dy Feowsi. Slat.. or “elI M Sflbtito wa 40 CFR I22.26(butld)).
‘Modi(ue 5 by (0 u ruts.
Moa .u Op today a
• Moalfued on Merori 21. 1991 (58 FR 12093)
Etasuumer. I’ todays F€om,*i. ReGIsTER. EPA is cr000ling to extend Ot. deedline to, submitting Pet 2 01 810 ço,jp a pIucason (tom May 10. ¶992 to Octo oc
I 1992.
• Ploditmd Oil Marco 21. 1991 (50 FR 12099)
tUflCfl 5flged Irom NouleiTtos , IL 1990 uu. (55 FR 47990)
APPENDIX A—STATE NPDES PROGRAM
STATUS AS OF SEPTEMOER 20. 199 1—
Continued
NPOES
oetiiit
arograin
Aco,oved
c ’egam
Kansa s 06 /28/74
Kan nj cSy ... 09/30/83
09 /30/83
- — . .j 09/05/74
I 10111173
06/30/7’
09/30/91
12/15/87
Mi . .. .ev ..
05 /01/74 I
10/30/74
09/27/91
12/ 1V85
Missotil ..__..._ _._.._._ ...
06/10/74 I
01/29 /83
Neo,asiia.............._.......
06/12/71 j
09/19/75
07/20/89
NsvsUa. ._.......... .... ...._
Nsw Jeisey
01/13/82
04/13/82
New Ya,x .._._.._...._ - . 10/28/15 I
MoithCavo l e ta ... I 10/19/75 I
Maim Dafcoia......._.........J 06 /13/75
09/06/91
0 1/22/90
....._..j 03/11/74
Otegon ............_................‘ 09/28/73 I
. I 06 / 0I78
02/23/62
08 /02 /st
Rhoosialsid....._.__l 09117/81
09/17/81
SaiutiiCasows_J 06110/75
Ternessoe_...._..___ 12/2811 !
Utail O7/07f 7
v e iman l_. ....... _... .._ I 03/11/74 I
04/18/91
07/07/87
v.vgun aito 08/30/76W.
vvgwia 03131/75
Waatungwn_......._.._. I 11/14/73
WesIVWgInha......_._.__.... 05/10/82
02/04/74 I
Wycrung . 01/30/75
39 j
05/Z0/9 1
09/26/09
05/10/02
12/ 19/8 8
09/24191
20
ArKansas ....__
CaMomue ..-.-
10/19/79
11/01/86
05/14/73
05/27/73
09/26/73
04/01/74
06/28/74
11/28/74
10/23/77
01/01/75
00/10/78
06/20/91
11/01/80
09/22/89
05/04/83
01/28/91
09/30 91
01/01104
04102/91
IFR Doc. 91—28322 Filed 11—4—92; 8.4s am)
OiU.1iO COOS IN S-aD-al
-------
Federal Register / Vol 56. No. 214 I Tuesday. ‘Jovember 5. 1991 I Proposed Rules
ENVIRONMENTAL PROTECTION
AGENC (
40 CFR Part 122
I FRL —4027-2 I
National Pollutant Discharge
Elimination System Permit Application
Regulations for Storm Water
Discharges; Application Deadlines
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: Not ce of proposed rulemaking
SUMMARY: As a result of issues and
concerns raised in Comments on the
March 21. 1991 (56 FR 12098) proposal.
EPA requests public comments on
extending the regulatory deadline for
submitting Part 2 of group applications
for storm water discharges associated
with indus’rial activity from May 18.
1992 to October 1. 1992. The Agency
believes that this extens :on will provide
a -i aopropriate opportunity to conduct
s impling to support the Part 2
a p!cation and will allow for permit
issuilg agencies to issue general
permits
DATES: Comments on this notice must be
recci’ ed on or before December 5. 1991
ADDRESSES: The public should send an
original and two copies of their
comments to Thomas J Seaton. Office of
Wastewater Enforcement and
Compliance (EN—336 ), United States
En irorirr.ental Protection Agency. 401 M
Street. SW. Washington. DC 20460 The
p.:blc record is located at EPA
Headauarters. EPA Public Information
Rei rence Unit, room 2402. 401 M Street
SV.’. Washington. DC 20460
FOR FURTHER INFORMATION CoNTAC’r
Fjr information on this rule contact the
.PDES Storm Water Hotline at (703)
8.’.—4823. or Thomas J. Sea tor.. Office of
\Vasewater Enforcement and
Compliance (EN—336). United States
E w:rorunental Protection Agency. 401 M
Street. SW., Washington. DC 20460.
(.W2J 260—9518.
SUPPLEMENTARY INFORMATION:
I Background
On November 16. 1990 (55 FR 47940).
EPA published regulatory requirements.
it cluding deadlines, for group
applications for storm water discharges
dssociated with industrial activity The
group application process allows for
f.icilities with similar storm water
d.scharges to file a single two part
permit applicat:on
Part I of a group appl:cation includes
a list of the facilities applying, a
narrative description summarizing the
industrial ac..tivities of parti:ipants of the
group, a l 1 st of significant materials
cxposed to precipitation that are stored
by participants and material
management practices employed to
diminish contact of these materials by
precipitation (see 40 CFR 122.26(c)(2l(i))
Under the ovember 16. 1990
regulations. part 1 of the group
application was to be submitted to EPA
no later than March 18. 1991 The
regulation provided that EPA has a 60
day period after receipt to review the
Part 1 applicat’ons and notify the groups
as to whether they have been approved
or denied as a properly constituted
“group” for purposes of this alternative
application process.
Part 2 of the group application
contains detailed information, including
sampling data, on roughly ten percent of
the facilities in the group (see 40 CFR
122.26(c)(2)(ii) for a complete description
of the requirements of part 2 grouo
applications) Under the November 16.
1990 regulations. part 2 of the group
application was to be submitted no later
than 12 months after the date of
approval of the part 1 application
On March 21. 1991 (56 FR 12098). EPA
published a final rulemak:ng extending
the part I group application deadline
from March 18. 1991 to September 30.
1991. EPA indicated that it believed that
a six month extension to the part I
group application deadline was an
appropriate amount of time for members
of the regulated commur.ity to determine
their status under the November 16, 1990
rule, to organ: e groups. and to submit
part I application3 As part of the March
21, 1991 final rule. EPA also established
May 18. 1992 as the fixed deadline for
submission of Part 2 of the group
applications
EPA also pub i hed a proposed rule
on March 21. 1991. addressing two other
deadlines for submitting permit
apphcat;ons for storm water discharges
associated with industrial act; ity The
proposal requested comment on
extending the deadline for submitting
individual applications from November
19. 1991 to May 18. 1992 In addition, the
notice proposed to provide that
members of a group application that are
rejected from the group application must
file an individual application or obtain
coverage under an appropriate general
permit by no later than May 18. 1992. (56
FR 12101. (March 21. 1991))
II. Today’s Notice
As a result of issueq .ini concerns
raised in comments on the March 21.
1991 proposed dead!ine extensions. EPA
is requesting comments on extending the
deadline for suiimit’ir.g p .Iri 2 of the
group application from ‘ 1ay 18. 1992 to
October 1. 1992 The genc believes
56535
that this extension will provide an
appropriate opportunity to conduLi
sampling to support the part 2
application. It will also allow for permit
issuing dgencies to issue general
permits
Part I of the group applications were
required to be submitted by September
30. it9l The existing regulatory
deadlire for submitting part 2 of the
group application is May 18. 1992 Under
the existing regu!atory deadline for part
2 of the group application. groups that
submitted part I applications on or
shortly before the September 30. 1991
deadline would only have a limited
amount of time, approximately seven
and one-half months. to collect and
organize sampling data. To complicate
matters, parts of the country will
experience winter conditions for
sign:ficant parts of the time period
between September 30 and May 18.
making sample collection difficult.
Today s proposal would ensure that one
sear would be available to con’piete me
required samp!ing This is consistent
with comments received on the March
21 1991 proposal suggestir.g that one
year for complet:ng permit applications
is appropriate to assure completior. of
storm water sampling in various parts oi
the country with lengthy arid or winter
seasons.
It should also be noted that on
October 1. 1992 deadline for part 2 of
group applications would be consisic’n’
with the October 1. 1992 deadline for
individual permit appl:cations for s:ori
water discharges associated with
industrial activity (see the final
rulemaking published elsewhere in
today s notice address:ng the deadli-e
for individual permit applications)
Identical deadines fur part 2 of the
grot p applicanon and indi’.idual
applications will result in equal
treatment of facihties with storm water
discharges. This will also reduce
confusion in the regulatory communi:
over the proper application deadlines
The Agency believes that extending
the deadline for submitting part 2 group
applications beyond October 1. 1992 is
inappropriate. Pat additional exter.sion
would create unnecessary and
unacceptable delays in implementing
the NPDES storm water program. The
November 16. 1990 regulations provide
considerable latitude for selecting ra’n
events for sampling data (see 40 CFR
122 21(g)(7)) II data cannot be collected
prior to the application deadline
because of anomalous weather (e g
drought conditions), then permitttrg
authorittes may grant additional time tin
submitting that data on a case-by-c:ise
basis ( ‘ iso see 40 CFR 122 21(gH7)) Th’
-------
556
Ftderal Register I Vui Sb. Io 214 / Tuecdav. ‘Jovember 5. 1991/ Propnsed Rules
.\g nr believes that with the
(omb taaI!on of extending deadlines for
indit idual permit applications and part 2
of group applications for storm water
discharges associated with ndus lriaI
activity. there is no bas s for further
cons lderal!on of extending appIic ition
deadl:nes for stnrm weler dischar ec
.iscn( ‘zit. d with iiidt.stni,l I1L!i itv
Ill. Regulatnr Requirements
Ted.iv s propos.”! rule rn . kes no
change !n the suhs;antice reQuirements
of the Iorm water po ram. only the
date by which ccrta;n applications .ire
due. Thus. the rule meets nor.r of the
cr:terta for a maior rule under section
1(b) of Execunve Order l 91. The
information collectien requirements in
this ruic have airea 4 y been approved by
thi. Office of Management and Badget
and iecn assigned 0MB control number
204C-M086 Since this proposed rule daes
not ciian e any eiiisting substantive
rcq’Ilremer.ts. ! cer.ify that it will not
a ‘ignificant impact on a
si,h,t inti ,gl nu;ni.,er of small nt:ties
(ir.Lkr thu Reçul.itory fle ibihty Act.
Lict of Subjects in 40 CFR Peii 122
A& ministrati e practice and
procedure. Reporting dnd recordheepang
req ’ ..irements. Waler pollution control.
Dai d’ Oitobcr 24. 1091.
W Illiam K. Reilly.
4dm ,n ,sirtor.
For the reasons set out above, part
1. chapter I of title 41) of the Code of
Feceral Regulations is proposed to be
amended os Follows’
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: ThE NAT1ONAL
POUUTANT DISCHARGE
EUMINATION SYSTEM
1. The authority citation For part 1Z2
continues to reed as follows:
Auihonty The Clean Waler Act. 33 U SC
1:51 ci seq
Subpart B—Permit ApplIcatIon and
Special NPOES Program RequIrements
122.2S (Am nded)
2, In 122.2&(e)f2fliii). “May 18. 1992”
as revised to read “October 1. 1992”
IFR Doc. 9l—253 Filed l1—4—9F R’45 ami
mwNo COOS UIO.5O. .M
-------
rt ’t2L ’ ’Ji Ret_isier i . N . ud ..ti. iwut . : uIict s
3 5U2
STArE NPDES PROGRAM STATUS—Continued
.
ACCioeed
aisle NPOES
Devil
pfO VI
Apciuwd
reg 4ai.
Fedsiul
I ib
Apor md
atata
pr.v1Un.J1(
o am
Ao oved
general
pemets
P r09SIfl
. .
-
Total . ._.___
02104174
01/30/75
11126.171
05/lB/el
12/24180
t2F19IM
09/24191
39
34
V
26
Nun er of FuSy Aulhomed Programs (Federal Fac .kb. Prevasmwil, General Pennes) - 20
IV. Review under Executive Order 19 1
and the Regulatory Flexibility Act
The Office of Management and Budget
has exempted this rule from the review
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis lot all rules which
may have a significant impact on a
substantial number of email entities.
Pursuant to section 605(d) of the
Regulatory Flexibility Act (5 u.s c. 601
et seq.). I certify that this State General
Permits Program will not have a
significant impact on a substantial
number of small entities.
Approval of the Maryland NPDES
State General Permits Program
establishes no new substantive
requirements. nor does it alter the
regulatory control over any industrial
category. Approval of the Maryland
NPDES State General Permits Program
merely provides a simplified
administrative process.
Dated: October IS. 1991
Edwin B. Erickson,
g:onclAdm:nistr rztor.
IFR Doc. 91-25774 Filed 10-25—91. 8 5 am)
stu sc coca sonse y
(FRL -4024—43
Revision of the Hawaii National
Pollutant Discharge Elimination
System (NPDES) Program to Authortze
the Issuance of General Permits
*O NCY: Environmental Protection
Agency (EPA).
acriosa Notice of approval of the
National Pollutant Discharge
Elimination System General Permit.
Program of the Slate of Hawaii .
suMM*RY On September 30. 1991. the
Regional Administrator for the
Environmental Protection Agency (EPA).
Region 9. approved the State of HawaiIe
National Pollutant Discharge
Elimination System (NPDES) General
Permits Prv . ..ni . On September 5. 1991.
the Hawaii State Department of Health
(DDH) submiftqd a formal request for
approval to revise its NPDES Permit
Program to authorize the issuance of
general NPDES permits. This action
authorizes the State of Hawaii to issue
general permits In lieu of individual
NPDES permits. EPA has determined
this program modification to be non-
substantial because the State is relying
upon an interpretation of its existing
NPDES authority, supplemented by its
general rulemskirig authority.
FOR RIRThES INFORMATION CO5(1ACT
Eugene Bromley. U.S. Environmental
Protection Agency. Region 9 (W—5-1 I. 75
Hawthorne Street. San Francisco. CA
94105. 415—744—1900.
SIWFLEMDIYARY NIFORMAT1OIC
I. Background
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate the discharge of
wastewater which results from
substantially similar operations. are of
the same type waste., require the same
effluent limitations or operating
conditions, require similar monitoring
and ale more appropnately controlled
under a general permit rather than by
individual permits.
Hawaii was authorized to administer
the NPD program in November. 1974.
As previously approved, the State’s
program did not include provisions for
the issuance of general permit.. There
are several categories of discharges
which could be appropriately regulated
by general permits. For these reasons.
the Hawaii State Department of Health
requested a revision of the State’s
NPDES program to provide for the
issuance of general permits. The
categorie, which have been proposed
for coverage under the general permits
program tndudm storm water discharges
from municipal and industrial sites.
hydrostatic test water. filter backwash
water from potable water treatment
unita. non-contact cooling water
discharges of one (1) million gallons per
day or less, underground storage tank
remediatian sites. erosion control at
landfills and erosion control and
dewatenrig from construction sites.
Each general permit will be sub )ect to
EPA review and approval as provided
by 40 CFR 123.44. Public notice and
opportunity to request a hearing is also
provided for each general permit
Il. Discussion
The State of Hawaii submitted in
support of its request, copies of the,
relevant statutes. The State has al o
submitted a statement dated September
5. 1991. by the Attorney General
certifying, with appropriate citations to
the statutes and regulations that the
State will have adequate legal authority
to administer the general permits
program as required by 40 CFR 123 23(c)
In addition, the State aubmitied a
program description supplementing the
original application for the NPDES
program authority to administer the
general permits program. including the
authority to perform each of the
activities set forth in 40 CFR 123.44 The
State has also submitted an Amendment
to the Memorandum of Agreement
between the State of Hawaii DOH and
EPA. Region 9 specifying the procedures
through which general permits will be
issued and administered by the State
Based upon Hawaii’s program
description and upon its experience in
administering an approved NPDES
program. EPA has concluded that the
State will have the necessary
procedures and resources to administer
the general permits program.
Existing regulations adopted by the
State of Hawaii to administer the
NPDES program do not address the
issuance of general permits. However.
the State does have statutory authority
to issue rules for the abatement of water
pollution. General permits are defined
as rules under State Law and the State
proposes to issue general permits as
rules, following State rulemaking
provisions and including provisions
necessary to comply with NPDES
regulation. applicable to general permits
at 40 Q ’R 122.28. In Its submittal, the
State cited the relevant statutory
authority icr the DOH to issue general
permits as rules and to include
provisions necessary to comply with 40
CFR 122.28.
-------
Federal Register I Vol. 58. No. 208 I Monday, October 28, 1991 I Notices
55503
In addition, the State has indicated an Ill. Federal Register Notice of Approval program. The following table provides
interest to develop and adopt of Slate NPDES Programs or the public with an up-to.date list of the
regulations which will specifically Modification, status of NPDES permitting authority
address the issuance of general permits. , throughout the country. Today’s Federal
However. EPA’s approval is not EPA must provide Federal Register Register notice is to announce the
contingent upon adoption of generic notice of any action by the Agency approval of Hawaii’s authority to issue
general permit program regulations, approving or mothfying a State NPDES general permits.
STATE NPDES PROGRAM STATUS
A90,u ed
stat. NPOES
p ei i et
m
A90roved to
regulate
Feder
ese
Ap roted
stats
ptersstrnent
m
Asptuved
genscst
peifTits
m
Alabame.._
Mliansas.....__.. -...........___
Cahfcsnia.._ .. .__..._ . .. .._.
Colciado... —__________ ....
Ccnnectn t. ..
Oe laware.___________________________
Geofgia..._ . ....__ ..__
ind aii a___.__ ..._._________ -
.
Kernucxy. ... ....._ .._..._....._ .._.___._..
Mas an0 . .._._....._ ...._.... ..._.______
Mctiigan .._.__..._ .._.._..._... ._____ ._.._
Minn e sot . . . . ._ .._ .__ . ..__ .._ .________ . . .. .. ._ ._ . . .____ ._ . . ._ .______________
—_____
..._..... ...._........._...._.
10119179
11101186
05/14/73
03 127/75
09/26/73
04/01174
06/26174
11/25/74
10/23/77
01/01/75
08/10/78
06128/74
09/30/83
09/05/74
10/17l73
06/30/74
05/01/74
10/30/74
08/10/74
06/12/74
09/19/75
01113182
10/26/75
10/19/75
06/13176
05/11/74
08/26/73
06/30/78
09/17/54
06/10/75
12/28/77
07/01/67
03111/74
06/30/76
05131/75
11/14/73
05/10/82
02104/74
. 10/30/75
10119179
11/01186
06/05178
. —
01109189
10119/19
11101186
09122/89
._
06/03/SI
03/12/61
08/12/63
._ .
...._
06/03/81
._.__._ _
09/30/83
09/30/85
06/07103
07116/79
05113/82
06/03/8 1
........__._...
09/07/84
._....._.._.
04/13/82
06126191
11101186
09122189
03/04/83
.. .._..._....
01/26/91
09/30/91
01/04/04
04/02/91
.._._
09130/83
09I3 0I9l
12/15/87
09127191
12/12/85
04/29/83
07/20/89
04/13/82
.....
09106191
011 2 219 ’
.___
02/23/82
06/02/91
09117184
04/18/91
07107187
. . - -
-.—.—.--......-..
05/20/91
09/26/89
05/10/82
12119/88
09/24/91
._.
12/08/80
06/01/79
09/20/79
12/09179
08/10/78
06/28/05
09/30/83
11/10/87
12/09/78
12/09/78
01/28183
06/26/79
06/23/81
11/02/79
08/31175
04113182
06/13/80
09/20/84
01/22190
01/28/83
05/02179
06/30/78
06/17/84
09/25/90
09/30186
07/07/07
..._____ .......
02109/82
.
05110/82
11/26179
05/18/81
.. ._
N eV SdL..........____________________________
N ewJevsey..,........ .
New Yc&____________________________________________________________
No,thC es&u______________________________________________________
Noilh Qetota.____________________________________________________________
Ohio.___________________________________________
Oregon
PSf t ._________________________________________________________
Rhods isiond_________________________________________________________________
Scum Csrnjeia.._____________
Tennessss.__________________________________
Utali........._________________________________ .____________________
Venn ont...............________ .........._..._________
*glfl liteisis..... . .
Virgims._ ....... .
06114182
.. ....._...
07/27/63
03112181
.__________
08/17/64
0 41 0 6/82
08/10/83
07107/87
03/16/82
. . .. . . ._ .
04/14/89
09/30/86
05/10/82
12/24/80
.. - -..—.—. —.—..
--—...-.. --.- - --______________
Wee lVirgoes. — - _________________
Wi ccnim......... ... —-—.———-..———.—..-.- — —..... -—____________
Wyoneng....__. . ..
To ta is............ — —. . . .-. -....——_________
39
34
27
28
Nia Tt.ei C .ii8A.1 . NPC€3 Pio.,m . (Fedsrst F Iibsu Preveawient. Geiursi Peinsts)—20
IV. Review Under Executive Order
12291 and the Regulators Flexibility Act
The Office of Management and Budget
has exempted thi, rule from the review
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities.
Pursuant to section 605(d) of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). I certify that this State General
Permits Program will not have a
significant impact on a substantial
number of small entities. Approval of
the Hawaii NPDES State General
Permits Program establishes no new
substantive requirements, nor does it
alter the regulator, control over any
industrial category. Approval of the
Hawaii NPDES State General Permits
Program merely provides a simplified
administrative process.
Dated: September 30, i991.
John Wise.
Acting Regwna!Admsn,st rotor. Region a
(FR Dcc. 91—25754 Filed 10-23-91: 8:45 am
eiWpIQ COOS aMa -lost
FEDERAL COMMUNICATIONS
COMMISSION
Public Information Collection
RequIrement Submitted to Office of
Management and Budget for Review
The Federal Communications
Commission has submitted the following
information collection requirement to
0MB for review and clearance under
the Paperwork Reduction Act of 1980 (44
U.S.C. 3507).
Copies of this submission may be
purchased from the Commissions copy
contractor. Downtown Copy Center.
1114 21st Street. NW.. Washington. DC
-------
5 OO
Federal Register I Vol 56. o 00 / Mr,nd,i Oc obcr 28. 1991 I Notices
These documents should be viewed
only as a source of information, and
should not substitute for local and
regional evaluation of TCMs. They
should not limit consideration of other
TCMs by local and State planners, nor
should they be the sole basis for
decisions on whether to advance or
repect such measures. The Agency may
from time to time revise, add to, or
replace these guidance documents as
new information becomes available.
Comments should be made in writing
and directed to Mr. Mark E. Simons at
the address specified above.
Dated’ October 21. 1991.
Michael Shapiro.
Acting Assistant Administrator forArr and
Radiation.
(FR Dcc. 91—25752 Filed 10-25—91:8:45 am)
eiw,to coca sass-so -a
(FRL-4024—3 1
Underground Injection Control
Program Hazardous Waste Disposal
Injection Restrtctlons Modification of
Approved Petition f or Exemptlon—.BP
Chemicals, Port Lavaca, TX
AGENCy Environmental Protection
Agency.
ACTIOPC Notice of final decision on
petition modification.
IUMMARY Notice is hereby given that a
nodification of an approved exemption
to the land disposal restrictions under
the 1984 Hazardous and Solid Waste
Amendments to the Resource
Conservation and Recovery Act has
been granted to BP Chemicals, for the
Class I injection wells located at Port
Lavaca. Texas. As required by 40 CFR
part 148. the company has adequately
demonstrated to the satisfaction of the
Environmental Protection Agency by the
modification request and supporting
documentation that, to a reasonable
degree of certainty, there will be no
migration of hazardous constituents
from the injection zone for as long as the
waste remains hazardous. This final
decision allows the underground
injection by BP Chemicals, of the
specific restricted hazardous waste
identified in the modified petition, into
the Class I hazardous waste Injection
wells at the Port Lavaca. Texas facility
specifically identified in the petition, for
as long as the basis for granting an
approval of the petition remains valid.
under provisions of 40 CFR 148.24. As
required by 40 CFR 124 10. a public
notice was issued on August 20. 1991.
The public comment period ended on
‘)ctober 3. 1991 and no comments were
:eived This decision constitutes final
Agency action and there is no
Administrative appeal.
DATES: This action is effective as of
October16, 1991.
AOORESSE& Copies of the petition and
all pertinent information relating thereto
are on file at the following location:
Environmental Protection Agency.
Region 6. Water Management Division.
Water Supply Branch (6W—SU). 1445
Ross Avenue. Dallas. Texas 75202—2733.
FOR FURThER INFORMATION CONTACT:
Oscar Cabra, Jr.. Chief Municipal
Facilities. EPA—Region 6. telephone
(214) 655—7110. (FTS) 255—7110.
Oscar Cabra. (r.,
Acting Director. Water Management Division
(6 W).
(FR Dcc. 91—25753 Filed 10—25-91. 8 45 aml
siL t iNG ocCa 1M040.e
IOPTS-5930Z FRI. 4001-5)
Certain Chemical; Test Market
Exemption Application
AOENCT: Environmental Protection
Agency (EPA).
ACTiON’. Notice.
SUMMARY: EPA may upon application
exempt any person from the
premanulacturing notification
requirements of section 5(a) or (b) of the
Toxic Substance Control Act (TSCA) to
permit the person to manufacture or
process a chemical for test marketing
purposes under section 5(h)(1) of’I’SCA
Requirements for test marketing
exemption (TME) applications, which
must either be approved or denied
within 45 days of receipt are discussed
in EPA’s final rule published in the
Federal Register of May 13. 1983 (48 FR
21722). This notice, issued under section
5(h)(6) of TSCA. announces receipt of
one application for exemption. provides
a summary. and requests comments on
the appropriateness of granting these
exemptions.
DA1IZ
Written comments by:
T 9Z.-I November 16. 1991.
ADDRESSES: Wntten comments.
identified by the document control
number “(OPTS—59302J” and the specific
1 ’ME number should be sent to:
Document Processing Center (TS—790).
Office of Toxic Substances.
Environmental Protection Agency. 401 M
St.. SW. Rin. L .-l00. Washington. DC
20460. (202) 260—3532.
FOR FURTHER INFORMATION CONTACT:
David Kling. Acting Director.
Environmental Assistance Division (TS-
799). Office of Toxic Substances.
Environmental Protection Agency. Rm
EB—545. 401 M St.. SW. Washington. DC
20460. (202) 554—1404. TDD (202) 554—
0551.
SUPPLEMENTARY INFORMATION: The
following notice contains information
extracted from the nonconfidential
version of the submission provided by
the manufacturer of the TME received
by EPA. The complete nonconfidential
document is available in the TSCA
Public Docket Office NE—C004 at the
above address between 8 a.m. and noon
and 1 p.m. and 4 p.m.. Monday through
Friday, excluding legal holidays.
‘1’ 92.-i
Close of Review Period. November 30.
1991.
Importer. ConfIdential.
Chemical. (S) Berizenamine. 4.4’-
methylenebis (2.methyl.6-(1.
methylethylfl..
Use/Import. (G) Open. nondispersiire
use. Import range’ Confidential.
Toxicity Data. Eye imtation: none
species (rabbit). Mutagenicity’ negative
Dated. October 22. 1991
Dougla. W Sellers.
Acting Director, Information Management
Division. Office of Toxic Substances
FR Doc 91—25877 Filed 10-25-01 845 arnl
BILLING CCC I 5550404
(FRL-4024-21
RevisIon of the Maryland National
Pollutant Discharge Elimination
System (NPDES) Program To Issue
General Permits
AGENCY: Environmental Protection
Agency.
ACTIOHi Notice of Approval of the
National Pollutant Discharge
Elimination System General Permits
Program of the State of Maryland .
SUMMARY: On September 30. 1991. the
Regional Administrator for the
Environmental Protection Agency (EPA).
Region Ill approved the State of
Maryland’s National Pollutant Discharge
Elimination System General Permits
Program. This action authorizes the
State of Maryland to issue general
permits in lieu of individual NPDES
permits. EPA has determined this
program modification to be non-
substantial for the following reasons (a)
The State regulations have already been
subject to public notice by the State and
(2) this modification involves the
adoption of an administrative
mechanism to facilitate coverage of
numerous discharges by a general
permit rather than new program
authonty.
-------
Federal Register / Vol. 58. No. 208 I Monday. October 28. 1991 / Notices
55501
FOR FURTIISR INFORMAT ION CONTACT
Kenneth J. Cox. Chief. Program
Development Section. U.S. EPA. Region
I II. 841 Chestnut Street. Philadelphia.
Pennsylvania. 19107. phone 215/597—
8211.
SUPPLEMENTARY INFORMATiON:
I. Background
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate the discharge of
wastewater which results from
substantially similar operations, are of
the same type wastes, require the same
effluent limitations or operating
conditions, require similar monitoring,
and are more approximately controlled
under a general permit rather than by
individual permits.
Maryland was authorized to
administer the NPDES program in
September 1974. Their program. as
previously approved, did not include
provisions for the issuance of general
permits. There are several categories
which.could appropriately be regulated
by general permits. For those reasons
the Maryland Department of the
Environment requested a revision of
their NPDES program to provide for
issuance of general permits. The
categories which have been proposed
for coverage under the general permits
program include: Swimming pool
backwash and drainage, non-contact
cooling water, hydrostatic pipe and tank
testing, small seafood operations.
surface coal mines, sand and gravel
operations, separate storm sewers.
stormwater runoff, and any other class
of discharge or discharger that meets the
requirements of 40 CFR 122.28(a)(2).
Each general permit will be subject to
EPA review and approval as provided
by 40 CFR 123.44. Public notice and
opportunity to request a hearing is also
provided under Maryland law for each
general permit.
U. Discussion
The State of Maryland submitted in
support of its request copies of the
relevant statutes and regulations and an
amendment to the Memorandum of
Agreement dated May 18. 1989. The
State has also submitted statements by
the Attorney General dated September
30. 1985 and September 25. 1991
certifying. with appropriate citation of
the statutes and regulations, that the
State will have adequate legal authority
to administer the general permits
program as required by 40 CFR 123.23(c ’
upon adoption of it’s proposed
regulations. In addition. the State
submitted a program description
supplementing the original application
permits program, including the authority
to perform each of the activities set forth
in 40 CFR 123.44. Based upon
Maryland’s program description and
upon its experience in administering an
approved NPDES program, EPA has
concluded that the State will have the
necessary procedures and resources to
administer the general permits program
Ill. Federal Register Notice of Approval
of State NPDES Program or
Modifications
EPA must provide Federal Register
notice of any action by the Agency
approving or modifying a State NPDES
program. The following table provides
the public with an up-to-date list of the
status of NPDES permitting authority
throughout the country. Today’s Federal
Register notice is to announce the
approval of Maryland’s authority to
issue general permits.
STATE NPDES PROGRAM STATUS
A iiiiu d
gs NPOES
pennt
IJUWWD
ed
m Mis
Fedei
t tI 5$
ARs
iRM
. f5eesvvIef 0
*Wowed
gww
peitvun
j Jfl
Kentucky
10/1917 0
11/01/06
05/05/70
10119179
11 101,8e
09/22/89
01109189
09/26191
11101/88
09/22/09
03104183
09/03/81
03/12/81
0011 2/83
06/03/01
Pier Jersey..
Niw Vo&....
01120191
09/30 191
01104 184
04/02191
N th Oekcks.
10/19/79
11/01/88
05/14113
03/21/15
00126173
04/01/74
09/20/74
11/28/74
10/23/77
01/01/15
00110118
06 /20/74
09 130/ 03
09105174
10/17/70
00/30174
05/01/74
10/30/14
06 110174
08/12/14
09/19175
04/13/02
10128175
10119175
08/13/75
0 3111/74
09/26/73
0 0/30/78
09/17/54
06110115
12/26/77
07/07/Si
03/I1 174
06/30/78
03/31/75
11/14/73
05/10/82
Cf egon
Rhods I:
South C
Tenneu
I N h
— 09/30/03 - 09/30/83
06/30/85 09/30/91
09/07/89
07118/79 12/15/87
05/13/02 09/27/91
06/03/01 12/12/85
______ 04/29/83
09/07/04 01/20/89
04/13/02 04/13/82
12 /08/80
06/01/79
09/20/79
12/09/70
08/10/78
08/28/5 5
09,30/03
il/tO/ Si
12/09/79
12/09/70
01/28/03
06/28/79
06/23/SI
I 1/02/79
06/31/75
04/13/82
09/13/80
0 0/26/04
01/22/90
01/28/03
03/02/79
06/30/78
09/17/04
09/26/80
09/30/66
07/07/07
VwmQnt
V .vgIn i, and
06/14/02
07/21/03
00/12/01
09/17/04
04/09/52
08/10/63
07/07/07
03/ 18/ 52
09/0 8/91
01/22/90
02/20 102
08/02 /91
09117104
04118/91
07/07187
02/09/02
05/10/62
04/14/89
09/30/06
05 1 10182
05/20.
09/26/b..
05/I0/62
Weul Vw i.
-------
53302
l’ederal Register / \.ul 56 o 208 I Mond .iv Octclier 8 1991 / Notices
STATE NPDES PROGRAM STA ’ruS—.Continued
.
Apçmved
state NPOES
pefTiat
pwsm
Ajip Oved
s.guIai.
FSOST.I
lacases
Approu.sd
stale
plev .1n I1t
W i
AWo . d
general
penTifti
OTOOSfIt
Wiaconan — ,.__ - ——
wvonvng_ .._._. _ -. ..
Tolal .___._ . - - .
02104174
01130/75
11126/79
O5 I8I81
12124/80
12/19188
09124191
39
34 }
27
Nunthei of Fusy Autho ed ProgrefTu lFeder.l Fac hbes. P, treabnan1. General Pwmitst - 20
IV. Review wider Executive Order 191
and the Regulatory flexibility Act
The Office of Management and Budget
has exempted this rule from the review
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis For all rules which
may have a significant impact on a
substantial number of small entities.
Pursuant to section 605(d) of the
Regulatory flexibility Act (5 U.S.C. 501
et seq). I certify that this State General
Permits Program will not have a
significant impact on a substantial
number of small entities.
Approval of the Maryland NPDES
State General Permits Program
establishes no new substantive
requirements, nor does it alter the
regulatory control over any industrial
category. Approval of the Maryland
NPDES State General Perrruts Program
merely provides a simplified
administrative process.
Dated October 15. 1991
Edwin B. Erickson.
Re ,oaiaIAdm,n,suotor.
IFR Dec. 91—25774 Filed 10-25—91. 8.45 amj
stu.am 80C 5 seso-es- .
I FRL-4024-4)
Revision of the Hawaii National
Pollutant Discharge Elimination
System (NPDES) Program to Authorize
the issuance of General Permits
aoE,scy: Environmental Protection
Agency (EPA).
acTso Notice of approval of the
National Pollutant Discharge
Elimination System General Permits
Program of the State of Hawaii .
$UMMARY On September 30. 1991, the
Regional Administrator for the
Environmental Protection Agency (EPA).
Region 9. approved the Stats of Ha wails
National Pollutant Discharge
Elimination System (NPDES) General
Permits Program . On September 5.1991.
the Hawaii State Department of Health
(DOH) submdI td a formal request for
approval to revise its NPDES Permit
Program to authorize the issuance of
general NPDES permits. This action
authorizes the State of Hawaii to issue
general permIts in lieu of individual
NPDES permits. EPA has determined
this program modification to be non-
substantial because the State is relying
upon an interpretation of its existing
NPDES authority, supplemented by its
general rulemaking authority.
FOR RIRTh8R INFORMATiON CONTACT
Eugene Bromley. U.S. Environmental
Protection Agency. Region 9 (W—5—1j. 75
Hawthorne Street. San Francisco. CA
94105. 415—744—1906.
SUPPtEMDITARY INFORMATIOSC
I. Badi ground
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate the discharge of
wastewater which results from
substantially similar operations, are of
the same type wastes, require the same
effluent limitations or operating
condition., require simflar monitoring
and are more appropnately controlled
under a general permit rather than by
tndividual permits.
Hawaii was authonzed to administer
the NPDES program in November, 1974.
As previously approved, the State’.
program did not include provisions for
the issuance of general permits. There
are several categories of discharge.
which could be appropriately regulated
by general permits. For these reasons.
the Hawaii Slate Department of Health
requested a revision of the State’s
NPDES program to provide for the
issuance of general permits. The
categories which have been proposed
for coverage under the general permits
program Include: storm water discharges
from municipal and industrial sites.
hydrostatic teat water, filter backwash
water from potable water treatment
units. non .cmuact cooling water
discharges of one (1) million gallons per
day or less, underground storage tank
remediauon sUes, erosion control at
landfills and erosion control and
dewatetsng from construction sites.
Each general permit will be subject to
EPA review and approval as provided
by 40 CFR 123 44. Public notice and
opportunity to request a hearing is also
provided for each general permit.
II. Discussion
The State of Hawaii submitted in
support of it. request. copies of (he
relevant statutes. The State has also
submitted a statement dated September
5. 1991. by the Attorney General
certifying. with appropriate citations to
the statutes and regulations that the
State will have adequate legal authority
to administer the general permits
program as required by 40 CFR 123 23(c)
In addition, the State submitted a
program description supplementing the
original application for the NPDES
program authority to administer the
general permits program. including the
authority to perform each of the
activities set forth in 40 CFR 123.44 The
State has also submitted an Amendment
to the Memorandum of Agreement
between the State of Hawaii DOH and
EPA. Region 9 specifying the procedures
through which general permits will be
issued and adauzustered by the State
Based upon Hawaii’s program
description and upon its experience in
administering an approved NPDES
program. EPA has concluded that the
State will have the necessary
procedures and resources to administer
the general permits program.
Existing regulations adopted by the
State of Hawaii to administer the
NPDES program do not address the
issuance of general permits. However,
the Slate does have statutory authority
to issue rules for the abatement of water
pollution. General permits are defined
as rules under State law and the State
proposes to issue general permits as
rules. following State rulemaking
provisions and including provisions
necessary to comply with NPDES
regulations applicable to general permits
at 40 CFR 12.28. In its submittal, the
State cited the relevant statutory
authority for the DOH to issue general
permits as roles and to include
provisions necessary to comply with 40
C.FR 122.26.
-------
Federal Register / Vol. 56. No. 1.83 1 Thtwsday. August 22. 1991 I Notices
41687
Docket No. Vfl-gi—F-0OiO. and should
be addressed to Ms. Cobb. at the above
address.
F08 rUBTISCR INFO A ’V1ON CONTACfl
Jonathan Kahn, Assistant Regional
Counsel. EPA Region VU. Offi.e of
Regional Counsel. 75 Minnesota
Avenue. Kansas City, ansa.a 66101,
telephone number (913) 551—7252.
Cated July 9. 1391.
Alan L Wehmay .
Acting Director. Waste t.fonagement
Division. EPA Region VI I.
(FR D cc. 91-20117 Filed 3-21-41. 8.45 anij
eiu.me coos use-so-a
LFRL-39U—4 1
Pëm inylvarda ’s General Permits
Program Approval
AGENCY: Environmental Pro tection
Agency.
AcTeo Notice of up - v l of the
National Pollutant Discharge
Elimination System General Permits
Program of the Commonwealth of
Pcnrisylvane.a.
3UMMARY On June 26. 1991. a revised
Memorandum of Agreement between
the Environmental Protection Agency
(EPA) and the Commonwealth of
Pennsylvania was approved to include
provisions for the Commonwealth’s
National Pollutant Discharge
Elimination System (NFiJt 1 General
Permits Prv rsm. Tine action authors2ed
the Commonwealth of Pennsylvania to
issue general permits in lieu of
individual NPDES permits. The approval
was made under 40 CFR 123.82 which
sets forth procedures for revision of a
State’s NPDES program.
FOR FURTh INFORMATION NTACT
Racirie Leonard at (215) 597- 328.
SUPPlEMENTARY INFORMATIOSC
1. S .ck od
EPA regulations at 40 CFR 122.28
provide Ear the issuance of general
permits to regulate discharges of
wastewater which resuit from
S.iu aZiL1ally similar operations. are of
the same type wastes, require simiLar
m3m ori g. arid are more appropriately
cor, roled under a general permit rather
than by individual permits.
Pennsylvania was authorized to
administer the NPDES program m June.
1978. Thei program, as previously
approved, did not include provisions for
the issuance of general permits. There
are several categories which could
appropriately be regulated by general
permits. For this reason. Pennsylvania
has requested a revision of their NPDES
program to provide for issuance of
general permits. The categories which
have been proposed for coverage under
the general permits program include
Non-contact cooling water, heat pump
discharges. and small fish hatchery
operation.
Each general permit will be subject to
EPA review as provided by 40 G’R
123.44. Public notice and opportunity to
request a heanog is also provided for
each general permit.
U Diecusion
Pennsylvania’. general permits
submission consists of an Attorney
Cenerara statement, a copy of the State
statutes providing authority to carry mit
the program, a copy of the revised
Memorandum of Agreement (MOA). and
a program description. Based upon this
information and Pennsylvania’s
experience in aftnlmlatering an
approved NPDES program, EPA has
concluded that the State will have the
necessary procedures and resources to
administer the general permits prcgr3m.
Under 40 CFR 123.62. NPDES program
revisions are either substantial
(requiring publication of proposed
program approval in the Federal
Register for public rnrnrnPnt ) or non-
substantial (where approval may be
granted by letter from EPA to the State).
EPA has determined that assumption by
Pennsylvania of general permit authority
is a non-substantial revision of its
NPDES program. EPA has generally
viewed approval of such authority as
non-substantial because it does not alter
the substantive obligations of any
discharger under the State program. but
merely simplifies the procedures by
winch permits are issued to a number of
point sources. Moreover, under the
approved state program. the state
retains authority to issue individual
permits where appropriate. and any
perawi may request the state to issue un
individual permit to a discharger e!.;ibie
for general permit coverage. While riot
required under § 123.62. EPA is
publishing notice of this approval ac on
to keep the public informed of the status
of its general permit program approvaLs.
IlL Federal Register Notice of Approval
of State NPDES Programs or
Modifications
EPA will provide Federal Register
notice of any action by the Agency
approving or modifying a State NPDES
program. The following table will
provide the public with an up-to-date
list of the status of NPDES permitting
authority throughout the country.
Today’s Federal Register notice is to
announce the approval of
Pennsylvania’s authority to issue
general permits.
State NPDES Program Status
Oe
I- -——
— ‘is a
NPOES p ?85
I-’ .,—
,__._______.____.
A anus
...
Ca onss
...---__
.
----
to
—.05.
nan
10/1917S
11/01/SI
05/05/79
Ind na ...
i . --. --.. ..-.--. .. - -
Kansa. .... .
Kentuc iiy
UW’ØUfld — . -. ..— ... -
10 119/79
11101/SI
ow /8 .
01/09 15 5
06/26/91
11101186
00122/69
03l 04 / 03
6/03/81
1011 W 79
11101105
06114173
03/vim
oe,26J.,3
04 101174
06126 174
11/2 5 /74
10 ,23. 1 77
0 1/01/75
06 1 10 /75
06126174
08 ,3 0 /u
09105174
10/17/73
061: 10174
05/01/74
10130174
06/10/74
—
Mornani . . -
12/08/80
06/01/79
09/20/19
12/0 9/78
08/10/7$
08/2 5/86
09/30/05
1 1/10/I l
12/09/78
12/09178
01/28/83
06/26119
06/23/81
03/12/SI
08/12/03
08/03/81
00/30183
0 9/30 /85
06107183
07/16/79
05/13/82
06/03/81
01/as/al
01/04/64
04/03/91
09/30/83
1 2 115/67
12/12/05
04/20/83
-------
41688
Federal Register / Vol. 56, No. 163 I Thursday. Au9ust 22. 1991 / Notices
State NPDES Program Status—Continued
Approved slate
NPOES permit
program
Approved to
regulate (aderal
tacditiei
Approved slate
preveatment
program
Approved state
general permits
program
.. -
Nevsda.........,..___..._____. ..... — -
._._
New ‘ (c m - .. .._. .
06112174
09/19/75
04/13/02
10/20/75
10/19/75
06/13/75
03/11/74
09/26/73
06/30/78
09/17/84
06/10/75
12/20/77
07/07/87
03/11/74
08/30/76
03/31/75
11/14/73
05/10/82
02/04 /74
01/30/75
11102179
08131178
04113182
06/13/00
09/28/84
01122190
01/20/83
03/02179
06130/18
09/17/84
09/26/00
09l3 0/06
07/07/87
09107184
07120109
..
01/13/82
01/22/90
.. - -
02/23/82
08/02/91
09117/84
04/18/91
07/07/87
04/13/82
. . ... ......_. . . ....
06/14/82
07/27/83
. 03112181
09117184
04/09/82
08/10/83
07/07/87
03/16/82
No rthCar olina,_ ,_ , ,,,,,..__,,.,,__....,_ .........._...___.......
Norm Oakom._.__._. .......,.._ ,. ,......__.. —
Ohio - - ..
Oregon.... . .. ._.. - ..
Pennsyfvarve.....___..
Rhode Island.. — . ,.....
SouSi Caroline — .... . .. -
Tennesaa......______________________ . , ._._. ,
— ,...
Vermotfl...,.,. . . . , , , . ,. —____________ ..
Virgin islands. —-__________ .._... . .... . ..._._.... ,
V lrgin is_ ... . ..._
.,_._....._ . ,..
02/09/82
.. .
04/14/89
09/30/86
05/10/82
12/24/80
. ... .......
-.
05(20i9I
09 /26/89
0 /I0/82
12/19/86
Waaflinglon..._...... -— ._
....... .
05/10/82
11126/79
05/18/81
West Virgirve ._.._._...__ ...
Wusconam
Wyoming. ...._
...__. ......._.
39
34
27
23
Number of Complete NPOES Pogroms (Federal Feclities. P eveabnent. General Perinitat 15
IV. Review under Executive Order 12291
and the Regulatory Flexibility Act
The Office of Management and Budget
has exempted this rule from the
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexibility Act.
EPA is required to prepare a Regulatory
Flexibility Analysis for all rules which
may have a significant impact on a
number of small entities.
Pursuant to section 605(d) of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). I certify that this State Ceneral
Permits Program will not have a
significant impact on a substantial
number of small entitles. Approval of
the Pennsylvania NPDES State General
Permits Program merely provides a
simplified administrative process.
Dated: August 8 1991.
Alvin R. Morris,
Acting RegionclAdminist rotor.
(FR Doc. 91—20118 Filed 8-21-41: &45 ami
mwaa cons
FEDERAL MARITIME COMMISSION
JacksonvlH• Port Asattiorfty et aL
Agreement(s) Flied
The Federal Maritime Commission
hereby gives notice that the following
agreement(s) has been filed with the
Commission for approval pursuant to
section 15 of the Shipping Act. 1918. as
amended (39 Stat. 733. 75 StaL 763, 46
U.S.C. 814). -
Interested parties may inspect and
may request a copy of each agreement
and the supporting statement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 L Street.
N1N.. Room 10220. Interested parties
may submit protests or comments on
each agreement to the Secretary.
Federal Maritime Commission.
Washington. DC 20573. within 10 days
after the date of the Federal Register in
which this notice appears. The
requirements for comments and protests
are found in 560.602 of title 46 of the
- Code of Federal Regulations. Interested
persons should consult this section
before communicating with the
Commission regarding a pending
agreement.
Any person filing a comment or
protest with the Commission shall, at
the same time, deliver a copy of that
document to the person filing the
agreement at the address 8hown below.
Agreement No.: 224—200555.
Title: Jacksonville Port Authority!
Trailer Bridge Company. Inc. Terminal
Agreement
Parties: Jacksonville Port Authority
(“JPA”). Trailer Bridge Company. Inc.
(‘I ’BC ”).
Filing Party? Carl L Timmer. General
Traffic Manager. Jacksonville Port
Authority. 2831 Talleyrand Avenue.
Jacksonville. florida 32206.
Synopsis: The Agreement, filed August
9. 1991. provides that TBC will lease
ten acres of terminal space from (PA
for a period of five years. TBC will
have a right of first refusal to lease an
additional seven acres, more or less.
of contiguous space south of the
Leased Premises should such space
become available. The Agreement
also stipulates throughput and
dockage fees to be paid by TBC.
Dated: August 18. 1991.
By Order of the Federal Maritime
Commission.
Roaald D. Murphy.
Assistant Secreta,y.
(FR Dcc. 91—20083 Filed 8 .-fl—91: 8:45 am)
t 10 COOS S7te41-
Maryland Port Administration et ai.;
Agreement(s) Filed
The Federal Maritime Commission
hereby gives notice of the filing of the
following agreement(s) pursuant to
section 5 of the Shipping Act of 1984.
Interested parties may inspect and
obtain a copy of each agreement at the
Washington. DC Office of the Federal
Maritime Commission. 1100 1. Street.
NW.. room 10325. Interested parties may
submit comments on each agreement to
the Secretary. Federal Maritime
Commission. Washington. DC 20573.
within 10 days after the date of the
Federal Register in which this notice
appears. The requirements for
comments are found in 572.603 of title
46 of the Code of Federal Regulations.
Interested persons should consult this
section before communicating with the
Commission regarding a pending
agreement.
Agreement No.: 224-200408-001.
Title: Agreement and Lease Between the
Maryland Port Administration and
Mediterranean Shipping Company.
S.A.
-------
Friday
August 16, 1991
Environmental
Protection Agency
40 CFR Part 122
NPDES General Permits and Reporting
Requirements for Storm Water
Discharges Associated With Industrial
Actlvity Proposed Rule
Part II
-------
40948
Federal Register I Vol. 56. No. 159 I Friday. August 16. 1991 I Proposed ules
ENViRONMENTAL. PROTECTiON
AGENCY
40 CFR Part 122
(FRL 3750—li
RIM 2040-AA7S
National Pollutant Discharge
Elimination System General Permits
and Reporting Requirements for Storm
Water Discharges Associated With
Industrial Activity
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule and Notice of
draft general NPDES permits for Storm
Water Discharges Associated with
Industrial Activity.
SUMMARY: Section 405 of the Water
Quality Act of 1987 (WQA1 added
section 402(p) of the Clean Water Act
(CWA) which requires the
Environmental Protection Agency (EPA)
to develop a phased approach to
regulating storm wa:er discharges under
the National Pollutant Discharge
Elimination System (NPDES) program.
EPA published a final regulat:on on
November 16. 1990. (55 FR 47990)
establishing permit application
requirements for storm water discharges
associated with industrial activity and
for discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more. In the
permit application regulations. EPA
defined the term “storm water discharge
associated with industrial activity’ in a
comprehensive manner to cover a wide
variety of facilities. This definition
greatly expanded the number of
industrial facilities subject to the NPDES
program.
This notice requast.s comments on a
National NPDES permitting strategy to
address the large number of storm water
discharges associated with inthistrisl
activity. To assist in implementing the
strategy. this notice requests comments
on proposed regulatory changes to
existing minimum requirements icr
NPDES permits with regard to annual
monitoring reports and minimum
requirements for filing notices of intent
to be authorized to dl3charge under
NPDES general permits.
This notice also requests comments
on separate general permits for the
majority of storm water discharges
associated with industrial activity in 12
States (MA. ME. NH. FL. LA. TX. OK.
NM. SD. AZ. AK. ID). and S Territories
(District of Columbia. the
Commonwealth of Puerto Rico. Guam.
American Samoa. the Commonwealth of
the Northern Mariana Islands. and the
Trust Territory of the Pacific Islands)
without authorized NPDES State
progremsr on Indian lands in AL. CA.
GA. KY. MI. MN. MS. MT. NC. NiL NY.
NV. SC. TN. UT. WI. arid WY: located
within Federal facilities and Indfan
lands in CO and WA: and located
within Federal facilities in Delaware.
Separate general permits are being
noticed for each State.
OATEB Comments on this proposed rule
arid permits must be received on or
before October 15. 1991. See
Supplementary Information for
information on hearings.
A0DRESSE The public should also send
an angina! and two copies of their
comments addr3ssing any aspect of this
notice to Kevin Weiss. Perm:ta Division
(EN—336), Environmental Protection
Agency. 401 M Street SW.. Washington.
DC 20460. Corranents addressing factors
or issues which are specific o one or
several general permits (e g.. specific
requirements for the general permit
authorizing storm water discharges
associated with industrial activity in
MA). should clearly indicate the
applicability of the comment to a
particular State. The public record is
located at EPA Headquarters. EPA
Public Information Reference ljrut. room
2402. 401 M Street SW.. Washington. DC
20460. A reasonable fee may be charged
for copying.
FOR FURTHER INFO MAT1ON CONTACT:
For further information on the proposed
rule and draft general permits contact
the NPDES Storm Water Hotline at (703)
821—4823 or. Kevin Weiss. Office of
Wastewater Enforcement and
Compliance ( ‘4—338). United States
Emronnmental Protection Agency. 401 M
Street SW.. Washington. DC 20400.
(2021—475—95 18. The Fact Sheet
accompanying this rule provides
additional contacts for informanon
regarding the issuance of general
permits in specific States.
SUPPLEMINTARY INFORIIATICIe
Hearings
Public hear .r4s to discuss general
permits for the State in which the
hearing is held are scheduled as followm
(1) September 23. 1991. question and
answer session from 3 p.m. to 5 p.m. and
hearing from 7 p.m. to 10 p.m.. Reunion
Ballroom. Hyatt Regency Hotel. 30
Reunion Blvd.. Dallas. TX 75207.
(2) September 20. 1991. questioa and
answer session from 3 p.m. to 5 p.m. and
hearing from 7 p m. to 10 p.m.. Lincoln
Plaza Hotel. Gold Crown Room. 4445
North Lincoln Boulevard. Oklahoma
City. OK 73105.
(3) September 24. 1991. question and
answer session from 3 p.m. to 5 p.m. and
heering from 7 p.m. to 10 p.m.. Ramada
Ha l. 1480 Nicholson Drive. Baton
Range. LA.
(4) September 25. 1991. question arid
answer session from 3 p.m. to 5 p.m. and
hearing from 7 p.m. to 10 p.m.. Hyatt
Ragency. Grand Pavilion Ballroom. 330
Tijeras NW.. Albuquerque. NM 87102.
(3) September 26. 1991. 1 p.m. to 4
p.m.. Farlcplace Building. 1200 Sixth
Avenue. 12A (12th Floor). Seattle. WA
08101.
(6) September 16. 1991. 1 p.m. to 4
p.m.. Holiday Inn Convention Center
3300 Vista Avenue. Boise. ID 83705.
(7) September 19, 1991. 1 p m. to 4
p.m.. Centennial Hall (Sheffield
Ballrooni 2). 101 Egan Drive. Juneau.
AK 99801.
(8) September 30. 1991. 1 p in. Ia 6
p.m.. Best Western. Kings Inn. 220 South
Pierre Street. Pierre, SD 54501. (NoteS
This hearing w:ll address the general
permit for SD as well as the general
permit far Indian lands in MT. ND. CT
and WY. and the general permit for
Indian lands and Federal [ acili ies in
GO).
(9) September 18. 1991. two hearin.s
will be held at the following times :o
a.m. to 12 noon. 1:30 p.m. to 5 p.m.. a
third hearing will start at 7 p.m. and
continue as necessary, Phoenix Civic
Plaza. Flagstaff Room. 225 East Adams
Street. Phoenix. AZ 85004.
(10) September 10. 1991. public
meeting from 1 p.m. to 4 p.m.. publ:c
hearing from 7 p.m. to 10 p.m.. Civic
Convention Center. 9800 International
Drive. Orlando, FL 32819.
(11) September 12. 1991. public
meeting from 1 p.m. to 4 p.m.. public
hearing from 7 p.m. to 10 p.m..
Tallahassee Leon County Civic Center.
5 West Pensacola. Tallahassee. FL
(121 September 25. 1991. 1 p.m. to 4
p.m.. University of Maine at Augusta.
Jewttt Hall Auditorium. University
Heights. Augusta. ME, 04330.
(13) September 24. 1991. 1 p.m. to 4
p.m.. Federal Reserve Bank. Ground
Floor Auditcrium. 800 AtlantIc Avenue.
Boston, MA 02100.
(14! September 26. 1991. 7 p.m. to 10
p.m.. Holiday Inn. Ballroom Area. 700
Elm Street. Manchester, NH 03101.
Persons wishing to make an oral
preser.tatior. must restrict thorn to 15
minutes nd are encouraged to have
written copies of their complete
comments for inclusion .zi the official
record.
L Background
A..NR v. Costle
B. Wst Quality Act of 1987
IL Framework of NPOES System
A. State Programs
B Requirements in NPDES Permit.
-------
Federal Register / vol. 56. No. 159 / ! 1ay August 16 . 1991 I Proposed Rules
40949
Ill. Prior Storm Water Permitting Effort.
IV. November I a. 1990 Permit Application
Regulation.
V. Burdens on Permitting Agencies
VL Today’s Notice
j ,, Permitting Strategy
B. Proposed Changes to Annual Monitoring
Reporting Requirement.
C Application Requirements for General
Permits
D Fact Sheet for Draft General Permit
VU. Economic Impact
VIII Executive Order 12291
IX. Paperwork Reduction Act
X Regulatory Flexibility Act
I. Background
The 1972 amendments to the Federal
Water Pollution Control Act (FWPCA,
also referred to as the Clean Water Act
or CWA), prohibited the discharge of
any pollutant to navigable waters from a
point source unless the discharge is
authorized by a NPDES permit. Efforts
to improve water quality under the
NPDES program have focused
traditionally on reducing pollutants in
discharges of industrial process waste
water and from municipal sewage
treatment plants. This program
emphasis has developed for a number of
reasons. At the onset of the program in
1972. many sources of industrial process
waste water and municipal sewage were
not controlled adequately, and
represented pressing environmental
problems. In addition, sewage outfalls
and industrial process discharges were
easily identified as responsible for poor.
often drastically degraded water quality
conditions. However, as pollution
control measures were developed
initially for these discharges. it became
evident that more diffuse sources
(occurnng over a wide area) of water
pollution, such as agricultural and urban
runoff, were also major causes of water
quality problems. Some diffuse sources
of water pollution. such as agricultural
storm water discharges and irrigation
return flows, are exempted statutorily
from the NPDES program. Controls for
other diffuse sources have been slow to
develop under the NPDES program.
Several National assessments have
been conducted to evaluate impacts on
receiving water quality. For the purpose
of these assessments, urban runoff was
considered to be a diffuse source or
nonpoint source pollution, although
legally. most urban runoff is discharged
through conveyances such as separate
storm sewers or other conveyances
which are point sources under the CWA
and subject to the NPDES program. The
“National Water Quality Inventory. 1988
Report to Congress” provides a general
assessment of water quality based on
biennial reports submitted by the Slates
under section 305(b) of the CWA. In
preparing section 305(b) reports, the
States were asked to indicate the
fraction of the States’ waters that were
assessed, as well as the fraction of the
States’ waters that were fully
supporting, partly supporting, or not
supporting designated uses. The report
indicates that of the rivers, lakes, and
estuaries that were assessed by States
(approximately one-fifth of stream miles.
one-third of lake acres and one-half of
estunne waters), roughly 70 percent to
75 percent are supporting the uses for
which they are designated. For waters
with use impairments. State. were
asked to determine impacts due to
diffuse sources (agricultural and urban
runoff and other categories of diffuse
sources), municipal sewage. industrial
(process) wastewaters, combined sewer
overflows, and natural sources, then
combine impacts to arrive at estimates
of the relative percentage of State
waters affected by each source. In this
manner, the relative importance of the
various sources of pollution causing use
impairments was assessed and weighted
national averages were calculated.
Based on 37 States that provided
information on sources of pollution.
industrial process wastewatera were
cited as the cause of use impairment for
7 percent of rivers and streams, 10
percent of lakes. 6 percent of estuaries,
41 percent of the Great Lakes shoreline
and 8 percent of coastal waters.
Municipal sewage was the cause of use
impairment for 13 percent of rivers and
streams, 5 percent of lakes. 48 percent of
estuaries, 41 percent of the Great Lakes
shoreline and 11 percent of coastal
waters.
The Assessment also concluded that
pollution from diffuse sources such as
runoff from agricultural, urban areas.
construction siteS, land disposal
activities, and resource extraction
activities is cited by the States as the
leading cause of water quality
impairment,i Diffuse sources appear to
be increasingly important contributors
of use impairment as discharges of
industrial process wastewaters and
municipal sewage plants come under
control and intensified data collection
efforts provide additional information.
Some examples where use impairments
are cited as being caused by diffuse
sources include: rivers and streams.
where 9 percent are caused by separate
storm sewers, 4 percent are caused by
construction and 11 percent are caused
by resource extraction, lakes where 8
Major classes of diffuse sources that include In
pall storni water point source disthar ea are urb.ii
runoff conveyances. construction Sites agriculture
(feedlotsj. resource extraction sites end land
disposal facilities
percent are caused by separate storm
sewers and 7 percent are caused by land
disposal; the Great Lakes shoreline,
where 35 percent are caused by separate
storm sewers. 46 percent are caused by
resource extraction, and 19 percent are
caused by land disposal; for estuanes
where, 41 percent are caused by
separate storm sewers; and for coastal
areas. where 20 percent are caused by
separate storm sewers and 29 percen’
are caused by land disposal.
The States conducted a more
comprehensive study of diffuse pollutior
sources under the sponsorship of the
Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA) and EPA. The study
resulted in the report “America’s Clean
Water—The States’ Nonpoint Source
Assessment, 1985” which indicated that
38 States reported urban runoff as a
major cause of beneficial use
impairment. In addition. 21 States
reported construction site runoff as a
major cause of use impairment.
Studies conducted by the National
Oceanic and Atmospheric
Administration (NOAA) 2 indicate that
urban runoff is a major pollutant source
which adversely affects shellfish
growing waters. The NOAA studies
identified urban runoff as affecting over
578.000 acres of shellfish growing waters
on the East Coast (39 percent of harvest.
limited area); 2,000.000 acres of shellfish
growing waters in the Gulf of Mexico-
(59% of the harvest-limited area): and
130,000 acres of shellfish growing waters
on the West Coast ( 2% of harvest-
limited areas).
A NRDCv COSTLE
The appropriate means of regulating
storm water point sources within the
Nationa’ Pollutant Discharge
Elimination System (NPDES) program
has been a matter of serious concern
since implementing the NPDES program
iii 1972. In 1973. EPA promulgated its
first storm water regulations exempting
from permit requirements those point
source conveyances carrying storm
water runoff uncontaminated by
industrial or commercial activity unless
the particular storm water discharger
had been identified by the NPDES
Director as a significant contributor of
pollution (38 FR 13530 (May 22, 1973)).
The Agency maintained that. while
these sources fell within the definition of
Sea l’he Quality of Shellfish Cros ing Water,
on the East Coast of the United States NOAA.
1989’ ‘Th. Quality of Shellfish Crowing Waters in
the Gulf of Mexico’ NOAA. 1988. and ‘l’he Quality
of Shellfish Crowing Waters on the tVeat Coast of
the Umted States , NOA.A. 1990
‘S65F2d1369(DC.Cir 1977)
-------
41 i95 9
Federal Re sster / Vok. 56 , No.159/ Fri day. August 16.19 1 I Prcposed RuL s
a point source, they were ennethe!es,
ill-eurted to the traditional, end-of-pipe
controls that are the bas s of the NPDES
pzopa fGx process discharges and
discharges from Publicly Owned
Treatment Works 4 (POTWa). The
Agency also justi ed its decision by
noting that issuing individual NPDES
permits for the hundreds of thousands of
storm water point sources in the United
States would create an ovegwhelmin
administrative bu.den and would divert
resources away from control of
industrial process waste water and
municipal sewage. watch at the time.
were more pressing and identifiable
environmental problems.
In a series of challenges to the storm
water regulations, the Natural Resources
Defense Council (NRDCI brought suit in
the U.S. District Court for the District of
Columbia. challenging the Agency’s
authority to exempt selectively
categories of point sources from permit
requirements. N7WC v Tram. 39 3 F.
Supp. 1593 (DD.C 1975r. off’d. IVRDCv.
Castle. 568 F.2d 1369 (D.C. Cir. 1977).
The District Court held that EPA could
not exempt discharges identified as
point so i rccs from regulation under the
NPDES permit program. The District
Court was convinced that the oermzt
program would be manageable even
without the exemptions sought by EPA.
The court reco iized two alternatives
for reducing the’ permit workload:
(1) Discre fon to define ivhat
constitutes a paint soince: and
(2) Discretion to use certain
administrative cevices. such as general
permits, to help manage the workload.
With respect to the appropriate
administra ive mechanisms, the Court
recognized that EPA has wide lat:tudc to
rank categories and subcategories of
point sources of different impcrtance
and treat thern differendy within a
permit program. On review, the Court of
Appeals stated that technological or
administrative infeasibiity was a
reason for adjusting Court mandates to
raaIi e . the general onjectives of the Act
and may result in adjustments in the
permit program (5 F.2d l36 1679
(1977)). The Court of Apreiib recognized
that section 402 of the CWA gives EPA
considerable flexibility in framing the
permit to achieve a desired redaction in
pollutant discharges. One area of
flexibility is that permits may regulate
industry practices to lessen poini source
pollntion problems. The Cou-t of
‘t’lote that si 195 he icope of NPCi.S
permflu1n etf ’nT.. patticula*, 5 POTWS. bas
espended u naficantLy eddie.. pu rsw.aeenie t
polhtoe conwol aop . . .th.. Szami ite..’t pzo .
orie.t.d iequee mim .i pe.mua Ice 1W. ..w
imtianve. for pretrea e.i. .iIud u. and c sbiceö
cewur overflow..
Appeals noted that in certain eases,tt
may be appropriate for EPA to require a
permittee simply to monitor and report
effluent levels.
The Court of Appeals encouraged EPA
to use its interpretation authority to
mitigate burdens in establishing a
practical reajilatory scheme. Section 402
provides the Agency with flexibility in
determining the appropriate scope and
form of an NPDES permit. As a result.
the Co.irt su2gested uama area or
general perauts.
B. Water Quality .4ct of Z 87
The Water Quality Act (WQA) of 19117
added section 40 {p to the C’S iA to
provide a comprehenswe &a.nework for
EPA to address storm water u scharges.
Section 402(p)(1) provides that EPA. or
NPDES States cannot require a permit
for certain storm water discharges until
October 1, 1992. except for storm water
discharges listed under section .102(p)(2).
Section 402(p)(2) Lists five types of storm
water discharges which are required to
obtain a permit before October 1. 1992:
(A) A ascharge with respect to ihich
a permit has been issued prior to
February 4. 1987;
(B) A discharge associated with
industrial activity:
(C) A discharge from a municipal
sepa:ate storm sewer system serving a
population of 250.000 or more:
(C) A discharge from a municipal
separate storm sewer system serving a
population of 100.000 or more, but less
than 250.000 or
(E7 A dischaiga for which the
Administrator or the State. as the case
may be. determines that the storm water
discharge ccritnbutes to a violation of a
water quality standard or is a si ztflcant
contributor cf pollutants to the tvatura of
the Uruted States.
Section 40(p)(41 establishes
deadlines to implement the permit
program for Store water discharges
associated with industhal actfvrtyr
discharges from large municipal
separate storm sewer systems (systems
serving a population of 250.0CC or more):
and discharges from medium municipal
separate storm scwer systems (systems
serving a population of 100.000 or more
but less than 250.OOCI. This section of the
Act specifies deadlines for EPA to
promulgate permit application
requirements. applicants to eubmit
permit appl!caior.n EPA and authorized
NPDES States to issue NPDES permits.
and for permit compliance for the
identified storm water discharges.
NPDES permits for all cther storm
water discharges cannot be required
ur.tif Octobert. 1092. unless a permit for
the discharge was issued prior to the
date of enactment of the WQA (Le..
February 4. 198?). or tho ±scha e is
determined to be a signi car.t
contributor of pollutants to watere of the’
United States or is contributing Co a
violation of water qualiLy star.dards.
The W A clarified anti amended the
requirements for permits for storm wa :r r
discharges in the new CWA section
402(p)(3j. The Ac clarified that permits
for discharges associated with. indus i jl
act:vity must meet ail of the appUcaL e
provisicris of sectian 402.and secicn 01
including BAT/SCT technobgy-basecl
requirements and that permits for
discnarges from municipal sep’ :ale
stcrm sewer must meet a new st itutorj
standard requiring controls to reduce the
discharge of poll itants w the mrixmuri
extent practicable (MEPJ As with afl
point source discharges under the CWA.
storm water discharges are siib ect to
applicable water o ’ia1ity-based
standards.
EPA. in consultation with the States.
is requ!r d to conduct two stxJ ee on
storm water discharges that are !fl th
cuss of &hscharges for viuch EPA arid
NPDES States cannot require perinits
prior to Octcber L 1 2. The r st srud’,
will identify those storm water
discharges or classes of storm water
discharges for which permits are iOL
required prior to October 1. 1992 and
determine, to the ma. .fmum extent
practicable. the nature and ‘ixtent cf
pollutants iii such discharges. T e
second study is for the rpose of
establishing procedures and nethnd.s to
control storm water thsch . trges to the
extent necessary to mitigate mpacts ca
weler quality. llased c i the two tiidies.
EPA in ccnsuftation v Ji State and Lcai
officials. is required t i .ie rng ilaL:cna
by no latar than. Octon : i. gO2. wh:ch
designate a tionaL : .irn t ater
discharges to baregi_a:ad to prctect
water quality and establish a
comprehensive program to regulate such
designated sources. This program must
establish. at a minimum. (A) priorities.
(B) requirements for State storm water
management programs. ami (C)
expeditious deadlines. The pregra.n may
include performaice st r.dazda.
guidelines. guidance. and manag mant
practices and treatment requirements.
as appropriate.
H. Framework ofNPDES System
Cur.gress established the NPDE&
program with the 1972 Amendments t.i
the FWPCA. Section 402 ‘a the Act
requires EPA to adminis er a natior.al
permit prngram to reguLate pcint source
discharges of pollutants to waters of the
United States and sets cut t e basic
elements of the program.
-------
Federal Register / Vol. 56. No. 159 I Friday. August 16. i991 1 Proposed Rules
40951
A Slate Programs
The Act allows States to request EPA
authorization to administer the NPDES
program instead of EPA. Under section
402 (b ). EPA must approve a States
reciuest to operate the permit program
once it determines that the State has
a .!equate legal authorities, procedures.
and the ability to administer the
prcgram.
EPA is also directed by section 304(i)
of the FWPCA to adopt procedural and
programmatic requirements for Stale
NPDES programs, including guidelines
on monitoring. reporting. enforcement.
pe-sonnel and funding. and to develop
uniform national forms for use by both
EPA and approved States. At all times
following authorization. Slate NPDES
programs must be consistent with
m.mmum Federal requirements.
aithough they may always be more
str iriqent.
[ mon authorization of a State
program, the State is primarily
re° ,onsib!e for issuing permits and
ad-t ’nistrating the NPDES program in
that State. At the same tune. EPA
suspends the issuance of Federal
pe nuts for those activities subject to the
app-oved State program.
State NPDES authority is divided into
four parts the core program (POTW and
utdustrial permitting). Federal facilities.
pretreatment, and general permitting. At
this point in time, 39 States or
Terntoriea are authoiized to. at a
tnt n:rcum. issue NPDES permits for
mun::ipal and industrial sources. Of
t esa 39 States. 23 are currently
a thonzed by EPA to issue NPDES
ge-eral permits. In the 12 States (MA.
MEN H. FL. LA. ‘1% OK. NM. SD. AZ.
K. and ID) and 6 temtones (District of
C...umbia. the Commonwealth of Puerto
R 1 co Guam. American Samoa. the
Commonwealth of the Northern Mariana
i aods. and the Trust Territory of the
Pacific Islands) without NPOES
au ’.c ized programs. EPA issues all
N E3 permits. In 5 of the 39 States that
are authorized to issue NPDES permits
for ‘n nlc pal and industrial sources.
E A retains authority to issue permits
fcr d scharges from Federal facilities.
S . cuiraments in NPD S Permits
The CWA establishes two types of
standards for conditions in NPDES
per mts. technology-based standards
and water quality-based standards.
These standards are used to develop
efFuent limitations, special conditions.
and monitoring requirements in NPDES
perir.its. Numenc effluent limitations
that establish pollutant concentration or
mass limits for effluents at the point of
discharge (end-of-pipe conditions) are
generally at the heart of permits for
discharges from POTWs and industrial
process discharges. More recent
permitting efforts have also addressed
limiting the toxicity of effluents through
specific toxicity limitations included in
permits. Section 402(a)(l) authorizes the
inclusion of other types of conditions
that are determined to be necessary.
known as special conditions, in NPDES
permits. Special conditions include
requirements for best management
practices (BMPs).
I Technology-Based Standards
Technology-based requirements under
section 301(b) of the Act represent the
minimum level of control that must be
imposed in a permit issued under
section 402 of the Act. Two technology-
based requirements are appropriate for
existing storm water discharges
associated with industrial activity
(1) Best conventional pollutant control
technology (BCfl: and
(2) Best available technology
economically achievable [ BAT). The
BCT standard applies to the control of
conventional pollutants. while the BAT
standard applies to the control of all
toxic pollutants and for all pollutants
which are neither toxic nor conventional
pollutants. Section 306 of the CWA
provides for EPA to estabhsh new
source performance standards for new
sources.
Technology-based requirements may
be established through one of two
methods:
(1) Application of national EAT/BCT
effluent limitations guidelines
promulgated by EPA under section 304
of the CWA and new source
performance standards promulgated
under section 306 of the CWA
applicable to dischargers by category or
subcategory; and
(2) On a case-by-case basis under
section 402(a)(1) of the Act, using best
professional judgement (BPJ), for
pollutants or classes of discharges for
which EPA has not promulgated
nations! effluent limitations guidelines.
(Note: EPA only establishes new source
performance standards under section 306 of
the CWA when developing national effluent
limitstioni guidelines, and not when
establishing permit cmdiuons on a case.by-
case basis).
2. Water Quality-Based Standards for -
Controls
In addition to technology-based
controls. section 301)b) of the CWA also
requ:res that NPDES permits must
include ar.y conditions more stringent
than technology-based controls
necessary to meet State waler quality
standards. Water quality-based
requirements are established under tius
provision on a case-by-case basis.
Ill. Prior Storm Water Permitting Efforts
Between 1976 and 1984. EPA
regulations required that permit
applications be submitted for a wide
range of storm water discharges. Many
facilities that were required to submit
applications for storm water discharges
did not apply In addition, many of the
permit applications received by EPA
and authorized NPDES States were
never acted uDon for a number of
reasons. includingi Lack of resources for
permitting, lack of technical
understanding of the causes and
controls for pollutants in storm water.
reluctance of industrial dischargers to
accept requirements for best
management practices (B Ws) in NPDES
permits, and a general perception that
storm water discharges, when
considered one at a time. were of low
priority in 1984. EPA again promulgated
permit application requirements and
deadlines for storm water discharges.
However, these regulations were never
implemented, The regulations were in
litigation when Congress enacted the
Water Quality Act (WQA) on Febroar,’
4. 1987. which directly specified a new
national strategy for storm water
controL
Despite the lack of a comprehensive
permittuig program for all storm water
discharges prior to the passage of the
WQA of 1987. permitting efforts
nonetheless proceeded in some areas.
Between 1974 and 1982. EPA
promulgated effluent limitations
guidelines for storm water discharges
from ten categories of industrial
discharges:
• Cement Maculacr.iring
• Feedlots.
• Fertilizer Manufacturing
• Petroleum Refining.
• Phosphate Manufacturing
• Steam Electhc.
• Coal Mining.
• Ore Mining and Dressing
• Mineral Mining and Processing
• Asphalt Emulsion.
Permitting efforts for storm water
discharges have focussed on industrial
facilities subject to these effluent
limitations guidelines. In addition, some
EPA Regions and States with authorized
State NPDES programs have, to varying
degrees. written permits for storm water
discharges from other industrial
fac:hties. For example. in some States
and Regions. storm water discharges
from industnal facilities are often
addressed when NPDES permits for
process wastewaters of a facility are
reissued
-------
43952
Federal Resister I Vol. 56. No. 159 / Friday. August 18. 1991 / Proposed Rules
IV. November 16, 1990 Permit
Application Regulations
On November18. 1990. (55 FR 47990).
EPA published NPDES permit
application requirements for Storm
water discharges associated with
industrial activfty and discharges from
municipal separate storm sewer systems
serving a population of 100,000 or more.
The rulemaking accomplished three
major tasks:
(1) The rule defined the initial scope
of the NPDES storm water program;
(2) The rule established a permitting
scheme with respect to storm water
discharges associated with industrial
activity through municipal separate
storm sewer systems: and
(3) The rule established permit
application requirements for those storm
water discharges which are initially
subject to the program.
A. Scope of NPDES Storm Water
P.’vgram
The initial scope of the NPDES storm
water program is defined by two key
regulatory definitions. “storm water
discharges associated with industrial
activity” and large and medium
municipal separate storm sewer
systems”. The term “storm water
discharge associated with industrial
activity’ is defined at 40 CFR
1 5 58(bJ(14) and addressee point source
discharges of storm water from eleven
mat or categories of facilities. (This
definition is reprinted in the definition
section of the draft general permits
published in the appendix to today’s
notice).
The terms “large and medium
municipal separate storm sewer
systems” (systems serving a population
of 100,000 or more) are defined at 40
R 122.28(b) (4) and (7) to include
municipal separate storm sewers
located in: 173 incorporated places
(atles) with a population of 100,000 or
orm unincorporated portions of 47
counties identified as having large
populations in unincorporated.
urbanized portions of the county and
other municipal storm sewers which are
tfraigrt*ted by the Director on a case.by.
case basis.
The definitions of “storm water
discharge associated with Industrial
actlvit ’ and large and medium
municipal separate storm sewer system”
only address point source discharges.
Section 502(14) of the CWA defines the
term “point source” broadly to include
“any discernible, confined and discrete
conveyance, Including but not limited to
any pipe, ditch, channel, tunnel. conduit.
seell. discrete fissure, container.’
from which pollutants are or may be
discharged.”
In most court cases, the term “point
source” has been interpreted broadly.
For example. the holding in Sierra Club
v. Abston Construction Co.. Inc.. 620
F.Zd 41 (5th Cir., 1980) indIcates that
changing the surface of land or
establishing grading patterns on land
will result in a point source where the
runoff from the site ultimately is
discharged to waters of the (Jruted
S’ates:
Simple erosion over the material surface,
resulting in the discharge of water and other
materials into navigable water,, does not
constitute a point source discharge, absent
some eff rt to change the surface, to direct
the water flow or otherwise impede its
progress’ Gravity flow, resulting in a
d;scharge into a navigable body of water.
may be part of a point source discharge if the
(discharge) at least Initially collected or
channeled the water and other materials. A
point source of pollution may also be present
where (dischargers) design spoil piles from
discarded overburden such that, during
parioda of precipitation, erosion of spoil pile
walls results in discharges into a navigable
body of water by means of ditches, gullies
and similar conveyances, even if the
(discharger,) have done nothing beyond the
mere collection of rock and other materials
Nothing in the Act relieve, (discharges)
from liability simply because the operator.
did not actually construct those conveyances.
so long as they are reasonably likely to be
the means by which pollutants are ultimately
deposited into a navigable body of water,
Conveyances of pollution formed either as a
result of natural erosion or by matenal
means, and which constitute a component of
‘drainage system. may fit the statutory
definition and thereby subject the operators
to liability under the Act. (emphasis added)
020 F.2d 41. 45(1980).
Under this approach. point source
discharges of storm water result from
structures that increase the
imperviousness of the ground that acts
to collect runoff, with runoff being
conveyed along the resulting drainage or
grading patterns.
The Agency will embrace the
broadest possible definition of point
source consistent with the legislative
intent of the CWA and court
interpretations to Include any
ldentIfl ble conveyance from which
pollutants might enter the waters of the
United States.
B. Industrial Storm Water Discharges
Through Municipal Separate Storm
Sewer Systems
The November 16, 1990 notice clarifies
that storm water discharges associated
with industrial activity to water, of the
United States, including those through
municipal separate storm sewers to
waters of the United States, must obtain
NPDES permit coverage. However.
storm water discharges associated with
industrial activity to inwucipal sanitary
sewer systems (I.e. those systems which
are part of a POTW collection system),
Including combined sewer systems,
generally do not need to obtain NPDES
permit coverage, although they may be
subject to pretreatment requirements.
(Note that municipalities which operate
combined sewer overflows (CSO5) need
NPDES permit coverage for the CSO
discharge).
C. Permit Application Requirements
The November16, 1990 rule
established individual (40 CFR
122.213(c)(1)) and group (40 CFR
122.28(c)(2)) application requirements
for storm water discharges associated
with industrial activity. The
requirements associated with individu’il
application requirements for storm
water discharges associated with
industrial activity are incorporated ink
Forms I and 2F, which are generally to
be submitted to the Director by
November 18, 1991. In addition,
operators of storm water discharges
associated with industrial activity
through large and medium municipa
separate storm sewer systems are
required to submit a notification of ‘Jieir
discharge to the operator of the
municipal separate storm sewer system
receiving the discharge by no later than
May 15. 1991 or 180 days prior to
commencing such discharge (40 CFR
122.28(a)(4)).
The rule also established permit
application requirements for discharges
from large and medium municipal
separate storm sewer systCnls et 40 CFR
122.28(d).
V. Burdens on Permitting Agencies
The focal issue In developing
appropriate requirements for the NPDES
storm water program continues to be
addressing the resource burdens of
Implementing an effective regulatory
program for the extremely large number
of storm water discharges.
Understanding the burdens of the
program on permitting Agencies Is a first
step towards developing a workable
regulatory program.
Implementing the NPDES permitting
program Is a complex process, Major
steps to Issue a permit include:
• Training of Permit Writers. Permit
writers must acquire the appropriate
expertise necessary for writing permits.
• Permit Application Review. Permit
applications (or notices of intent to be
covered under a general permit) that are
received Initially must be screened and
reviewed for completeness. When this
-------
Federal Register I Vol. 56. No . 159 I Friday, August 16. 1991 / Proposed Rules
40953
review indicates that necessary
information is not provided, the
applicant must be notified and an
explanation of the deficiency provided.
pplications that aie complete must be
assigned to a permit writer and flied.
Preparing a Draft Permit. Preparing
a draft permit and fact sheet involves a
technical evaluation of the discharge
based on a review of the permit
application or other appropriate
information. The appropriate factors
associated with technology-based or
water quality-based standards must be
evaluated. Appropriate effluent
limitations, monitoring requirements.
and any special conditions need to be
developed.
• Pub/ic Notice of the Draft Permit.
Draft permits must undergo appropriate
public notice. In some cases public
hearings must be held.
• Pe:m,t Issuance.. Public comments
must be received, evaluated, and
responded to in developing a final
permiL Any request for an evidentia y
hearing must be addressed.
• Compliance Morutoringl
Enforcement. A number of compliance
monitoring activities can be conducted
including reviewing discharge
monitoring reports, conducting site
inspections, and evaluating other
information. Enforcement actions
include assessing penalties and issuing
administrative orders. Zn some cases,
.nforcement actions lead to litigation.
In addition to these steps. a number of
administrative functions, such as
responding to public inquiries, can
create burdens for permit issuing
agencies. The number of such inquiries
can be particularly high when a new
regulation is involved.
As discussed earlier in this notice.
efforts to permit point source discharges
under the CWA have focussed primarily
on industrial process discharges and
discharges from POTWs. EPA and
authorized NPDES States have issued
more than 48.600 NPDES permits for
industrial process discharges. 15.600
NPDES permits for POTWs, and
approximately 59 general permits have
been issued covering at least 7.200
facilities. The Agency estimates that
over 100.000 facilities (not including oil
and gas exploration and production
operations) discharge storm water
associated with industrial activity. Most
of the facilities that discharge storm
water associated with industrial activity
have not been addressed under the
NPDES program in the pas t . Today’s
notice incorporates several elements of
EPA’s initial attempt. to establish a
workable NPDES program that reflects
the realities of these administrative
urdens.
VI. Today’s Notice
Today’s notice requests public
comment on four major areas:
(1) EPA’s long-term permitting
strategy for storm water discharges
associated with industrial activity;
(2) Proposed changes to 40 CFR
122.44(ifl2) addressing annual
monitoring and reporting requirements.
(3) Proposed cn.anges to 40 CFR
12128(b)(2) addressing notice of intent
requirements for general permits; and
j (4) Proposed baseline general permits
for storm water discharges associated
with industrial activity in 12 States (MA.
ME, N FL FL. LA. TX, OK. NM. SD. AZ.
AK, ID ). and 6 Tern tories (Dtstnct of
Columbia, the Commonwealth of Puerto
Rico. Guam. American Samoa, the
Commonwealth of the Northern Mariana
Islands. and the Trust Territory of the
Pacific Islands) without authorized
NPDES Sta’e programs: on Indian lands
in AL CA. GA. KY. ML MN. MS. MT.
NC. ND. NY. NV, SC. Th. UT. WI, and
WY; located within Federal facilities
and Indian lands in CO and WA. and
located within Federal facilities in
Delaware.
A Long- Term Permitting Strategy
Many of the comments received
during the storm water NPDES permit
application rulemaking focussed on the
difficulties that EPA Regions and
authorized NPDES States. with their
finite resources, will have in -
implementing an effective permitting
program for the large number of storm
water discharges associated with
industrial activity. Many commenters
noted that problems with implementing
a permit program are caused not only by
the large number of industrial facilities
subject to the program. but by the
difficulties associated with identifying
and assessing appropriate technologies
and other measures for controlling storm
water at various sites and the
differences in the nature and extent of
storm water discharges from different
types of industrial facilities. The Agency
recognizes these concerns. and is
developing an approach to serve as a
foundation for future program
development
Based on a consideration of comments
from authorized NPDES States.
municipalities. industrial facilities arid
environmental groups on the permitting
framework and permit application
requirements for storm water discharges
associated with industrial activity. EPA
is developing a strategy for permitting
storm water discharges associated with
industrial activity. In developing this
strategy. the Agency recognizes that the
CWA provides flexibility in the manner
in which NPDES permits are issued’
The Agency intends to use this
flexibility in designing a workable and
reasonable permitting system. In
accordance with these considerations.
in today’s notice the Agency is
publishing and requesting comments on
a discussion of its draft strategy for
implementing the NPDES storm water
program. The Strategy establishes two
major components, a framework for
developing permitting priorities and a
framework for the development of State
Storm Water Permitting Plans.
1. Permitting Priorities
The Agency believes that most
permitting activities can be described in
terms of the following four classes of
activities:
• Tier I—Baseline Perm,ttin&’ One or
more general permits will be developed
to initially cover the ma onty of storm
water discharges associated with
industrial activity:
• Tier Il—Watershed Permitting:
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
actnity will be targeted for individual or
watershed-specific general permits.
• Tier Ill—Industry-Specific
Perzruttzng: Specific industry categories
will be targeted for individual or
industry-specific general permits: and
• Tier I V—Facility-Specific
Permitting? A variety of factors will be
used to target specific facilities for
individual permits.
These four classes of activities will be
implemented over time and will reflect
priorities within given States. In most
States, Tier I activities, issuance of
baseline permits. will be the initial
starting point. As priorities and risks
within the State are evaluated, classes
of storm water discharges or individual
storm water discharges will be
identified for Tier II. ifi or IV permitting
activities. Usually a storm water
discharge or a class of discharges will
not go through a sequence that involves
all four of the Tiers associated with the
strategy, but may for example. go from
initial coverage under a Tier I baseline
‘As discussed esther in this noa . the Court in
NRDC v Tre.,n. 395 FSupp. 1395 ID.D.C. 19751 aff’d
NRDC v Co,sI,. 595 F 2d 1355(0 C.Cl, 1977). has
acknowledged the .dminieesiiva bcrde pl.ced on
the Agency by reqwrmg individual peiwate far a
large number of storm water discharges, These
courts hey. recognized EPA’. dlsaeuou to use
certain adminiatiative devices. such as ares permits
or general penmi. to help manage 4i. worltlo.d. in
addition, iha onwee hrn rewgnid Ileathility to
the typ. of permit conditions thai ale established,
including requavonota lot bed manegemeni
praciace.
-------
receral Register / Vol. 58. No. 159 I Fr day, August 16, 1991 f Proposed Rules
permit to coverage under a Tier 11!
industry specific general permit.
a. Tier I—Baseline permitting. The
Agency intends to Issue general permits
that initially cover the majority of storm
water discharges associated with
industrial activity in States without
authorized NPDES programs. These
permits also will serve as models for
States with authorized NPDES
programs.
Consolidating many sources under
one permit will greatly reduce the
administrative burden of permitting
storm water discharges associated with
industrial activity. This approach will
allow
• Pollution prevention and control
requirements to be established for
discharges covered by the permit
• Facilities whose discharges are
covered by the permit to be certain of
their legal responsibilities and have an
opportunity to comply with the CWA
• EPA and authorized NPDES States
will begin to collect and review data on
storm water discharges from priority
industries, thereby supporting
subsequent permitting activities;
• The public, including municipal
operators of municipal separate storm
s,iwers which may receive storm water
discharges associated with industrial
activity, to have access under section
308(b) of the CWA to monitoring data
and certain other Information developed
by the permittes;
• Applicable requirements of
municipal storm water management
programs established in permits for
discharges from municipal separate
storm sewer systems to be enforceable
directly against noncomplying industrial
facilities that generate the discharges
where the permit for the storm water
discharge includes a cor.ditior. requiring’
compliance with the municipal atoms
water management program;
• The public to have the opportunity
to review data and reports developed by
industrial permittees and to be given an
opportunity to comment on permitting
activities;
• The baseline permits will provide a
basis for bringing selected enforcement
actions by eliminating many Issues
which might otherwise aria. in an
enforcement proceeding; and
• The baseline permit, along with the
State storm water permitting plans
(discussed below), will provide a focus
for public comment on subsequent
phases of the permitting strategy for
storm water discharges.
Initially, the coverage of the baseline
permits will be broad. However, the
coverage will shrink as other permits
are issued for storm water discharges
associated with industrial activity
pursuant to Tier U through Tier IV
activities. The Agency believes that Tier
I permits can establish the appropriate
balance between monitoring
requirements and implementable
controls that will initiate facility-specific
controls and provide sufficient data for
compliance monitoring and future
program development. Baseline general
permits are flexible enough to allow the
introduction of Tier I! . II ! or IV types of
activities, such as industry specific
monitoring or control conditions. (See
the draft general permits in this notice
for examples of how this balance may
be achieved). The Agency requests
comments on the appropriate role of
sampling requirements and on facility.
spccific controls in Tier! permits.
b. Tier II— Watershed permitting.
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
activity will be targeted for individual
end general permitting activities. This
process can be initiated by identifying
receiving waters (or segments of
receiving waters) where storm water
discharges asscc:ated with industrial
activity have been identified as a source
of use Impairment or are suspected to be
contributing to use impairment.
Information developed under sections
304(l), 305(b), and 319(a) of the CWA,
along with information from other
sources (including Information
developed under the baseline general
permits for storm water discharges). can
be used in evaluating impacts on
receiving waters. This information may
identify dasses of storm water
discharges that are of particular concern
and portions of watersheds where the
sources of concern are located.
Appropriate classes of storm water
discharges in these locations can be
targeted for additional permit conditions
which may provide additional
information to characterize the
discharge (e.g., additional monitoring
and reporting requirements) or where
appropriate for more stringent controls.
Information gathered under initial
permits for storm water discharges as
well as information from other sources
can be used to upgrade lists of impacted
receiving waters and reassess water
quallty.based controls. As discussed in
more detail below. State storm water
permitting strategies are expected to
have a major role in this process.
c. Tier I!!—!ndustry.Spec:fic
Permitting. Specific industry categories
will be targeted for individual or
industry-specific general permits. These
permits will allow permitting authorities
to focus attention and resources on
industry categones of particular concern
and/or industry categories where
tailored requirements are appropriate.
The Agency will work with the States to
develop model permits for selected
classes of industrial storm water
discharges. EPA Is also working to
identify priority Indus t rial categories in
the two Reports to Congress required
under section 4 02 (p)(5) of the CWA. hi
addition. the group application process
adopted in the final regulation published
on November10, 1990, (55 FR 47990) will
prov de an additional mechanism for
developing lndustry.speciflc general
permits. Group applications that are
received can be used to develop model
permits for the appropriate industries.
d. Tier IV—Facilily-specific
permitting. Individual permits will be
appropriate for some storm water
discharges in addition to those
identified under Tier II and Tier II!
ectivities. Individual permits should be
issued where warranted by: The
pollution potential of the discharge. the
need for individual’control mechanisms.
and where reduced administrative
burdens exist. For example. individual
NPDES permits for facilities with
process discharges should be expanded
during the normal process of permit
reissuance to cover storm water
discharges from the facility. This
provides an opportunity to develop
individual controls where the
incremental administrative burden is not
greatly increased.
2. Relationship of Strategy to Permit
Application Requirements
The long-term permitting Strategy
described above identifies several
permit approaches that the Agency
anticipates will be used in addressing
storm water discharges associated with
industrial activity. One issue that arises
with this Strategy is determining the
appropriate information needed to
develop and issue permits for these
discharges. The NPDES regulatory
scheme provides three potential mutes
for applying for permit coverage for
storm water discharges associated with
Industrial adlivity
(1) IndIvidual permit applications;
(2) Group applications; and
(3) Case-by-case requirements
developed for general permit coverage.
Individual Permit Application
Requirements
Individual permit application
requirements are applicable to all storm
water discharges associated with
Industrial activity except where the
operator of the discharge is participating
In a group application, or a general
permit is issued to cover the discharge
-------
Federal Register / Vol. 56. No . 159 / Friday, August 16. 1991 I Proposed Rules
4O9
and the general permit provides
alternative means to obtain permit
coverage.
The requirements for an individual
permit application are reflected in Form
1 and Form 2F. These forms require the
development and submission of
relatively detailed site-specific
information, including: A drainage site
map, an estimate of the ares of
impervious surfaces and the total area
drained by each outfall, a narrative
description of specified features that
may impact the pollution potential of a
discharge. a list of significant spills and
leaks of toxic or hazardous pollutants
that occurred at the facility after the
effective date of the permit, a
certification that the discharge has been
tested for the presence of non-storm
water discharges. and sampling data
from a representative storm event. This
information is intended to be used to
develop the site-specific conditions
generally associated with individual
permits.
Individual permit applications will
play an important role in all tiers of the
Strategy. even where general permits
are used. Although general permits may
provide for notification requirements
that operate instead of the requirement
to submit individual permit applications.
the individual permit applications may
be needed under several circumstances.
Examples include: general permits
requiring the submission of a permit
application as the notice of intent to be
covered by the permit where the owner
or operator of a discharge authorized by
a general permit requesting to be
excluded from the coverage of the
general permit by applying for a permit
(see 40 CFR 122.28(b)(2)(iii) for EPA-
issued general permits): and a Director
requiring an owner or operator of a
discharge authorized by a general
permit to apply for an individual permit
(see 40 CFR 122.23(b)(2J(ii) for EPA-
issued general permits)
Croup Apphcat:ons
On November 16. 1990. (55 FR 47990).
EPA promulgated requirements for
group applications for storm water
discharges associated with industrial
activity. These application. provide
participants of groups with sufficiently
similar storm water discharges an
alternative mechanism for applying for
permit coverage.
The group application requirements
provide information for developing
industry-specific general permits.
(Group applications can also be used to
issue individual permits in authorized
NPDES States without general permit
authority or where otherwise
appropriate). A. such, group application
requirements correlate with the Tier Ill
permitting activities identified in the
long.term permitting Strategy.
ReqwremenLs in General Permits
40 CFR 122.21(a) excludes persons
covered by general permits from
requirements to submit individual
permit applications. In section V1.C of
this preamble, the Agency is proposing
minimum requirements for filing notices
of intent (NOl) to be authonzed to
discharge under general permits. NOl
requirements established in general
permits operate instead of individual
permit application requirements for the
discharges covered by the general
permit. (NOl requirements are discussed
in more detail below).
3. State Storm Water Permitting Plans
The CWA provides a framework for
the long-term development of the
NPDES program to address storm water
discharges. Section 402(p)(2) of the
CWA identifies those storm water
discharges. including storm water
discharges associated with industrial
activity, which are the initial priorities
for permitting. Section 402(p)(5) of the
CWA requires the Agency to study other
storm water discharges. Section
4 02(p)(6) of the CWA requires EPA. in
consultation with State and local
officials, to issue regulations by no later
than October 1. 1992 which designate.
additional storm water discharges to be
regulated to protect water quality and
establish a comprehensive program to
regulate such designated sources. The
Act provides that this regulatory
program include requirements for State
Storm Water Management Programs.
Although section 402(p)(6)
contemplates that State Storm Water
Management Programs address Phase II
storm water discharges identified in
section 402(p)(5) studies (e.g.. a subset of
storm water discharges other than storm
water discharges associated with
industrial activity, and discharges from
large and medium municipal separate
storm sewer systems), the Agency
believes that permitting activities for
storm water discharges associated with
industrial activity and for discharges
from large and medium municipal
separate storm sewer systems under
Phase I should also be considered and
evaluated when developing the scope of
comprehensive State Storm Water
Management Programs.
As EPA and NPDES authorized States
implement efforts to permit storm water
discharges, it is necessary to ensure
adequate public Input, evaluate program
acthntle. and provide for program
oversight. The Agency believes that
State Storm Water Management
Programs can provide an appropriate
basis for these activities, particularly
during the earlier stages of program
development. EPA has outlined below a
number of the components and elements
of a State Storm Water Permitting Plan
which it believes are essential to assure
successful implementation of the storm
water initiative called for in section
402(p) of the CWA. and which can serve
as a foundation for subsequent
development of State Storm Water
Management Programs. These plans will
provide an effective coordination and
tracking mechanism for evaluating the
initial permitting activities for storm
water discharges required under section
402(p) of the CWA. In addition, these
plans will facilitate the technology
transfer among the States.
State Storm Water Permitting Plans
should include a description of a
strategy to issue NPDES permits for
discharges from large and medium
municipal separate storm sewer
systems: storm water discharges
associated with industrial activity: and
case-by-case designations of storm
water discharges needing a permit
Plans should be developed for each
State. EPA will request that the Director
of the NPDES program provide a copy of
the draft State Storm Water Permitting
Plan to the Office of Wastewater
Enforcement and Compliance within 12
months after the date of publication of
this final regulation.. EPA anticipates
that States will update these plans on a
regular basis. EPA Intends to continue to
review these plans while evaluating the
manner in which Phase 11 storm water
discharges are addressed in State Storm
Water Management Programs developed
under section 402(p)(6J of the CWA.
These plans will assist EPA in
technology transfer activities, evaluating
the progress of States in implementing
storm water permitting activities, and
identifying problems with program
implementation.
EPA believes that at a minimum, the
initial State Storm Water Permitting
Plans should address permitting of large
and medium municipal separate storm
sewer systems: storm water discharges
associated with Industrial activity: and
case-by-case designations of storm
water discharges needing a permit
Much of the information in the first
phase of the plan will be generated from
storm water applications required by the
November 16. 1990 application rule and
the industry specific analysis required
by the rule. The basic framework for the
Plan should addres. on a State-wide
basis:
-------
40958
Federal Reejater I Vol. 58, No. 159 / Friday. August 18. 1991 I Proposed Rules
Munic,pai Separate Storm Sewer
Systems
• A list of municipal separate storm
sewer systems serving a population of
100000 or more within the State
• For systems identified, a summary
of the estimated pollutant loadings as
provided in the permit application for
such discharges. or as otherwise
updated, and
• The status of permitting activities
for discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more. including
any NPDES permit number for such
discharges.
Storm Water Discharges Associated
with Industrial Activity
• A description of the status and
objectives of activities to issue and
implement a baseline general permit.
including a copy of any final general
permit for storm water discharges
associated wrh industrial activity:’
• A list of categories of industrial
racilities that have storm water
discharges associated with industrial
activity that are being considered for
industry.specific general permits for
their storm water discharges associated
with uidustiial activity;
• A description of procedures.
including activities conducted under any
general permit (such as inspections.
review of notices of intent or review of
monitoring reports) to identify specific
storm water discharges associated with
industrial activity that are appropriate
for individual permits;
• A description of how permits for
discharges from municipal separate
storm sewer systems require the
development of municipal storm water
management programs addressing the
control of pollutants in storm water
discharges associated with industrial
activity.
Lrzpacted Waters
• A description of procedures to
identify receiving waters where
charges from municipal separate
storm sewers, storm water discharge.
. .‘..—.ciated with industrial activity, or
any other class of storm water
hni es are, or have the potential to,
ceuse or contribute to a violation of a
water quality standard, Including a list
t waters identified by these procedures.
• A I. not requesting permits Inca pan of these
• far the pi rpose of commenting us the
ad quscy of th. pez lL Rather the Agency I.
c stang the uspie. of the permit to usordlnats
tsctuology tranafer regurdleg permitung approaches
classes of storm water diacharges addressed.
d to provtds • general evaluation of the stetus of
tionsI permitting activities.
Case-by-Case Designations
A description of procedures to
identify storm water discharges (other
than those currently subject to
requirements for obtaining a permit) that
contribute to a violation of a water
quality standard or significantly
contribute pollutants to the waters of
the United States.
• A list of storm water discharges
considered for designation or designated
under section 402(p)(2)(E) as needing a
permit.
EPA strongly encourages public
participation and comment at the State
level during the development of these
plans.
These initial State storm water
permitting components will ensure that
permitting efforts are implemented
adequately for storm water discharges
associated with industrial activity and
other priority storm water discharges by
creating a framework for plannuig State
storm water permitting activities, and
providing EPA information for
technology transfer purposes and
evaluating State permit issuance efforts.
The State Storm Water Permitting Plans
will provide a framework for
implementing the tiered long-term
strategy for permitting storm water
discharge . associated with industrial
activity. Provisions for State Storm
Water Management Programs will be
expanded in the future to address other
storm water discharges in accordance
with section 402(p)(6J of the CWA. EPA
requests comments on the appropriate
scope and content of State Storm Water
Permitting Plans. The Agency also
requests comments on whether the
guidelines for Plans should be made
requirements that are incorporated into
EPA regulations, or remain non.bindir.g
recommendations for States. EPA notes
that it may require preparation of such
Plans pursuant to sections 304(i)() and
402(p)(8) of the CWA.
4. States without NPDES General Permit
Authority
As noted, the issuance of general
permits is a very Important component
In the recommended permit issuing
strategy. Presently 38 States (and I
territory) have been authorized to
Implement the NPDES permit program.
However, only 23 of these States have
been authorized to issue general
permits. If NPDES authority is not
obtained for any of the remaining 15
States, storm water controls will have to
be implementation based on the
submission of individual or group permit
applications, and the development of
individual permits. Under the CWA.
EPA cannot Issue general permits in
States that have been authorized to
administer the NPDES program.
EPA strongly recommends that States
with authorized State NPDES programs.
but without general permit authority,
consider obtaining general permit
authority as soon as possible. EPA is
currently working with States to
expedite the authorization process.
B. Pmposed Changes To Annual
Monitoring and Reporting Requirements
Section 308 of the CWA authorizes
EPA to require information, monitoring.
and recordkeeping to carry Out the
objectives of the Act including but not
limited to: (1) Characterization of
discharges to assist in the development
of permit conditions and controls: and
(2) compliance monitoring to determine
whether a discharger is in violation of a
permit condition. The authority to
collect information under section 308 is
broad and can include requirements for
record keeping. making reports. effluent-
monitoring, and other information
reasonably required. EPA and
authorized NPDES States implement this
authority in a number of ways, including
permit application requirements, permit
monitoring and reporting requirements,
and specific information requests under
section 308 (section 308 letters). In
addition. section 402(a)(2) of the CWA
provides that NPDES permits shall
prescribe requirements to assure
compliance with permit conditions,
including requirements on data and
information collection, reporting, and
such other requirements deemed
appropriate.
Monitoring data serves a number of
functions under the NPDES program.
Discharge monitoring data can be used
to assist in the evaluation of the fisk of
the discharge by indicating the types
and the concentrations of pollutant
parameters in the discharge. Monitoring
of storm water from an industrial SliO
can assist in evaluating sources of
pollutants. Discharge monitoring data
can be used in evaluating the potential
of the discharge to cause or connibute
to water quality impacts and water
quality standards violations.
Discharge monitoring data can also be
used to evaluate the effectiveness cf
controls on reducing pollutants In
discharges. This function of monitoring
can be important in evaluating the
effectiveness of source control or
pollution prevention measures as well
as evaluating the operation of end.of.
pipe treatment units. Where numeric or
toxicity effluent limits are incorporated
into permits, discharge monitoring data
plays a critical role by providing EPA
and authorized NPDES States with data
-------
Federal Register I Vol. 56. No. 159 I Friday. August 16. 1991 I Proposed Rules
4O9 7
to evaluate compliance with effluent
limits. The use of discharge monitoring
data to determine permit compliance
greRtly enhances the ability of EPA end
authorized NPDES States to enforce
permit conditions.
As part of efforts to obtain sufficient
information to run the program
effectively, the existing regulations at 40
CFR 122.44(i) specify factors to consider
in developing monitoring requirements
in permits. These regulations indicate
that permit monitoring requirements are
to be established on a case-by-case
basis to ensure, as noted above.
compliance with permit limitations. In
addition. 40 CFR 122.44(i)(2) provides
that requirements to report monitoring
results to the permitting authority shall
in no case be less than once a year.
To date, the minimum requirement
that permittees submit an annual
discharge Inorutoring report (DMR) has
proved to be a valuable baseline for
NPDES permitting efforts for POTWs
and industrial pr.ocesa discharges.
Among the most important functions of
DMRs is to assess compliance with
nurienc effluent limits contained in
permits However, some important
administrative, technical, and policy
concerns regarding DMRs arise as the
Agency begins to fully implement permit
requirements for storm water
discharges. The Agency is considering
the following factors in addressing this
issue:
Administrative Burdens on Permuting
Agencies. Requiring annual DMRs from
each facility that discharges storm water
associated with industrial activity
would result in an enormous increase in
the number of DMRs received by EPA
Re iiens and authorized NPDES States
The Agency estimates that nationwide.
o er 100.000 facilities (not includuig oil
and gas exploration and production
operations) discharge storm water
associated with industrial activity.
Receiving annual DMRs containing
complex technical information from
each of these facilities would demand a
large amount of permitting resources
dedicated to reviewing and filing these
reports. The Agency believes that such
an increase in information would
overwhelm permitting agencies who
would have hzzuted opportunities to
review or otherwise analyze the
information.
Difficulties in Sample Collection.
Where storm water is not collected in a
retention pond. the collection of storm
water samples may pose a number of
difficulties. These difficulties include
determining when a discharge will
occur, safety considerations, the
potential for a large number of discharge
pcints at a given facility, the limited
duration of the event, the limited
number of events that occur in some
parts of the country, and variability in
flow rates.
Variability of Data. The types and
concentrations of pollutants in storm
water discharges associated with
industrial activity depend on a number
of factors, including the nature of
industrial activities occurring at the site,
the nature of the precipitation event
generating the discharge. and the time
period from the last storm. Vanatione in
these parameters at a site may result In
variation from event to event in the
concentrations and types of pollutants
in a given discharge.
Types of,Perm,: Conditions. Permits
for industrial process discharges and
discharges from POTWs traditionally
have incorporated numeric and/or
toxicity effluent limitations as
conditions. Monitoring reports for these
discharges provide a direct indication
whether the discharge complies with
permit conditions. However, it is
anticipated that permits for storm water
discharges will contain a variety of
types of controls. While numeric or
toxicity limitations are expected to be
appropriate for some storm water
discharges, permits for other storm
water discharges are expected to
contain requirements to implement best
management or pollution prevention
practices. in these cases, monitoring
information may not provide as direct a
link to compliance with permit
conditions. However, monitoring data
can still play an important role in
identifying priority facilities, providing
information on sources and types of
pollutants which can be evaluated whcn
designing or modifying best
management or pollution prevention
practices. and evaluating the
effectiveness of beat management
practices and pollutant prevention
measures.
Focussed Pei’milting Effort .s
The long.term permitting strategy
discussed earlier in today’s notice
provides for a flexible system for
conducting permit issuance and
reissuance activities, flexibility has
been incorporated into the strategy to
facilitate EPA and authorized NPDES
States permit issuance activities which
reflect Regional and State priontization
of storm water impacts on particular
watersheds and specific receiving
waters, and on specific classes of
facilities In most States, the issuance of
baseline permits (Tier I activities). will
be the initial starting point. As priorities
and risks within a State are evaluated.
classes of facilities will be identified for
more specific permit issuance activities
(Tiers IL III and IV of the strategy).
Storm water discharge monitoring data
will have an important role, along with
other information. in identifying
facilities or classes of facilities where
Tier 11. III and IV permit issuance
activities are appropriate. In addition.
monitoring data will play an important
role in developing appropriate permit
conditions.
1. Options for Regulatory Modifications
EPA requests comments on five
options (plus a no change option) for
modifying the existing regulatory
provision that NPDES permits at a
minimum require the submittal of DMRs
annually for permits for storm water
discharges associated with industrial
activity. It.should be clarified that these
options only address minimum
requirements for discharge monitoring in
NPDES permits. All options for
modifying these regulations would
retain authority to require more
stringent monitoring requirements where
appropriate. The six options’ are as
follows’
No Change Option. Case.by-case
monitoring conditions in permits for
storm water discharges. with a rmzumuni
requirement to report monitoring results
at least annually.
Under this approach. EPA would not
change its existing regulations which
provide that monitoring conditions in
NPDES permits be established on a
case-by-case basis, but at a minimum.
must contain requirements to report
monitoring results at least annually.
_Qw j: Case-by-case monitoring
conditions in permits for storm water
discharges with a min murn requirement
to report monitoring results at least
twice per permit term.
This option would change the
minimum requirement for reporting
monitoring results at least annually to
reporting monitoring at a different
frequency, such as twice during a five
year period (during the term of a permit)
This approach would provide permit
writers with additional flexibility to
develop monitoring requirements in
EPA will conaidet d.veioputg a final tegilabon
which coinbute . aapecte of several of the op one
articulated below For eiiample. the Agency may
determine that itt . epproprist. to issue. final
regulation which provide, that. at e nwwnum.
NpD permit, will requite annual momioring
(without reportingi for .11 storm weler discharges
a. .uci.Ied with Induatrial activity eacepi for
permit. for targeted storm waler discharge.
associated with lndu.lriai activity Iocaied in the
watershed of r,celvtng waters that ale sensitive to
or Impacted by .torm wale? discharge. which at e
muumum would be iequued to sampl, quarterly
and be requued to report Inforination to the
permitting authority
-------
40958
Federal Register / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
permits that were less burdensome to
the permittee. Reducing monitoring and
reporting requirements wouid also be
less burdensome to the entity that
reviewed the monitoring report
The Agency also requests co mments
on providing permit writers with
flexibility to establish requirements for
conducting biological surveys of
receiving waters as part of efforts to
comply with minimum monitoring
requirements. Under this approach,
pernuttees could be required to conduct
a survey of the biological health of the
receiving water, to provide information
on existing conditions. (See, “Biological
Criter.a. National Program Gudance for
Surface Waters.” Office of Water
Regulations and Standards (WH—585).
EPA-440/5-90-004 and “A &irvey of the
Status of Biomonitoring in State NPDES
and Nonpoint Source Monitoring
Programs,” 1989, Office of Policy,
Planning and Evaluation. U.S. EPA.
RTO/7839/02-03F).
Data from a biological survey can be
used by a permitting authority when
assessing bological criteria to evaluate
surface water quality. In this manner.
the biological survey data can identify
locations where water quality impacts
are thought to be occurring. Where such
impacts occur, additional monitoring or
control requirements could be pursued.
Chemical specific monitoring, toxicity
mcnitorlng and biosurveys have unique
as well as overlapping attributes.
sensitivities, and program applications.
No single approach for detecting impact
should be considered uniformly superior
to any other approach. EPA Is
encouraging States to implement and
integrate all three approaches into their
water quality programs, while applying
them in combination or independently
as site-specific conditions and
assessment objectives dictate (See draft
Final “Policy on the Use of Biological
Assessments and Criteria in the Water
Quality Program”, EPA,, January 1990).
p i Case-by-case monitoring
conditions in permits for starm water
discharges with a i th mum requirement
that facilities conduct annual sampling.
Facilities would not be required to
report monitoring Information unless the
Information was requested In a permit
or by the Director, but would be
required to retain information.
Under this approach, permits for
storm water discharges associated with
industrial activity will, at a minimum.
require the discharger to sample storm
water discharges at least annually.
However, permits would not have to
require discharger. to submit monitoring
reports. Facilities could use this data to
review the effectiveness of B.MPs or
storm water pollution prevention
practices conducted at the site.
Monitoring data would be available to
the Director or the public upon request
In addition, dischargers could be
required to submit a summary of their
monitoring results they had collected
during the previous permit term every
five years when they resubmit permit
applications or notices of intent to be
covered under a general permit.
This approach could provide
additional flexibility to permit writers
for developing reasonable and workable
permit conditions which can limit the
administrative burdens associated with
receiving and reviewing monitoring
results from a large number of facilities.
Facilities would still be required to
conduct discharge monitoring at least
annually even where permits require the
development of pollution prevention or
best management practices instead of
numeric or toxicity effluent limits. The
permittee would evaluate discharge
monitoring data as part of efforts to
identify pollutant sources, evaluate
risks, and evaluate the effectiveness of
its pollution prevention/best
management practices program. In
addition, requiring monitoring data
would ensure that the permitting
authority would be able to request
Information from the facility either
during the term of the permit. or when
the discharger Is reapplying for permit
coverage. This would allow the permit
writer to identify pollutant sources,
evaluate priorities based on the nature
of pollutants in the discharge and the
potential for the discharge to contribute
to a water quality standard violation,
and to evaluate the effectiveness of
controls at the facility.
The Agency remains concerned about
the ability of permitting authorities to
adequately review annual monitoring
reports from all facilities that discharge
storm water associated with industhal
activity. EPA requests comments on
whether providing permit writers with
the flexibility to require permittees to
retain monitoring information until the
Information Is requested or until a
permit is reissued is an adequate and
appropriate manner in which to address
this problem.
Option 2 could be modified to provide
minimum requirements to establish
reporting of monitoring results in
permits in specified situations. One
approach would be to provide that
permits for storm water discharges
associated with indusmal activity to
receiving waters that are sensitive to or
impacted by storm water discharges
must require discharger. to report
monitoring results at least annually (or
at a higher minimum frequency). This
approach would assist permitting
agencies In evaluating causes of water
quality impairment The discussiun
accomoanying Option 4 describes how
receiving waters that are sensitive to or
impacted by storm water discharges
may be identified.
The second approach would be to
provice that permits for storm water
discharges associated with industrial
activity must require discharger. to
report monitoring results where
pollutants are detected above specified
threshold concentrations. Maximum
pollutant threshold concentrations
which would trigger reporting
requirements could be established by
regulation. These concentrations would
apply to all storm waler discharges
associated with industrial activity
n’ationally. (For example, values which
could be established at the high end of
the range of pollutant concentrations
typically found in urban runoff. The
NURP data base indicates that high
values within the typical range for ui ’ban
run ff may include concentrations suc i
as 50 mg/I five-day biochemical ox’,gen
demand, 30 mg/I oil and grease. 4C )
mg/I total suspended soLds.
Alternatively, for parameters with water
quality standards, EPA could require
that concentrations in excess of the
numeric water quality criteria be
reported). Alternatively, pollutant
threshold concentrations could be
established on a State-by.State basis,
with different sets of pollutant threshold
concentrations for different classes of
receiving waters. The Agency requests
comments on appropriate pollutant
threshold concentrations under this
approach. As stated above, diachargers
could be required to submit summaries
of all of the monitoring information that
they collected during the previous
permit term when they resubmit
applications or notices of intent for
permit coverage.
Option 3: Case-by.case monitoring
câtIdfllons in permits for storm water
discharges with a minimum requirement
that facilities (other than those from oil
and gas exploration or production
operations and inactive mining
operations where a past or present mine
operator cannot be identified) conduct
annual sampling. Facilities would not be
required to report information unless the
information was requested in a permit
or by the Director, but would be
required to retain information. For
contaminated storm water discharges
from oil and gas exploration or
production operations or from inactive
mining operations where a past or
present mine operator cannot be
identified, either case-by-case
monitoring conditions in permits for
-------
Federal Register / Vol. 58. No. 159 I Friday, August 16, 1991 I Proposed Rules
40959
storm water discharges with a rmnunum
requirement of annual sampling (without
reporting) or. instead of sampling, a
Professional Engineer’s certification
attesting that good engineering practices
were being employed to meet
appropriate permit condition..
Th:s option is identical to Option 2 for
storm water discharges associated with
industrial activity Iron facilities other
than: oil and gas exploration or
production operations; and inactive
mining operations where a past or
present mine cperator cannot be
identified. However, for contaminated
storm water discharges associated
industrial activity from oil and gas
exploration or production operations
(e.g. drilling or well operations) or from
inactive mining operations where a past
or present mine operator cannot be
identified, this option would provide
permit writers with flexibility to require.
at a minimum. etther annual monitoring
or. instead of monitoring, a certification
by a Professional Engineer (PE] attesting
that good engineering practices were
being employed to meet appropriate
permit conditions.
Under this approach, permit writers
would be provided with two options for
developing minimum monitoring
requirements for storm water discharges
From oil and gas exploration and
production operations. The first option
satisfying the minimum requirement
would be to require owners or operator.
of storm water discharge. from oil and
gas exploration and production
operations to conduct annual manutor.rig
of representative storm water
discharges. Where discharger. are not
required to report monitoring results to
the Director, permits must require that
monitoring results be retained by the
discharger for at least the term of the
permit and be made available to the
Director upon request In such cases.
results of any monitoring conducted
during the term of the permit should be
submitted as part of a permit application
or NO! requirement prior to permit
reissuance.
A second option for minimum
requirements for permits for storm water
discharges from oil and gas exploration
and production operations or from
inactive mine sites where a past or
present mine operator cannot be
identified would be available where a
permit requires the facility owner or
operator to develop and implement a
i orm water pollution prevention plan or
a storm water beat management
practices plan. In such a case, the permit
writer could require the discharger to
obtain a Registered Professional
Zngineer ’s certification that the plan had
been prepared and is being implemented
in accordance with good engineering
practices. Such certification would be
obtained at a minimum of once every
three sears. The Agency believes that a
min mum requirement of once every
three years is necessary to evaluate
changing site conditions and practices.
01 course permit writers would retain
discretion to. where appropriate.
establish monitoring and certification
requirements in excasa of these
minimum requirements.
EPA is proposing this option to
aJclress some of the specific concerns
associated with storm water from oil
and gas operations and from inactive
mining operations where a past or
present operator cannot be identified.
Inforrnatlcn from sources such as
nonpoint source assessments developed
pursuant to section 319(a) of the CWA
indicate that significant water quality
impacts can oe caused by wet-weather
failure of on-site waste disposal systems
at oil and gas exploration and
production operations (such as storm
induced overflows of reserve pits used
to hold spent drilling muds and
cuUings ). Periodic sampling of
discharges may not be sufficient to
identify or predict these events. Rather,
a PE certification may provide a more
appropriate link for evaluating the
potential for and preventing these types
of events. Further, many oil and gas
exploration and production with
contaminated storm water discharge.
are already required to obtain similar PE
certifications for Spill Prevention
Control and Countermeasure (SPCC)
Plans for discharges of oil undur 40 CFR
part 112. The Agency believes that
developing an approach under the
NPDES program for storm water
discharges from oil and gas operations
that is consistent with existing
regulatory programs (e.g. the SPCC
program) will potentially reduce
industry burdens and provide for a
greater degree of industry compliance.
EPA Is also considering other factors in
evaluating requirements for oil and gas
exploration and production operations.
including the potentially large number 5
The Amerlca Petroleum institute (API)
..ttmntes that that. a ,, about asoaco active oil and
aa wall.. Z19.005 task battens, and 150.000
ii.pecl’on well. in lbs United State.. API also
e.tia’.atea hat SPCC plan. have been developed lot
about iii) 000 of thr,a faclittes. Th. Agency
annrrpets , thet many s:trs are composed of
miui:ipia cnmp.w.enu (e.g scuve wails. a tank
bat’ery. and injection wetl,j The Agency also
anucipais. that sot sU sites dzachsr 5 ,
coatam.nated tunolf. EPA requests comment, Os
the .iumba, of aitsa with oil and gsa eaplorstion and
producuco opeslilona that dLsclis , . containuisiod
•10 i wstel to wa ist, of the Llruied Ststea, and
hence would be subject to NPO!S etorm waiSt’
requirements.
of facilities subject to the program and
that such facilities are typical!y found at
remote locations and may have a limited
operating stall.
Monitoring contaminated storm waler
discharges associated with industrial
activity from inactive mining operations
where a past or present mine operator
cannot be identified can pose unique
problems, particularly on Federal lands
which have many thousands of inactive
mines without identifiable mir.e
operators. The Agency will be
dub eloping draft general permits in
several States for inactive mining’
operations on Federal lands where a
past or present mine operator cannot be
identified and where EPA retains
NPDES permit issuance responsibilities
(these discharges are exdudcd From the
draft general permits noticed elsewhere
in today’s Federal Register). The Agency
believes that requu’ir.g the appropriate
Federal land manager to monitor
discharges from every one of the
thousands of inactive mines on their
lands is not appropriate. Rather, the
Agency is evaluating the appropriate
combination of discharge monitoring
requirements for selected inactive
mining operations and requirements to
assess water quality impacts, such as
biosurveya. instream sampling and
sediment sampling. Further, the Agency
recognizes that many of the methods
used to control pollutant discharges and
reclaim inactive mmlng operations can
be evaluated from site inspections, and
that unique resource problems may arise
where a past or present operator cannot
be identified, (Note that SMCR.A
regulations applicable to coal mining
operations incorporate FE certifications
(see 30 R 81&133(d)(5) and 30 ‘R
817.133(d)(5J.)
EPA requests comments on whether
providing that NPDES permits for
contaminated storm water discharges
associated with industrial activity from
oil and gas exploration and production
operations and from inactive mining
operations where a past or present mine
operator cannot be identified, a PE
certification instead of annual
monitoring is an effective mechanism to
ensure compliance with permit
conditions.
EPA requests comments on other
c!asses of industr es where a FE
certification may be an appropriate
alternative to discharge sanpling (e.g.
construction activities where conditions
change dramatically and frequently;
portions of active mining operations
which are not subject to effluent
limitations guidelines, inactive industrial
operations where an operator is not
identifiable end which are not expected
-------
40960
Federal Register I Vol. 58. No. 159 I Friday. August 16. 1991 I Proposed Rules
to undergo extensive changes: and small
businesses • which may not have the
expertise to inomtor). In addition, the
Agency requests comment on portions of
industhal facilities, such as haul roads.
where a PE certification may be an
appropriate alternative to discharge
sampling.
EPA also requests comments on the
costs of obtaining Professional
Engineer’s certification for two
scenarios: (1) Where the engineer is a
company employee and (2) where the
company does not have an appropriate
Professional Engineer on staff and must
hire a consultant. In addition, EPA
requests comments on the appropriate
minimum frequency for obtaining such a
certification.
The proposed changes to the language
of 40 CFR 122.44( 1) found in the back of
today’s notice reflects this option.
_p Qfij ase.by-case monitoring
conditions in permits for storm water
discharges with a minimum requirement
that monitoring reports be submitted at
least annually for targeted classes of
storm water discharges associated with
industrial activity located in the
watershed of receiving waters that are
sensitive to or impacted by storm water
discharges.
Option 4 differs from the other options
presented in this notice in that it -
establishes a minimum requirement for
DMRs in NPDES permits for storm water
discharges associated with industhal
activity based on receiving water
concerns. This approach would focus
permitting resources and controls on
discharges to receiving waters that are
sensitive to or impacted by storm water
dischatrges. This option would establish
a minimum requirement that facilities
report monitoring results at least
annually for those stcrm water
discharges associated with industrial
activity that are located within the
watershed of any receiving water (or
receiving water segment) that is
determined by an NPDES State or EPA
to be impacted by or sensitive to storm
water disduirges. Monitoring
requirements in permits for storm water
discharges associated with Industrial
activity which are not located within
such watersheds would be estabLished
on a case-by.case basis. These storm
• For the pwpo..s of developing permit
•pplication requirements. EPA defines email
businesses at 40 CFR 122.21(gJ(8) as cost mine. with
• probable total annual production of less than
100.000 tons per year. and for all other applicants.
businesses with gross total annual sales aversgang
less than 5100.000 p.r year (in second quarter 1080
dolls,, or approximately $150000 In 100) dollarsi.
This provision exempts small businesses from
permit applicatIon monitoring requirements for
certain organic chemicals.
water discharges would not be subject
to a minimum requirement to submit or
otherwise collect discharge monitoring
information, although monitoring and
reporting requirements could still be
established in permits on a case-by-case
basis.
A key aspect of this approach would
be developing a list of waters that are
either impacted by or sensitive to storm
water discharges associated with
industrial activity. AU States would be
required to submit lists for their State
for the review and approval or
disapproval by EPA. EPA would develop
the list of waters for States that fail to
develop approved lists.
The Agency anticipates that such lists
could be based on existing and readily
available data. The CWA provides a
number of mechanisms for identifying
impacted surface waters which could be
useful in developing lists of waters
impacted by or sensitive to storm water
discharges. including the identification
of lists of receiving waters under
Sections 3 O 4 (l).b0 305(b). 314(a). 12
1 Section 304(1) of the CWA require. States to
develop three hats of waters in the State. Section
304(fl(i )(AJ(l) requires the development of a list of
all waters which after the application of effluent
limitations required under the CWA cannot
reasonably be antiopated to attain or maintain
newly adopted numeric wat, quality svsndsida du
to toxic pollutants. Section 304(l)(l )(A)(tt) require.
the development of a list of all waters which. aftai’
the application of effluent limitations required under
the CWA. cannot reasonably be anticipsted to
attain or maintain water quality that assures
protection of public health, public water supplies.
sgriciiiturai and industrial uses, and the protection
snd propagation of a balanced population of
shellfish, fish and wildlife. and allow recreational
activities in and on the water. Section 304(11(1)181
requires the development of a list of all weters for
which the State does not expect the applicable
standard under section 304 of the CWA will be
schieved afte, the requirements of sectIons 301(b).
305. and 307(b) are met, due entirely or substantially
to dIscharges from point sources or say toxic
pollutants listed pursuant to section 307(a) of the
CWA .
ii Section 30 5(b) of thu CWA provide, that every
two year. States shall submit to this EPA a report
deaaiblng the water quality of all navigable waters
In a Slate during the precadlng year. The report
shall also include, among other things. an analysis
of the extent to which thou. water, protect and
support shellfish, fish and wildlife and allow
recreational use, the basis for the assessment
(evaluated or monitored), and causes of nonsupport
of designated uses.
i5 Section 314(a) requires States to submit
biennial reports that identify and classify publicly
owned lake. according to their eutrophic condition.
in addition. Section 314 )a ) reports should ds.aibe
those publidy owned lakes for which uses are
known to be Impaired, procedures. processes. and
methods to control sources of pollutants on such
lakea sod methods and procedures to restore the
quality of such lakes.
3 19(a). ’ 3 and 32O.’ Additional sources
of information which may be
appropriate for Identifying impacted or
sensitive surface waters include the
waters identified by the International
Joint Commission, t5 the Chesapeake
Bay program. and other EPA and State
programs.
Several of the lists of receiving waters
developed under the CWA also identify
sources of water quality impairment and
classes of pollutants associated with the
water quality impairment. For example.
the general classes of sources of water
quality impairment addressed in section
305(b) reports which would be of
particular interest when addressing
storm water discharges associated with
industrial activity, include separate
storm sewers/urban runoff.
construction, waste disposal. and
resource extracnon.ie Sources of
pollutants identified in section 305(b)’
reports include nutrients, organic
enrichment. pathogens. siltation, and
metals. I? Under this option, these
Is Section 319 (a) of the CWA provides for Stales
to submit to EPA a report that idsnnfles those
navigable waters which, without additional action
to control noopouit source. of pollution. cannot
reasonably be expected to attain or inainism
applicable water quality standards or the goats and
requirements of the CWA. and to identify those
categories and subcategories of nonpoint source.
that add significant pollution to each portion of the
navigable waters identified.
Section 320 of the CWA provilles for EPA to
designate estuaries of national significance based
on a nomination of the Governor of any Slate in
which the estuary lies in whole or in part and
convene a management conference to develop a
comprehensive niarisgemeni plan for the estuary.
‘ The International Joint Commission has
identified areas of concern in the Great Lakes.
‘ EPA has issued a number of guidance metenais
to assist States in the section 30 5 (b) process to
identify sources of pollution that impact water
quality. ‘l’be Water Body System (Jeers Guide’
provides a detaileu hat of subcategories of source.
to develop section 30 5 (b) reports. The list includes:
separate atone saween discba ,ge. from separate
storm sewsra consnucttorc reaource extr.cton
Runoff and process fluids from mating. petroleum
drilling. and mine tailing sitec and land disposal:
Runoff and sachet. from landfills, septic tanks, sad
hazardous waste disposal sites.
“The Ilational Water Quality Inventory. 1958
Report to Congrces” piuvidae a general assessment
of water quality based on biennial reports
submitted by ha Statue under section 305(b) of the
CWA. The National Water Quality Inventory
summanras sources of waler quality impairment
identified under section 305(bl in arms of the
following classes- industrial. POTWe. combined
sewer overflows, separate storm sewers/urban
runoff, agrictilture. silviculture. construction.
resource extraction, land disposaL and hydi’o
modification/habitat modification. Ths Agency
believe. the classes of sepalsie storm sewersluiban
runoff, construction, resource extraction, and land
disposal correlate well with certain classes of storm
water discharges associated with industrial activity.
-------
Federal Register I Vol. 56. No. 159 / Friday, August 16. 1991 I Proposed Rules
40961
additional parameters could be ui .ed to
develt)p ininimum monitoring
requirements for those general classes
of storm water d scharges associated
with industrial activity that are
specifically identified as causir g water
quality impairment.
The Agency ta concerned that OpLon
4 wouid piace large burdens on
permitting Agencies and the regulated
community during the initial phases of
de ’eInping the storm water program.
The Agency is also concerned that
significant storm water discharges
would not be addressed by this option
because the discharge is to waters
which were not assessed or to waters
that were impacted by storm water but
not identified for the purpose of this
regulation. The Agency also recognizes
that as storm water permitting programs
develop, they must focus on controlling
pollutant discharges located with
watersheds of impacted and sensitive
waters. The Agency is requesting
comments on addressing these concerns
by modifying the DMR regulation such
that minimum DMR requirements would
not be established for the initial set of
permits to be issued under the new
storai water perm ttrng initiative (e g..
the minimum OMR requirements for
storm water discharges in impacted or
sensit!ve watershed would not be
effective until three years after the date
of promulgation of this regulation).
Howeier. after a specified time, at a
minimum, annual DMRa for storm water
discharges associated with industrial
activity in watersheds that are impaired
or sensitive to storm water
disr.harges would be required.
This approach would provide permit
isse ng age’ cies with an opportunity to
nit ate torm water permitting efforts
and to identify those watersheds
i ripac:ed by storm water discharges. In
addition, this approach would also
e ure that storm water discharges in
watersheds of sensitive or impacted
wate:s were appropriately evalud ted
anzi addre3sed.
5. Case-by-case onitoring
cona iUons thpermits for storm water
disccar es with no minimum
reql u crient to report monitoring rei.ults.
Under this approach. the existing
rcg’.ilauons at 40 CFR 122A4(i)(2) would
be modified to allow permit writers to
require discharge monitoring and
reoort:ng on a case-by-ca e basis.
Howe’ at. under this option, there would
be o minunurn .‘rq’ iremcnt to si:cmit or
nherwtse collect discharge monitoring
information for most storm water
discharges. except for certain facilities.
surh as those with effluent llmitat:on
guidelines for storm water dischargcs.
The existing regulations would be
modified to provide minimum
requirements for annual monitoring only
for certain facilities, such as those with
storm water discharges that are subject
to national effluent limitation guidelines,
those within specified industrial
categories, or those that have a storm
i ar d.scharge that is subject to a
n .. iienc or toxicity limitation in a permit
that has been established on a case-by-
case basis.
Under this opt!on, some Facilities may
not be required to sample their storm
water discharges associated with
industrial activity. However, the broad
authorities of sections 308 and 402(a)(2)
provide other means, such as
information collection and reporting,
that can ensure compliance with permit
conditions. Even under this approach.
monitoring programs would play an
important role for some facilities in
determining compliance with numeric
limitations and/or the effectiveness of
requirements in a storm water pollution
prevention plan that the facility is
required to develop under a NPDES
permit However, in other cases, limited
storm water sampling data may not
provide adequate information regarding
the effectiveness of the controls in the
storm water pollution prevention plan.
(For example, the primary focus of a
storm water pollution prevention plan at
a facility may be directed towards
preventing a catastrophic event like a
spill. Where no spill has occurred at the
facility, sampling of the storm water
discharge would convey little
inforcisuon regarding the effectiveness
of the spill controls.)
Option S would provide permit writers
with the discretion to require the
submissicn of DMBs while Limiting
buruens on permittees and permit
issuing agencies. This option would
provide permit writers with the
max mum fleLb.liLy to adopt a wide
range of permit monitoring stsiegIes
(inciuuing strategies consistent with
other options addressed iii th:s notice)
on a case-by-case basis. The flexibility
in establishing monitoring requirements
in permits could sigruficantiy reduce the
burden that rnor.itoring samples
annually would place on permittees.
The Agency also re uast3 comments
on whether a min!mum rei .ilatory
monitcring reporti requirement should
be es ablisned for ittorm water
discharges from industrial categories
that have a high pollutant potential
(such us lan±’ s. wood preserving
fa.iliLes. airports. laciltues subject to
SARA title ill, primary metal
manulactures. etc.). Conversely, the
Agency requests comments on whether
minimum annual monitoring
requirements should be developed for
all but specified industry groups or for
small businesses, and the appropriate
basis for excluding such groups from
rniiunium monitoring requirements. For
ecample. small businesses may lack the
expeitse to conduct sampling or
sampling costs may be too high.
,,.Optinii Case-by-case monitoring
conditions in permits for storm water
discharges. with a minimum requirement
for the first permit for the discharge that
monitoring results be reported at least
once a year. After a facility has
submitted five years of data, monitoring
conditions for storm water would be
established on a case-by-case basis with
no minimum requirement to conduct
annual sampling.
Under this approach, the minimum
monitoring requirement for permits for
storm water discharges associated with
industrial activity would change with
time. This approach would allow permt
writers to evaluate a minimum of five
years of storm water monitoring data.
‘rhia data would assist permit writers in
determining appropriate monitoring
conditions when reissuing permits, in
addition, data collection activities
required under the first set of NPDES
permits for storm water discharges
associated with industrial activity can
be used to develop priorities for
implementing Tiers II through IV of the
long term permitting strategy for storm
water discharges.
C. Application Reqwrements for
Genera! Permits
As discussed above, EPA intends to
increase its use of general permits to
address the expansion of the scope of
the JPDES program to address storn
water discharges assocla’ed with
industrial activity as well as other
classes of discharges other than storm
water, and encourages States with
general permit authority to do so as
well. The Agency Intends to increase the
use of general permits to address other
sources as well. General permits are an
important tool for assuring adequate
en ;ronmental safeguards for large
numbers of similar facilities witho.$ the
administrative and resource burdens
involved in ind.ividual permit lsseance.
In order to improve administration and
operation of the general permits
prcram. the Agency is p oposing to
Iactlitate and clarify general 9tmii
requirements a id procedures.
EPA wants to emphasize that, except
for the procedural differences set out at
122.28 In the NPDES regulations,
general permits are analogous to
indlbidual permits in every respect.
General permits are still subject to the
same reporting and inonitonng
-------
40962
Federal Register 1 Vol. 56 . No. 159 / Friday. August 18. 1991 I Proposed Rules
requirements. limitations, enforcement
provisions. penalties. and other
substantive requirements as individual
permits. General permits should be
viewed as an administrative tool
enabling the issuance of one permit to
authorize a group of discharger..
Although the general permit program
has been available to authorized NPDES
States since its inception in 1979. some
States have been reluctant to seek and
use general permit authority. This has
created an administrative dilemma.
Even in circumstances where a general
permit is appropriate. EPA is unable to
issue a general permit in an authorized
N’PDES State. Of the 39 States with
NPDES authorization. 23 have been
authorized to issue general permits. In
the other 16 authorized NPDES Slates
neither EPA nor the State has the
authority to issue general permits.
As discussed above in the storm
water context, full individual permit
applications (e.g.. Form 2C for process
discharge s or Form 2F for storm water
discharges associated with industrial
activity) containing a significant amount
of site.specific information from each
discharger may not be necessary for
developing general permits. 40 CFR
122.21(a) excludes persons covered by
general permits from requirements to
submit individual permit applications.
Existing general permit regulations at 40
CFR 122.28, however, do not address the
issue of how a potential permittee is to
apply to be covered under a general
permit. Rather, conditions for filing an
application to be covered by a general
permit (typically called a Notice of
Intent (NO!)) are established on a case-
by-case basis.
Under existing practice, general
permit coverage is by two methods.
First, as applied under federal law and
where authorized under State law, the
Director may issue a general permit
covering a particular class of
dischargers (or treatment works treating
domestic sewage) informing potential
permittees of their coverage by public
notice. Second. the Director may issue a
general permit where eligible
dischargers (or treatment works treating
domestic sewage) are not authorized to
discharge under the permit until they
have submitted a NO! to be covered by
the general permit. The public notice for
a general permit specifies whether en
NO! is reqwred prior to coverage. In
almost all cases, general permits require
the submittal of NOls containing basic
information such as the name and
address of the facility and a brief
description of the discharge and
receiving water.
NO!. serve a number of functions.
NO! requirements in general permits can
establish a clear accounting of the
number of permittees covered by the
general permit. the nature of operations
at the facility generating the discharge.
and their identity and location. NO!.
can be used to develop a data base of
facility-specific information. NOIs can
be used as a screening tool to identify
discharges where individual permits are
appropriate. For example, the
identification of discharges to impacted
receiving waters can be used in the
development of water quality.based
permit conditions. Also. the NOl can be
used to identify classes of discharges
appropriate for more specific general
permits covering a more limited set of
discharges. The NO! can provide
information needed by the Director to
notify discharger. that a more specific
general permit was issued. The NO! also
can identify the permittee to provide a
basis to develop and implement
enforcement and compliance monitoring
strategies and priorities. In addition, the
administrative burdens on the
permitting issuing agency and the costs
to dischargers can be reduced by
replacing more complicated permit
application requirements with simplified
requirements.
To encourage the use of general
permits, to provide for more consistent
NO! requirements, and to ensure that
discharger. covered by general permits
provide appropriate information. the
Agency is proposing to modify the
regulatory framework for general
permit., to provide minimum
requirements for NOIs. (‘These proposed
changes would apply to a number of
other classes of general permits for non-
storm water discharges as well as storm
water discharges.)
Proposed § 122.28(b)(2) would require
that, at a minimum. NOIs include the
legal name and address of the owner or
operator, the facility name and address.
the number and type of facilities or
discharges. the receiving stream(s). and
other information necessary to ascertain
whether the discharger should be
included under the terms of the general
permit as specified in the final general
permit. This provision would be a
minimum requirement. Permits may
require additional information where
appropriate.
The proposal also provides guidelines
for deadlines to submit NOls. The
guidelines recommend that general
permits be written to require dischargers
to submit NOls 60 days before the date
of intended permit coverage. Under the
proposal. the Director may specify
different time periods in the general
permit for these submissions.
Under the proposal, unless otherwise
provided in the permit. dischargers
would automatically be authorized to
discharge under the general permit by
submitting an NO! in accordance with
the terms of the permit. This provision
would still allow general permits to
specify that the permittee must receive
notification of coverage under the
general permit from the Director before
discharges would be authorized.
The proposal provides for two
situations where an NO! would not have
to be submitted to authorize discharges
under a general permit. The first
situation is where the Director notifies
the discharger that its discharge is
covered by the permit. The second
situation is where the Director decides
that an NO! is inappropriate for a
general permit. To make the latter
decision. the Director would consider
the type of discharge. the expected
nature of the discharge, the potential for
toxic and conventional pollutants in the
discharges. the expected volume of the
discharges. other means of identifying
discharges covered by the permit. arid
the estimated number of discharges to
be covered by the permit. Also, if this
approach is pursued. the Director would
be required to describe the reasons for
not requiring an NOI in the fact sheet of
the general permit. This notice proposes
that such a finding could only be made
for discharges other than discharges
from POTWs. combined sewer
overflows (CSO5), primary industrial
facilities, contaminated runoff from
mining operations or oil and gas
operations and other storm water
discharges associated with industrial
activity. The Agency believes that, given
the potential environmental significance
and NPDES program priorities
associated with discharges from
POTWs. CSOs, primary industrial
facilities. -contaminated runoff from
mining operations or oil and gas
operations and other storm water
discharges associated with industrial
activity, it is appropriate to require NOb
in all general permits for these
discharges. However, the Agency
requests comments on whether general
permits without NO! requirements are
appropriate for the large number of
storm water discharges associated with
industrial activity from oil and gas
exploration or production operations.
Oil and gas exploration or product:on
operations that discharge storm water
associated with industrial activity are
typically subject to Spill Prevention
Control and Countermeasure (SPCCJ
program requirements at 40 CFR part
112, which may provide an alternative
means for tracking these facilities.
Public accessibility to this information
would be enhanced by proposed
-------
Federal Register / Vol. 56. No. 159 / Friday. August 18. 1991 I Proposed Rules
4O9 3
§ l2Z.28fd), which provides that such
lists would be available to the public.
0 Fact Sheet for Draft General Permit
The following portion of this notice
p avides i ctice for draft NPDES general
icrmits and accompanying fact sheets
for storm water discharges associated
with industrial activity in AK. AZ. FL.
ID. LA. MA. ME. NH. NM. OK. SD. TX.
District of Columbia, the
Commonwealth of Puerto Rico. Guam.
Amer!can Samoa. the Commonwealth of
the Northern Mariana Islands, and the
Trust Territory of the Pacific Islands: on
!ndian lands in AL CA. GA. KY. MI.
MN. MS. MT. NC. ND. NY. NV. SC. TN.
UT. WI and WY; located within Federal
I 0 cihties and Indian lands in CO and
WA: and located within Federal
facilities in Delaware. Separate general
permits are being noticed for eacn State.
These draft general permits are intended
to cover storm water discharges
associated with industrial activiiy to
waters of the United States. including.
discharges through large and medium
municipal separate storm sewer
systems. and through other municipal
separate storm sewer systems.
Publication of this draft general permit
and fact sheet is designed to comply
with the requirements of 40 CFR 124.10
simultaneously for all 35 draft general
permits being noticed today. Public
hearings on selected permits will be
held as indicated at the beginnaig of this
notice.
The lunguage of the draft general
permits is provided as an appendix to
the preamble of this notice In general.
most conditions of the draft general
permits are intended to apply to all of
the general permits indicated above.
Where conditions in different permits
vary, these differences are indicated in
the draft general permit in the appendix.
I Background
In 1972. the Federal Water Pollution
Control Act (also referred to as the
Clean Water Act (CWA)) was amended
to provide that the discharge of any
pollutants to waters of the United States
from any point source is unlawful.
except if the discharge is in compliance
with an National Pollutant Discharge
Elimination System (NPDES) permit.
For a number of reasons. EPA and
authorized NPDES States have failed to
issue NPDES permits for the majority of
point source discharges of storm water.
Recognizing this. Congress added
section 402(p) to the CWA in 1987 to
establish a comprehensive framework
for addressing storm water discharge.
under the NPDES program. Section
402(p114) of the CWA clarifies the
requirements for EPA to issue NPDES
permits for storm water discharges
associated with industrial activity. On
November 16. 1990 (55 FR 47990). EPA
published final regulations which define
the term “storm water discharge
associated with industrial activity”. The
final regulations also establish
requirements for submitting individual
permit applications and group
applications.
EPA estimates that about 100.000
facilities nationwide discharge storm
water associated with industrial activity
(not including oil and gas exploration
and production operation4. The large
number of facilities addressed by the
regulatory definition of “storm water
discharge associated with industrial
activity” will place correspondingly
large administrative burdens on EPA
and States with authorized NPDES
programs to issue and administer
permits for these discharges.
To prov de a reasonable and rational
approach to addressing this permitting
task, the Agency is developing a
Strategy for issuing permits for storm
water discharges associated with
industrial activity. In developing this
Strategy, the Agency recognizes that the
CWA provides flexibility in the manner
in which NPDES permits are issued.i*
and will use this flexibility to design a
workable permitting system. In
accordance with these considerations.
the draft permitting Strategy (described
in more detail earlier in todays notice)
describes a four-tier set of priorities for
issuing permits for these discharges. The
four-tier set of priorities for issuing
permits under the policy are:
• Tier 1—Baseline Permuting One or
more general permits will be developed
t initially cover the majority of storm
water discharges associated with
industrial activity:
• Tier!!— Watershed Permittzng
Facilities within watersheds shown to
be adversely impacted by storm water
di.charges associated with industrial
activity will be targeted for individual or
watershed-specific general permits.
• Tier 111—Industry-Specific
Permitting: Specific industry categories
will be targeted for individual or
industry-specific general permits; and
• Tier I V—Facility-Specific
Permitting: A variety of factors will be
‘ThscourlinNRDCv Train JSSFSupp i393
(DO C. ia7Sj aff’d NRDC CosrIe 588 F 2d 1389
(D C.Cir 1977 1 h.i ecknowirdeed the
.dmirustrativs burden placed on the Agency by
requinog permit. furs large number of storm water
discharges. The courts have recognized EPA.
di.asaoo to u .s certain adntsrnsir.tive devices.
such as ate. permits or gsner.l permit.. to help
insfiags its workload. In addition, the courts have
recognized flexibility in the type of permit
condition. thai can be established. uiciudtn the us.
of requirement, for best iuen.geineni practices.
used to target specific facilities for
individual permits.
The draft general permits
accompanying this fact sheet will
initiate Tier I activities for storm water
discharges associated with industrial
activity in Alaska. Arizona. Idaho.
Louisiana, Massachusetts. Maine. New
Hampshire. New Mexico. Oklahoma.
South Dakota. Texas. the District of
Columbia. the Commonwealth of Puerto
Rico. Guam. American Samoa. the
Commonwealth of the Northern Mariana
Islands. and the Trust Tern tory of the
Pacific Islands; for Federal facilities and
Indian lands in Colorado and
Washington. and for Indian lands in
Alabama. California. Georgia. Kentucky.
Michigan. Minnesota. Mississippi.
Montana. New York. Nevada. North
Carolina. North Dakota. New York.
Nevada. South Carolina. Tennessee.
Utah. Wisconsin. and Wyoming. and for
Federal facilities in Delaware IS by
proposing baseline general permits for
the majority of storm water discharges
in these States.
In addition to establishing baseline
requirements for the majority of storm
water discharges associated with
industrial activity in these States. the
draft general permits have some of the
Features of Tier III permitting activities
in that they establish requirements for
specific industries.
Consolidation of many sources under
one permit will greatly reduce the
otherwise overwhelming administrative
burden associated with storm water
discharges associated with industrial
activity. This approach has a number of
additional advantages:
• General requirements will be
established for discharges covered by
the permit:
• Facilities whase discharges are
covered by the permit will have an
opportunity to comply with the CWA.
• The Agency will have the
opportwuty to collect and review data
on storm water discharges for priority
industries;
• The public will have the opportunity
to review data and reports and to
comment on permitting activities:
Applicable requirements of
municipal storm water management
programs established in permits for
ii InS of the 39 Siates thai are authorized to issue
NPDES permits (or municipal and industrial
source.. EPA ecu.. pertolia far discharge, from
Federel facilities State prov.m. do not generally
address pemmiiiing of discharge. froiti indian land..
a. EPA retains this reapanatbtltty However, this
fact sheet only eddies.., general permits as
indicated above Where EPA I. the peniut issuing
authunty for othet storm waier discharge., either
Individual permits or a different genersi pentui will
be issued.
-------
Federal Register / VoL 58. No. 159 I Friday . August 16. 1991 I Proposed Rules
discharges from municipal separate
storm sewer systems will be enforceable
direct!y against noncomplying industrial
facilities that generate the discharge:
The baseline permits will provide a
basis for bringing selected enforcement
actions by eliminating many issues
which might otherwise arise in an
enforcement proceeding (e.g., clarifying
requirement to obtain NPDES permit
coverage); and
Finally, the baseline permit will
provide a focus for public comment on
developing subsequent phases of the
permitting strategy for storm water
discharges. including the priorities for
State storm water management
programs developed under section
402(p)(6) of the CWA.
Initially, the coverage of the baseline
permits will be broad, but will decrease
as other permits are issued for storm
water discharges associated with
industrial activities pursuant to Tier II
through IV activities.
2. Types of Discharges Covered
On November 16, 1990. (55 FR 47990).
EPA promulgated the regulatory
defirution of “storm water discharges
associated with industrial activity’
which addresses point source
di elmrges of storm water from eleven
umjur categories of facilities. (This
de xion is reprinted in the definition
section of the draft general permits
found in the Appendix of today’s
notice).
The draft general permits do not cover
storm water discharges associated with
industrial activity from inactive mining
or inactive oil and gas operations
occurring on Federal lands where an
operator cannot be identified. GIven the
long history of mining activity on the
extensive tracts of Federal lends, and
the relationship of the Federal land
management Agencies to prior operators
of these sites, the Agency believes that a
distmct set of permits are generally
appropriate to control pollutants in
storm water discharges from these sites.
EPA is currently working with a number
of Federal land management Agencies,
including the Bureau of Land
Management and the Forest Service, to
develop permits to address the unique
circumstances associated with these
sites in an appropriate manner.
3. Description of Discharges Covered
The volume and quality of storm
water discharges associated with
industrial activity will depend on a
number of factors, including the
industrial activities i curring at the
facility, the nature of precipitation, and
the degree of surface imperviousness.
Rain water may pick up pollutants from
structures and other surfaces as it drains
from the land, In addition, sources of
pollutants other than storm water, such
as illicit connec tion s . 2 ° spills, and other
improperly dumped materials may
increase the pollutant loads discharged
from separate storm sewers. The
sources which contribute pollutants to
storm water discharges differ with the
type of industry operation and facility.
specific features. For example, air
emissions may be a significant source of
pollutants at some facilities, material
storage operations may be important at
different operations, while other
facilities may discharge storm water
associated with industrial activity with
relatively low levels of pollutants.
The most extensively studied storm
water discharges have been those from
residential and commercial areas (urban
runoff). Evaluating these discharges will
provide a starting paint for
understanding the pollutants that can be
expected in storm water discharges
associated with industrial activity.
‘° mica gzectlooa az point scum. di.cIiar e ,
of pollutants that a r e not compoerd cnd Iy of
storm Water. that are not covered by so exiatln3
NPD penniL sod which em discharged through
N .te storm sewer, to water, of the United
States,
Many storm water discharges are
expected to contain the pollutants
typically associated with urban runoff.
along with additional pollutants thet
result from the specific industrial
operations of the facility.
From 1978 through 1983. EPA provided
funding and guidance to the Nationwide
Urban Runoff Program (NURP) to study
the nature of runoff from commercial
and residential areas. The NURP
program included 28 projects ac;osa the
Nation, conducted separately at the
local level but centrally reviewed.
coordinated, and guided.
One focus of the NURP program was
to characterize the water quality of
discharges from separate storm sewers
which drain residentiaL commercial
and light industrial (industrial parks)
sites. The majority of samples collected
in the NtJRP study were analyzed for
seven conventional pollutants and three
metals. Table I summarizes the
pollutant concentrations from the NURP
data base is presented in Table I for
these 10 cons!ituents and fecal coliforrn.
Data collected in NURP indicated that
on an annual loading basis, suspended
solids in discharges from separate storm
sewers draining runoff from residential
commercial and light industrial areas
are around an order of magnitude or
more greater than effluent from sewage
treatment plants receiving secondary
treatment The study also indicated that
annual loadings of chemical oxygen
demand (COD) are comparable to
effluent from sewage treatment plants
receiving secondary treatment When
analyzing annual loadings associated
with urban runoff, it is important to
recognize that discharges of urban
runoff are highly’intermittent, and that
the short-term loadings associated with
individual events will be high and may
have shock loading effects on receiving
water such as sag in dissolved oxygen
levels.
TABLE 1.—OuALm’ CHARACTERISTiCS cc RuNoFF FROM RESIDENTiAl. AND COMUERCSAi. AREAS
Co sw dhm s*
Asurigs I .tULJ ar .r sits
a. .Us a .. e
Weighted meat . iUsl
site erau,,..
PIURP CciiUfl*fl tlOI8 (er load
esoateter
T
235 mg/i
180 mg/I
12 mg/I
82mg/I
042mg/I
0 IS mg/I
160-545 mg/I
12-1910911
52-170mg/I
0.42-088 mg / I
0.15-0.26 mg/I
eon
12 tog/I
94mg/I
0,5 mg/I
0.15 mg/I
D.
ThtaJ ,41Q.ØIOrUS ... ._._
uble plioeØtooa...
Total KleIdaN nivogen......_.._.._........
2.3 mg/I
I 37 mg/I
53 pig/I
238 pig/I
353 jig/I
1 90 mg/I
0.86 mg/I
43 jig/I
182 .g/I
202 e .g/I
1.90-4 tO mg/I
0.60-2.21 mg/I
43-110 pig 11
182-443 jig/I
202-633 pig/I
N i ate .r,tn1 ._
TOtal copper...
Total lead .__. . ..
Tatil roic. ..____
Facet ccWamr
Wam.westhsr. ._.. .____
50.240 aowits/tOO oW
22.918 coianalioO lId
27.605 counts/I00 01
7.057 cowttl/ 100 oW
Ccl i i werSW. —
Omedopso from R I of s Na1* . J4 tuba, R ,ieaVRu paJ7L Vof ?—Pmof Repc.f EPA 1983.
-------
Federal Register I Vol 56. No. 159 / Friday 5 ugust 18. 1991 / Prooosed Rules
The NURP program also involved
momloring 120 priorIty pollutants.
Severity-seven priority pollutants were
detected in samples of storm water
discharges from residential, commercial.
and light industrial lands taken during
the NURP study, including 14 inorganic
and 63 organic pollutants Table 2 shows
the priority pollutants that were
detected in at least t n percent of the
discharge samples that were sampled
for priority pollutants The NURP data
also showed a significant number of
these samples exceeded various
freshwater water quality criteria
Although NURP did not evaluate oil
and grease. other studies have
demonstrated that urban runoff is an
extremely important source of oil
pollution to receiving waters, with
hydrocarbon levels in urban runoff
typically being reported at a range of 2
mg/I to 10 mg/I. These hydrocarbons
tend to accumulate in bottom sediments
where, they may persist for long periods
of time, and exert adverse impacts on
benthic organisms
TA8LE 2.—PRIORITY POLLUTANTS DE-
TECTED IN AT LEAST 10% OF NURP
SAMPLES
inre-nexNcnm, cve i ?aexana
Other studies have shown that many
sio:’m sewers contain illicit discharges
of non-storm water, and that large
amounts of wastes are disposed
improperly in storm sewers. Removal of
these discharges present opportunities
For dramatic improvements in the
quality of storm water discharges Storm
waler discharges from industrial
facilities may contain, in addition to
illicit connections and improperly
dioposed wastes. toxics and
ccnventional pollutants when material
management practices allow exposure
to stcrm water
In some municipalities illicit
connections of sanitary, commercial.
and industrial discharges to storm sewer
systems have had a significant impact
oii the water quality of receiving waters.
Although the NURP study did not
characterize illicit connections to storm
sewers other than to ensure that
monitoring sites used in the study were
free from sanitary sewage
contamination, the study concluded that
illicit connections can result in high
bacterial counts and dangers to public
health.
Studies have shown that illicit
connections to storm sewers can create
severe, widespread contamination
probl tms. For example. the Huron River
Pollution Abatement Program inspected
660 businesses, homes. and other
buildings located in Washtenaw County.
Michigan. The program identified that 14
Freauency percent of the buildings had improper
storm drain connectior.s. Illicit
discharges were detected at a higher
rate of 60 percent for automobile related
13 businesses, including service stations.
52 automobile dealerships, car washes,
body shops. and light industrial
58 facilities. While some of the problems
91 discovered in this study were due to
23 improper plumbing or illegal
connections, a rnalority were approved
ti connections at the time they were built.
s but have since become unlawful
discharges.
Intensive construction activities may
ii result iii severe localized impacts on
15 water quality because of high unit loads
of pollutants, primarily sediments.
“ Construction sites can also generate
4 other pollutants such as phosphorus and
is nitrogen fro’n farti izer. D sticides.
10 petroleum products. cor,sruc:ioii
22 chemicals, and solid waste !. T1;ese
materials can be toxic to aquatic
io organisms and degrade water for
e drinking and water-contact recreation.
I C Sediment runoff rates from construction
sites are typically 10 to 20 times that of
e ricultural lands, with runoff rates as
high as 100 times that of agricultural
lands, and typically 1.000 to 2.000 times
that of forest lands Even a small
amount of construction may have a
significant negative impact on water
•lQ G5
quality in localized areas. Over a short
period of time. construction sites can
contribute mere sediment to streams
than was deposited previously over
several decades
The NURP study and other studies of
urban runoff provide instght on what
can be considered background levels of
pollulanis for urban runoff. as these
studies have focused primarily on
mon;toring runoff from residential.
commercial, and light industrial areas
However, NURP concluded that the
quality of urban runoff can be impacted
adversely by several sources of
pollutants that were not evaluated
directly in the study and which are
generally not reflected in the NURP
data, such as illicit connections,
construction site runoff, industrial site
runoff and illegal dumping.
For some industrial facilities, the
types and concentrations of pollutants
in storm water discharges will be sirniiar
to the types and concentrations of
pollutants generally found in storm
water discharges from residential and
commercial areas. However, storm
water discharges from other industrial
facilities will have a significant potential
for higher pollutant levels. In addition.
pollutant loadings per unit area from
some industrial facilities may be high
because of a high degree of
imperviousness.
Six activities can be ident:f!ed as
major potential sources of pollutants in
storm water discharges associated with
industrial activity’ (1 Loading or
unloading of dry bulk materials or
liquids. (2) outdoor storage of raw
materials or products: (3) outdoor
process activities. (4) dust orparticul.ite
generating processes: (5) illicit
connections or management practicer
and (6) waste disposal practices The
potential for pollution from many of
these activities may be influenced b
the use and presence of toxic chemicals.
These activities are discussed in more
detail below.
(1) Loading and unloading operations
typtcally are performed along facility
access roads, railways, and at loading/
unloading docks and termina!s. These
operations include pumping of liquids or
gases from truck or rail car to a storage
facility or vice versa, pneumatic trar.sfer
of dry chemicals to or from the loading
or unloading vehicle, transfer by
mechanical conveyor systems. and
transfer of bags, boxes, drums, or other
containers from vehicle by forklift trucks
or other materials handling equipment.
Material spills or losses in areas can
Metais md ino ganzcs
Amin eny
Ar .n.c
Ber lhum
CaCmium . -.
Chromium
Cooper
Cyanucles
Luau
Nckel
Selenium
Z’rc
est,cides
AlQI’ i a.Ifl O O S uIf 5 1 1 -
Cruloroan.
Lundafle
Haloqenalea auipnahcl Methane
dc uIoro- -
P enoIs and Cre,0l
Prir ’OI ,
Phpr’t ’i pe ”acflloro-
Phe ‘04. 4-ruec
P?uiraaI. esters PPma st., aisI2..th.
ylIseYf I)
Poiycychc aromai ic n ,drQcwtons:
C1’ uvsene
Fluoranu lusuis -- -
PMn antluren.
Pyren.
-------
40966
Federal Register I Vol. 58. No. 159 I Friday. August 16. 1991 / Proposed Rules
discharge directly to the storm drainage.
systems. or may accumulate in sods or
on surfaces. and be washed away
during a storm event or facility
washdowns.
(2) Outdoor storage activities include
the storage of fuels, raw materials.
byproducts. Intermediates. final
products, and process residuals. Storage
can be accomplished in various ways,
for’example. using storage containers
(e.g.. drums or tanks), platforms or pads.
bins, silos, boxes, or piles. Materials.
containers, and material storage areas
that are exposed to rainfall and/or
runoff can contribute pollutants to storm
water when solid materials wash off or
materials dissolve into solution.
(3) Other outdoor activities include
certain types of manufacturing and
commercial operations and land-
disturbing operations. Although many
manufacturing activities are performed
indoors, some activities, such as timber
processing, rock crushing. and concrete
mixing, typically occur outdoors.
Processing operations can result in
liquid spillage and losses of material
solids’ to the drainage system or
surrounding surfaces. or creation of
dusts or aerosols, which can be
deposited locally. Some outdoor
Industrial activities cause substantial
physical disturbance of land surfaces
that result in soil erosion by storm
water.
Examples where disturbed land
occurs include construction and ining.
Disturbed land can result in soil losses
and other pollutant loadings associated
with increased runoff rates. Facilities
whose major process activities are
conducted indoors may still apply
chemicals such as herbicides. pesticides.
and fertilizer outdoors for a variety of
purposes.
(4) Dust or particulate generating
processes Include industrial activities
with stack emissions or process dusts
that settle on plant surfaces. Loi itIi ad
atmospheric deposition is a particular
concern with heavy manufacturing
industries. For example, monitoring of
areas surrounding smelting industries
has shown much Wgh.r levels of metals
at sites nearest the smelter (Bearington
1977J. Other industrial sites, such as
mines, cement manufacturing, and
refractories. will generate significant
levels of dusts.
(5) illicit connections or inappropriate
management practices result in
Improper non-storm water discharges to
storm sewer systems. The likelihood of
illicit discharges to storm water
collection systems Is expected to
increase for older facilities as well as for
those facilities that use high volumes of
process water or that dispose of
significant amounts of liquid wastes,
including process waste waters, cooling
waters, and rinse waters.
Pollutants from non-storm water
discharges to the storm sewer system of
individual facilities are caused typically
by a combination of improper
connections, spills, improper dumping.
and a belief that the absence of visible
solids in a discharge is equivalent to the
absence of pollution. Illicit connections
are often associated with floor drains
that are connected to separate storm
sewers. Rinse waters used to clean or
cool objects discharge to floor drains
that may be connected to separate storm
sewers. Large amounts of rinse waters
may originate from industries that use
regular wash down procedures: for
example. bottling plants use rinse
waters for removing waste products.
debris. and labels. Rinse waters can be
used to cool materials by dipping.
washing, or spraying objects with cool
water, for example. rinse water is
sometimes sprayed over the final
products of a metal plating facility for
cooling purposes. Condensate return
lines of heat exchangers often discharge
to floor drains. Heat exchangers.
particularly those used under stressed
conditions such as in the metal finishing
and electroplating industry, typically
develop pin-hole leaks, which may
result in contaminatIon of condensate
by process wastes. These and other non-
storm water discharges to a storm sewer
may be intentional, based on the belief
that the discharge (condensate in the
example previously discussed), does not
contain pollutants, or It may be
inadvertent, as the operator may be
unaware thdt a floor drain is connected
to the storm sewer.
(6) Waste management practices
include operating landfills, waste piles.
and land application sites that involve
land disposal. Outdoor waste treatment
operations also include waste water and
solid waste treatment and disposal
processes. such as waste pumping,
additions of treatment chemicals.
mixing, aeration, clarification. and
solids dewatering. Facilities often
conduct some waste management on
site.
Coal pile runoff The following
description of coal pile runoff is
summarized from the “Final
Development Document for Effluent
Limitations Guidelines and Standards
and Pretreatment Standards for the
Steam Electric Point Source Category”.
(EPA—440/1-82/029), EPA. November
1982. A more complete description of
coal pile runoff can be found in the
Development Document.
The pollutants in coal pile runoff can
be classified into specific types
according to chemical characteristics.
The type relates to pH of the coal pile
drainage. The pH tends to be of an
acidic nature, primarily as a result of the
oxidation of iron sulfide in the presence
of oxygen and water. The potenttal
influence of pH on the behavior of toxic
and heavy metals is of particular
concern. Many of the metals are
amphoteric with regard to their
solubility behavior. The factors affecting
acidity, pH and the subsequent leaching
of trace metals are:
• Concentration and form of pyritic
sulfur in coal:
• Size of the coal pile:
• Method of coal preparation and
clearing prior to storage:
• Climatic conditions, including
rainfall and temperature:
• Concentrations of CaCO3 and other
neutralizing substances in the coal:
• Concentration and form of trace
metals in the coal: and
• The residence time in the coal pile.
Table 3 shows data of selected
pollutants in coal pile runoff at two
steam electric plar.ts. Both facilities
generated runoff with low pH values.
with the acid values being quite variable
in both cases. The suspended solids
levels observed went up to 2.500 mg/I.
The metals present in the greatest
concentrations were copper. iron,
aluminum, nickel and zinc. Others
present in trace amounts include
chromium, cadmium. mercury. arsen:c.
selenium. and beryllium.
TABLE 3.—POLLUTANTS IN COAL Pita RUNOFF
I Rings.
•1
Pla nt
I Aadu?v (mg/I I I Ol i idVOd
pH Sulfate tmgil) 4mg/I)
Total
susoended
Mn (.‘ngII)
2.3.3.1 300-7100 1800-9600 2500-I6OCO
2.0 3400 5160 7900
19 18 tO Is
8-2200
470
18
8.9-45
20.7
19
-------
Fedaral_Register ‘ Vol 56.No 13 I Friduv. t\ ust 15. 1 J1 I Pre osed Ruies
40967
TABLE 3 —POLLUTANTS IN COAL P:LE RUNOFF—Continued
N Number of samples
ND Below Oelaction levels
Source: Final Development Document for Eflluent Limitauons Gwdehnes and Standards and
Category (EPA—440/1-62 029). EPA Novemoei 1982.
‘Discrete Storm
4 Summary of Options for Controlling
°ollutants
Options for controlling pollutants in
storm water discharges associated with
industrial activities (other than from
construction activities) will be discussed
in terms of two mator pollutant sources
(1) Materials discharged to separate
storm sewers via illicit connections.
improper dumping, and spills: and (2)
pollutants associated with runoff
collected by separate storm sewers.
Options for controlling pollutants in
storm water discharges associated with
industrial activities from construction
activities are addressed separately
a Non-storm water discharges to
secarote storm sei ers. As discussed
earlier, in some cases, a substantial
portion of the pollutant load from
separate storm sewers which discharge
storm water associated with industrial
activity is associated with non-storm
water discharges. Non-storm water
discharges to separate storm sewers
include a wide variety of sources.
including illicit connections, improper
dumping. spills, or leakage From storage
tanks and transfer areas. Measures to
control spills and visible leakage can be
incorporated into storm water pollution
,revention plans (see below).
In many cases, operators of industrial
facilities may be unaware of illicit
discharges or leakage from underground
storage tanks or other non-visible
systems. In some cases, illicit
connections to storm sewers were
installed before their legal prohibition,
and forgotten about. For example. illicit
connections are often associated with
floor drains that are connected to
separate storm sewers. R nse waters
used to clean or cool objects, and other
process wastewaters may be discharged
to the separate storm sewer by an
improperly connected floor drain. These
non-storm water discharges to a storm
sewer may be inadvertent with the
operator unaware that the floor drain is
connected to the storm sewer. In this
case, the key to controlling these
discharges is to identify them.
Methods to identify non-storm water
discharges to separate storm sewers.
Several methods for identifying the
presence of non-storm water discharges
are discussed below A
comprehensive evaluation of the storm
sewers at a facility may incorporate
several methods.
A more complete discuuion of method. to
identify illicit connection, can be found in the draft
Manual of Practice identification of liticit
Connection. US EPA. Sepi i990
• Schematics. Where they exist.
accurate piping schematics can be
inspected as a first step in evaluating
the integrity of the separate storm sewer
system. The use of schematics is limited
because schematics uiiually reflect the
design of the piping system and may rat
reflect the actual configuration
constructed. Schematics should be
updated or corrected based on
additional information fotuid during
inspections.
• Evaluation of drainage map and
inspections. Drainage maps should
identify the key features of the drainage
system: each of the inlet and discharge
structures, the drainage area of each
inlet structure, and units such as storage
or disoosal units or material loading
areas, which may be the source of an
illicit discharge or improper dumping In
addition, floor drains and other water
disposal inlets that are thought to be
connected to the sanitary sewer can be
identified A site inspection can be used
to augment and verify map
development. These inspections, along
with the use of the drainage map. car. be
coordinated with other best
management practices discussed below.
• End-of-pipe screening Discharge
points or other access points such as
manhole covers can be inspected for the
Plant pH Acidity (mg/I Sulfate (mg/i) suspended Mn (m’.’)
2 Range 25-3 I 860-2100
Mean 27 1360
N 6 6
2 ‘Range 25-27 31)0-1100
Mean 26 710
N 14 4
1900—4000 2900-5000
2780 3600
6 6
870-5500 I 1200—7500
2300 I 2700
14 I 14
38—270 2 4—10
190 41
6 6
69-2500 09-54
650 23
14 4
Cu
(mg/i)
Zn
(mg/i)
Al Ni
(mg/i) I (mg/i)
Fe
(mg/I)
As
(mg/I)
I Range
Mean ,
N
2 Rdnga
Mean
N ,.
043-14
086
19
001-046
023
6
23-16
668
19
11-37
2 13
6
66-440 074-045
260 259
191 19
22-60 024-046
433 03]
8 6
240-i600
940
19
280-480
380
8
005-06
017
19
0006-0046
0 C2
4
Cr
(mg/I)
Hg
(mg/I)
S .
(mg/i)
B.
(mg/I)
Cd
(mg/I)
I Range <0005-011
Mean 007
N 17
ND II
2 Range I <0005- 011
Mean 0007
N 3
ND ‘
<0002-0025 <001-03 <001-03
0004 0006 0044
20 I S 18
12 4 0
<001-001 <01-03 < 001-003
0001 0014 0002
4) 4 6
3 2
<001
<001
19
19
<0001-003
0002
6
2
Pretreatment Standards for lie Steam Eiecmc Point Source
-------
Federal Register I Vol. 56. No. i59 / Friday. August 18. 1991 / Proposed Rules
presence of dry weather discharges and
other signs of non-storm water
discharges. Dry weather flows can be
screened by a variety of methods.
Inexpensive onsita tests include
measuring pH observing for oil sheens.
scums and discoloration of pipes and
other structures: as well as colormetric
detection tests for chlorine, detergents.
metals and other parameters. In some
cases, it may be appropriate to collect
samples for more expensive analysis in
a laboratory for fecal coliform. fecal
streptococcus, conventional pollutants.
volatile organic carbon. or other
appropriate parameters.
• Water balance. Many sewage
treatment plants require that industrial
discharges measure the volume of
effluent discharged to the sanitary
sewer system. Similarly, the volume of
water supplied to a facility is generally
measured. A significantly higher volume
of water supplied to the facility relative
to that discharged to the sanitary sewer
and other consumptive uses may be an
indication of illicit cor.nections. This
method is limited by the accuracy of the
flow meters used.
• Dry weather testing Where storm
sewers do not discharge during dry
weather conditions, water can be
introduced into floor drains, toilets and
other points where non-storm waler
discharges are collected. Storm drain
outlets are then observed for possible
discharges.
• Dye testmg Dry weather discharges
from storm sewers can occur for a
number of legitimate reasons including
groi nd waler infiltration or the presence
of a continuous discharge subject to an
NPDES permit Where storm sewers do
have a discharge during dry weather
conditions, dye testing for illicit
connections can be used. Dye testing
Involves introducing fluorometric or
other types of dyes into floor drains.
toilets and other points where non-storm
water discharges are collected. Storm
drain outlets are then observed for
possible discharges.
• Manhole and Internd TV
InspectIon. Physical Inspection of
manholes and internal Inspection of
storm sewers either physically or by
television are used to identify potential
entry points for illicit connecUons. Dry
weather flows, material deposits. and
stains are often indicators of Illicit
connections. TV inspections are
relatively expensive and generally
should be used only after a storm sewer
has been Identified as having illicit
connections.
b. Options for paevensJng pollutants in
storm water. The following five
categories describe options for reducing
pollutants in storm water discharges
from industrial plants
(i) Providing end-of-pipe treatment
(ii) Implementing Best Management
Practices to prevent pollutiom
(iii) Diverting storm water discharge
to municipal sewage treatment plants;
(iv) Using traditional storm water
management practices; and
(v) Eliminating pollution sources.
A comprehensive storm water
management program for a given plant
may include controls from each of these
categories. Development of
comprehensive control strategies should
be based on a consideration of plant
characterist:cs.
i. End-of-pzoe treatment. End-of-pipe
treatment requirements are typically
imposed through numeric effluent
limitations, which provide the
discharger with flexibility to design the
most cost effective type of treatment for
the given facility.
At many types of industrial facilities.
it may be appropriate to coUect and
treat the runoff from targeted areas of
the facility This approach was taken
with 10 industrial categories with
national effluent guideline limitations
for storm water discharges. There are
several basic similarities among the
national effluent guideline limitations
for storm water discharges:
• To meet the numeric effluent
limitation, most. if not all, facilities must
collect and temporarily store onsite
runoff from targeted areas of the plant
• The effluent guideline limitations do
not apply to discharges whenever
rainfall events, either chronic or
catastrophic, cause an overflow of
storage dev ces designed. constructed.
and operated to contain a design storm.
The 10-year. 24-hour storm, or the 25-
year. 24-hour storm commonly are used
as the design storm in the effluent
guideline limitations; and
• Most technology-based treatment
standards are based on relatively simple
technologies such as settling of solids.
neutralization. and drum filtration.
Potential ground water impacts should
also be considered by operators when
designing storage devices.
IL Best management practices. The
term best management practices (BMPs)
can describe a wide range of
management procedures. schedules of
activities, prohibitions on practices, and
other management practices to prevent
or reduce the pollution of waters of the
United States. BMPs also include
operating procedures. treatment
requirements and practices to control
plant site runoff, drainage from raw
materials storage. spills or leaks. BMPs
can be established in two ways: BMP
plans and site or pollutant-specific
BMPs.
BMP plans. EPA has worked with
industry to identify the generic EMPs
which most well-operated facilities use
for pollution control, fire prevention.
occupational safety and health, or
product loss prevPntion. EPA often
establishes NPDES permit conditions
that require generic BMPs to be
identified and implemented through
BMP plans. Many of the SMPs in a
typical BMP plan involve planning.
reporting, training, preventive
maintenance, and good housekeeping.
Many industrial facilities currently
employ BMPs as part of normal plant
operation. For example. preveni ve
maintenance and good housekeeping are
routinely used in the chemical and
related industries to reduce equipment
downtime and to promote a safe work
environment for employees. Good
housekeeping B Ws generally are aimed
at preventing spills and similar
environ. ental incidents by slressiig the
importance of proper management and
employee awareness. Expeiience hds
shown that many spills of hazardous
chemicals can be attributed. in one way
or another. to human error Improper
procedures. lack of training. and poor
engineering are among the major causes
of spills. Experience has shown that
BMPs can be used appropriately and
BMP plans can effectively reduce
pollutant discharges in a cost-effective
manner. BMP plans should reflect
requirements for Spill Prevention
Control and Countermeasure (SPCC)
plan. required under section 311 of the
CWA. and many incorporate any part of
the SPCC plan into the BMP plan by
reference. liMP plans should also ensure
that solid and hazardous waste is
managed in accordance with
requirements established under the
Resource Conservation and Recovery
Act (RCBA). Management practices
required under RCRA should be
expressly incorporated into the BMP
plan.
In addition, each of the following nine
specific requirements should be
addressed in the BMP plan to reduce
pollutants in runoff from the plant
• Statement of policy’.
• Spill Control Committee:
• Material inventory’
• Material compatibility:
• Employee training;
• Visual Inspections;
• Preventive maintenance:
• Reporting and notification
procedures;
• Housekeeping;
• S curity.
-------
Federal Register I Vol. 56. No. 159 / Friday. August 18. 1991 I Proposed Rules
40969
Additional technical information on the requirements of BMP plans • MitI;dUon
BMPs and the elements of a BMP plan is discussed above, more advance site or • Ultimate Disposition.
contained in the publication entitled pollutant-specific BMP requirements can Table 4118*8 BMPs associated with
‘NPDES Best Management Practices be developed. The following four each category. Requirements for SPCC
uidance Document.” U.S. EPA. June categories described these site or plane for oil pollution prevention (see 40
1981. pollutant-specifIc BMPs: CFR part 112) illustrate how pollutant-
Size orpoliutont-specific best • Prevention: specific BMPs can be implemented.
mo.1a ment practices. In addition to • Containment:
TABLE 4—ADVANCED BMP ALTERNATIVES
Prwfsr ta i
Ccinwivnent
Oeani ,
Treatment
Waste ‘ —‘
Morttonng . . —..._... ..__
Mondesmicave .,.
--
Covenng.
Seconay mnta ’iment .
Flow vseson to esconeny
contl inment.
Vaçcr convdI.. .
Dust iesl . ......_..
r’n4 e l.__. ....,
Msea.mcst ——
CtiemK..._......_.....
—
Uqud’so(ids sa 5arabon ._ ....
VOto Ccii
C iiprsc*istaiion .,__
Nestilnalon
Land Ifil
Land eatmenL
Reciamsuo.t
Dis iargs tO SluGS water.
Deep well I ai .- ..
Dath... to P01W
OBM .4.9 nI
Pnwanatic and vwaaan coi
V(X SOOflIflQ -. .. .
Dry cIoenuo ._
Seating ... ...
. .._ ...... . ......._
..-.--—.—--— . -..-..-.- ——
—
Ion ng. __
Citeincal endabom .
B.nint, .- ..i eaavwnt_.____. . ._.
Thennel oxidaSon._,,.,_,,,_
iu. Diversion of dischazye to sewage
treatznentplanL Where storm water
discharges contain significant amounts
of pollutants that can be removed by a
sewage treatment plant, the storm water
discharge can be discharged to the
sanitry sewage system. Such
diversions must be coordinated with the
operators of the sewage treatment plant
nd the collection system to avoid
worsening problems with either
combined sewer overflows (CSOs),
basenier.t flooding or wet weather
operation of the treatment plant. Where
CSO discharges. flooding or plant
operation problems can result, onsite
5iorage followed by a controlled release
during dry weather conditions may be
considered.
iv. Tradnional storm water
manoRen7ent practices. In some
situations, traditional storm water
management practices such as grass
swales. catch basin design and
maintenance. infiltration devices.
urjined retention or detention basins.
water reuse, and oil and grit separators
can be applied to an industrial setting.
However, care must be taken to
evaluate the potential of many of these
tradlticnal devices for ground water
contamination. In some cases, it Is
appropriate to limit traditional storm
water management practices to those
areas of the drainage system that
generate storm water with relat iely low
levels of pollutants leg.. many rooftops.
parking lots, etc.). At facilities located in
northern areas of the country, snow
removal activities may play an
important role in a storm watet
management program. In addition, other
types of controls such as spill
prevention measures can be considered
to prevent catastrophic events that can
lead to surface or ground water
contamination.
v. Elimination of pollution sources. In
some cases, the elimination of pollution
source may be the most cost-effective
way to control pollutants in storm water
discharges associated with Industrial
activity. Options for elinunating
pollution source. include reducing
onsite air emissions affecting runoff
quality, changing chemicals used at the
facility, and modification of material
management practices such as moving
storage areas into bwldings.
C. Options for Controlling Pollutants in
Storm Water.Discharges Associated
With Industrial Activity From
Construction Activities.
Most controls for construction
activities can be broken into two groups:
(1) Sediment and erosion controls: and
(2) storm water controls. Sediment and
erosion controls are generally those
controls which address pollutants in
storm water generated from the site
during the time when construction
activities are occurring. Storm water
controls are generally those controls
which are installed during the
construction process. but pthnarily
result in reductions of pollutants in
storm water discharged from the site
after the construction has been
completed. Additional measures can be
classified as housekeeping best
management practices.
(i) Sediment and erosion controls.
Erosion controls provide the first line of
defense in preventing off-site sediment
movement and are designed to prevent
erosion by protecting soils. Sediment
controls are designed to remove
sediment from runoff before the runoff Is
discharged from the site. Sediment and
erosion controls can be further divided
into two major classes of controls;
vegetative practices and structural
practices. Major types of sediment and
erosion practices are summarized
below. A more complete description of
these practices is described in “Draft—
Sediment and Erosion Control, An
Inventory of Current Practices”, U.S.
EPA. OWEC. April 20. 1990.
(A) Sediment and erosion controls:
vegetative practices. Vegetation, as
discussed here, refers to covering or
maintaining an existing cover over soils.
The cover may be grass. trees, vines.
shrubs, bark, mulch or straw. The
establishment and maintenance of
vegetation are one of the most important
factors In minimizing erosion while
construction activities are occurring. A
vegetation cover reduces the erosion
potential of a site by Absorbing the
kinetic energy of raindrops which would
otherwise impact soil: Intercepting
water so It can infiltra e into the ground
instead of running off ( arrying surface
soils: and by slowing tne veiccity of
runoff promoting deposition of sediment
in the runoff. Vegetative controls are
often the most important measures
taken to prevent off-site sediment
movement, and can provide a six-fold
-------
4O’7 ’O
Federal Register / Vol. 56. No . 159 / Friday, August 10, 1991 1 Proposed Rules
reduction in discharge suspended
sediment levels. 23
Tempozaiy seeding Temporary
seeding provides for temporary
stabilization by establishing vegetation
of areas of the site which will be
disturbed at some time during the
construction operation, and where work
(other than the initial disturbance) is not
conducted until some thne later in the
project Soils at these areas may be
exposed to precipitation for an extended
time period, even though work is not
occurring on these areas. In most
climates, temporary seeding is typically
appropriate for areas exposed by
grading or clearing for more than seven
to fourteen days. Temporary seeding
practices have been found to be up to
95% effective in reducing erosion. 24
- Permanent seeding. Permanent
seeding involves establishing a
sustainable ground cover at a site.
Permanent seeding stabilizes the soil to
reduce sediment in runoff from the site.
Permanent seeding is typically required
at most sites for aesthetic reasons.
Mulching. Mulching is typically
conducted as part of permanent and
temporary seeding practices. Where
temporary and permanent seeding is not
feasible, exposed soils can be stabilized
by applying plant residues or other
suitable materials to the soil surface.
Although generally not as effective as
seeding practices. mulching, by itself.
does provide some erosion controL
Mulching in conjunction with seeding
practices provides erosion protection
prior to the onset of vegetation growth.
In addition, mulching protects seeding
practices. providing a higher likelihood
of their success. To maintain optimum
effectiveness, mulches must be
anchored to resist wind displacement
Sod stabilization. Sod stabilization
involves establishing long.term stands
of grass with sod in sediment producing
areas. When installed and maintained
properly, sodding can be 99% effective in
reducing erosion. 2 ’ making it the most
effective vegetation practice available.
The higher cost of sod stabilization
relative to other vegetative control.
typically limits its usa to exposed .oil
where a quick vegetative cover is
desired and on sites which can be
maintained with ground equipment. In
addition, sod is sensitive to climate and
SI ‘Performance of Cuaent Sediment Control
Measures at Maryland Construction Sites”. January
1990. Metropolitan Weah.n ton Councri of
Govemmenla,
5 ”Cuid.. for Erosion and Sediment Control In
Cthfarnia” USDA—Soil Coiiservadon Service.
D. i . CA. Revised 1953,
‘“Cuade. for Erosion and Sediment Control Iii
Cali(orma. USDA—Sod Conservation Service,
DeviL CA. Revised loSs.
may require intensive watering and
fertilizing.
Vegetative buffer strips. Vegetative
buffer strips are preserved or planted
strips of vegetation at the top and
bottom of a elope, outlining property
boundaries, or adjacent to receiving
waters such as streams or wetlands.
Vegetative buffer strips can slow runoff
flows at critical areas. decreasing
erosion and allowing sediment
deposition.
Protection of trees. This practice
involves preserving and protecting
selected trees that were on the site prior
to development. Mature trees have
extensive canopy and root systems
which help to hold soil in place. Shade
trees also keep soil from drying rapidly
and becoming susceptible to erosion.
Measures taken to protect trees can
vary significantly, from simple measures
such as installing tree fencing around
the drip line and installing tree
armoring, to more complex measures
such as building retaining wails and tree
wells.
(B) Sediment and erosion controls:
structural practices. Structural practices
involve the installation of devices to
divert flow, store flow or limit runoff.
Structural practices can have several
objectives. First structural practices can
be designed to prevent water from
crossing disturbed areas where
sediment may be removed. This
involves diverting runoff from
undisturbed upslopes areas by use of
earth dike., temporary swales.
perimeter dike/swales. or diversions
that outlet in stable areas. A second
objective of structural practices can be
to remove sediment from site runoff
before the runoff leaves the site. Several
approaches to removing sediment from
site,runoff include diverting flows to a
trapping or storage device, or filtering
diffuse flow through straw bale dikes.
silt fences, or brush barriers before it
leaves the site. All structural practices
require proper maintenance (removal of
sediment) to remain functional.
Earth dike. Earth dikes are temporary
berms or ridges of compacted soil which
channel water to a desired location.
Earth dikes should be stabilized with
vegetation.
Straw bale dikes. Straw bales are
temporary barriers of straw or similar
material used to intercept sediment in
runoff from small drainage areas of
disturbed soil. When installed and
maintained properly, straw bale dikes
can remove approximately 67% of the
sediment in runoff.’ This optimum
“Dr.lt’—Sedlaent and Erosion ControL An
Inventory of Cwvent Practices’. U.s. EPA. OWEC.
April m. 1990.
efficiency can only be achieved through
careful maintenance with special
attention to replacing rotted or broken
bale ,.
Silt fence. Silt fences are a barrier c
geotextile fabric (filter cloth) used to
intercept sediment in diffuse runoff.
Care must be taken in maintaining silt
fences with an emphasis on maintaining
the etructural stability of the silt fence
and removal of excessive sedimentation.
Brush barriers. Brush barriers are
sediment barriers composed of tree
limbs, weeds, vines, root mat, soil, rock
and other cleared materials placed at
the toe of a slope.
Drainage swales. A drainage swale is
a drainage way with a lining of grass.
riprap, asphalt. concrete, or other
materials. Drainage ewales are installed
to convey runoff without causing
erosion.
Check dams. Check darns are small
temporary dams constructed across a
swale or drainage ditch to reduce the
velocity of runoff flows, thereby
reducing erosion of the swale or ditch.
Check dams should not be used in a live
stream. Check dams reduce the r eed for
more stringent erosion control practices
in the swale due to the decreased
velocity and energy of nmoff Materials
which can be used to install a check
darn include rock, logs and covered
straw bales.
Level spreader. Level spreaders are
outlets for dikes and diversions
consisting of an excavated depression
constructed at zero grade across a slope.
Level spreaders convert concentrated
runoff into diffuse runoff and release it
onto areas stabilized by existing
vegetation.
Subsurface drain, Subsurface drains
transport water to an area where it can
be managed effectively, Drains can be
made of tile, pipe or tubing.
Pipe slope drain. A pipe slope drain is
a temporary structure placed from the
top of a slope to the bottom of a slope to
convey surface runoff down slopes
without causing erosion.
Tempozari storm drain diversion.
Temporary storm drain diversions are
used to re-direct flow In a storm drain to
discharge into a sediment trapping
device.
Storm drain inlet protection. Storm
drain inlet protection can be provided
by a sediment filter or an excavated
impounding area around a storm drain
inlet, These devices prevent sediment
from entering storm drainage systems
prior to permanent stabilization of the
disturbed area.
Rock outlet protection. Rock
protection placed at the outlet end of
culverts or channels can reduce the
-------
Federal Register I Vol. 58. No. 159 / Friday. August 18. 1991 I Proposed Rules
4O 7l
depth, velocity and energ t of water such
that the flow will not erode the receiving
downstream reach.
Sediment traps. Sediment trap3 can be
installed in a drainageway. at a storm
drain inlet, or other points of discharge
from a disturbed area.
Other controls. Other controls include
temporary sediment basins. sump p 1’s.
entrance stabilization measures.
waterway crossings. and wind brea! s.
(ii) Storm water management controls
Storm water controls are generally those
controls which are installed during the
construction process. but primarily
result in reductions of pollutants in
storm water discharged from the site
after the construction has been
completed. Construction activities often
result in a aigruficant change in land use.
These changes in land use typically
involve an increase in the overall
imperviousness of the site, which can
result in dramatic changes to the runoff
patterns of a site. As the amount of
runoff from a site increases, the amount
of pollutants carried by the runoff
increases. in addition. activities such as
automobile travel on roads can result in
higher pollutar.t concentrations in runoff
then preconstruction levels. Traditional
storm water management controfs do
not influence the change in land use
associated with construction. Rather.
iraditional storm water management
controls attempt to limit the increases in
the amount of runoff and the amount of
pollutants discharged from a site
associated with the change in land use.
Major cldsses of storm water
management controls include:
lif .ltrauon of runoff onsite; flow
nuat’on by vegetation or natural
dcpression : outfall velocity dissipation
de’ . ices: storm water retention
str .:tiires and artiEcial v.etlands: and
.ctcrm water detention structures. For
ri’-i y sites, a combination of these
co :rols may be appropriate. A
si mrnary of storm water managarnent
Controls iS provided below A more
complete description of storm water
managerr.ent controls is found in
Draft—Construction Site Storm Water
D:scharge Control—An lnventorj of
Practices”, EPA. OWEC. 1991.
(A) infiltration of runoff onsite. A
variety of infiltration technologies can
be used to reduce the volume and
pdll’itant loadings of storm water
discharges from a site, including
infiaration trenches and infiltration
basins, Infiltration devises tend to
nitigate changes to pre-developmerit
h droiogic conditions. Properly designed
and installed infiltration devices can
reduce peak discharges, provide
groundwater recharge. augment low
flow conditions of receiving streams.
reduce storm water discharge volumes
and pollutant loads, and protect
downstream channels from erosion.
Infiltration devices are a feasible option
where soils are permeable and the
water table arid bedrock are well below
the surface. Infiltration basins can also
be used as sediment basins during
construction.” Infiltration trenches can
be more easily placed into under util:zed
areas of a development, and can be used
for small sites and mull developments.
However trenches may require regular
maintenance to prevent clogs.
particularly where grass inlets or other
pollutant removing inlets are not used.
In some situations, such as low density
areas of parking lots, porous pavement
can provide for infiltration.
(B) Flow attenuation by vegetution or
natural depressions. Flow attenuation
provided by vegetation or natural
depressions can provide pollutant
removal, infiltration, and lower the
erosive potential of flows.Ie In addition.
these practices can en.hance habitat
values and the appearance of a site.
Vegetative flow attenuation devises
include grass swales and filter strips as
well as trees that are either preserved or
planted during construction.
Typically the costs of vegetative
controls are small relative to other storm
wnter practices. The use of check dams
incorporated into flow paths can
provide additional infiltration and flow
attenuation, ’ 9 Given the limited
capacity to accept large volumes of
runoff, and potential erosion problems
associated with large concentrated
flows. vegetative cnr.trols should
typically be used in combination with
other storm water devices.
Crass swales are typ’cally used in low
or medium residential d tvelopment and
highway med!ans as an alternative to
curb and gutter dxaiaage systen s.°
(C) Outfall velocity disczpatio.
devices. Outfall velocity d’ssipa:mon
deviacs include riprap and stone or
concrete flaw spreaders. Outfall velocity
dissipation de iccs s!ow the flOW of
water discharged from a s:te to lessen
the amount of erosion caused by the
discharge.
(D) Storzn wctsr r Ceitzon strt,’ 1ires.
Properly designed and maintair.ad storm
water retention structures, also referred
to as wet ponds. can achieve a h.gh
“ ‘Con irol!uig Urbi.a Runoff A P .rtzcuI Manual
for P1.nnin and Oesmgmng Crban BMP. July 1987
Me lrnpotiian Weahingiun Coun i of Gu%rrnmer’s
‘a “Urban Targeting ard RMP Splectior.’. Untied
Sate. EPA. Region V. Novegaber 1990.
‘ a”SLandazdi and Spec f¼a’ion. for L ’thitraii,,n
PiacU s”, 1984, Maryland Waler Puowna.
AdaaInlgl ,atio
‘a “Controlling Urban RimofP A Prqctic.ai Manual
for Planning and Oesiqrnng Urban BMPa”,
Metropolitan Wasnuigion Council of Covertimenh,.
July 1087.
removal rate of sediment. BOD. organic
nutrients and metals. Retention Lasins
are most cost.effective in large;. more
intensively developed sues. Retar,tion
ponds can also ci’eate wildlife hubitat.
recreation, and landscape amenities.
and corresponding higher property
values.
(E) Retention stru ,tures/anzficial
wet!onds Retention structures inciude
ponds and artificial wetlands that are
designed to maintain a permsnent pool
of water. Property installed and
maintained retention structures (also
known as wet ponds) and artificial
wetlands at. 32 can achieve a high
removal rate of sediment. BOD. organic
nutrients and metals, and are most cost’
effective when used to control runoff
from larger. intensively developed
sites. 33 These devises rely on settling and
biological processes to remove
pollutants.
(F) Water quo liLy detention
structures. Storm water detention
structures include extended detention
ponds, which control the rate at which
the pond drains after a storm event.
Extended detention ponds are usually
designed to completely drain in about 24
to 40 hours, and will remain dry at other
times. They can provide pollutant
removal efficiencies that are similar to
those of retention ponds.” Extended
detention systems are typically designed
to provide both water quality and water
quantity (flood control) benefits.”
ui. Housekeeping BMPS. Pollutants
that may enter water from construction
sites due to poor housekeeping include
oils. grease. paints, gasoline, concrete
truck washdown, concrete raw
materials used in the manufacture of
concrete, including sand, aggregate. nd
cement, solvents, litter, debris and
sanitary wastes. Construct :on site
mamiagemant plans can address the
following to prevent the discharge ci
these pollutants:
• Designate areas for equipment
maintenance and repam
• Provide waste receptacles at
convenient locations and provide
regular collection of wastes:
““Wetland basin. for Storm Waler Tletiimaiii
Diiicuuioirand Back ound”. Maryland Su4iu ent
and Siormwa,er C.via,on. 1957
““The Vat,,, of Weilanda for Nonpoini Soiuu
Control—L,ai rd urn S..znxnuiry’ Suecker F... ci .iI.
lugo
““Controlling Urban Runoff A Pr.ctic,i Marioni
far PlannLi and Dealgiwig Urban BMP.
Metropoisian Weslunglat Cuancil of Govenunetita.
1987.
‘a ‘l.Jrb ,an Targeting and U.MP Selecton , L’nsted
Siate. EPA. Regie. V. November 1990.
‘a “Utben Surface Waler Maoagemenr Waienis.
S.C. Wiley. 1990.
-------
40972
Federal Register / Vol. 58. No. 159 I Friday. August 15. 1991 / Proposed Rules
• Locate eqwpinent washdown areas
on site, and provide appropriate control
of washwaters:
• Provide protected storage areas for
chemicals. paints, solvents, fertilizers
and other potentially toxic materials;
and
• Provide adequately maintained
sanitary facilities.
d. Coo/pile runoff treatment
technology. The primary technology
options for treating coal pile runoff
considered in the final “Development
Document for Effluent Limitations
Guidelines and Standards and
Pretreatment Standards for the Steam
Electhc Point Source Category”, (EPA—
440/182/029), November 1982, EPA,
were:
(1) Equalization. pH adjustment
settling: and
(2) Equalization. chemical
precipitation treatment, settling. pH
adjustment.
Metals may be removed from
wastewater by raising the pH of the
wastewater to precipitate them out as
hydroxides. Typically. wastewater pH’s
of 9 to 12 are required to achieve the
desired precipitation levels. Lime is
frequently used for pH adjustment.
Wastewaters which have a pH greater
than 9 after lime addition will require
acid addition to reduce the pH before
final discharge. Polymer addition may
be required to enhance the settling
characteristics of the metal hydroxide
precipitate. Typical polymer feed
concentrations in the wastewater are 1
to 4 ppm. The metal hydroxide
precipitate is separated from the
wastewater in a clarifier or a gravity
thickener. Unlike settling ponds, these
units continually collect and remove the
sludge formed. Filters are typically used
for effluent polishing and can reduce
suspended solids levels below 10 mg/i.
Sand or coal are the most common filter
media. Vacuum filtration is a common
technique for dewatering sludge to
produce a cake that has good handling
properties and minimum volume.
The major equipment requirements for
such a system include a lime feed
system, mix tank polymer feed system.
flocculator/ clarifier, deep bed filter.
and acid feed system. For wastewaters
which have a pH of less than 6. mixers
and mixing tanks are made of special
materials of construction (stainless steel
or lined.carbon steel). For wastewaters
with pH’s greater than 6. concrete tanks
are typically used. The underflow from
the clarifier may require additional
treatment with a gravity thickener and a
vacuum filter to provide sludge which
can be transported economically for
landfill disposal.
5. The Federal/Municipal Partnership:
The Role of Municipal Operators of
Large and Medium Municipal Separate
Storm Sewer Systems
A key issue in developing a workable
regulatory program for controlling
pollutants in storm water discharges
associated with industrial activity is the
proper use and coordination of limited.
regulatory resources. This is especially
important when addressing the
appropriate role of municipal operators
of large and medium municipal separate
storm sewer systems in the control of
pollutants in storm water associated
with industrial activity which discharge
through municipal separate storm sewer
systems.
Several key policy factors arise when
considering the appropriate strategy for
regulating storm water discharges
associated with industrial activity
through municipal separate storm sewer
systems. These factors include the
following:
• The role and responsibilities of
municipalities to control pollutants from
nonmunicipal facilities which are
discharged through a storm sewer
owned or operated by the municipality;
• The large number of storm water
discharges through municipal systems
(the Agency anticipates that the
majority of storm water discharges
associated with industrial activity from
many industrial classes discharge
through municipal separate storm sewer
systems);
• The ability of municipalities to
recognize and represent local concerns
and considerations;
• The ability of municipal operators
to assist EPA and author:zed NPDES
States in identifying local priorities for
controlling storm water discharges
associated with industrial activity
through specific municipal systems:
• The ability of municipal operators
to assist EPA and authorized NPDES
States to oversee effectively the
development of appropriate site.specific
controls for storm water discharges
associated with industrial activity
through municipal systems and to
effectively require compliance with such
controls;
• The authorities provides by the
CWA (including those provided to the
public) to review information developed
under the NPDES program and to
enforce NPDES permits: and
• The requirements of the CWA to
develop and implement the NPDES
permit program.
On November 16. 1990 (55 FR 47990),
EPA promulgated a permitting scheme
where controls for storm water
discharges associated with indi strial
activity through large and medium
municipal separate storm sewer systems
may be addressed by two permits issued
in a coordinated manner. This
complementary permit approach
envisions cooperative efforts by the
permit issuing agency and municipal
operators of large and medium
municipal separate storm sewer systems
to develop programs that will result in
controls on pollutants in storm water
discharges associated with industrial
activity which discharge through
municipal systems.
Under the complementary permit
approach. storm water discharges
associated with industrial activity which
discharge through large and medium
municipal separate storm sewer systems
are required to obtain permit coverage.
Permits for these discharges will
establish requirements (such as controls
or monitoring) for industrial operators of
the discharge into the municipal system.
In addition, these permits provide a
basis for enforcement actions directly
against the owner or operator of storn
water discharges associated with
industrial activity.
A second permit. issued to the
operator of the large or medium
municipal separate storm sewer.
establishes the responsibilities of the
municipal operators in controlling
pollutants from storm water associated
with industrial activity which discharges
through their system. The framework for
permits for discharges from large and
medium municipal separate storm sewer
systems has been developed to establish
the responsibilities of the municipal
operator to control pollutants
discharged through these municipal
systems. Al the heart of the permit
program for discharges from municipal
separate storm sewer systems serving a
population of 100.000 or more are
requirements that municipal applicants
develop and implement municipal storm
water management programs. The
municipal storm water management
programs that will be incorporated into
NPDES permits for discharges from
municipal separate storm sewer systems
will generally address (in addition to
other possible requirements) the
following three major components:
• Reducing pollutants in storm water
discharges from municipal landfills:
hazardous waste treatment, storage and
disposal facilities; facilities subject to
SARA Title Ill. Section 313: and other
priority industrial facilities through
municipal separate storm sewers:
• Reducing pollutants in construction
site runoff through municipal separate
storm sewers; and
-------
Federal Register / Vol. 56. No. 159 / Friday, August 16. 1991 / Proposed Rules
40973
• Identifying and controlling non-
storm water discharges to municipal
separate storm sewer systems.
These components of a municipal
program can initiate the role of the
municipality in assisting EPA and
authorized NPDES States in
implementing controls o reduce
pollutants in stcrm water discharges
.issocijted with industrial activity which
discharge into large and medium
municipal separate storm sewer
systems. Municipal programs to reduce
pollutants in industrial site runoff and
construction site runoff through
municipal separate storm sewer systems
specifically will address municipal
responsibilities in controlling pollutants
from industrial facilities. In addition.
programs to identify and control non-
storm water discharges to municipal
scparate storm sewer systems will in
many cases focus on industrial areas
because these areas often have a high
potential for illicit connections, spills or
improper dumping
Consistent with the final permit
aeplicanons regulations published on
.ovember 16. 1990 155 FR 47990), the
general permits occompanying this fact
sheet have been developed to assist in
establishing a cooperative approach
between EPA and municipal operators
of large and medium municipal separate
storm sewer systems for controlling
pollutants from storm water discharges
associated with industrial activity which
discharge through large and medium
municipal separate storm sewer
systems These requirements will be
coordinated with requirements in
p rmits for discharges from large and
medium municipal separate storm sewer
s stems Major features of the draft
gorteral permits which establish the
framework for this cooperative
approach include:
Operators of storm water
discharges associated with industrial
actn ity which discharge through a large
cr medium municipal separate storm
sewer system may be required to submit
a copy of the notice of intent to the
municipal operators of large or medium
municipal system receiving the
discharge:
Requirements to monitor and reduce
pollutants in discharges will be
established for storm water discharges
associated with industrial activity which
discharge through large and medium
municipal separate storm sewer systems
(as well as other storm water discharges
associated with industrial activity). Any
records, reports, or information obtained
by the Director as part of the permit
implementation process. including site-
‘oecthc storm water pollution
revention programs that are developed
pursuant to the draft general permit. are
available to municipalities under section
3C8(b) of the CWA. This will assist
municipalities in reviewing the
adequacy of such requirements and
developing priorities among industrial
storm water sources: dfld
Industrial permittecs with
discharges through large and medium
municipal systems mcy be required to
submit discharge monitoring reports to
municipal operators of these systems (as
well as to the permitting issuing agency)
or other monitoring results as required
by the operator of the municipal
separate storm sewer to assist the
municipal operator in identif ’ing
priorities.
These permit conditions, along with
appropriate conditions in permits for
discharges from large and medium
municipal separate storm sewer
systems, will allow municipal operators
of these systems to:
• Assist EPA in identifying priority
storm water discharges associated with
industrial activity to their system:
• Assist EPA in reviewing and
evaluating storm water pollution
prevention plans that industrial facilities
are required to develop under the draft
general permit: and
• Assist EPA in compliance efforts
regarding storm water discharges
associated with industrial activity to
their municipal systems.
6. Notification Requirements -
EPA’s regulations at 40 CFR 122.21(a)
exclude persons covered by general-.
permits from requirements to submit
individual permit applications. Under
these existing regulat ons. conditions for
NOls to be covered by the general
permit are established in the permits on
a case-by-case basis. Elsewhere in
today’s notice. EPA is proposing to
amend the general permit regulations at
40 CFR 122.28 to establish minimum
requirements for NOIs in general
permits.
The draft general permits associated
with this fact sheet would establish
limited NOl requirements that would
operate instead of individual permit
application requirements and that are
consistent with the minimum regulatory
requirements for NOb proposed in this
notice.
These draft general permits have the
following NOl requirements for
discharges covered by each permit’
• Name, mailing address, and
location of the facility for which the
notification is submitted:
• Up to four 4-digit Standard
Industrial Classification (SIC) codes that
best represent the principal products or
activities provided by the facility:
• The operator’s name, address.
telephone number, ownership status and
status as Federal. State. private, public.
or other entity;
• The latitude and longitude of the
approximate center of the facility to the
nearest 15 seconds, or the nearest
quarter section fif the sect:on. township.
cr range is provided) that the fac.lity is
bcated n;
• The name of the receiving water(s).
or if the discharge is to a municipal
separate storm sewer, the name of the
municipal operator of the storm sewer
and the ultimate receiving water(s): and
• Existing quantitative data
describing the concentration of
pollutants in discharges.
The permits in AZ. Guam and
American Somoa will, in addition to the
information described above, require
that an estimate of the size of the
drainage area (in square feet) and an
estimate of the runoff coefficient of the
drainage are (e g. low under 40%).
medium (40% to 65%) or high (above
65%)) be provided. This information will
be used to estimate the volume of storm
water discharged from the facility,
which will assist in evaluating pollutant
loads.
The proposed NO1 requirements for
storm water discharges associated with
industrial activity from a construction
site include. in addition to the
information required above, a brief
description of the project. estimated
timetable for major activities, and
estimates of the nunibor of acres of the
site that will be disturbed.
The NOl reqwrements of the draft
general permits are intended to
establish a mechanism that will provide
a clear accounting of the nu,tnber of
persmttees covered by’ the general
permit. the nature of operations at the
facility generating the discharge. their
identity and location. In addition, the
NOl can identify the pernuttee to
provide a basis for enforcement and
compliance monitoring strategies. The
NOl can be used as an initial screening
tool to determine discharges where
individual permits are appropriate. Also.
the NO! can be used to identify dasses
of discharges appropriate for general
permits with more specific requirements.
as well as provide information needed
to notify such dischargers of the
issuance of a more specific general
permit.
The NOl requirements in the draft
general permit have been designated to
provide much of the information needed
for these purposes, and will be
supplemented by other information
obtained through processes such as
section 308 information requests.
-------
40974
Fodeini Register I VoL 56. No. 159 I Friday. August 16, 1991 / Proposed Rules
EPA is considering developing a
central address for receiving all NOIs
required under these general permit..
This would assist the Regional Office,
in handling and filing NOIs. EPA is also
considering developing a form for NO !.
that can be read by automatic data
processing equipment Operation, of
storm water discharge. associated with
industrial activity which discharge
through a large or medium municipal
separate storm sewer system must. in
addition to submitting an NO! to the
Director, submit a copy of the NO! to the
municipal operator of the system
receiving the discharge. This additional
notice will assist municipal operators in
developing inventories of industrial
facilities which discharge to their
municipal separate storm sewer
systems. This will be an initial step in
implementing municipal storm water
management programs to reduce
pollutants from runoff from industrial
facilities. This also will assist municipal
operators in overseeing the
implementation of permit conditions.
Individuals who intend to obtain
coverage under the general permit must
notify their intent within 180 days of the
effective date of this general permit or at
least 30 days prior to the
commencement of construction of a new
storm water discharge associated with
industrial activity.
The deadlines for submitting NO!.
under the draft general permit differ
from the deadlines for submitting
individual permit applications under 40
CFR 122.28(e) in several respects. First.
the deadline for submitting NO!. for
existing storm water discharges
associated with industrial activity is 180
days from issuance of the general
permits rather than the November 18.
1991. deadline for submitting individual
permit applications. 3 The Agency
believes that it is appropriate to base
the NO! submittal date on the issuance
date of the final general permit
establishing the NO! requirement The
Agency also believes that 180 days
provides the discharger with adequate
opportunity to prepare and submit en
NOL particularly because discharger,
are not required to conduct sampling
activities to submit a complete NOL
Second. the draft permits provide that
NO!. be submitted at least 30 days
before construction of a new storm
water discharge associated with
industrial activity begins. This time is
less than the 60 days prior to
commencement of construction that 40
CFR 122.28(e) provides for submitting
“EPA has proposed exn.nd this deadlint to
‘Any is. 1952. t e FR 12101. Much ri. igqij.
permit application, for individual
permits for new storm water discharges
associated with indusmial activity. The
Agency believes that wirier these
general permits, less time is necessary
to review NOIs than to review
Individual permit applications and to
issue permits for new storm water
discharges associated with industrial
activity. In addition, reducing the
minimum time to a 30 day period to
submit NO!. before beginning
construction will assist discharges in
complying with the permit.
7. Description of Draft Permit Conditions
The conditions of these draft permits
have been designed to comply with the
technology.based standards of the CWA
(BATIBCT). Based on a consideration of
the appropriate factors for BAT and
BCT requirements, and a consideration
of the factors and options discussed in
this fact sheet for controlling pollutants
in storm water discharges associated
with industrial activity, the draft general
permits proposes two prohibitions. a set
of tailored requirements for developing
and implementing storm water pollution
prevention plans, and for selected
discharges. two effluent limitations. 3 ’
Part 4 of this fact sheet summarizes
the options for controlling pollutants in
storm water discharges associated with
industrial activity. The draft general
permit proposes numeric effluent
limitations for two classes of discharges.
coal pile runoff. and runoff that comes
into contact with certain chemical
storage or handling facilities. .at SARA
title U I. section 313 facilities.
For other discharges covered by the
permit, the draft permit conditions
reflect EPA’s decision to select a
number of best management practices
and traditional storm water -
management practices which prevent
pollution in storm water discharges as
the BAT/BCT level of control for the
majority of storm water discharges
covered by these permits. The draft
permit conditions applicable to these
discharges are not numeric effluent
limitations, but rather are flexible
requirements for developing and
‘ T Psrt LC2 of th. draft g.nerel permit. provtd.
that facilitie, with utous wate, discharge.
aa.ociawd with induatrisi activity which. baud rm
an evuluadon of iii, ,peafic condition., believe
that the epproonata condition, of the.. permits do
not adequately represent SAT and BC !’
requirement, for the facility niay request to be
excluded from the coveraqe of the gene. .1 permit by
either uubmitting to the Director an individual
application (Form I anti Form if! with. detailed
explanation of the reesonu eupporong the reqne.t.
tncludan. any supporung documwuaflon ahowing
th .t certain permit condition. are not appropriate.
or p.rtlcipaang in a group application (aee 40 CFR
i 12.2 5 1c 1 1.
implementing site specific plans to
miniimm and control pollutants in storm
water discharges associated with
indusnial activity.
EPA is authorized under 40 CFR
122.44(k)(2) to impose BMPs in lieu of
numeric effluent limitations in NPDES
permits when the Agency finds numeric
effluent limitations to be infeasible. EPA
may also impose BMPs which are
“reasonably necessary’ to carry
out the purposes of the Act” under 40
CFR 122.44(k)(3). Both of these
standards for imposing BMPs were
recognired in NRDC v. Cost!e. 568 F 2d
1369. 1380 (D.C. Cir. 1977). The
conditions in the draft general permits
are proposed under the authority of both
of these regulatory provisions. The
pollution prevention or BMP
requirements in these permits operate as
limitations on effluent discharges that
reflect the appljcatwn of BAT/UCT. This
is because the BMPs identified require
the use of source control technologies
which, in the context of these ger.eral
permits. are the best availab!e of the
technolngies ecor.ornically achievable
(or the equivalent 8Cr flnth 8). See. e
NRDC v. EPA. 822 F.Zd 104. 122-23 (D C
Cu. 1987) (EPA has substantial
discretion to impose non-quantitative
permit requirements pursuant to section
402(a)( lfl.
a. Prohibitions. The draft general
permits prohibit non-storm water
discharges as a component of discharges
authorized by this permit This permit is
intended to authorize discharges
composed entirely of storm water
associated with industrial activity The
prohibition on non-storm water
discharges in these permits ensures
non-storm water discharges are not
inadvertently authorized by these
permits. Where a storm water dischar3e
is mixed with process wastewaters or
other sources of non-storm water prior
to discharge. and the discharge is
currently not authorized by an NPDES
permit the discharger should submit the
appropriate application forms to obtain
permit coverage. The Agency believes
that these mixed discharges are
addressed more appropriately through
Individual NPDES permits or other
general permits as individual or other
general permits will allow development
of more tailored and specific permit
condition. appropriate for such
discharges.
The draft general permits also prohibit
discharges that contain a hazardous
substance in excess of reporting
quantities established at 40 CFR 1173 or
40 CFR 302.4. and dariflea that where
such a discharge occurs, the permit does
not relieve the permittee of the reporting
-------
Federal Register / Vol. 56, No. 159 I Friday. August 16, 1991 / Proposed Rules
40975
requirements of 40 CFR part 117 and 40
CFR part 302. The Agency belie’, es that
the vast malority of discharges that
contain a hazardous substance in excess
of reporting quantities will be
associated with non-storm water
sources (e g chemical spill events)
Where a di charge composed entirely of
storm wai associateu with industrial
activity containing a hazardous
substance in excecs of reporting
qi antIties occurs or is expected to
occur. the Agency believes that the
potential risks associated with the
discharge are such that it is more
appropriate to address the discharge
with an individual permit which
contains more specific permit conditions
based or. industry specific or site
specific factors and a consideration of
receiving water characteristics. Since
discharges containing a hazardous
substance in excess cf reporting
quantities are not authorized by these
permits. such releases are not exempted
from reporting requirements by 40 CFR
117 12(a)(1). and hence the permits do
not relieve the permittee of the reporting
requirements of 40 CFR part 117 and 40
CFR part 302.
EPA anticipates that storm water
discharges that contain oil in excess of
reporting quantities established under 40
CFR 110.8 (e.g. exhibit an oit sheen) will
be more common. For example, many
torm water discharges from parking
iots or roads, as well as from industrial
facilities, contain an oil sheen. Although
discharges composed entirely of storm
water associated with industrial activity
are authorized by these permits where
me discharge complies with the other
aoplicable requirements of the permit
and 40 CFR part 110. it should be noted
that where a discharge of oil in excess
of reporting quantities is caused by a
ncnstorm water discharge (e g. a spill of
cil into a separate storm sewer), the spill
is not authorized by this permit, and the
discharger is not relieved of their
obligation to report the spill under 40
CFR pert 110. In this regard. the
requirements of section 311 of the CWA
and otherwise applicable provisions of
sections 301 and 402 of the WA
continue to apply.
b. Tailored pollution prevention plan
requirements. All facilities covered by
the storm water general permits must
prepare. retain and implement a storm
water pollut:on prevention plan. The
storm water permits address tiered scts
of pollution prevention plan
requirements for a number of categories
of industries: Construction activities;
baseline requirements for all industries
-ccept construction activities: special
quirements for certain facilities
subject to SARA title lii. section 313.
special requirements for storm water
d:scharges associated with industrial
activity to large and medium municipal
separate storm sewer systems: and
special requirements for facilities with
outdoor salt storage piles. These tailored
requirements have been developed to
allow the implementation of site-specific
measures that address features.
activities, or pnorities for control
associated with the identified storm
water discharges.
The Agency is using the term
“pollution prevention” in the context of
these plans because the term
emphasizes that requirements in the
plans provide a flexible basis for
developing site-specific measures to
minimize and control the amounts of
pollutants that would otherwise enter
storm water. The term ‘pollution
prevention’ distinguishes this source
reduction approach from traditional
pollution control measures that typically
rely on end-of-pipe treatment to remove
pollutants in the discharges The plan
requirements are based primarily on
traditional storm water management.
pollution prevention and BMP concepts
which have been tailored to pollutants
ci storm water discharges associated
with industrial activity.
The pollution prevention approach
adopted in the storm water pollution
prevention plans in the draft general
permits focuses on two major objectives:
(1) To identify sources of pollution
potentially affecting the quality of storm
water discharges associated with
industrial activity from the facility: and
(2) Describe and ensure that practices
are implemented to mininuze and
control pollutants in storm water
discharges associated with industr:al
activity from the facility and to ensure
compliance with the terms and
conditions of this permit.
The Agency believes that it is not
appropriate, at this time, to require a
single set of effluent guidelines or a
single design or operational standard for
all facilities which dischar;e storm
water associated with industrial
activity. Rather, this permit establishes
a framework for the development and
implementation of site-specific storm
water pollution prevention plans. This
framework provides the necessary
fiexibility to address the variable risk
for pollutants in storm water d .scharges
assoc:ated with the differer,t types of
industrial activity that are addressed by
these permits, while ensuring
procedures to prevent storm water
pollution at a given facility are
appropriate given the processes
employed, engineering aspects.
functions, costs of controls, location,
and age of facility (as contemplated by
40 CFR 125.3). The approach taken
allows flexibility to establish controls
which can appropriately address
different sources of pollutants at
d:fferent facilities.
i. Plan requirements for construction
activities The requirements for storm
water pollution prevention plans for
operations that discharge storm water
associated with industrial activity from
construction activities differ from the
requirements for other types of facilities.
In developing these draft permits, the
Agency has reviewed a significant
number of existing State and local
requirements for sediment and erosion
controls, and storm water management
controls for construction activitiesfliew
development addressing a wide range of
climates and types of construction
activities.
(A) Source Identification. Storm water
pollution prevention plans must be
based on an accurate understanding of
the pollution potential of the site The
first part of the plan requires an
evaluation of the sources of pollution at
a specific construction site. The source
identthca tion components for pollution
prevention plans for construction
activities proposed in these permits
include, at a minimum, a description of
the following
• A description of the nature of the
construction activity:
• Estimates of total area of the site
and the area of the site that is expected
to undergo excavation or grading;
• An estimate of the runoff coeffic:er.t
of the site and existing data describing
the soil or the quality of any discharge
from the site Estimates of the runoff
coefficient can be based on estimates of
the site size, the increase in impervious
area after the construction is completed.
and the location of struct ires that will
be built on the site:
• A site map indicating, at a
minimum, drainage patterus and
approximate slopes anticipated after
major grading activities, areas used for
the storage of soils or wastes, the
location of major control structures
identified in the plan. and surface
waters; and
• The name of the receiving water(s),
or if the discharge is to a municipal
Separate storm sewer, and the ultimate
receiving water(s).
EPA requests comments on whether
the permits should require information
describing other major features which
may provide a better understanding of
s.te runoff or other major pollutant
sources, such as identification of areas
-------
Federal Register / Vol. 56. No. 159 I Friday, August 16. 1991 I Proposed Rules
intended to be used for the storage of
soils or wastes, be included in plans.
(B) Controls to reduce pollutant,.
Many municipalities and States have
developed .e& t and erosion control
requirements for construction activities.
A significant number of municipalities
arid States have also developed storm
water management controls. This permit
requires that facilities which discharge
storm water associated with industrial
activity from construction activities
must reflect in their storm water
pollution prevention plan procedures
and requirements specified in applicable
sediment and erosion site plans or storm
water management plans approved by
State or local officials. Applicable
requirements specified In sediment and
erosion plans or storm water
management plans approved by State or
local officials are, upon submittal of an
NO! to be authorized to discharge under
this permit. incorporated by reference
and are enforceable under this permit
even if they are not specifically included
in a storm water pollution prevention
plan required under this perinit.SS
The sediment and erosion controls for
construction actnc tIes proposed in this
permit have three goals: 1) to divert
upsiope water around disturbed areas of
the site: 2) to limit the exposure of
disturbed areas to the.shortest duration
possible: and 3) to remove sediment
from storm water before it leaves the
site.
Each construction operation covered
by the permit is required to develop a
description of three classes of controls
appropriate for inclusion in the facility’s
plan, and implement controls identified
in the plan in accordance with the plan.
The description of controls must’ address
erosion and sediment controls. storm
water management and a specified set
of other controls.
Erosion and sediment controls include
both vegetative practices and structural
practices. Vegetative practices are the
first line of defense for preventing
erosion. These controls are to be based
on a consideration of temporary
seeding, permanent seeding, muleising.
sod stabilization, vegetative buffer
strips, and protection of trees.
Temporary seeding practices are often
cited as the single most Important factor
‘ Facilities with sloan water diiclias es
associated with industrial activity related to
conitriintlon ectivitie. which, based on so
evaluation of itt. specific conthtioni. behave that
State and local plane do not adequately represent
OAT and OCT requtranenta for the facility rosy
request to be extiuded from the coverage of the
geneud pelmil by stabnatilcg to the Director an
undividual epplicattoli with a detailed explanation
of the roman. the requeft linduding any
supporting —-— “daa sbow*ng that certain
ernut condition. ers not approprtste.
in reducing erosion at construction
sites. 3 ’
Since vegetative practices play such
an important role in preventing erosion,
it is critical that they are rapidly
employed In appropriate areas, The
draft permits provide that the operator
shail initiate appropriate vegetative
practices on all disturbed areas within 7
calendars days of the last activity at
that ares. Appropriate vegetative
practices may include temporary
seeding, permanent seeding, mulching or
sod stabilization procedures. or
equivalent measures that protect
exposed soils. EPA requests comments
on the application of this criterion or
other appropriate criteria (such as
criterion that would only be applicable
during specified seasons) for initiating
appropriate vegetative practices in arid
areas (areas with less than 10 inches
average annual rainfall) and semi-arid
areas (areas with between 10 and 20
inches average annual rainfall) with
well defined seasonal rainfall patterns.
For example. it may be appropriate to
only apply the requirement to uutiate
appropriate vegetative practices within
7 days of the last activity in a given area
during seasons or months which have a
reasonable probability of a rain event
occurring. However, EPA has concerns
about its ability to define appropriate
dry weather periods, and requests
comments on this approach.
Structural controls provide a second
line of defense by capturing pollutants
before they leave the site. Structural
controls are necessary because
vegetative controls cannot be employed
at areas of the s;te which are continually
disturbed and because a rimte time
period is required before vegetative
practices are fully effective. Structural
practices selected for incorporation into
a plan are to be based on a
consideration of the attainability at a
given site of implementing particular
controls. Options for such controls
include straw bale dike,, silt fences,
earth dikes, brush barriers, drainage
swale,, check dams, subsurface drain,
pipe slope drain, level spreaders storm
drain inlet protection, rock outlet
protection, sediment traps, and
temporary sediment basins. For sites
with more than 10 disturbed acres at
one time which are served by a common
drainage location, a detention basin
providing storage for runoff from
disturbed areas from a 24 hour. 10 year
storm or equivalent controls (such as
suitably sized dry wells or infiltration
structures), shall be provided where
““New York Guideline. or Urban Erosion and
Sediment Control’ USDA—Soul Conservation
Service March. isee
sufficient apace and other factors allow
these controls to be attained. For
drainage locations with more than 10
disturbed acres at one time which ar
served by a common drainage location
where a detention basin providing
storage or equivalent controls for runoff
from disturbed areas from a 10 year, 24-
hour storm I, not attainable, silt fences.
straw bale dikes. or equivalent sediment
controls are required for all sideslope
and doweslope boundaries of the
construction area.
For drainage locations serving 10 or
less acres. at a minimum, silt fences,
straw bale dikes, or equivalent sediment
controls are required for all sideslope
and dowuslope boundaries of the
construction area or a detention basin
providing storage for runoff from
disturbed areas.
EPA requests comment on the use of
the 10 acre limit and the 24 hour. 10 year
storm for this req u irement. ° Although
sediment basins are generally viewed as
being more effective than other
structural controls, flexibility has been
added to the proposed requirements for
drainage locations serving 10 or less
acres since these smaller sires may have
more difficulty finding an appropriate
location For a beam.
“Storm water management”
controls ‘ are to include a description
of measures ot controls to minimize
pollutants in storm water discharges
that will be installed during
construction. but that will continue to
control pollutants in storm water
discharges after the construction
operations have been completed.
Options for “storm water management”
controls that are to be evaluated in the
development of plans include:
infiltration of runoff onsite: flow
attenuation by use of open vegetated
swales and natural depressions; storm
water retention structures and storm
water detention structures. Often it is
appropriate to incorporate several of
these measures at a site.
Developing land often s gnificantiy
Increases peak discharge volumes and
velocities, These increased discharge
velocities can greatly accelerate erosion
near the outlet of on-site structural
controls. To mitigate these effects, the
“This control is a 8Cr control. and hence i i ,’
desi storm ddTeri from desuqo stoma uaed
elaswnere in thu penal as BAT control.. (See
‘$tajf Analysis of Implement ing Permitting
Activities for Storm Water Ol.cbarges A.socialrd
with Induatriel Activity’ [ EPA. 19gll.l
“For the parpose of the ap. a1 requllelnenha For
constructiofl uciivitlai, the team ‘storm water
m.nagsnem control.’ refers to convota that will
pnmarily reduce the dlachauge of puthitants to atom
water from sites after cooabuc llon activities have
been completed.
-------
Federal_Register I Vol. 56. Jo 159 / Friday. Au ust 16. i9 1IPrcposed Rules
40977
draft permits require ‘eloci y
dissipation devices to be placed at the
outfail of detention or retention
structures and along the length of outfall
channels to provide a non-erosive
veloci:y flow from the structure to a
water course needed to ensure that
erosion is prevented or minimized
These permits do not establish
specific standards For “storm water
management” (e.g. controls to red ice
pollutants in storm water discharges
from a site after construction is
completed) (other than requirements in
appro ed State and local storm water
site plans and requirements for velocity
dissipation devices). However, the
permittee must evaluate the
appropriateness of arious options for
storm water measures at the site when
developing their plan and provide a
summary of the evaluation and
justification For not selecting a given
practice. The Agency requests comment
on the appropriateness of establishing
performance standards, 4 ’ or design
standards. 4 ° While the Agency
recognizes that such requirements will
often be appropriate in individual
permits or in other permit issuing efforts.
the Agency has concerns about the
extensive use of such standards in this
Tier I general permit. The Agency will
continue to evaluate appropriate
standards for storm water management
applicable to new developments along
with the need to provide flexibility in
illowing for site-specific modifications
of the standard based on project
constraints, local conditions and the
location of the discharge withn the
watershed.
Other controls to be addressed in
storm water pollution prevention plans
For construction activities require that
no ncn-storm water wastes, including
building material wastes shall be
discharged at the site. un!ess the facility
is licensad for such disposal.
The draft permit proposes that cff.site
vehide tracking of sed,ments shall be
minimized. This can be accomplished by
measures such as providing gravel or
paving at access entrance and exit
drives, parking areas, and unpaved
roads on the site carrying sigrulicant
amounts of traffic (e.g. more than 5
One sppru.ch to performance ui.ndards
ccmrn3nly adopted in Slate or local control. a to
-aquirc i n norris. to the rate and voiune of runoff
frcm preo..veiopiner.i conjiih,ns Another common
apprcoc is to require on she contz l far a specified
tiorm ev!nI leg ihe rust inch of runoff front a sitcI
‘ Design .‘andards are com.’noni) u cd by State
and local governments as part of the pL.in epprc sI
process Such reqwretnenta can address a wide
range of requIrements. auth as providing infiltration
for runoff from roofs or paved areas exceeding a
specified area, or requiring that residential
‘riveways siopa toward adp.cent landscaped areas
vehicles per day). These rieasur s.
along with other appropriate measures,
can hmit erosion and the transport of
sediment ofisite from these areas.
In addition, the plan snaIl ensure and
demonstrate compliance with applicable
State or local sanitary sewer, septic”
system and waste di.iposal regulations
Erosion and sediment controls can
become ineffective if they are
inappropriately disturbed or otherwise
damaged. Maintenance of controls has
been identified as a major part of
effective erosion and sediment
programs Plans are required to provide
a description of procedures to maintain
in good and effective condition and
promptly repair or restore all grade
surfaces, walls, dams and structures.
vegetation, erosion and sediment control
measures and other protective measures
identified in the site plan At a minimum.
procedures in a plan must provide that
all erosion controls on the site are
inspected at a minimum of once every
seven calendar days and at other
suitable times (e.g. within 24 hours after
any storm event of greater than 05
inches of rain per 24 hour period).
Diligent inspections are necessary to
assure adequate implementation of
onsite sediment and erosion controls,
particularly in the later stages of
construction when the volume of runoff
is greatest and the storage capacity of
the sediment basins has been reduced.’ 5
ii. Plan requirements for facilities
other than construction activities. In
1979, EPA completed a technical survey
of industry best management practices
(BMPs) which was based on a review of
practices used by industry to control the
non.routine discharge of pollutants from
non continuous sources including runoff,
drainage from raw matenal storage
area, spills. leaks. and sludge or waste
disposal. This review included analysis
and assessment of published articles
“to rural and suburban areas itist arc srr rd by
septic systems, malfunctioning septic s stems can
contribute poUutanta to storm water discharges
Malfunctioning septic tanks may be a more
.tgniflcani surface runoff pollution problem than.
ground water problem This is because a
malf’.inctionutg septic system is lea. likely to cause
ground watar contamination where a bacterial mat
in the soil retard. the downward movement of
wastewater Surface malfunctions are caused by
clogged or imperinesbia soils or when stopped up
or collapsed pipes fortes untreated wsltrwater to
the surface Surfacs malfunctions can very in degree
from occasional damp pati.heo on the surface to
constant pooilng or runoff of wagiewsier These
discharge, have h. h bacteria nitrate and nutrient
leveta and can cor,iain a varleiy of household
chemicals This permit does not establish new
c’tena for septic systems, but rather addresses
existing State or local criteria
Is “Prtfor,nanca of Current Sediment Con:rol
Measures at Maryland Cor,siruction Sites’ January
I ’ iO Metropolitan Washington Council of
Government.
and reports, technical bulletins, and
disci ssions with industry
representatives through telephone
contacts, written questionnaIres and site
visits.
The review identified two classes of
pollution control measures. The First
class of controls are those management
practices which are generally
ccnsidered to be essential to a good
BMP program. low in cost, and
applicable to broad categories of
industry and types of substances These
practices are independent of the type of
industry, ancillary sources, specific
chemicals, group of chemicals. or plant.
site locations. The survey concluded
that these controls were broadly
applicable to all industry types and
activities, and should be viewed as
minimum requirements in any effective
BMJ program. The second class of
controls are management practices
controls which provide a second line of
defense against the release of pollutants
and included prevention measures,
containment measures, mitigation and
cleanup measures, and treatment
methods ‘
Since that time. EPA has, on a case-
by-case basis, imposed BMP
requirements in NPDES permits. The
Agency has also continued to review
and evaluate case studies involving the
use of BMPS ‘ and the use of pollution
prevention measures associated with
spill prevention and containment
measures for oil.” During the
development of NPDES permit
application requirements for storm
water discharges associated with
industrial activity, the Agency evaluated
appropriate means for identifying and
evaluating the potential risk of
pollutants in storm water from industrial
sites. Public comments received during
the rulemaking provided additional
insight regarding storm waler risk
assessment, as well as appropriate
For a complete description of the BMP sur,ev
see y.’PDES Beet Msnagentent Practices Guidance
Document” U S. EPA. December 1979 EPA-80019-
79-045 Se. siso the t981 document of the same
name, ‘NPOES Best Management Pr.cticea
Guidance Document” which provides a more
complete discussion of baseline BMP.
“For example. see aest Management Practices
Useful Tools far Cleaning Up’. Thron. H.
Rogoshewiki P. isaz. Proceedings of the 1982
Hazardous Material Spill. Conference. The
Chemical Induatnea Approach to Spill Prevertion
Trtomp.ori C Coodier I. 1980 Proceedings of the
i980 ‘Jationsl Conference on Corirol of Hazardous
M..ierial Spills and. series of EPA tncrr.orandum
r’ttiiled Beat Management Practices in .PDES
Permits—Information Me,norsndum’ 1983. 1985.
1988. 5987. 1938.
“Sea Oil Pollution Pravantion requtremanu
including Spill Prevention. Control, and
Countermeasure Plan requirements, at 40 CFR part
112
-------
40978
Federal ReØSZUT/ VoL 56, No. 159 1 Friday. August 16. l 1 I Proposed Rules
pollution prevention and control
measures and strategies. During this
time, the Agency again reviewed storm
water control practices and measures.”
These experiences have shown the
Agency that pollution prevention
measures such as BMPs can be
appropriately used and that permits
containing BMP requirements can
effectively reduce pollutant discharges
in a cost-effective maimer. EPA again
indicates that BMP requirements are
being imposed in this general permit In
lieu of numeric effluent limitations
pursuant to 40 CFR 122.44(k)(2).
(A) Source identification. Storm water
pollution prevention place must be
based on an accurate understanding of
the pollution potential of the site. The
first part of the plan requires an
evaluation of the sources of pollution at
a specific industrial site. The permit
proposes that the source identification
components of the plan identify all
activities and significant materials
which may potentially be significant
pollutant sources. Plar.s shall include:
• A drainage site map and a
topographic map:
• A list of significant spills and leaks
of toxic or hazardous pollutants that
occurred at the facility after the
effective date of the permit
• A narrative desaiption of
significant materials that have been
Lreated. stored or disposed in a manner
to allow exposure to storm water
between the time of three years prior to
the date of the issuance of this permit
and the present methodbf on-site
storage or disposal: materials
management practices employed to
inanunize contact of thee. materials with
precipitation and storm water runoff
between the time of three years prior to
the date of the issuance of this permit
end the present material, loading and
access arean the location and a
description of existing structural and
non-structural control measures to
reduce pollutants In storm water runoff
and a description of any treatment the
storm water receivem
• For each area of the plant that
generates storm water discharges
associated with industrial activity with
a reasonable potential for containing
significant amounts of pollutant., a
prediction of the direction of flow, and
an estimate of the type. of pollutants
that are likely to be present in storm
water discharges associated with
industrial activity; and
“Staff Analyati of Impkioentin Pt, toi’
ctivnti. (or Slur. Wa ,., Otadt,.,- ,. . . M,ooated
with induitilal ACtIvtIy’ (EPA. lost).
• A summary of existing sampling
data describing pollutants in storm
water discharges.
Activities associated with (1) loading
and unloading of dry bulk materials or
liquids, (2) outdoor storage of raw
materials, intermediary products or
product ,. (3) outdoor process activities.
(4) dust or particulate generating
processes, (5) illicit coimeclions or
management practices, and (6) waste
disposal practices should be evaluated
to see if they are likely to be significant
sources of pollutants to storm water
discharges.
The prediction of the direction of flow
and the rate of flow will typically be
based on an evaluation of the area of
impervious surfaces and total area
drained by each outfall, along with
estimates of appropriate representative
rainfall events, or actual measurements
of discharge volumes. Impervious
surface. include paved areas and
buildings within the drainage area of
each discharge point
Estimates of the total quantity of
pollutants that are likely to be present in
storm water discharges associated with
industrial activity should be made from
assessments of sampling data. and other
uiformiuion describing eig iifii nnt
mater.ais that are used or otherwise
found at the sate, and that, because of
potential exposure to storm water may
be significant pollutant sources.
Although the monitoring requirements of
this permit are limited to conventional
pollutants for most discharges. the
estimates of the types of pollutants that
may be present in storm water required
as part of the source identification
information should address all types of
pollutants (conventional and toxic) that
may be present Examples of
information that should be evaluated
when estimating pollatanta in storm
water discharges indude information
describing of stgTIIfia’ ant materials that
have been treated, stored or disposed in
a manner to allow exposure to storm
water betwu ,,zi the time of three years
prior to the date of the issuance of this
permit and the present method of on-
site storage or disposal: materials
management practices employed to
minimi a contact of these materials with
storm water runoff between the time of
three years prior to the date of the
issuance of this permit and the present
materials loading and access areas; the
location and a description of existing
structural and non-structural control
measures to reduce pollutants iii storm
water runoff and a description of any
treatment the storm water receives.
Other information to consider, if
applicable, include the manner and
frequency in which pesticides.
herbicides. fertilizers or sail enhancers
are applied at the site and an evaluation
of significant spills or leaks of
conventional, toxic and hazardous
pollutants based on a description of the
materials released. an estimate of the
volume of the release, the location of the
release, and any remedlation or cleanup
measures taken. Information and data
used for these predictions and estimates
must be clearly identified in the storm
water pollution prevention plan.
The Agency requests comment,s on
what other types of information may be
appropriate for source iderrtiflcation
purposes.
IB) Practices and program elements to
contra/pollutants. The second maior
section of the storm water pollution
prevention plan addresses practices and
program elements to reduce pollutants
in areas identified as being potential
pollutant sources for storm water
discharges associated with industrial
activity. In developing these
reqwrernents, the Agency has selected
those practices identified in studies of
BMPs which are widely used by
industrial facilities with storm water
discharges associated with industrial
activity which it believe. to be best
available technology for the purpose of
this permit.’ 0 In addition, the Agency
has also addressed widely-used
pollution prevention measures for storm
water discharges (traditional storm
water management and sediment and
erosion prevention) and a requirement
for facilities to certify that storm water
discharges have been tested for the
presence of non-storm water pollution
sources.”
(1) pollutIon prevention committee:
(2) risk Identification and assessmerit/
material inventory
(3) preventive maintenance:
(4) good housekeepingi
(5) spill prevention and response
procedures
(B) traditional storm water
management
(7) sedIment and erosion prevention:
(8) employee training:
(9) visual Inspections: and
“ 5 . , “Staff Analysis of Implementing Permitting
Acavilhe. far Star. W.er D1u ar se Aisociated
with Indusinsi Actteitf EPA, l9m)
• The ourttftcadon requIrement that storm water
discha e. associated with industrial activity h.ve
been trsiad for the presenc. of noa.eiorm welt,
pollulion .oui . I , eamular to the certilicatlon
requirement In the For. iF application (or storm
water dIachar e. associated with industrial activity
(see Nowatbar 53.1900(53 FR 47990). EPA Is
induding this onraficatioc provisIon in these
eueisi psimita dIaithar eie may obtain
coverag, under the.. p.uuis without the submittal
of Par. 2?
-------
Federal Register / Vol. 58. No. 159 I Friday. August 18. 1991 / Proposed Rules
4097 ’
(1O recordkeeping and internal
reporting procedures: and
(11) certification that storm water
discharges have been tested for the
presence of non-storm water pollution
sources.
These permits establish the
framework and the basic elements for
storm water pollution prevention
measures. However, the plan
requirements provide flexibility to allow
the development of site-specific
measures. At a given site, specific
measures incorporated into the pollution
prevention plan will reflect the sources
of pollutants that have been identified at
the Bite For example, a facility that has
identified dust and particulate
generating processes as potential
sources of storm water pollution will
incorporate appropriate good
housekeeping and traditional storm
water management practices to address
these source.. However, a facility
without dust and particulate generating
processes would not have to incorporate
measures to address dust and
particulate generating processes into
their plan.
Pollution Prevention Committee. The
Storm Water Pollution Prevention
Committee identifies specific individuals
within the plant organization who axe
responsible for developing the storm
water pollution prevention plan and
assisting the plant manager in its
implementation. maintenance, and
revision. The activities and
responsibilities of the committee should
address all aspects of the facility’s
storm water pollution prevention plan.
However, A prefers that plant
management. not the committee, have
overall responsibility and accountability
for the quality of the storm water
pollution prevention plan, to ensure
adequate implementation of the plan.
Risk identification and ossessznent/
material ,nventoiy. The storm water
pollution prevention plan is to assess
the potential of various sources at the
plant to contribute pollutants to storm
water discharge, associated with
industrial activity. These activities
should assist In assessing the pollution
potential of runoff from specifie areas of
the plant. The plan must contain an
inventory the types of materials
handled, the location of material
management activities, and types of
matenal management acth,ities.
Fecilities subject to SARA title 11!.
section 313 must include in the plan a
description of releases to land or water
of SARA title Ill water priority
chemicals that have occurred at any
time after the date of three year. prior to
‘he issuance of this permit.
The layout and activities ot the plant
identified as high-priority areas with a
significant potential for contributing
pollutants to the drainage system must
be assessed. Factors to consider when
evaluating the reasonable pollution
potential of runoff from various portions
of an industrial plant include
• Loading and unloading operations.
• Outdoor storage activities:
• Outdoor manufacturing or
processing activities
• Significant dust or particulate
generating processes; and
• On-site waste management and
disposal practices.
Other factors that are to be
considered include the toxicity of
chemicals: quantity of chemicals used.
produced. or thschargedi the likelihood
of these materials coming into contact
with storm water, and the history of
significant leaks or spills of toxic or
hazardous pollutants.
Chemicals should be compatible with
the materials used in storage and
process equipment. including the piping.
valves and pumps. Incompatibility of
materials can cause equipment failure
resulting from corrosion. fire, or
explosion. Equipment failure can be
prevented by ensuring that the materials
of construction for containers handling
hazardous substances or toxic
pollutants are compatible with the
container’s contents and suivounding
environment.
Preventive maintenance. A preventive
maintenance program involves
inspection and maintenance of storm
water management devices (cleaning
oil/water separators, catch basins) as
well as inspecting end testing plant
equipment and systems to uncover
conditions that could cause breakdowns
or failures resulting in discharges of
pollutants to surface waters. A good
preventive maintenance program
includes identifying equipment or
systems used In the programi
periodically inspecting or testing
equipment and systems; adjusting,
repairing, or replacing items; and
maintaining complete records on the
equipment and systems.
Good housekeeping. Good
housekeeping requires the maintenance
of a clean, orderly facility. Good
housekeeping includes establishing
housekeeping protocols to reduce the
possibility of mishandling chemicals or
equipment and training of employees in
housekeeping techniques. These
measures also ensure that discharges of
wash waters to separate storm sewers
are avoided.
Spill prevention and response
procedurea Areas where potential spiiis
can occur, and their accompanying
drainage points should be identified
clearly in the storm water pollution
prevention plan. Where appropriate.
specifying material handling procedui es
and storage requirements in the plan
should be considered. Procedures for
cleaning up spills should be identified i i
the plan and made available to the
appropriate personnel. The necessary
equipment to implement a clean up
should be available to personnel Spill
response procedures should avoid
discharging to separate storm sewers
unless necessary because of immediate
safety considerations.
Appropriate storm water
management, Based on an assessment
of the potential of various sources at the
plant to contribute pollutants to storm
water discharges associated with
industrial activity, the plan shall provide
that traditional storm water
management measures determined to be
reasonable and appropriate shall be
implemented and maintained.
For the purposes of these permits.
traditional storm water management
practices are measures which reduce
pollutant discharges by reducing the
volume of storm water discharges
associated with industrial activity, such
as directing storm water to vegetative
swales. or preventing storm waler to run
onto areas of the site which conduct
industrial activity. Low-cost measures
that can be applied to an industrial
setting may include diverting rooftop or
other drainage across grass swales.
cleaning catch basins, and installing arid
maintaining oil and grit separators.
Other measures that may be appropriete
include infiltration devices and unlined
retention and detention basins.
Traditional storm water managemeol
practices can include water reuse
activities, such as the collection of storm
water for later uses such as irrigation or
dust control. Appropriate snow removal
activities may be considered, such as
selecting a site for removed snow and
selecting and using deicing chemicals.
The Agency requests comment on
whether a facility that reuses
substantially all of Its storm water (for
example, a facility that provides for
storage and reuse of storm water from a
24 hour. 25 year storm) should be
exempt from certain other storm water
pollution prevention plan requirements.
Such facilities would have already
minimized their discharge in manner
that may provide equivalent pollution
removal benefits to other measures in a
storm water pollution prevention plan.
However, care must be taken to
evaluate whether these traditional
device, cause ground water
-------
40980
Federal_Register I Yol. 56. No. 159 / Friday. August 16. 1991 / Proposed Rules
contamination. In some cases. It Is
appropriate to limit traditional storm
water management practices to those
areas of the drainage system that
generate storm water with relatively low
levels of pollutants (e.g., many rooftops.
parking lots. etc.).
Sediment and erosion prevention. The
plan shall Identify areas which, due to
topography, activities, or other factors.
have a high potential for soil erosion.
and identify and ensure the
implementation of measures to limit
erosion.
Employee troining. Employee training
programs are necessary to inform
personnel at all levels of responsibility
of the components and goals of the
storm water pollution prevention plan.
Training should address topics such as
spill response. good housekeeping and
material management practices. A
pollution prevention plan should
identify periodic dates for such training.
Visual inspection and records.
Qualified plant personnel should be.
identified to inspect designated
equipment and plant areas. Typical
inspections should include examination
of pipes. pumps. tanks, supports.
foundations, dikes. and drainage
ditches. Material handling areas should
be inspected for evidence of, or the
potential for, pollutants entering the
drainage system. A tracking or followup
procedure must be used to ensure that
appropriate and adequate response and
corrective actions have been taken.
Records of inspections are required to
be maintained.
Recordkeeping and reporting
procedures. A recordkeeping system
ensures adequate implementation of the
storm water pollution prevention plan.
Incidents such as spills, leaks and
improper dumping, along with other
information describing the quality and
quantity of storm water discharges
should be included in the records.
Inspections and maintenance activities
such as cleaning oil and grit separators
or catch basins should be documented
and recorded.
Records of releases of a hazardous
substance in excess of reporting
quantities established at 40 CFR 117.3 or
40 CFR 302.4 describing each release
that has occurred at any tune after the
date of three years prior to the issuance
of this permit, measures taken in
response to the release, and measures
taken to prevent recurrence must be
included in plans.
Non.storrn discharges. Plans shall
include a certification that the discharge
has been tested for the presence of non-
storm water discharges. The
certification shall include a description
of the results of any test for the presence
of non-storm water discharges. the
method used, the date of any testing.
and the on-site drainage points that
were directly observed during the test.
Such certification may not be feasible.if
the facility operating the storm water
discharge associated with industrial
activity does nothave access to an
outfall, manhole, or other point of access
to the ultimate conduit which receives
the discharge. In such cases. the source
identification section of the storm water
pollution plan shall indicate why the
certification required by this part was
not feasible.
iii. Special requirements for storm
water discharges associated with
industrial activity from fac hues subject
to SARA title I lL section 313
requirements. The Superfund
Amendments and Reauthorization Act
(SARA) of 1986 resulted in the
enactment of title III of SARA, the
Emergency Planning and Community-
Right-to-Know Act. Section 313 of title
III of SARA requires operators cf certain
facilities that manufacture, import.
process. or otherwise use listed toxic
chemicals to report annually their
releases of those chemicals to any
environmental media. Listed toxic
chemicals include 329 chemicals listed
at 40 CFR part 372.
Facilities that meet all of the following
criterion for a calendar year are subject
to title m reporting requirements for that
calendar year and must report under 40
CFR 372.30:
• The facility has 10 or more full-time
employees:
• The facility is a multi-establishment
complex where all establishments have
a primary SIC code of 20 through 39;
• The facility is a multi-establishment
complex in which one of the following is
true:
—The sum of the value of products
shipped and/or produced from those
establishments that have a primary
SIC code of 20 through 39 is greater
than 50 percent of the total value of all
products shipped and/or produced
from all establishments at the facility:
—One establishment has a primary SIC
code of 20 through 39 and contributes
more in terms of value of products
shipped and/or produced than any
other establishment within the
facility:
• The facility mar.ufactured (including
imported), processed, or otherwise used
a toxic chemical in excess of an
applicable threshold quantity of that
chemical set forth in 40 CFR 372.25.
After 1989, the threshold quantity of
listed chemicals that the facility must
manufacture, import or process in order
to be required to submit a release report
is 25.000 pounds per year. The threshold
for a use other than manufacturing.
Importing or processing of listed toxic
chemicals is 10,000 pounds per year.
EPA estimates that 22,000 facilities
nationwide will be subject to SARA title
III reporting requirements after 1990.
EPA promulgated a final regulation
clarify:ng these reporting requirements
on February 16, 1088(53 FR 4500). EPA
believes that the information received
through reporting is a “front end” of the
toxics program to which EPI is already
committed and ultimately will assist in
better controls for routine toxics
releases and improved Industrial
practices to prevent and respond to
accidents involving toxics.
Of the 329 toxic chemicals listed at 40
CFR 372 which are used to define the
scope of SARA title Ill. section 313
requirements. the Agency has identified
approximately 175 chemicals which it is
classifying, for the purposes of this
general permit, as ‘section 313 water
priority chemicals’. For the purposes of
this general permit. “section 313 water
priority chemicals” are defined as
chemicals or chemical categories which
also:
(1) Are listed at 40 CFR 372.85
pursuant to SARA title, sectIon 313;
(2) Are present at or above threshold
levels at a facility subject to SARA title
ilL section 313 reporting requirements:
and
(3) That meet at least one of the
following criteria:
(I) Are listed In appendix 0 of 40 CFR
part 122 on either table 11 (organic
priority pollutants), table III (certain
metals, cyanides. and phenols) or table
V (certain toxic pollutants and
hazardous substances);
(ii) Are listed as a hazardous
substance pursuant to section
311(b)(2)(A) of the CWA at 40 CFR 116.4:
or
(iii) Are pollutants for which EPA has
published an acute or a chronic toxicity
criteria.
The Agency estimates that about 9.000
facilities with storm water discharges
associated with industrial activity
nationwide have section 313 water
priority chemicals in threshold amounts.
The large amounts of toxic chemicals
at facilities with section 313 water
priority chemicals raises concerns
regarding the potential of material
handlir.g and storage operations to add
pollutants to storm water discharges
associated with industrial activity. As
discussed earlier in this fact sheet, the
material management practices
aasociated with the storage and use of
toxic chemicals is a major potential
source of pollutants in storm water
-------
Federal Register / Vol. 58. No. 15 I Friday. August 16. 1991 I Proposed Rules
O981
discharges associated with industrial
activity. The Agency believes that the
threshold criteria established in SARA
title Ifl. section 313. along with the
regulatory definition of storm water
discharge associated with industrial
activity, which for many facilities in SIC
codes 20—39. only includes storm water
[ rota areas where material handling
equipment or activities, materials or
industrial machinery are exposed to
storm water (see 40 CFR 122.26(b)(14fl.
identify potential risks in a manner that
is appropriate for use in developing
priorities for establishing the
applicability of specialized monitoring
and pollution prevention measures for
facilities which use and manage toxic
chemicals.
In evaluating risks and establishing
regulatory priorities for facilities with
storm water discharges associated with
industrial activity, the Agency believes
that the large amounts of toxic
chemicals found at lacilities with
section 313 water pnority chemicals
pose sufficient risk to warrant special
permit conditions for these facilities.
The Agency is requesting comments on
two primary options for developing
special permit conditions for these
facilities.
Under Option A. the permit would
provide fan
(1) In addition to baseline
requirements for storm water pollution
prevention plans, special pollution
prevention measures. including spill
prevention and containment
requirements for areas of the facility
used for material management of these
chemicals;
(2) An acute IVEI’ limit for storm
water associated with industrial activity
that comes into contact with any
equipment, tank, container, or other
vessel used For section 313 water
prionty chemicals: and for truck and rail
car loading and unloading areas for
liquid section 313 water priority
chemicals: and
(3) Biannual (twice a year) monitoring
and reporting requirements for a number
of parameters including acute whole
effluent toxicity.
Under Option B, the general permits
would provide for
(1) An acute WET limit for storm
water associated with industrial activity
that comes into contact with any
equipment. tank, container, or other
vessel used for section 313 water
priority chemicals: and for truck and red
car loading and unloading areas for
liquid section 313 water priority
chemicaLs: and
(2) Monitoring and reporting
requirements at a higher frequency”
than biannual (twice a year) monitoring
for acute whole effluent toxicity for
discharges of storm water that comes
into contact with any equipment. tank.
container, or other vessel used for
section 313 water priority chemicals
Under Option B. the Agency is
considering and requests comment on a
range of monitoring options For the WET
limitation. uicluthng monitoring
biannually. quarterly. or every discharge
event. Under Option B. facilities would
remain subject to the baseline
requirements for storm water pollution
prevention plans. but would not be
subject to the technolo ”based spill
prevention and containment
requirements outlined in Option A.
Option B would provide dischargers
with more flexibility than Option A for
complying with the permit. By providing
additional flexibility by not requiring
spill prevention and containment
requirements. Option B may reduce
compliance costs at facilities whose
storm water discharges are not toxic. In
addition, by not prescribing the specific
method for controlling toxic storm water
discharges, facilities can better take into
account local factors in designing an
appropnate cost-effective approach for
meeting the WET test performance
standard. Establishing a performance
standard also encourages the
development of new innovative and
more cost-effective approaches for
controlling toxic storm water discharges.
EPA requests comments on whether
the criteria used for identifying priority
facilities subject to specialized
containment provisions and the WET
effluent limitation are appropriate or
whether these requirements should
address a smaller or larger set of
facilities including whether any set of
facilities should be subject to the
provisions of Option A or B.
‘ Under Option A. the draft permit propose.
biannual monitonng for storm waist discharge.
from containment areas The Agency believe. that if
the tutu pertiut follow. Option B je g provide, for
an effluent iwuierion but doe. not requite
contsinm.ntj. then a higher frequency of monitoring
may be sppeopnaie for a number of ies.oiti Firot.
where containment ii requited. auth control. may
provide the opemtor with a better opportunity to
evaluate end correct periodic trite... of chemical.
which may influence the toxin of the discharge
prior to discharge Second. fac:iitie, with
containmeni .ye iem . are eupected to diacl .arge
storm wile? lees frequently than facilities without
contain,nenu .ystem, thereby ieducir.g the
vsn.bility of system diachsrge. Third. dischsrge.
from containment .7.1cm. may exhibit ieee
variebility du. to mixing occaimog in the
contafninanl wilt, thereby requiring ie.s frequent
monltortng to ofonactertee the discharge FPA
requeaia comment on the spplvpnste mowiarmg
frequency for theee diacliarges i the permit doe, not
require contauimenL
One alternative on which EPA
specifically requests comments would
be to impose the requlremer.ts of
Options A or B only on facilities
(including facilities that are not subject
to SARA title IlL section 313) thai have
had a discharge of a hazardous
substance in excess of reporting
quantities established at 40 CFR 1173 or
40 CFR 302.4 at any time after the date
of three years prior to the issuance of
these general permits which either
discharge through a separate storm
sewer systems or that otherwise comes
into contact with storm water
The Agency also requests comment on
alternative approaches. including either
alternative design standards or
performance standards.° 3 to
establishing permit requirements which
target containment requirements for
chemical storage and handling activities
where aquatically toxic chemicals are
likely to be exposed to. or otherwise
come into contact with, storm water
Comments addressing alternative
approaches should also provide a
description of the alternative
performance standards or design
standards. The Agency requests
comments on the advantages and
disadvantages of using design standards
or performance standards for controlling
storm water discharges associated with
industrial activity. Comments can also
address other regulatory or market
incentives that can assure sufficient spill
control and material managing practices
that would make the imposition of
containment requirements unnecessary
Under Option A. the general permit
would provide that storm water
pol1ut on prevention plans for facilities
with section 313 water priority
chemicals must, in addition to the
requirements associated with the
baseline pollution prevention plans.
provide for spill prevention and
containment-oriented controls.’ 4
The moat nnrnn.ily used performance
etandsrds wider the CWA are numeric effluent
limitation, cad whole efflueni toxicily timitadoce
‘ The .pill prevention and conmimneni
provision, for Iiazardou. eub.i.nce. were ennlyzrd
in itt, 19 V survey of BMPi (see ‘NPOES Beat
Management Ptectice Guidance Documenr. U S
EPA December igS. EPA-eOO/s-9-045) end the
draft “Arislysts of tmpietneiiting Percuttng
Activitie, for Siorna Water Du.claeree, Associated
With Industrial Activity’. B’& iBsi EPA he. silo
anelyxed itinilar pollution p.-evention tequiremerne
for oil in the Spill Prevention. ControL end
Counterinee.uie (SPCCJ plan requirement, at 40
CFR part 112. (see ‘lbs OU Spill Prevention.
ControL and Countarmeasuree Program Tsui Force
Report’ EPA. May i B M)
-------
0982
Federal Register I VoL. 56. r4o. 159 I Friday. August 16, 1991 / Proposed Rules
Containment Involves the use of
j Ftysical structures or collection/
dhainage equipment used to confine a
zefease of material after it escapes from
itsi physical location or containment.
lilikes. bernie, retaining walls.
impounding basins, diversion ponds.
and retention ponds surrounding
inatesial storage tanks are the most
Li2mmfln examples of containment.
Containment systems must be
suffIciently impervious to contain spilled
S’ention 313 water priority chemicals.
‘Ulie spill prevention and containment
provision of these general permits are
designed to mitigate the discharge of
toxic chemicals to waters of the United
Sates from both significant spill events
and from more routine material
management practices and leaks.
Under Option A. the spill prevention
and containment control requirements
would only apply to priority areas of
facilities with section 313 water priority
chemicals (e.g. portions of the facility
where section 313 ’water priority
chemicals are stored or managed and
which generate storm water discharges
associated with industrial activityj.
Secondary containment requirements
would only be required for liquid
storage areas where storm water comes
into, contact with equipment. tank.
container, or other vessel used for
sectina 313 water priority chemicals:
and truck and rail car loading and
unloading areas for liquid section 313
water priority chemicals. In developing
tIle’ containment-oriented provisions of
C tion A. the Agency has provided
flexibility to allow facilities to use or
modify appropriate existing containment
approaches that facilities currently
employ.
A believes that where.
economically achievable, containment
steizatures for storm water associated
with industrial activity that comes into
contact with any equipment. tank.
tIshoiiid be noted thai many facilities which
uaenbfect to SARA title (U. suction 313 reporting
(wjprmw(fl 3 becius. they manage section 313
w.sswprtonty chemicals do not generate storm
atterdiscltarge. associated with induaatai scftvtty
‘niwmguialory definition of “storm wuta,
.‘ -ted with indusulal sctivtty ’ (40 R
1!131 (bltt4 )) addresses (schuss In ll Standard
( dhs.ial Classlhtcstlon (SIC) mice between Wand
3aUh. well is additional daises of (acthlties).
lltb eer. facilitie, under SIC cadre 30.21. 22. 23.
:im. . 3. . V 283. 255. 30. 31 (except 3111.
2231.24 (except 3441). 35.30.37 (except 373 ). 38.39
winch are not otherwise addietied in other pans of
the ’ronjilstory definition only generate dorm waler
aisociated with Industrial activity where material
handling equipment or activities, raw materials.
rntezmedhste pruducts. mat products. waite
mnenala. by.ptoducts, or industrial inarhinery are
exposed to alarm water. Such facilities which do not
generate storm water discharges associated with
indliamal activity are not subject to these permits
(iew(40 CFR 122.25(bI(14 1(rnJfl.
container, or other vessel used for
section 313 water priority chemicals;
and for truck and rail car loading and
unloading areas for liquid section 313
water priority chemicals can prevent
discharges of toxic chemicals after
releases associated with spills, chronic
Leaks, and other material management
practices occur.
Option B can also result in the
implementation of measures to prevent
discharges of toxic chemicals associated
with spills, chronic leaks, and other
material management practices.
Option A provides that if the
iris tallation of secondary containment
structures or equipment is not
economically achievable at a given
facility, the facility operator must
develop apd implement a spill
contingency and integrity testing plan
which provides, as an alternative to
secondary containment, a description of
measures to ensure that discharges of
toxic amounts of section 313 water
priority chemicals do not occur. In these
situations, a spill contingency and
integrity plan must include:
• A detailed description which
demonstrates that secondary
containment requirements are not
economically achievable based on the
appropriate factors described at 40 CFR
125.3(d)(3):
• A spill contingency plan must
include, at a minimum; a description of
response plans, personnel needs, and
methods of mechanical containment
(such as the use of sorbants, booms.
collection devices. etc.): steps to be
taken for removal of spilled section 313
water priority chemicals: access to and
availability of sorbents and other
equipment and such other information
as required by the Directon
• The testing component of the plan
must provide for conducting integrity
testlr t of storage tanica at least once
every iive years. and conducting
integriry and leak testing of values and
piping .a minimum of at least once every
year: and
• A written and actual commitment of
manpower, equipment and materials
requirel to comply with the permit and
to expeditiously control and remove any
quantity of section 313 water priority
chemicals that may result in a toxic
discharge.
Spill contingency and integrity plans
can prevent discharges of toxic
chemicals by minimizing the potential
for spills or leaks of toxic chemicals to
occui or for material management
practices to release toxic chemicals. In
addition, where such releases occur, this
approach can minimize the potential for
contact of storm water with toxic
chemicals. Option A requires secondary
containment where achievable because
of the degree of certainty that such
containment will prevent toxic
discharges. Nonetheless, where
effectively implemented, a spill
contingency and integrity testing plan
may result in a level of control similar to
that of installing containment structures.
(e.g. the prevention of discharges of
toxic amounts of section 313 water
priority chemicals). Thus, spill
contingency and integrity plans
constitute an acceptable alternative set
of requirements for some facilities based
on the appropriate factors at 40 CFR
125.3(d)(3) (iii) and (v). Option B would
also result in actions which would
prevent toxic discharges.
EPA requests comment on the
frequency and cost of integrity testing
for tanks, valves, or pipes and whether
integrity testing is an appropriate
alternative to containment provisions
where secondary containment is not
economically achievable.
The Agency also notes that under
both Options A and B, facilities with
storm water discharges associated with
industrial activity which, based on an
evaluation of site specific conditions,
believe that the appropriate conditions
of these permits do not adequately
represent BAT and BC’l’ requirements
for the facility may request an
individual permit by submitting to the
Director an individual application (Form
I and Form iF). Under Option A. the
storm water pollution prevention plans
at facilities with section 313 water
priority chemicals and with storm water
discharges associated with industrial
activity must be reviewed and certified
by a Registered Professional Engineer.
With ‘the certification. ihe Engineer must
attest that the storm water pollutIon
prevention plan has been prepared in
accordance with good engineering
practice. Such certifications will in no
way relieve the owner or operator of a
facility covered by the plan of their duty
to prepare and fully implement such a
plan.
The spiii prevention and containment
provision of Option A are designed to
mitigate the discharge of toxic chemicals
to waters of the United States from both
significant spill events and from more
routine material management practices
and leaks. The Agency requests
ccmment on a number of other
approaches to meet these objectives.
EPA requests comments on providing
permittees w th the option of
Professional Engineer’s certification that
material management practices and
controls provide equivalent control as
the design specificatIons in the draft
-------
Federal Register / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
permit The Agency requests comment
on what level of assurance is
appropriate to determine that material
management practices and controls are
sufficient to provide equivalent control
as the design specifications in the draft
permit,
Storm water collected in containment
areas can pick up significant levels of
pollutants where material management
practices result in leaks, spills or other
exposure to chemicals. Rather than
attempt to establish specific numeric
limits of each type of pollutant subject
to section 313, the Agency believes that
it is more appropriate to establish acute
whole-effluent toxicity limits for these
discharges. For this reason, under both
Options A and B. the general permit
would establish an acute whole-effluent
toxicity effluent limitation applied as a
technology-based performance standard
for discharges of storm water that comes
into contact with any equipment. tank.
container, or other vessel used for
section 313 water priority chemicals.
and for storm water discharged from
truck and rail car loading and unloading
areas for liquid section 313 water
priority chemicals.
Toxicity monitoring and WE ’I’ limits
have been used in the NPDES program
to address a wide range of discharges.
including intermittent discharges.
Applying numeric or toxicity limits on a
technology-basis to Intermittent
discharges such as storm water protects
against periodic releases of high levels
of pollutants. Establishing l i m iti for
intermittent discharges is consistent
with the approach taken in the NPDES
program which does not allow for
periodic exceedances of limits by
continuous discharges.
For the purpose of this permit EPA is
defining toxicity for use as a technology-
based limit as not being lethal to 20% or
more of the more sensitive of either
appropriate fish or invertebrate test
organisms. EPA is requesting comment
as whether this is the appropriate
definition of the toxicity parameter as a
technology-based limit for the purposes
of this permit
Since these discharges are generated
from limited-sized, specific storage and
material handling areas, a wide range of
technologies are available to reduce the
toxicity of the limited volume of storm
water that is subject to the WE’l’ effluent
IL’n ltat lon. The Agency anticipate. that
most storm water discharges from these
ereas at well-maintained facilitie, with
good housekeeping practices will not
exhibit acute toxicity. For the majority
of storm water discharge . that do
exhibit acute toxicity, the toxicity can
be reduced by improving storage or
material handling procedures, practices
or equipment. Other classes of
discharges may require various types of
end-of-pipe treatment or various ofisite
disposal options such as discharging to
a POTW.”
EPA requests comments on possible
alternatives to the WET effluent
limitation for storm water discharges
that come into contact with any
equipment. tank, container, or other
vessel used for section 313 water
priority chemicals, or from truck and rail
car loading and unloading areas for
liquid section 313 water priority
chemicals, including: (1) Establishing an
effluent limitation that provides for zero
discharge (compliance determinations
based on the level of detection) for the
specific Section 313 water priority
chemicals used at the site, along with
the containment provisions of the draft
general permits. (Any untreated
overflow from containment facilities
properly designed. constructed and
operated to treat the volume of runoff
associated with a 25 year. 24 hour
rainfall event would not be subject to
the effluent limitation). This approach
would be based on the showing that the
best available technology for these
facilities would include containment
requirements and material management
practice. and other measures that
ensured that storm water did not come
Into contact with SARA title III. section
313 chemicals: (2) establishing a zero
discharge effluent limitation
(compliance determinations based on
the level of detection) without the
containment provision of the draft
general permit. and requiring discharge
sampling at a higher frequency (such as
quarterly or at every storm event) to
ensure permit compliance. This
approach is similar to approach 1. but
would not rely on containment
provisions to ensure and assist in
meeting the zero discharge effluent
limitation: (3) modifying approach I and
2 by establishing a non-zero effluent
limitation for specific section 313 water
priority chemicals based on BAT/BCT
aiteria (the Agency requests comment
on which chemicals this approach would
be appropriate for); (4) using an
alternative indicator parameter other
than toxicity for establishing limitation.
(the Agency requests comments on what
indicator parameters would be
appropriate for thi, purpose): and (5)
Instead of the WEl’ effluent limitation.
require facilities that detect a statistical
difference in acute toxicity between the
control and 100% effluent to submit a
toxicity reduction evaluation (TRE) to
S.. “Staff A alysla of impiet ntinR Pereiitttn 5
Activitie, for Storm Wale, Dt.diar e. Associated
with Induam.l Activity” A, igYl
the Director within one year.” Under
this last approach. a TRE could be used
in issuing an individual permit
containing technology or water quality-
based requirements based on an
evaluation of site-specific conditions.
The Agency believes that the
increased use of toxicity testing in the
NPDES program has resulted in the
development of adequate laboratory
capacity to conduct the toxicity testing
required by these permits. The Agency
requests comment on any anticipated
problems with inadequate laboratory
capacity to conduct toxicity testing in
the States addressed by these permits
The draft general permits provide that
any untreated overflow from
containment facilities properly designed.
constructed and operated to treat the
volume of runoff associated with a 24
hour. 25 year rainfall event is not subject
to the WET limitation. The 24 hour. 25
year rainfall event is the most
commonly used design storm Fur BAT
national effluent limitations guidelines
which address storm water. The 24 hou.
25 year rainfaU event provides a
reasonable margin of safety when sizng
secondary containment units “ EPA
requests comments on the use of
alternative storm events to a 25 year. 24
hour rainfall event in association with
both the WET effluent limitation and
containment provisions of the general
permits.
iv. Special requ:rement.s for storm
water discharges associated with
ind istrial activity from salt storage
facilities. The draft permits provide that
storm water pollution prevention plans
for facilities with storage piles of salt
used for deicuig or other commercial or
industrial purposes must. in addition to
the requirement. associated with the
baseline pollution prevention plans.
enclose or cover their salt storage to
prevent exposure to precipitation.”
v. Special requirements for storm
water discharges associated with
industrial activity through large and
medium municipal separate storm sewe,
systems. Facilities covered by these
“GA baa developed the followui guada ce
documents wiuch desaib. methods and p,ue.dweu
for conducun TRF s and Toxicity Identification
Evaluations’ (ij ‘G.n.eslizad Methodolosi’ for
ConducWt indusinal Toxicity Raducuoo
Evaluations’ ( PJ&tJI2—leIO7Oj. () “Methods for
Aquatic Toxicity idennficatlor Evaiuanona ‘ Phate
I Toxicity Characterization Procedwes (EPA/OCO/3—
itaIOaep. Phase 2 Toxicity identification Prucedurr,
(EPAI600I3-&1035). Phase 3 Toxicity Confirmation
Procedwes (EPA/em/3 -aeIrae).
‘ “NPDES Best Management Practices Guidance
Documeat”. ‘A. 1971. ( ‘A-1rJO/ -7I ’OIsj.
“S.. “Staff Analyst. of implemeutIn Peniuttlstg
Activities for Storm Wator Di.cbasges Associated
with indusmai Acti 4ty” tsi’& teal).
-------
1 l
Federal Re isterf Vol. 56. No. 159 / Friday. August 16. 1991 I Proposed Rules
permits must comply with applicable
requirements iii municipal storm water
management programs developed under
NPDES permits issued for the discharge
of the municipal separate storm sewer
system that receives the facility’s
discharge. provided the discharger has
been notified of such conditions. Part S
of this fact sheet discusses how permits
for discharges from large and medium
municipal separate storm sewer systems
will typically require municipal
permittees to develop storm water
management programs which address
storm water associated with industrial
activity which discharges through their
system.
vi. Special requirements for storm
water dischaiyes associated with
industrial activity composed of coal pile
runoff.
The draft general permits establish
effluent limitations of 50 mg/i total
suspended solids (TSS) and a pH range
of 6 to 9 for storm water discharges
associated with industrial activlty.eo
This effluent limitation is similar to the
effluent guideline limitation for coal pile
ri noff from facilities in the steam
electric power generating point source
cntegory (see 40 CFR 423.12(b)(9)).
The limitation does not apply to any
untreated overflow from facilities
properly designed, constructed and
operated to treat the volume cf coal pile
runoff which is associated with a 25
year. 24 hour rainfall event. Providing a
limit to effluent guidelines for events
that exceed a specified storm event
provides operators with a basis for
installing and operating a treatment
system, as the design of the system.
particularly the collection devices, will
depend on the design storm chosen. The
23 year. 24 hour storm is most commonly
used in the SAT national effluent
limitations guideline that have been
developed by EPA.’ The effluent
guideline limitation for coal pile runoff
from facilities in the steam electric
power generating point source category
a140 CFR 423.12(b)(9) Incorporates a 10
year. 24 hour design storm into a best
practicable control technology currently
available (9Ff) limit. BCT and BAT
effluent limitation guidelines for coal
pile runoff are currently reserved. Thi
Agency believes that the appropriate
design storm for coal pile runoff
addressed by these permits Is the more
stringent 25 year. 24 hour design storm
‘° 5 Analyuie of I ,pIenwntln PVITUIIIIi5
Act ivtlluu lot Storm Wiley Olecherpe. Aa.ociated
with tnduitiual Activity” (EPA. iseip.
“BAT effluent IlmIletto ,,e uIduIIn,e bet
Incorporste a iSycer. 24.hour storm event Include
en ,mel feedlota (40 an put 4121 furitItaur
n.nufeciurtng (40 aR pert 4is$. end phoaphet.
m.nufectu,uig (40 aR pert 4221
as these permits establish BAT/BC ’l’
limits (which are typically more
stringent than BF limits), and the 25
year. 24 hour storm is more commonly
used in effluent guideline lImitations
based on the BAT or BCT standards.
The Agency requests comments on the
appropriate design storm (e.g. the 25
year. 24 hour. or the 10 year. 24 hour) for
this limitation.
vii. Public Availability. The draft
general permits clarify that all storm
water pollution prevention plans
required under the permit are
considered reports that shall be
available to the public under section
08(b) of the CWA. However, the
permittee may claim any portion of a
storm water pollution plan as
confidential in accordance with 40 CFR
part 2.
8. Mor.itoring and Reporting
Requirements
a. Monitoring requirements. The draft
permits have been developed to provide
different incnltoring requirements for
certain classes of discharges. Monitoring
and teportuig requirements are
established for storm water discharges
associated with industrial activity from
six classes of industries: SARA title III.
section 313 facilities with water priority
chemicals: primary metal facilities; land
disposal units: wood treatment facilities
(wood preservers) using chlorophenolicf
creosote formulations; wood treatment
facilities (wood preservers) using
arsenic/chromium preservatives: and
coal pile runoff. These categories and
the associated monitoring and reporting
requirements are discussed in more
detail below. These categories of
industrial facilities have been selected
as priority sites in terms of monitoring
requirements based on an evaluation of
activities at these types of facilities
which have the potential for
contributing toxic pollutants to storm
water discharges. EPA believes that
requiring these facilities to submit
monitoring reports will allow the
Agency to continua to assess the nature
of pollutants in storm water discharges
from these types of facilities. EPA
requests comments on the
appropriateness of categories specific
monitoring and reporting requirements
for other categories of industrial
facilities.
The draft general permit provides that
operators of storm water discharges
associated with industrial activity from
oil and gas operations have the option of
either monitoring their storm water
discharges associated with industrial
activity annually or. in lieu of the
monitoring, a facility may have a
Registered Professional Engineer certify
that a storm water pollution plan has
been prepared and is being implemented
in accordance with the requirements o’
the permit.
Operators of other storm water
discharges associated with industrial
activity covered by the draft general
permits which are not addressed by one
of the industry-specific monitoring
requirements are required to conduct
annual monitoring of a set of specified
parameters. Facilities subject to these
‘baseline’ monitoring requirements are
subject to record keeping requirements.
but generally do not have reporting
requirements. Although EPA is
proposing to not require the reporting of
monitoring data for facilities without
industry-specific monitoring
requirements. the Agency believes that
monitoring requirements remain
appropriate as they will assist operators
of storm water discharges in identifying
sources of pollutants and in evaluating
the effectiveness of the iniplementatiori
of their storm water pollution prevention
plans. In addition. EPA may review
monitoring data during the term of the
permit or during the permit reissuance
process for the purposes of evaluating
the effectiveness of a facility’s storm
water pollution prevention plan and for
determining priorities for future permit
issuance or modification.
i. Monitoring requirements—Soseline
monitoring requirements. The following
eight parameters have been identified as
baseline parameters that generally form
the foundation for different monitoring
requirements in the permit: Oil and
grease, pH. five-day biochemical oxygen
demand (BOD5J, chemical oxygen
demand (COD), total suspended solids
(TSS), total phosphorus. total Kjeldahl
nitrogen (TKN), and nitrate plus nitrite
nitrogen.
011 and grease is a common industrial
pollutant which can be indicative of
material management. housekeeping
and transportation activities. TSS is a
common pollutant found in storm water
discharges that reflects surface
disturbances and material management
practices, and can have significant
impacts on receiving waters. Oxygen
demand (COD and BOD5) will help the
permitting authority evaluate the oxygen
depletion potential of the discharge.
BOD5 is the most commonly used
indicator of oxygen demand. COD is
considered a more inclusive indicator of
oxygen demand, especially where
metals interfere with the BOD5 test, and
generally is better suited for companng
the oxygen demand of a storm water
discharge with that of other discharges.
The pH will provide important
-------
Federal Register / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
40985
information on the petential availability
of metals to the receiving flora, fauna.
and sediment. In some cases it will
provide information regarding material
management. Total phosphorus. TKN.
nitrate plus nithte nitrogen are measures
of nutrients that can impact water
quality in addition, most of the
monitoring requirements contain a
requirement to monitor pollutants
subject to effluent limitation guidelines.
Effluent limitation guidelines can
identify industry-specific pollutants
which may be of concern.
SARA title III, section 313 Facilities.
The large amounts of toxic chemicals
stored and utilized at SARA title Hi,
section 313 facilities with sect:on 313
water priority chemicals raises concerns
regarding the potential of material
handling and storage operations to add
pollutants to storm water discharges
associated with industrial activity.
Storm water discharges associated with
industrial activity that comes into
contact with any equipment. tank.
container, or other vessel used for title
ill. section 313 water priority chemicals;
and for truck and rail car loading and
unloading areas for liquid title Ill.
section 313 water priority chemicals
must be monitored semiannually (2
times per year) fun Oil and grease;
biochemical oxygen demand (BOD5),
chemical oxygen demand (COD), total
suspended solids, total Kjeldahl nitrogen
(TKN), total phosphorus. pH, nitrate plus
nitrite nitrogen, acute whole effluent
toxicity. and any chemical constituent
for which the operator is subject to
reporting requirements under section 313
of the Emergency Planning and
Community Right to Know Act of 1986
for chemicals which are classified as
‘section 313 water priority chemicals”.
The monitoring requirements for
storm water discharges associated with
industrial activity that comes into
contact with any equipment, tank.
container, or other vessel used for title
lii. section 313 water priority chemicals;
and for truck and rail car loading and
unloading areas for liquid title ill.
section 313 water priority chemicals
modify the baseline parameters for other
storm waler discharges by adding the
requirement to test for any chemical
constituent for which the operator is
subject to reporting requirements under
section 313 and acute whole effluent
toxicity. Acute whole effluent toxicity
monitoring requirements are being
established for two reasons: (1) Acute
whole effluent toxicity is a non-chemical
specific parameter suitable for
characterizing the potential impacts of
the wide range of chemicals and
chemical formulations expected to be
found at the wide variety of section 313
facilities: and (2) To support the acute
whole effluent toxicity limitation
proposed in the draft general permits.
Requirements to lest chronic toxicity
have not been included in this permit
because discharges from the
containment areas are expected to be
generally less frequent than other storm
water discharges (e g. containment
system discharges are typically not
expected to occur with each event) and
relatively low volume where the area
generating the storm water discharges
associated with industrial activity
subject to the containment requirements
described in the pollution prevention
plans developed under this permit is
relatively smalL Monitoring
requirements for storm water discharges
from containment areas are not
applicable where there is not a
discharge to a waters of the United
States (including discharges through
municipal separate storm sewer systems
to waters of the United States), such as
where the discharge is to a POTW.
Storm water discharges associated
with industrial activity from other
portions of SARA title L II section 313
facilities (e.g. those storm water
discharges associated with industrial
activity that are not composed of storm
water that comes into contact with any
equipment, tank, container, or other
vessel used for title Hi. section 313
water priority chemicals, or from truck
and rail car loading and unloading areas
for liquid title III, section 313 water
priority chemicals) are subject to
baseline monitoring requirements of the
permit.
Primary Metal Facilities. Facilities
classified as Standard Industrial
Classification (SIC) 33 (Primary Metal
Industry) include steel works, blast
furnaces, rolling and finishing mills, iron
and steel foundries, primary and
secondary smelting and refining of
nonferrous metals, rolling, drawing and
extruding of nonferrous metals, and
nonferrous foundries. These facilities
typically have significant dust or
particulate generating processes. as well
as other activities, which can contribute
a wide range of pollutants. including
metals. to storm water discharges
associated with industrial activity.
Under the draft general permits
facilities classified as SIC 33 must
monitor semiannually (2 times per year)
all storm water discharges associated
with industrial activity that are
discharged from the facility for oil and
grease. pH. SODS. COD. TSS, total
phosphorus. total Kjeldahl nitrogen.
nitrate plus nitrite nitrogen. any
pollutant limited in an effluent guideline
to which the facility is subject, acute
whole effluent toxicity, total lead, total
cadmium, total copper. total arsenic, and
total chromium.
The monitoring requirements for
storm water discharges associated with
industrial activity from primary metal
facilities modify the baseline monitoring
requirements by adding requirements to
monitor acute whole effluent toxicity.
and five metals. The five metals selected
are typically the most common toxic
metals generally expected in storm
water from primary metal facilities.
However, dust or particulate generating
processes or material management
activities at primary metal facilities can
result in a number of other metals and
pollutants in storm water discharges
associated with industrial activity from
primary metal facilities. Acute whole
effluent toxicity is a non-chemical
specific parameter suitable for
characterizing the potential impacts of
these additional pollutants.
Land Disposal Units. Land disposal
units with storm water discharges
associated with industrial activity may
receive a diverse range of industrial
wastes. EPA has summarized case
studies documenting surface water
impacts and ground water
contamination incidents of land disposal
units (see August 30. 1988 (53 FR 33372)).
Evaluation of 163 case studies revealed
surface water impacts at 73 facilities.
Elevated levels of organics. including
pesticides, and metals have been found
in ground water and/or surface water at
many sites.
Facilities that discharge storm water
associated with industrial activity from
any active or inactive landfill, land
application site, or open dump that
received any industrial wastes are
required to monitor semiannually (2
times per year) for ammonia.
bicarbonate, calcium, chloride, total
iron, magnesium (total), magnesium
(dissolved), nitrate plus nitrite nitrogen.
potassium, sodium, sulfate, chemical
oxygen demand (COD). total dissolved
solids (TDS), total organic carbon
(TOC). pH. total arsenic, total barium,
total cadmium, total chromium, total
cyanide. total lead. to’al mercury, total
selenium, total silver, volatile organic
carbon (VOC) acute whole effluent
toxicity.
The parameters addressed by the
monitoring requirements for storm water
d.scharges associated with :ndustrial
activity from land disposal units is
similar to the parameters addressed by
proposed ground water mor,itorlng
requirements for municipal solid waste
landfills established under subt tle D of
RCRA (see August 30. 1988 (53 FR
-------
40986
Federal Register I Vol. 56.No. 159 1 Friday. At ust 13. 1991/ Proposed Rules
3337!)). The Agency believes that the
pollutants identified for the purpose of
evaluating ground water quality at land
disposal units should also be considered
when evaluating storm water
discharges. Given the wide range of
materials that may be disposed at land
disposal units, many other pollutants
may potentially be found In storm water
discharges from land disposal units. For
this reason, the draft permits require
sampling of acute whole effluent
toxicity. The toxicity parameter is
particularly relevant in situation, since
the evaluation of the toxicity parameter
does not require specific chemical
identifica lion.
Wood T ritment (chlorophenolic/
creosote formulations). Pollutants in
storm water runoff from treated material
storage yards at wood-preserving
facilities were studied by EPA in 1981 In
support of effluent guitielines
development, and in support of a
proposed hazardous waste listing in
1988 (December30. 1988 (53 FR 53287)).
Several orga:nc pollutants were found at
i’ignificant concentrations. includLn
pentachlorophenol. fluoranthene.
benzo(a)anthracene, chrysene.
phenanthrene. and pyrene.
All storm water discharges associated
with industrial activity from areas that
are used for wood treatment, wood
surface application or storage of treated
or surface protected wood at any wood
preserving or wood surface facilities
that currently use chiorophenolic
formulations and/or creosote
formulation shall be monitored
semiannually (2 times per year) for oil
and grease, pH. BOD5. COD. TSS, total
phosphorus. total Iqeldahl nitrogen.
nitrate plus nitrite ru xogen , acute whole
effluent toxicity, and pentachlorophenol.
The monitoring requirements for
storm water discharges associated with
industrial activity from wood treatment
facilities mothfy the baseline monitoring
requirements by adding requirements to
monitor pentachlo;ophenol, acute whole
effluent toxicity. Pentachlorophenol is a
major constituent of preservatives used
at these facilities, and acute whole
effluent toxicity testing will assist In
assessing the presence of other toxics in
these discharges.
Wood Treatment (oxsenic/chromium
preservatives). Arsanic/chremium
preservatives cansit.t of mixtures of
bivalent copper. pentavalent arsenic,
hexavalent chromium or fluorides. The
three most widely used compounds for
commercial wood treatment include
chromatic copper arsenate (CCA);
naunoniacal copper arsenate (ACA);
and fluorochrome-arsenate phenol
(FCAP). Pollutants in storm water runoff
from treated material storage yards at
wood-preserving facilities were studied
by EPA in 1981 in support of effluent
gwdelinas development, and in support
of a proposed hazardous waste listing in
1988. Certain metals, including
chromium, copper, and arsenic, were
found at high levels in storm water from
wood-preserving facilities using
inorganic arsenical preservatives.
All storm water discharges associated
with industrial activity from areas that
are used for wood treatment or storage
of treated wood at any wood preserving
facilities that currently use inorganic
preservatives contninirig arsenic or
chromium shall be monitored
semiannually (2 times per year) for Oil
and grease. pH. B005. COD. TSS, total
phosphorus, total Kjeldahl nitrogen.
nitrate plus nitrite nitrogen. total
arsenic, total chromium, and total
copper.
The monitoring requirements for
storm water discharges associated with
industrial activity from wood treatment
or storage of treated wood at any wood
preserving facilities that currently use
inorganic preservatives containing
arsenic or chromium modify the baseline
monitoring requirements by adding
requirements to monitor arsenic,
chrorxuum and copper. three major toxic
constituents found in the preservatives
used by these facilities.
Cool Pile Runoff Coal pile runoff has
been shown to contain significant levels
of suspended solid., copper, iron.
aluminum, nickel, zinc and other trace
metals. (See ‘Development Document
for Effluent Limitations Guidelines and
Standards and Pretreatment Standards
for the Steam Electric Point Source
Category”, (EPA-440/182/029fl.
All storm water discharges associated
with industrial activity from coal piles
shall be monitored serruarinually (2
times per year) for Oil and grease. pH.
TSS. total copper, total nickel and total
zinc.
The monitoring requirements for
etorni water discharges associated with
industrial activity from coal piles
support the effluent limitations for pH
and TSS in these permits. The three
metals, total copper, total nickel, and
total zinc have been shown to be at
concentratlens of concern in coal pile
runoff (see Thble 3 above). 0 (1 and
grease is a common industrial pollutant
whIch can ba indicative of material
management. housekeeping and
trar.spcrtation acuvities.
0 !! and gas e p!ora:zon or production
opera zons. Operators of storm waler
discharges associated with industrial
ac:tvity from oil and gas exploration or
producUon operatlor.3 have the option of
either monitoring their storm water
discharges asaoc:ated with industrial
activity annually or. in lieu of the
monitoring, a facility may have a
Registered Professional Engineer certify
that a storm water pollution plan has
been prepared and is being iinplementec
in accordance with the requirements of
the permit
Oil and Gas Exploration or
Production Operations (Swnpling
Option). Operators of storm water
discharges associated with industrial
activity from oil and gas exploration and
production operations which elect to
conduct monitoring rather than obtain a
Professional Engineer’s certification are
required to analyze samples annually
(once a year) for the following
parameters: Oil and grease. pH. BOOS.
COD, TSS, total phosphorus, total
Kjeldahl lutrogezi, nitrate plus nitrite
nitrogen. and any pollutant limited in an
effluent guideline to which the facility is
subject The rationale for selecting these
baseline parameters is discussed above.
0,1 and Gas Exploration or
Pmoductton Operations (Certification
Option). Operators of storm water
discharges associated with industrial
activity from oil and gas exploration or
production operations have the option of
obtaining a Professional Engineers
certification that a storm water pollution
plan has been prepared by the facility
and Is being Implemented in accordance
with the requirements of the permit
Dischargcrs pursuing this option are
required to obtain recertification of the
plan every three years, By means of
certification, the Engineer shall attest
thae The Engineer has visited and
examined the facility and is familiar
with the provisions of this part; the P!an
has been prepared in accordance with
good engineering practice; reserve pits
used to hold spent drilling muds or
cuttings have been designed and built to
prevent storm induced overflows; and
the Plan is adequate for the facility.
Such certifications will in no way
relieve the owner or operator of a
facility covered by the plan of their duty
to prepare and fully implement such
plan,
information from sources such as non-
point source assessments developed
pursuant to section 319(a) of the C’iVA
indicate that significant water quality
impacts can be caused by wet-weather
radam of on-site waste dispcsal 2y3:ems
at oil and gas exploration and
production operations (such as stcri
induced overflows of reserve pits used
to hold spent driJiir.g muds and
cuttings). Periodic sampling of
discharges may not be sufficient to
identify or predict these events. Rather.
a PE ceriificaticn may provide a more
appropriate link for evaluating the
-------
Federal_Register / Vol. 55. No. 159 / Friday. August 16, 1991 I Proposed_Rules
4098
potential for and preventing these types
of events.
Allowing this class of dischargers the
option of obtaining Professional
Engineer’s certifications addresses a
number of concerns. First. Professional
Engineering certifications will provide a
direct link to the implementation of the
central provision of the general permits.
the requirement to develop and
implement storm water pollution
prevention plans. Second. providing
dischorgers with the option of either
conducting annual sampling or obtauung
a Professional Engineer’s certification
will provide the discharger with
flexibility to select the most cost-
effective manner to comply with the
draft permits. Third. this approach will
reduce the administrative burdens on
EPA while not limiting its ability to
ensure permit compliance.
Storm Wafer Discharges Not
Otherwise Addressed. Operators of
storm water discharges covered by the
draft general permits which are not
subject to an industry specific
monitoring requirement under the
permits shall monitoring their storm
water discharges associated with
inaustrial activity annually (once a year)
for the following baseline parameters:
oil and grease. pH. BOD5. COD. TSS.
total phosphorus. total Kjeldahl
nitrogen, nitrate plus nitrite nitrogen.
and any pollutant limited in an effluent
guideline to which the facility is subject.
The rationale for selecting these
baseline parameters is discussed above.
ii Volume estimates. The draft
general permits take two approaches for
estimating volumes associated with
storm water discharges. The first
aoproach. which is applicable to two
classes of facilities, discharges from
SARA title II I section 313 contauunent
areas for chemicals which are classified
as Section 313 water priority chemicals.
and discharges front land disposal units.
requires that an estimate of the total
volume of the discharge monitored be
provided. This approach is taken for
these types of facilities because it is
anticipated that some degree of
retention will be provided for the storm
water discharges associated with
industrial activity from these facilities”
and that providing volume estimates
will be more practicable.
Other classes of storm water
discharges covered by the general
permits (wood preserving facilities.
ror exempt. A hu propo..d requirement.
for rwi.ofT conizol systerne from the sin ,. portion
of the municipal solid wuis landfill, to collect sad
control sith. waist volume r.eultln from. 24.
hour 25 yest stoliD (see Augusi 3O 1B (53 FR
33408))
primary metal facilities, and other
discharges without industry specific
requirementa) are required to provide an
estimate of the size of the drainage area
(in square feet) and an estimate of the
runoff coefficient of the drainage area
(e.g. low (under 40%). medium (40% to
65%) or high (above d5%)). This
information assists in characterizing the
magnitude of the volume of discharges
that will occur for different magnitude
storm events. In addition, this
information will generally be easier for
dischargere to provide.
‘iii. Sampling waiver. The draft general
permits have an “adverse climatic
conditions” provision allowing a
discharger to submit a description of
why samples could not be collected in
lieu of sampling data when the
discharger is unable to collect samples
due to climatic conditions which
prohibit the collection of samples
including weather conditions that create
dangerous conditions for personnel
(such as local floodmg. high winds.
hurricane, tornadoes, electrical storms.
etc.) or otherwise make the collection of
a sample impracticable (drought.
extended frozen conditions. etc.).
iv. Sample type. The requirements for
the type of samples taken vary
depending on the nature of the
discharge. A minimum of one grab
sample may be taken for discharges
from holding ponds or other
impoundments with a retention period
greater than 24 hours. For all other
discharges. data shall be reported for
both a grab sample and a composite
sample. All such samples shall be
collected from the discharge resulting
from a storm event that is greater than
0.1 inches and at least 72 hours from the
previously measurable (greater than 0 1
inch rainfall) storm event. The grab
sample shall be taken during the first
thirty minutes of the discharge (or as
soon thereafter as practicable). The
composite sample shall either be flow-
weighted or time-weighted. Composite
samples 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 ahquot being
separated by a minimum period of
fifteen minutes. Only grab samples must
be used for pH. cyanide.’and oil and
grease.
v Reporting requirements.
Dischargers addressed by the sampling
requirements for the six classes of storm
water discharges associated with
Industrial activity (SARA Title lfl. land
disposal units, primary metal, wood
preserving (chlorophenolicf creosote
Formulations), wood preserving
(arsenic/chromium preservatives), and
coal pile runoff) are required to submit
signed discharge monitoring reports
(DMRs) to the appropriate EPA Regional
Office biannually.
Dischargers with at least one storm
water discharge associated with
industnal activity through a large or
medium municipal separate storm sewer
system (systems serving a population of
100.000 or more) in addition to filing
copies of the DMR to the Regional
Office, must submit signed copies to the
operator of the municipal separate storm
sewer system biannually.
Operators of storm water discharges
associated with industrial activity from
oil and gas exploration or production
operations arid that conduct sampling
requirements rather than obtaining a
Professional Engineer’s certification, as
well as operators of other storm water
discharges that are not subject to
industry specific monitoring
requirements. are not required to submit
monitoring reports unless specifically
requested by the Director. These
dischargers must maintain sampling
data collected during the term of the
permit. Upon reissuance of a new
general permit, the permattee will be
required to notify the Director of their
intent to be covered by the new general
permit. The Agency intends that NOl
provisions for the reissued permits will
require diachargers to summarize the
quantitative data they had collected
during the previous permit term. This
approach will reduce the administrative
burdens associated with reviewing
annual DMRs for these discharges.
while providing for an opportunity for
Agency review at least every five years.
Further, reviewing discharger data
during the permit reissuance process
will assist in efforts to implement the
permitting strategy to address industry
specific or individual permitting. The
Agency requests comment as to whether
facilities covered by these permits
should be required to submit an annual
certification that a pollution prevention
plan has been developed for the site and
is being implemented.
vi. Relationship between permit
requirements and proposed rule change.
These monitonng requirements of the
draft general permits are consistent with
the proposed regulatory modifications to
40 CFR 122.28(b)(211i1). discussed earlier
in today’s notice. The final permits will
be consistent with the regulatory
requirements regarding this provision
that are in existence at the time of
-------
40988
Federal Register! Vol . 56. No. 159 / Friday. August 16. 1991 I Proposed Rules
permit issuance.’ 1 If EPA promulgates
less stringent regulations specifying
minimum monitoring requirements, the
monitoring requirements in these
permits may be limited to priority
facilities. The Agency believes that
classes of industrial facilitie, that may
be considered priority facilities for
monitoring include the classes of
facilities for which Industrial specific
monitoring requirements are proposed In
these draft permits. deicing activities at
airports, steam electric facilities, pulp
and paper facilities, and organic
chemical facilities with storm water
discharges associated with inthistrial
activity. EPA requests comment on
classes of facilities that should be
considered a priority for retaining
monitoring requirements in these
permits.
8. Other reporting requirement& The
draft general permits provide that any
facility that is unable to provide the
certification that separate storm sewer
outfalls have been tested for illicit
connections must notify the Director
within 180 days of the effective date of
the permit. Such notification shall
describe: The procedure of any test
conducted for the presence of non•storm
water discharges. the results of such test
or other relevant observations, potential
sources of non-storm water discharges
“ a.wbers in today, notice, the Agenuy I.
requeetng cenimenta on Mx option, fat modifying
the eidaflng re vIatGiy peovirnon. eddreuuig permit
inomtanng. A Intend. to Inom final general
permit. bum on the draft permit. noticed her.
either at the sum. an, at after the Agency be.
cnmpl .tad the permit wonitoncg rulemaking . The
monitanng requirement. in the final general permit,
maybe modified from those aopearwg hi the draft
general peeTmis to reflect the promulgated
regiticioly change,.
to the storm sewer, and why adequate
tests for such storm sewers were not
feasible.
C. Retention of record& The permittee
is required to retain records of all
monitoring information, copies of all
reports required by this permit. and
records of all data used to complete the
Notice of Intent to be covered by the
permit. for a period of at least three
years from the date of the measurement.
report, or application. This period may
be extended by request of the Director.
9. Cost estimates
a. Pollution prevention plan
implementation. Storm water pollution
prevention plans for the majority of
facilities will address relatively low cost
baseline controls for the majority of
Industrial facilities. EPA’s analysis of
storm water pollution prevention plans
indicates that the cost of developing and
implementing the costs of these plans is
variable and will depend on a number of
factors. induding: The size of the
facility, chemicals stored cr used at a
facility, the nature of the plant
operations and plant designs and the
housekeeping measures employed.
Table 5 provides estimates of the range
of costs of preparing and implementing a
storm water pollution prevention plan. It
Is expected that the tow cost estimates
provided in Table 5 is appropriate for
the majority of smaller facilities. High
cost estimates are also provided.
Additional information regarding the
estimates of the costs required to
comply with the conditions proposed in
this permit are provided in “Staff
Analysis of Implementing Permitting
Activities for Storm Water Discharges
Associated with Industrial Activity”
(EPA. 1991). The Agency requests
comments on these cost estimates.
b. SARA Title III Facilities. Table 8
provides estimates of the range of costs
of preparing and implementing a storm
water pollution prevention plan for
facilities which are subject to the special
requirement. for facilities subject to
SARA title III section 313 reportIng
requirements for chemicals which are
classiried as “section 313 water priority
chemicals’, EPA anticipates that the
majority of facilities are expected to
have existing containment systems that
will meet the majority of the
requirements of these permits. High cost
estimates correspond to facilities that
are expected to be required to undertake
some actions to upgrade existing
containment systems to meet the
requirements of these permits. Costs
associated with meeting the toxicity
limitation in this permit only apply to
facilities whose discharges exhibit
toxicity, and are based on an
assumption that the toxicity of discha e
can be reduced by: Modifying material
handling practices; by modifying
existing storage equipment to eliminate
leaks and other sources of chemical
exposure: or by discharging waters
collected by a containment system to a
POTW. Costs of treatment where the
facility does not have existing treatment
capacity or off site disposal is typically
expected to be higher.
Additional information regarding the
estimates of the costa required to
comply with the conditions proposed in
this permit are provided in ‘Staff
Analysis of lmplementmg Permitting
Activities for Storm Water Discharges
Associated with Industrial Activity”
(EPA. 1991). The Agency requests
comments on these cost estimates.
TA8II 5.—SUMMARY OF ESTIMATED COSTS FOR COMPUANCE WiTh STORM WATER PournioN PREVENTION Pt.ANS WrTH BASEUNE
REQUIREMENTS
Plan
Plan
Con I mssw.
Ca Ii
1988 d tam
Low man
Casdal I
I &M
(eiW i il-
(anraia-
Annual 0
aM
Soul ennondrespcn,. Poceth ee . -. .. - - -
Emplayn. Treeing ._..... . .. ._ _.. . - -.-.. - .. - . - . -.
‘ieioui — —. .... - _..
Prevsn vs terence/l4ouselieec .ng — —- - . - . -...-—.—- —— - - —. - -
reoumaun af Erceom Pre .enaon - - - - - - _ _ -
. ,.. ..
tlon ’atc.In water omblicalon .,_,, . ._ . . .... , . ,.. ,
Toial Fused e ’.
2,000 L_.__
200. ....
I
- . - 90
too
- ‘00
..... 100
50
200
7 5.000
7,500
5. . oo
500
i(iO
14.000
13 650
¶ 9 65
640
700
I i:5
I 025
4 160
500
“coo
100
2.400 1 _. I 102,100
-------
Federal Registor / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
40989
TABLE 5 —Suu Rv OF ESTIMATED COSTS FOR COMPLIANCE WiTh STORM WATER POLLUTION PREVENTION PLANS WITh BASELINE
REQu,nBdEP4TS—Contlnued
Control mesju,o
.
Costs m 9088 doSs,
Low costa
Hi t t3
c i
ennu. .
lizadi
Aiwasil 0
uivs -
laId
Annual 0
Total Annual coats ... . - ... . . . - - ...._ . .. ._. - - . .. . -- ..... . 530 30.855
Thus table udsnti8e. sabmated and lugh coats to develop and UTlpleliieffl stalin vetsi p o ltubOil preventiOn plans
Low Co 5 Of Ifl lOlTIeflbfl9 Pfl1 wuu C o lliConents 51 2Sf 0 sifteiS STilling piugt lfliS. PIOCSCWS$ O aictinty e assumed adequate
Annualized costs are based mon .5 pemIIt and 10% decasait
‘Total Coats O W address slfljatiOn WSsre stone wsta i potubOn plan nude 10 be developed a id not 9 1e IOW a , Colt situabon witsiS a plan 3 STistIflg and 1 ,5005
revision
TABLE 6.—SUMMARY OF ESTIMATED COSTS FOR COMPLIANCE WITH STORM WATER POLLUTION PREVENTION PLANS PER APPLICABI.E
UNIT OPERATION FOP FACSUT1ES Suaj ci TO SECTION 313 OF SARA Trn .E Ill Wim WATER PRIORITY CHEMICALS
ConCoI measm,.
Low coats
costs
:
—
di
Coats
lams
di
Mutual 0
Lioi,d Storage C..vbung -— - . - .. . ... - ... .. ._____ _ 0 ._...___ 1.120 [ ...... --
Raw Matensi Storage Tpatjfin -_ . - . .. ... — - ..._. -- . 0 0 400 180
Rurion vsrsion Treiinu ._.__ .__ .. .. ... . .. .... - — 0 0 1.100 250
Collec on Systaiii__ —_______ .___._ — 0 0 15.000 3000
Toxicity Roduclion Ewaluav .on/Remediatuon .. - - - - — . .._. 0 0 25.000 500
Total Fixed Costa_____ . - -- - . . .. - - - 0 - 42.620 - -
Total Annual Cos .__.........._.. ........ .._ - ...._. ._. ..... _. - ...........4 0
This labia . danulli. . essinalad a4 1l ...al low and hçtu coals to develop aid anpleuiess liSfiul wa pothsbOn preYsfibOll p 1 1 1w Ia, SARA Tilts Ill. S.caon 313
I acthtuea aup1ect to sauced condeolsi.
LOw COSTS Of Nn,lemunbng program .enu are zero wtwe esedvug prooadures or sec%#Ity us assumed susequats.
Annualized costs are based 4 lu 5 yew pennit arte 10% discount rate
TABLE 7.—SEDIMENT AND ERosioN
CONTROL Cosrs
Vegetsave practices
Temoorary s.ethig -- $100 psi sauai. yart
PenTuanenl sa..g __.J 51 00 atsis ywil.
Mu lc iung -. ...__.....J $1.25 pa, stsstts wart
Sod a o& ._. $400 psi Square yait
$1 CO per aseseysid.
la $ psi
ese est
$5.50 psi iaur (COL
5500 psi Uneui fOOL
$800 psi kIWI, fOOL
$300 per sqt . —
$400 psi ant. —
$4500 pet irasi’
ysrt
$3500 p square
‘art
$6500 per aqua,.
$100 psi dam
$50 psi dam
$4Oopsqusi .yart
$6500 per square
‘ a r t
$2.25 pa, Inset fOOL
$500 pw foot.
Variable.
5300 psi inlet
$45 psi aquare yard
1500 to 17.000 psi
via
15.000 to 550 000 pen
basin
$500 to 57.000
$1 .500 to $5. pen
12.0000si re
$500 to 19.500
12.50 psi linear fOOL
tsci as Sod _ l. _ ui. _ Vise pio-
taCooll siorsus. , .. .p.iiy vaLes and .aiaty con
amw thSliC nS
TABLE 8.—Costs OF STORM WATER
MANAGEMENT FOR CONSTRUCTION SITES
.
Coatfo’
Sw.
ow
oced
as
Coatfor
20w.
d
coed
an
Wet
85.770
12.000
5.950
5.500
196.300
20.330
15.500
34.100
Dry ponds u#lI a000
0 Ibu. . u
infdDu$o renOOls
d. Oil and gas produc:ion or
exploration operations. Facilities with
contaminated storm water discharges
associated with industrial activity, in
addition to the baseline requirements for
storm water pollution prevention plans.
are required to obtain professional
engineer certifications or monitor their
discharges. The estimated coat of a
professional engineer certification Is
TABLE 7.—SEDIMENT AND EROSION
CONTROL COSTS—Continued
Vogetalive prscbces
c. Constzvction sites. The two major
costs associated with pollution
prevention plans for construction
activities include the costs of sediment
arid erosion controls (see Table 7). and
the costs of storm water management
controls (see Table 8). The draft general
pern its provide flexibility in developing
controls for construction activities.
Typically, most construction sites will
employ several types of sediment and
erosion controls and storm water
management controls, but not all of the
controls listed in Tables 7 and 8. In
general. sites which disturb a larger area
will incur higher pollution prevention
costs.
enage swaLs-gau..
L as t o
Q age swltes-npt,p
Oranage swalus—asphalt....
Drainage swales-concmta.
Couc* dania-roda
soaw baLk
Luwel eqrsedsi-senhan
v01 0-Concots...
S(Betsface .. . ..
stalin il’ain dl-
WI WIt
Sisim stan blat prOtacbOfl.
Rock ouWI .Q lt
Seomeri sa s _
Temporary s..J....a ,l basin,
Stavppft.__ - .
E,ivsnce 5 .- wi ...
EnVsno. 5II4
Tempoivy wateiwsy ooes-
li
Wed breaka_ ........ ......
Esliniatas based on MUtudu4u.gy nh,d m
. of Urban Runoff uaty C••. Wisgund.
C.. Scnuulsi. T. uu. a. .. . W.. and Je 1105. 0.
Urban Runoff ip1nCact and stIity EManc.-
ment TeJ i...A, 1 11 , P,.osedeiga ol an Enguewlig
FOWudabOli Ci .....oa . ASCE. I S I S. edlted by B
Urbana. and LA. Ro.an.
Veguwilve bmat.
ProtacCOn Of ba
Eafln kes
..lt I.ne.a.......,.. .. ..
-------
Federal Register I Vol . 56. No. 159 I Friday. August 16. 1991 I Proposed Rules
40990 _________ _______
sWO. Some oil and gas exploration or
production facilities are expected to
monitor their storm water discharges
instead of obtaining professional
engineer certifications. This additional
cost is not applicable to such facilities.
e. Soil storage facilities. Salt pile
covers or tarpaulins are anticipated to
have a fixed cost of $400 and an annual
cost of $160 for medium sized piles, and
a fixed cost of $4000 and an annual cost
of $2,000 for very large piles. Structures
such as salt domes are generally
expected to have a fixed cost of
between $30,000 for small piles ($70 to
$30 per cubic yard) and $100.000 for
larger piles ($18 per cubic yard) with
costs depending on their size and other
construction parameters.
f. Coal pile runoff The effluent
limitations for coal pile runoff in the
draft permits can be achieved by two
primary methods: by limiting exposure
to coal by use of covers or tarpaulins:
and by collecting and treating the runoff.
In some cases, coal pile runoff may be in
compliance with the effluent limitations
without covering the pile or collecting or
treating the runoff. In these cases, the
operator of the discharge would not
have a control cost.
The use of covers or tarpaulins to
prevent or minimize exposure of the coal
pile to storm water is generally expected
to be practical only for relatively small
piles. Coal pile covers or tarpaulins are
anticipated to have a fixed cost of $400
and annual cost of $160.
Table 9 provides estimates of the cost
of treating coal pile runoff.’ “These
costs are based on a consideration of a
treatment train requiring equalization.
pH adjustment and settling, including
the costs for impoundment (for
equalization), a lime feed system and
Mixing tai ks for pH adjustment, and a
clarifier for settling. The costs for the
impoundment area include diking and
containment around each coal pile and
associated swups and pumps and piping
from runoff areas to impoundment area.
The costs for land are not included. The
lime feed system employed for pH
adjustment lnc!udes a storage silo.
shaker, feeder, and lime slurry storage
tank, instrumentation, electrical
connections, piping and controls.
Nfl type and degree of treatment required to
meet the effluent limitation. of these permita will
very depending upon (actors such as the amount of
sulfur in the COIL Thu iectton deac be. a model
treatment scheme f’ur the pwpoae , eatiriduing calls
(or complutiuice with the proposed effluent
I,mitaiiona. Discharger, may implement other less
expensive eatment approache. to enable them to
discharge in accordanc. with these limits where
appropriate.
Additional costs may be Incurred if a
polymer system is needed. En such a
case, costs would include impoundment
for equalization, a lime feed system,
mixing tank, and polymer feed system
for chemical precipitation. a clarifier for
settling and an acid feeder and mixing
tank to readjust the pH within the range
of to 9. The equipment and system
dosign, with the exception of the
polymer feeder, acid feeder and final
mixing tank. is essentially the same as
shown in Table 9. Two tanks are
required for a treatment train with a
polymer system. one for pecipitation
and another for final pH adjustment
with acid. The cost of mixing is
therefore twice that shown in Table 9.
The polymer feed system includes
storage hoppers, chemical feeder,
solution tanks, solution pumps.
interconnecting piping, electrical
connections and Instrumentation. The
costs of clarification is identical to that
of Table 9. A treatment train with a
polymer system requires the use of an
acid additional system to readjust the
pH within the range of 6 to 9. The
components of this system include a
lined acid storage tank, two feed pumps.
an acid pH control loop, and associated
piping. electrical connections and
instrumentation.
Additional information regarding the
cost of thehe technologies can be found
in: “Development Document for Effluent
Limitations Guidelines and Standards
and Pretreatment Standards for the
Steam Electric Point Source Category”.
((EPA—440/182/029), November 1982,
EPA).
TABLE 9.—SUMMARY OF ESTIMATED
COSTS FOR TREATMENT OF COAL PIPE
RUNOFF
30.C0O 1.200 000
cubic meter cubic meter
coal pile coal pile
TABLE 9.—SUMMARY OF ESTIMATED
COSTS FOR TREATMENT OF COAL PIPE
RUNOFF—Continued
30.000
cubic meter
coal pile
1.200,04’
Cubic me
coal .
Maintenance
(doitars/yoafl.
Energy
1.3*
13x
Requirements
lO’3.
i0”3.
(kwfl/yr).
Lend
2.000
2.000.
Requirements
(ft”2).
Clanficatiant
Installed Capital
16& 000
260.500
Coal (dollars)
Operation and
3.000 ......
3.800.
Maintenance
(dollars/year).
Energy
1.3*
I3 i
Requirements
10 ” ].
I0”3
(kwh/yr).
Land
3.000..._ ..
1.000
Requirements
(fl ”2).
10. Effective dote requirements. This
permit shall be effective upon issuance.
11. EPA contacts.
MA. ML NH
United States EPA. Region I. Water
Management Division. (WCP—2109). john
F. Kennedy Federal Building, Room 2:09.
Boston, MA 02203. Contact: Veronica
Harrington. (617) 565—3525.
iVY (Thdian lands). Puerto Rico
United States EPA. Region IL Water
Management Division, (WM—WPC).
Jacob K. Javitz Federal Building. 26
Federal Plaza. New York, NY 10278.
Contacu Jose Rivera (WM —WPC . (212)
284—1859.
District of Columbia. DE (Federol facilities)
United Slates EPA. Region ilL Water
Management Division. (3WM55), 841
Chestnut Building, Philadelphia. PA
13107. Contact Kevin Magerr, (215) 597—
1651.
AL (Indian lands). FL CA (Indian lands). KY
(Indian lands). MS (Indian lands). NC (Indian
lands), SC (Indian lands). TN (Indian lands!
United States EPA. Region IV. Water
Management Division, (FPD—3). 345
Courtland Street, NE. Atlanta. CA 30365.
Contact: Chris Thomas. (404) 347—3021.
Ml (Indian lands). MN ‘Indian lands). WI
(Indian lands)
United Stales EPA. Region V. Water Quality
Branch (5WQP). 230 South Dearborn
Street. Chicago. IL 80604. Contact: Irving
Ozikoweki. (312)355-2105.
Sourest ‘Development Document t Elf luenl Urn.
italians Gu.delinen and StanOai0s and Pretreatmunt
Standards for the Steam Electric Point Source Cato.
gory”. (EPA—440F182/029 ). Novemoer l982. EP&I
Costs estimates have been revised to account for
inliation.
8,300 12.600.
rtegIIgIh!I....... negligible.
127.000, 361.200.
5,300 ... ... 16,100.
Impoundment
Installed Capttal
Cost (dollars).
Operation and
Msmtenance
(do tlar slyeafl.
Lane teed systent
Installed Coastal
Cost (dolLell).
Operation arid
(dol la , s/yeaT).
Energy
Requirements
(kwh/VT).
Land
Requirements
(ft”2)
Mixing Equipment
Installed Capital
Coal (dollars)
Operation end
36*
10•’a
5.000
60.500
2.100
36
t0”a
5.000.
107.500.
2.400.
-------
Federal Register I Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
40991
L-l. MN. OL Th
United Slate, EPA. Region VL Water
Management DIvision. (6W-PM). First
Interstate Bank Tower at Fountain Place.
1445 Roe. Avenue. 12th Root. Suite 1200.
Dallas. TX 75202. Contact: Craig Weeks.
(14) 655—7180.
SD CO (Fecemi foc,I,z,eg and Indian lands).
MT(lndian lands). ND (indian lands). liT
(lathan landsi. WY (Indian lands)
United States EPA. Region VIII. Water
Management Division. Compliance
Branch (8WM-C). 999 18th Street. Suite
500. Denver. CO 80202—2405 Contact.
Vern Berry. (303) 293-1260.
.4Z. CA (Indian lands). NV (Indian londs!
Gi.’am. American Samoa
United State. EPA. Region DC. Water
Management Dtvieion. (W—6-1). 75
Hawthorne Street. San Francisco. CA
94105 Contact: Eugene Bromley, (415)
744—1906.
AX. ID WA (Federal facilities and Indian
land:)
United State. EPA. Region X. Water
Management Division. (WD- .134). 1200
Sixth Street, Seattle. WA 98101. Andrea
Liaasay. (206) 553—8399
12 Proposed scheduie for general
permits issuance
Draft Pernuts Transmitted to State
requesting section 401 certification’
August 18. 1991.
Notice of Draft Pertiuta in Federal
Register: August 16. 1991.
Comment Pericd Closed: October 15.
1991.
Notice of Final Permit Expected in
Federal Register: 12/91
VI I. Economic Impact
EPA has prepared an Information
Collection Request (ICR) for the purpose
of esttmatlng the information collection
bi den imposed on Federal. State and
local governments and industry by
proposed revisions to requirements to
submit anr.ual momtormg reports.
cimmuni notice of intent (NOl)
requirements for NPDES general
permits, and for States to submit State
Storm Water Permitting Plane. (A
summary of the costs of compliance
with the general permit notice herein is
proviJed in the fact sheet presented
earlier in today’s notice).
The ICR evaluates five option. for
modifying the existing regulatory
requirement that NPDES permits for
storm water discharges associated with
industrial activity must, at a minimum.
require discharger. to report monitoring
data annually All options considered
would lower the burdens on the Federal
government State governments arid
industry. The burden savings to the
Federal and State governments range
from a savings of 8.743 hours per year
(S105.724 per year) for Option 4 to a
savings of 14.848 hoins per year
($232.817 per year) for Options 2. 3 and
5. Option 3 is currently favored by EPA.
The burden savuus to industry range
from a savings of 66.300 hour. per year
(2.2 million per year) for Option 2 to a
savings of 795,600 hours per year (S28
million per year) for Option 5. The
option curreni.ly favored by EPA (Option
3) would resiiit in a burden savings to
industry 01.231.300 hours/year ($7.5
million/year).
EPA believes that the regulatory
modifications to the notice of intent
requirements for general permits will
codify existing practices. Therefore, this
regulatory change. while ensuring
national consistency, will not inerease
the burdens to the Federal government.
State governments or industry.
The repornag burden for State Storm
Water Permitting Plans is estimated to
range from 340 hours ($5,350) per
response to 1.500 hours ($23,500) per
response. The national total burden for
the 57 State. (including 7 Territories).
averaged over a three year period, is
14,794 hours per year or $231,965 per
year The Agency also estimates that the
costs to the Federal Government 20
hours ($315) to review each State Storm
Water Permitting Plan. The total burden
of reviewing these plans, averaged over
a three year period is 380 hours per year
or $5,958 per year.
VIII. Executive Order 12391
EPA has submitted this notice to the
Office of Management and Budget for
review under Executive Order 12291.
I X. Paperwork Reduction Act
The information collection
requirements associated with the
proposed regulatory changes have been
submitted for approval to the Office of
Management and Budget (0MB) under
the Paperwork Reduction AeL 44 USC.
3501 c i. seq. An Information Collection
Request (ICR) document has been
prepared by EPA (ICR No. 0229.05) and
a copy may be obtained fromi Florice
Farmer. Information Policy Branch; EPA,
401 M St.. SW. (PM—2234); Washington.
DC or by calling (202) 382-2740.
The ICR document estimates the
information collection burdens imposed
on the Federal Government, State
governments and industry associated
with the proposed revisions to
requirements to: submit annual
monitoring reports for storm water
discharges under 40 CFR 122.44:
establish minimum notice of intcnt
requirements for general permits under
40 CFR 1 2A In addition, the ICR
estimates the information collection
burdens imposed on the Federal
government and the States to submit
State Storm Water permitting plans and
the burden imposed on the Federal
government to review these plans.
The ICR estimates that the reporting
burdens on industry for collecting
information associated with discharge
monitoring reports (DMRs) typically
ranges from 6 hours to 10.5 hours per
response. The ICR estimates that the
EPA or NPDES States will require 0.2
hours to review each DMR submitted.
The ICR estimates that the reporting
burdens on industry for collecting
Information associated with a notice of
intent (NOl) is one hour per response.
The ICR estimates that the EPA or
NPDES States will require 0.25 hours to
review each NOl submitted.
The reporting burden for State Storm
Water Management Programs is
estimated to range from 340 hours per
response for small States to 1.500 hours
per response for large States. Estimates
of reporting burden include reviewing
guidance, planning activities. analyzing
existing data, analyzing other data.
developing the strategy. public review
and comment and reviewing the
strategy. The Agency also estimates the
Federal Government will require 20
hours to review each State Storm Water
Permitting Strategy.
Send comments regarding the burden
estimate or any other aspect of this
collection of infofmation, including
suggestions for reducing this burden. to
Chief. Information Policy Branch. PM-
223Y. U.S. Environmental Protection
Agency. 401 M St., SW., Washington. DC
20490 and to the Office of Management
and Budget. Washington, DC 20503.
marked ‘Attention: Desk Officer for
EPA.” The final rule will respond to
0MB or public comments on the
information collection requirements
contained in this proposal.
X. Regulatory Flexibility Act
Under the Regulatory Fle ubilrty Act. 5
USC 601 ci seq.. EPA is required to
prepare a Regulatory Flexibility
Analysis to assess the impact of rules on
smaU entities. No Regulatory flexibility
Analysis is required. however, where
the head of the agency certifies that the
rule will not have a significant economic
impact on a substantial number of small
entities.
Today’s proposed amendments to the
regulations would generally make the
NPDES regulations more flexible and
less burdensome for permittees
Accordingly. I hereby certify, pursuant
to 5 U.S C. 605(b). that these
amendments. if promulgated. and that
these general pereuts. when issued, will
not have a significant impact on a
substantial number of small entities.
-------
40992
Federal Register / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
List of Subjects in 40 CFR Part 122
Administrative practice and
procedure. Environmental protection.
Reporting and record keeping
requirements. Water pollution controL
Datedi July 31. 1991.
William IC. Reilly,
dministrawr.
For the reasons stated in the
preamble. part 122 of title 40 of the Code
af Regulations is proposed to be
amended as follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAM THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122 is
revised to read as follows:
Anthorlty: 33 U.S.C. 1251 at seq.
3ubpart C—Permit Conditions
2. Section 122.23 is amended by
redèsignating current paragraph (b)(2)
as (b)(3) and by adding a new paragraph
(b)(2) to read as Follows:
* 122.20 General permits (applicabI. to
Slats.NPOES programs, sos 123.25).
• . • • •
(br
(Z) ’Authorizotion to discharge. or to
engoge in sludge use and disposal
practices. (i) Except as provided in
paragraphs (b)(2)(v) and (b)(2)(vi) of this
section. dischargers (or treatment works
treathag domestic sewage) seeking
coverage under a general permit shall
submit to the Director a written notice of
intent to be covered by the general
permit. A discharger (or treatment
works treating domestic sewage) who
fails, to submit a notice of intent in
accordance with the terms of the permit
Is not authorized to discharge, or in the
case of a sludge disposal permit to
engage in a sludge use or disposal
practice, under the terms of the general
pe .t unles. the general permit in
accordance with paragraph (b)(2)(v) of
thia.section. contains a provision that a
notice.of intent is not required or the
Dfrector notifies a discharger (or
treatment works treating domestic
sewage) that It Is covered by a general
p?rmit in accordance with paragraph
(la2 (vi) of this section. A complete and
timely notice of intent to be covered
constitutes a permit application for
purposes of § 122.6. 122.21 and 122.20.
(ii) The notice of intent shall include.
aLaminimum, the Legal name and
address of the owner or operator, the
facility name and address, type of
facilities or discharges, the receiving
stream(s), and such other information as
is reasonably necessary to ascertain
whether the discharger (or treatment
works treating domestic sewage) should
be included under the terms of the
general permit as specified in the final
general permit. General permits for
storm water discharges associated with
industrial activity from inactive mining
or inactive oil and gas operations
occurring on Federal lands where an
operator cannot be identified may
contain alternative notice of intent
requirements.
(iii) Unless the general permit
specifies different time periods, the
notice of inter.t to be covered (including
notices of intent to be covered for new
discharges) shall be submitted within 60
days before the date of intended
coverage.
(iv) After a discharger (or treatment
works treating domestic sewage) has
filed its notice of intent to be covered.
the discharger (or treatment works
treating domestic sewage) shall be
deemed covered on the date specified in
the permit and may discharge or, in the
case of a sludge disposal permit. engage
in a sludge use or disposal practice
under the general permit, unless the
Director notifies the discharger (or
treatment works treating domestic
sewage) that it is not covered by the
general permit and instead must obtain
coverage under an individual permit or
an alternative general permit. The
Director may specify in the general
permit that this paragraph shall not
apply and that dischargers (or treatment
works treating domestic sewage)
submitting a notice of intent to be
covered by the permit will not be
authorized to discharge or, in the case of
a sludge disposal permit, to engage in a
sludge use or disposal practice until
notified of their inclusion under the
permit by the Director.
(v) Discharges other than discharges
from publicly owned treatment works,
combined sewer overflows, primary
industrial facilities, contaminated runoff
from mining operations or oil and gas
operations and other storm water
discharges associated with Industrial
activity. may, at the discret:on of the
Director, be authorized to discharge
under a general permit without
submitting a notice of intent where the
Director finds that a notice of intent
requirement would be inappropriate. In
making such a finding, the Director shall
considen The type of discharge: the
expected nature of the discharge; the
potential for toxic and conventional
pollutants in the discharges: the
expected volume of the discharges;
other means of identifying discharges
covered by the permit: and the
estimated number of discharges to be
covered by the permit. The Director
shall provide in the public notice of the
general permit the reasons for not
requiring a notice of intent.
(vi) The Director may notify a
discharger (or treatment works treating
domestic sewage) that it is covered by a
general permit, even if the discharger (or
treatment works treating domestic
sewage) has not submitted a notice of
intent to be covered. A discharger (or
treatment works treating domestic
sewage) so notified may request an
individual permit under paragraph
(b)(3)(iii) of this section.
I I I I I
3. Section 122.44 is amended by
revising paragraph (i)(2) and adding
paragraphs (i)(3) through (iJ(6) to read as
follows:
§ 122.44 EstablIshing limitations.
standards, and other permit cend tions
(applicable to State NPOES programs, see
§ 123.25).
I I • •
(I) ‘
(2) Except as provided in paragraphs
(i)(4) and (i)(5) of this section.
requirements to report monitoring
results with a frequency dependent on
the nature and effect of the discharge.
but in no case less than once a year. For
sewage sludge use or disposal practices,
requirements to monitor and report
results with a frequency dependent on
the nature and effect of the sewa9e -
sludge use or disposal practice:
minimally this shall be as specified in ’ O
CFR part 503 (where applicable), but in
no case less than once a year.
(3) Requirements to report monitoring
results for storm water discharges
associated with industrial activity which
are subject to an effluent limitation
guideline shall be established on a case-
by-case basis with a frequency
dependent on the nature and effect of
the discharge. but in no case less than
once a year.
(4) Requirements to monitor storm
water discharges associated with
industrial activity (other than those
addressed in paragraphs (i)(3) and (i)(5)
of this section) shall be established on a
cese-by.case basis with a frequency
dependent on the nature and effect of
the discharge. however, at a minimum, a
permit for such a discharge must require
annual monitoring of representative
storm water discharges associated with
industrial activity. Where dischargers
are not required to report monitoring
results to the Director, permits must
require that the re uIts of monitoring be
retained for at least the term of the
permit and be made available to the
Director upon request. In such cases.
-------
Federal Register I Vol. 56. No. 159 / Friday. August 18. 1991 / Proposed Rules
40993
results of any monitoring conducted
during the term of the permit shall be
submitted as part of a permit application
or notice of intent requirement prior to
permit reissuance.
(5) Requirements to monitor
contaminated storm water discharges
associated with industrial activrty from
oil and gas exploration or production
operations or from inactive mining
operations where a past or present mine
operator cannot be identified shall be
established on a case.by.case basis with
a frequency dependent on the nature
and effect of the discharge. However, at
a minimum, a permit for such a
discharge must require either
(i) Annual monitoring of
representative contaminated storm
water discharges associated with
industrial activity from oil and gas
exploration or production operations or
inactive, mines where a past or present
mine operator cannot be identified.
Where discharger. are not required to
report monitoring results to the Director.
permits must require that the results of
morutoring be retained for at least the
term of the permit and be mane
as ailable to the Director upon request.
in such cases, results of any monitoring
conducted during the term of the permit
shall be submitted as part of a permit
application or notice of intent
requirement prior to permit reissuance:
or
(ii) the facility owner or operator to
develop and implement a storm water
pollution prevention plan or a storm
water best management plan which
inL:udes a Registered Professional
Engineer’s certification that the plan had
been prepared and is being implemented
in accordance with good engineering
practices. with such certification being
obtained at a minimum frequency of at
least once’every three years. Such
certification shall in no way relieve the
owner or operator of a storm water
discharge associated with industrial
activity of their duty to prepare and fully
implement such plan in accordance with
the requirements of their permit. Where
dischargers are not required to report
results of such certification to the
Director, permits must require that the
certification be retained for at least the
term of the permit and be made
available to the Director upon request.
In such cases, an indication of whether
the certification was received should be
submitted as part of a permit application
or notice of intent requirement prior to
permit reissuance.
(6) Permits which do not require the
submittal of monitozing result reports at
lee at annually shall require that ‘the
iermittee report all Instances of
oncompliance not reported under
paragraphs 122.41(l)(1). (4). (5). and (6) at
least annually.
. . .
Appendix—Draft General Permits
Note: The following Appendix will not
appear in the Code of Federal
Regulations.
Draft General Permits
Table of Contents
Part L Coverage Under this Permit
A. Permit Area.
B. Eligibility.
C. Requiring an individual permit or an
alternative general permit.
D. Authonzation.
Part I I. Notice of Intent Requirements.
A. Deadline. for Notification.
B. Failure to Notify
C. Content, of Notice of Intent
0. Where to Submit.
E. Additional Notification.
F Renotification.
Part III. Special Conditions. Management
Practice., and Other Non.Numenc
Limitations
A. Prohibition on non-Storm water
discharges.
B Release . in excess of Reportable
Quantities.
C. Storm water pollution prevention plans.
Part IV. Numenc Effluent Limitation.
A. Acute Whole Effluent Toxicity
B. Alternative Reqiiuementa.
Part V. Morutornig and Reporting
Requirements
A. Failure to Certify.
B. Monitor.ng Requirements.
C. Toxicity testing.
D Reporting. Where to Submit
E. Retention of Records
Part VI. Standard Permit Conditions
A. Duty to Comply.
B Continuation of the Expired General
Permit -
C. Need to halt or reduce activity not a
defense.
D Duty to Mitigate.
E. Duty to Provide Information
F. Other Information.
C. Signatory Requiremeni..
H Certification.
I. Penalties for Falsification of Report..
J. Penaltie . for Falsification of Monitoring
Systems.
K. Oil and Hazardous Substance Liability.
1.. Property Rights.
M. Severability.
N. Transfers.
0 State Laws.
P Proper Operation and Mbunienance
Q Monitoring and re ord .
R Bypass of Treatment Fscilitie.
5. Upsel Conditions.
1’. Inspection and Entry
U Permit Actions.
Part VU. Reopener Clause
Part VIII. Definitions
Part! Coverage Under this Permit
A. Permit Area. The permit covers all
areas of the State of ___________, 1
B. Ehgzbil:ty.
1. Except for storm water discharges
identified under paragraph I.B.2. this
permit may cover all new and existing
discharges composed entirely of storm
water discharges associated with
industrial activity.
2. Limitations on Coverage. The
following storm water discharges
associated with industrial activity are
not covered by this permit:
a. Storm water discharges associated
with industrial activity from facilities
with existing effluent guideline
limitations for storm waten
b. Storm water discharges associated
with industrial activity from facilities
with an existing NPDES individual or
general permit for the storm water
discharges or which are issued a permit
in accordance with paragraph l.C of this
permit.
c Storm water discharges associated
with industrial activity that the Director
has shown to be or may reasonably be
expected to be contributing to a
violation of a water quality standard.
and
d. Storm water discharges associated
with industrial activity from inactive
mining or inactive oil and gas operations
occurring on Federal lands where an
operator cannot be identified.
C. Reqwring an mdi vidual permit or
an alternative general permit.
1. The Director may require any
person authorized by this permit to
apply for and obtain either an individual
NPDES permit or an alternative NPDES
general permit. Any interested person
may petition the Director to take action
under this paragraph. The Director may
require any owner or operator
authorized to discharge under this
permit to apply for an individual NPDES
i Note that the Agency is noticing distinct draft
general permits in Masks. Arizona. florida. Idaho.
Louisiana. Msssathuseits Maine. New H.mpihire.
New Mexico. Oldahoms. South Dakota. Texas.
District of Columbia. the Commonwealth of Puerto
Rico. Guam. Amenran Samoa. the Commonwealth
of the Nonhera Manans Islands. and the Tnusi
Territory of the Pacific islands; on Indian lends in
AL. CA. GA. KY. M I. f tN. MS. MT. NC. ND. NY. NV
SC. TN. UT WI. and WY. from Federal facilities
end Indian lands In CO and WA. and from Federal
faciiiilei in Deiaw.ta.
• For the purpo.. of thi, permit, the following
effluent gutoeiine limitation, addteee etorni water
cement manufacturing (4OCFR pan 4il (. feedlot.
(40 CFR part 4121 fertilizer inanufaciwing (10 OR
pan 4151. petivleuin refinln (40 OR pert 4i0).
pho.pbate manufactwtng tao C*’R put 4 utaam
electric (4OCPR pail 4 coal mIning (40 OR pail
4341. mineral mining and pr .ing (40 OR pen
4381. ore mining and e ,stiig (40 OR pan 4401; and
..phalt emulsIon (40 CFR pelt 4431.
-------
O994
Federal Register I Vol. 56. No. 159 / Friday. August 16. 1991 I Proposed Rules
permit only if the owner or operator has
been notified in writing that a permit
application is required. This notice shall
include a brief statement of the reasons
for this decision, an application form, a
statement setting a deadline for the
owner or operator to file the application.
and a statement that on the effective
date of the individual NPDES permit or
the alternative general permit as it
applies to the Individual permittee.
coverage under this general permit shall
automatically terminate. The Director
may grant additional time to submit the
application upon request of the
applicant. If an owner or operator fails
to submit In a timely manner an
individual NPDES permit application
required by the Director under this
paragraph. then the applicability of this
permit to the individual NPDES
perinittee is automatically terminated at
the end of the day specified for
application submittal.
2. Any owner or operator authorized
by this permit may request to be
excluded from the coverage of this
permit by applying for an individual
permit or participating in an applicable
group application. The owner or
operator shall submit an individual
application (Form I and Form 2F) with
reasons supporting the request. or
participate in a grqup application in
accordance with the requirements of 40
CFR 122.26. to the Director. The request
shall be granted by issuing of any
individual permit or an alternative
general permit if the reason. cited by
the owner or operator are adequate to
support the request.
3. When an individual NPDES permit
is issued to an owner or operator
otherwise subject to this permit. or the
owner or operator is approved for
coverage under an alternative NPDES
general permit, the applicability of this
permit to the individual NPDES
permittee is automatically terminated on
the effective date of the individual
permit or the date of approval for
coverage under the alternative general
permit, whichever the case may be.
When an individual NPDES permit Is
denied to an owner or operator
otherwise subject to this permit, or the
owner or operator is denied for coverage
under an alternative NPDES general
permit the applicability of this permit to
the individual NPDES permittee is
automatically terminated on the date of
such denial, unless otherwise specified
by the Director.
ID. Authorization. Owners or operators
of storm water discharges associated
with industrial activity must submit a
Notice of Latent (NO!) In accordance
with the requirements of part II of this
permit to be authorized to discharge
under this general permit. Unlese
notified by the Director to the contrary.
owners or operators who submit such
notification are authorized to discharge
storm water associated with industrial
activity under the terms and conditions
of this permit. Upon review of the NO!.
the Director may deny coverage under
this permit and require submittal of an
application for an individual NPDES
permit.
Part II. Notice of Intent Requirements
A. Deadlines for notification.
individuals who intend to obtain
coveragefor art existing storm water
discharge associated with industrial
activity under this general permit shall
submit a Notice of Intent (NO!) in
accordance with the requirements of
this part within 180 days of the date of
issuance of this general permit or at
least 30 days prior to the commence-
ment of construction of a new storm
water discharge associated with
industrial activity.
8. Failure to notify. Owners (or
operators when owners do not operate
the facility), who fail to notify the
Director of their intent to be covered.
and discharge pollutants to waters of
the United States without an NPDES
permit. are in violation of the Clean
Water Act.
C., Contents 0/notice a/intent. The
Notice of Intent shall include the
following information:
1. Name, mailing address, and
location of the facility for which the
notification is submitted:
2. Up to four 4-digit SIC codes that
best represent the principal products or
activities provided by the facility:
3. The operator’s name, address.
telephone number. ownership status and
status as Federal. State. private, public
or other entity;
4. The latitude and longitude of the
approximate center of the facility to the
nearest 15 seconds, or the nearest
quarter section (If the section. township
and range is provided) that the facility is
located in:
5. The name of the receiving water(s),
or if the discharge Is through a municipal
separate storm sewer, the name of the
municipal operator of the storm sewer
and the ultimate receiving water(s): and
6. Existing quantitative data
describing the concentration of
pollutants in storm water discharges.
7. Additional requirements for
construction activities. The Notice of
Intent for a storm water discharges
associated with industrial activity from
a construction site shall, in addition to
the information required above, include
a brief description of the project.
estimated timetable for major activiUes.
estimates of the number of acres of the
site on which soil will be disturbed. and
a certification that the storm water
pollution prevention plan for the facilit)
provides compliance with approved
State or local sediment and erosion
plans or storm water management plans
in accordance with part lfl.C.5.b.(3) of
this permit.
D. Where to Submit. Facilities which
discharge storm water associated with
Industrial activity must submit signed
copies of the Notice of Intent to the
Director of the NPDES program at the
f3ilowing address:
Address of Central Receiving Office
to be determined later
E. Additional Notification.
1. Except for facilities subject to part
II.E.2. facilities which discharge storm
water associated with industrial activity
to a large or medium municipal separate
storm sewer system (systems servir.g a
population of 100.000 or more) must. in
addition to filing copies of the Notice of
Intent in accordance with paragraph
Il.D, shall submit signed copies of the
Notice of Intent to the operator of the
municipal separate storm sewer to
which they discharge.
2. Facilities which discharge storm
water associated with industrial activity
from construction activities and are
operating under approved State or local
sediment and erosion or storm water
management plans, in addition to filing
copies of the Notice of Latent in
accordance with paragraph II.D. shall
submit signed copies of the Notice of
Intent to the State or local agency
approving such plans.
F. Renotification. Upon reissuance of
a new general permit the permittee is
required to notify the Director of his
intent to be covered by the new general
permit.
Part III. Special conditions.
management practices. and other non-
numeric limitations
A. Prohibition on non.storm water
discharges. AU discharges covered by
this permit shall be composed entirely of
storm water. Discharges of material
other than storm water must be in
compliance with a NPDES permit (other
than this permit) issued for the
discharge.
B. Releases in excess of Reportable
Quantities. This permit does not relieve
the permittee of the reporting
requirements of 40 CFR part 117 and 40
CFR part 302. The discharge of
hazardous substances in the storm
water discharge(s) from a facility shall
be minimized in accordance with the
applicable storm water pollution
-------
Federal Register I Vol. 56. No. 159 / Friday. August 16. 1991 I Proposed Rules
4n9-3
prevention plan for the facility, and in
no case, during any 24-hour period, shall
the discharge(s) contain a hazardous
“ibstance equal to or in excess of
porting quantities.
C. Storm water pollution prevention
plans. A storm water pollution
prevention plan shall be developed for
each facility covered by this permit.
Storm water pollution prevention plans
shall be prepared in accordance with
good engineering practices. The plan
shall identify potential sources of
pollution which may reasonably be
expected to affect the quality of storm
water discharges associated with
industrial activity from the facility. in
addition, the plan shall describe and
ensure the implementation of practices
which are to be used to reduce the
pollutants in storm water discharges
associated with industhal activity at the
facility and to assure compliance with
the terms and conditions of this perixut.
I The plan shall be signed in
accordance with part Vl.G. and be
retained on site in accordance with part
V.A of this permit. It shall be completed
within 180 days of the effective date of
this permit (and updated as
appropriate), or. in the case of new
facilities, prior to submitting a NOI to be
covered under this permit Plans shall
provide for compliance with the terms of
the plan within 365 days of the effective
te of this permit, or. in the case of new
.ilities. prior to submitting a NOl to be
overed under this permit. The owner or
operator of a facility with storm water
discharges covered by this permit shall
make plans available upon request to
the Director, or authorized
representative, or in the case of a storm
water discharge associated with
industrial activity which discharges
through a municipal separate storm
sewer system with an NPDES permit. to
the municipal operator of the system.
:. If the plan is reviewed by the
Director, or authorized representative.
the Director, or authorized
representative. may notify the permittee
at any time that the plan does not meet
one or more of the minimum
requirements of this Part. After such
notification from the Director, or
authorized representative, the permittee
shall make changes to the plan and shall
submit to the Director a written
certification that the requested changes
have been made. Unless otherwise
provided by the Director, the permiltee
shall have 30 days after such
notification to make the changes
necessary.
3. The permittee shall amend the plan
whenever there is a change in design.
struction. operation. or maintenance,
.ch has a significant effect on the
potential for the discharge of pollutants
to the waters of the United States or if
the storm water pollution prevention
plan proves to be ineffective in
achieving the general oblectives of
controlling pollutants in storm water
discharges associated with industrial
activity. Amendments to the plan may
be reviewed by EPA in the same manner
as part IIl.C.2 above.
4. Except for storm water d:scharges
associated with industrial acti’ .ity from
construction activities, which are
subject to the requirements of paragraph
ll1.C.5. the plan shall indude. at a
minimum, the following items:
a. Description of Potential Pollutant
Sources. Each plan shall provide a
descnption of potential sources which
may be reasonably expected to add
significant amounts of pollutants to
storm water discharges or which may
result in the discharge of pollutants
during dry weather from separate storm
sewers draining the facility. Each plan
shall identify all activities and
significant materials which may
potentially be significant pollutant
sources. Each plan shell include
(1). A site map indicating, an outline
of the drainage area of each storm water
outfall: each existing structural control
measure to reduce pollutants in storm
water runoff; and surface water bodies;
(2). A topographic map (or other map
if a topographic map is unavailable),
extending one-quarter of a mile beyond
the property boundaries of the facility.
The requirements of this paragraph may -
be included in the site map required
under part 11I.C.4.a.(1) if appropriate.
(3). A narrative description of
significant materials that have been
treated, stored or disposed in a manner
to allow exposure to storm water
between the time of three years prior to
the date of the issuance of this permit
and the present: method of on-site
storage or disposal: materials
management practices employed to
minimize contact of these materials with
storm water runoff between the time of
three years prior to the date of the
issuance of this permit and the present:
materials loading and access areas: the
location and a description of existing
structural and nonstructural control
measures to reduce pollutants in storm
water runoff: and a description of any
treatment the storm water receives:
(4). A list of significant sp:lls and
significant leaks of toxic or hazardous
pollutants that occurred at the facility
alter the effective date of this permit.
(5). For each area of the plant that
generates storm water discharges
associated with industrial activity with
a reasonable potential for containing
significant amounts of pollutants, a
prediction of the direction of flow, and
an estimate of the types of pollutants
which are likely to be present in storm
waler discharges associated with
industrial activity: and
(6). A summary of existing sampling
data describing pollutants in storm
water discharges
b. Storm Water Management
Controls. Each facility covered by this
permit shall develop a description of
storm water management controls
appropriate for the facility, and
implement such controls. The
appropriateness and priorities of
controls in a plan shall reflect identified
potential sources of pollutants at the
facility The description of storm water
management controls shall address the
following minimum components.
including a schedule for implementing
such controls:
(1). Pollution Prevention Committee
The description of the storm water
Pollution Prevention Committee shall
identify specific individuals within the
plant organization who are responsible
for developing the storm water pollution
prevention plan and assisting the plant
manager in its implementation.
maintenance, and revision. The
activities and responsibilities of the
committee should address all aspects of
the facility’s storm water pollution
prevention plan.
(2). Risk Identification and
Assessment/Material Inventory. The
storm water pollution prevention plan
shall assess the potential of various
sources at the plant to contribute
pollutants to storm water discharges
associated with industrial activity The
plan shall include an inventory of the
types of matenals handled Facilities
subject to SARA title Ill, section 313
shall include in the plan a description of
releases to land or water of SARA Title
Ill water priority chemicals that have
occurred at any time after the date of
three years prior to the issuance of this
permit. Each of the following shall be
evaluated for the reasonable potential
for contributing pollutants to runoff:
loading and unloading operations:
outdoor storage activities: outdoor
manufacturing or processing activities.
significant dust or particulate generating
processes: and on’site waste disposal
practices Factors to consider include
the toxicity of chemicals: quantity of
chemicals used, produced. or
discharged. the likelihood of contact
with storm water and history of
significant leaks or spiiis of toxic or
hazardous pollutants.
(3). Preventive Maintenance. A
preventive maintenance program shat.
involve inspection and maintenance of
-------
43996
Federal Register I Vol. 56. No. 159 / Friday. August 18. 1991 / Proposed Rules
storm water management devices
(cleaning oil/water separators, catch
basins) as well as inspecting and testing
plant equipment and systems to uncover
conditions that could cause breakdowns
or failures resulting In discharges of
pollutanta to surface waters.
(4). Good Housekeeping, Good
housekeeping requires the maintenance
of a clean, orderly fadJity.
(5). Spill Prevention and Response
Procedures. Areas where potential spills
can occur, and their accompanying
drainage points shall be identified
clearly in the storm water pollution
prevention plan. Where appropriate.
specify ng material handling procedures
and storage raquirements in the plan
should be cor. iderod. Procedures for
cleaning up spills shall be identified in
the plan and made available to the
appropriate personnel. The necessary
equipment to implement a clean up
should be available to personnel.
(8). Storm Water Management. The
plan shall contain a narrative
consideration of the appropriateness of
traditional storm water management
practices (practices other than those
which control the source of pollutants).
Based on an assessment of the potential
of var.ous sources at the plant to
contribute pollutants to storm water
discharges associated with industrial
activity (see Part aC.4.b.(2) of this
permit), the plan shall provide that
measures determined to be reasonable
and appropriate shall be usipleinented
and maintained.
(7). Sediment and Erosion Prevention.
The plan shall identify areas which, due
to topography. activities, or other
factors, have a high potential for
significant soil erosion, and identify
measures to limit erosion.
(8). Employee Training. Employee
training programs shall inform personnel
at all levels of responsibility of the
components and goals of the storm
water pollution prevention plan.
Training should address topics such as
spill response. good housekeeping and
materiai management practice.. A
pollution prevention plan shall Identify
periodic dates for such trnMing
(9). Vi . ,uoi Inspections, Qualified
plant personnel shall be identified to
inspect designated equipment and pLant
&reca. Material handkag arose shall be
irispccted i:videnca of. or the
potential for, pollutants entering the
drainage system. A !racking or followup
procedure shall be used to ensure that
zppropnata rcsponse has been taken in
response to the inspection. Records of
inspectior.s shall be maintained.
(10). Recordkeep,ng and Internal
Reporting Procedures. Incidents such as
api 1 1 . , or other discharges. along with
other information describing the quality
and quantity of storm water discharges
shall be included in the records.
Inspections and maintenance activities
shall be documented and recorded.
(11). Non-Storm Discharges. A
certification that the discharge has been
tested for the presence of non-storm
water discharges. The certification shall
include a description of the results of
any test for the presence of non storm
water dIscharges, the method used, the
date of any testing, and the on site
drainage points that were directly
observed during the test Such
certification may not be feasible if the
facility operating the storm water
discharge associated with industrial
activity does not have access to an
outfall, manhole, or other point of access
to the ultimate conduit which receives
the discharge. In such cases, the source
identification section of the storm water
pollution plan shall Indicate why the
certification required by this part was
not feasible. A discharge that Is unable
to provide the certification required by
this paragraph inuet notify in
accordance with part V.A of this permit
C. Site Inspection. A site inspection
shall be conducted annually by
appropriate personnel named in the
storm water pollution prevention plan to
verify that the description of potential
pollutant sources required under part
11LC.4.a is accurate, the drainage map
has been updated or otherwise niodified
to reflect current conditions: and the
controls to reduce pollutants in storm
water discharges associated with
industrial activity identified in ilie storm
water pollution prevention plan are
being implemented and are adequate.
Records documenting significant
observation made during the site
inspection shall be retained as part of
the storm water polluticn prevention
plan for three years.
d. Special requirements for storm
water discharges associated with
ind zstrial acts vi y chrin . gh ,nunicipd
separate storm sewer systems serving a
population of 1(ZjC4X or m:re. Facilities
covered by this permit must comply with
applicable requirements in municipal
storm water management programs
developed under NPDES permits issued
for the discharge of the municipal
separate storm sewer syctem that
receFuies the facility’s dia.±arge,
providcd the dbcharger has been
r.otified of such condi iocs.
e. Consistency with other plans.
Storm water management programs may
reflect requirements for Spill Prevention
Control and Countermeasure (SPCC)
plans under section 311 of the CWA or
Best Management Practices (liMP)
Programs otherwise required by an
NPDES permit and may Incorporate any
part of such plans Into the storm water
pollution prevention plan by reference.
f. Special requirements for storm
water discharges associated with
industrial activity from facilities subject
to SARA title III. section 313
requirements. (Option A would Include
part ULC.4.L as shown below. See
section 7.B of the Fact Sheet for a
discussion of Option A and Option B.)
Storm water polhition prevention plans
for facilities subject to reporting
requirements under SARA title [ II,
section 313 for chemicals which are
classified as (‘Section 313 water priority
chemicals’) In accordance with the
definition in Part VU of this permit are
required to include, in addition to the
information listed above, a discussion of
the ‘ility’s conformance with the
app nate guidelines listedi
(1 i areas where Section 313 watcr
pnon:y chemicals are stored. processed
or otherwise handled, appropriate
containment, drainage control’andfor
diversionary sb’uciures shall be
provided. At a minimum, one of the
following preventive systems or its
equivalent shall be useth
(a) Curbing. culverting. gutters. sewers
or other forms of drainage control to
prevent or minimize the potential for
storm water run-on to come into contact
with significant sources of pollutants: or
(b) Roofs. covers or other forms of
appropriate protection to prevent
storage piles from exposure to storm
water, and wind blowing.
(2) If the installation of structures or
equipment listed In parts
IILC.4.f.(3).(a).(ii). or ffl.C.4.f.(3).(c ) of
this permit is not economically
achievable at a given facility, the fecility
operator shall develop and implement a
spill contingency and integrity testing
plan which pruvidcs a descnptioa of
measures that ensure spi 11 s or other
releases of toxic amounts of Section 313
water priority chemicals do not occur as
an alternative to the requirements of
parts ULC.4.f.(3J.(a).(ii), or IILC.4 ,f(3).(c)
of this permit. A spill contingency and
integrity plan developed under this
paragraph shall comply with the
minimum requirements listed in parts
aC.4.f.(z). (a) through (d).
(a) The pLan ahall include a detailed
description which demonstrates that the
requirements of Pa ;ts IILC.4.f.(3).(a).(ii)
and IILC.4.f.(3).(c) of this permit are not
economically achievable:
(b) A spill contingency plan must
include, at a minimum: a description of
response plans. personnel needs, and
methods of mechanical containment
steps to be taken for removal of spilled
Section 313 water priority chemicals:
-------
Federal Register / Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed Rules
4097
access to and availability of sorbents
and other equipment: and such other
information as required by the Director
(c) The testing component of the
alternative plan must provide for
conducting integrity testing of storage
tanks at least once every five years. and
conducting integrity and leak testing of
values and piping a minimum every
year and
(d) A written and actual commitment
of manpower. equipment and materials
required to comply with the provisions
of Part lfl.C.4.f.(2J. (b) and (c) of this
permit and to expeditiously control and
remove quantity of Section 313 water
priority chemicals that may result in a
toxic discharge.
(3) In addition to the minimum
standards listed under Part IILC.4.f.(1) of
this permit, the storm water pollution
prevention plan shall include a complete
discussion of measures taken to conform
with the following applicable guidelines.
other effective storm water pollution
prevention procedures. and applicable
State rules, regulations and guidelines:
(a) Liquid storage areas where storm
water comes into contact with any
equipment, tank. container, or other
vessel used for Section 313 water
priority chemicals.
(i) No tank or container shall be used
for the storage of a Section 313 water
priority chemical unless its material and
construction are compatible with the
material stored and conditions of
storage such as pressure and
temperature. etc.
(ii) Secondary containment, sufficient
to contain the capacity of the largest
single container or tank in a drainage
system where section 313 water priority
chemicals are stored shall be provided.
If the secondary containment area and
its upstream drainage system are
subject to precipitation, an allowance
for drainage from a 25-year. 24-hour
precipitation event shall be provided
over and above the volume necessary to
contain the largest single tank or
container. Secondary containment
system. shall be sufficiently impervious
to contain spilled section 313 water
priority chemicals until they can be
removed or treated. The plant treatment
system may be used to provide
secondary containment, provided It has
sufficient excess holding capacity
always available to hold the contents of
the largest container in the drainage
area plus an allowance for drainage
from a 25-year. 24-hour precipitation
event.
(b) Material storage areas for section
313 water priorfty chemicals other than
liquids. Material storage areas for
section 313 water priority chemicals
ther than liquids which are subject to
runoff, leaching. or wind blowing shall
incorporate drainage or other control
features which will minimize the
discharge of section 313 water priority
chemicals. Drainage control shall
minimize storm water contact with
section 313 water priority chemicals.
(ci Truck and roil car loading and
unloading areas for liquid section 313
water priority chemicals shall contain
sufficient secondary containment or
treatment capacity to hold or treat the
largest tank truck or rail car or the
largest compartment of a tank truck or
rail car if the tanks are compartmented.
which is loaded or unloaded at the
facility. If secondary containment is
provided in the treatment system. it
must be designed so that adequate
hydraulic capacity always exists to
contain a spill of the largest container
from the loading and unloading areas,
including an allowance for drainage
from a 25.year. 24.hour precipitation
event.
(d) In plant areas where section 313
water priority chemicals ore
transferred. processed or otherwise
handled. piping. processing equipment
and materials handling equipment shall
be designed and operated so as to
prevent discharges of section 313
chemicals. Materials used in piping and
equipment shall be compatible with the
substances handled. Drainage from
process and materials handling areas
shall be designed as described in
paragraphs (a). (b) and (C) of this
section. Additional protection such as
covers or guards to prevent wind
blowing, spraying or releases from
pressure relief vents from causing a
discharge of Section 313 water priority
chemicals to the drainage system shall
be provided as appropriate
(e) Discharges from areas covered by
paragraphs (a). (bJ. (C) or Id)
(i) Drainage from areas covered by
paragraphs (a), (b). (c) or (d) of this part
shall be restrained by valves or other
positive means to prevent a spill or
other excessive leakage of section 313
water priority chemicals into the
drainage system. Containment areas
may be emptied by pumps or ejectors;
however, these shall be manually
activated.
(ii) Flapper-type dram valves shall not
be used to drain containment areas.
Valves used for the drainage of
containment areas shall, as far as is
practical. be of manual. open-and-closed
design.
(iii) If plant drainage is not engineered
as above, the final discharge of all in-
plant storm sewers should be equipped
to be equivalent with a diversion system
that could, in the event of an
uncontrolled spill of section 313 water
priority chemicals, return the spilled
material to the facility
(iv) Records shall be kept of the
frequency and estimated volume (in
gallons) of discharges from containment
areas.
(fl P/ant site runoff other than from
areas covered by (a). (bJ. Ic) or (d).
Other areas of the facility (those not
addressed in paragraphs (a). (b). (c) or
(d)). from which runoff which may
contain section 313 water priority
chemicals or spills of section 313 water
priority chemicals could cause a
discharge shall incorporate the
necessary drainage or other control
features to prevent discharge of spilled
or improperly disposed material and
ensure the mitigation of pollutants in
runoff or leachate.
(g) Preventive maintenance and
housekeeping. All areas of the facility
shall be inspected at specific intervals
for leaks or conditions that could lead to
discharges of section 313 water priority
chemicals or direct contact of storm
water with raw matenals, intermediate
materials, waste materials or products
hi particular, plant piping, pumps.
storage tank. and bins, pressure vessels.
process and material handling
equipment. and material bulk storage
area shall be examined for any
conditions or failures which could cause
a discharge. Inspection shall indude
examination for leaks, wind blowing.
corrosion, support or foundation failure.
or other forms of deterioration or
noncontainnient. Inspection intervals
shall be specified in the plan and shall
be based on design and operational
experience Different areas may require
different inspection intervals. Where a
leak or other condition is discovered
which may result in significant releases
of section 313 water priority chemicals
to the drainage system. corrective action
shall be immediately taken or the unit or
process shut down until correct:ve
action can be taken. When a leak or
noncontauunent of a section 313 water
priority chemical has occurred.
contaminated soil, debris, or other
material must be promptly removed and
disposed in accordance with Federal.
State. and local requirements and as
described in the plan.
(h) Fac,hty security. Facilities shall
have the necessary security systems to
prevent accidental or intentional entry
which could cause a discharge. Security
systems described in the pian shall
address fencing, lighting, vehicular
traffic control, and securing of
equipment and buildings.
(i) Training. Facility employees and
contractor personnel using the Facility
shall be trained in and informed of
-------
40998
Federal Register I Vol. 56. No.159 / Fnday. August 16. 1991 I Proposed Rules
ventive measures at the facility.
Employee training shall be conducted at
intervals specified in the plan. but not
tess than once per year. in matters of
pollution control laws and regulations.
and in the storm water pollution
yJ NcutoIi plan and the particular
features of the facility and its operation
which are designed to miniini,e
ll hnrges of section 313 water priority
“cels . The plan shall designate a
pm’aon who is accountable for spill
prevention at the facility and who will
set up the necessary spill emergency
procedures and reporting requirements
so that spil!s and emergency releases of
section 313 water priority chemicals can
be isolated arid contained before a
discharge of a section 313 water priority
chemical can occur. Contractor or
temporary personnel shall be informed
of plant operation and design features itt
cider to prevent discharges or spills
from occurring.
(I) Engineering Certification. No storm
water pollution prevention plan for
facilities subject to SARA title Ill.
section 313 requirements for chemicals
which are class f ed as “Section 313
water prioriy chemicals” shall be
effect:ve to satisfy the requirements of
part m.C.4.g of this permit unless it has
been reviewed by a Registered
Ptofesaional Engineer and certified to by
such Professional Engineen A
Registered Professional Engineer shall
recertify the plan every three year.
thereafter. By means of these
certifications the engineer, having
examined the facility and being familiar
with the provisions of this part. shall
attest that the storm water pollution
prevention plan has been prepared in
accordance with good engineering
practices. Such certifications shall in no
way reiieve the owner or operator of a
facility covered by the plan of their duty
to prepare and fully implement such
plan..
(Option B—Under option B. facilities
subject to SARA title IlL section 313
would not be subject to the
requirement . of part ULC.4.f. Such
facilities would remain subject to other
applicable requirements of parts In
(baseline plan requirements) and IV
( f!!uent timitatlcns). In addition, under
Option B. the monitoring frequencies for
such facilities could be raised from
biannuaLly (2 tImes per year) (see part
V 8.1 of this permit) to monitoring of
discharges at a higher frequency (e g.
quarterly).)
g. Salt stor age. Storage piles of salt
•zsed for daicing or other commercial or
industrial purposes shall be enclosed or
covered to prevent exposure to
precipitation.
5. ..4lteniative requirements for
COnstruCtion activities. Operations that
discharge storm water associated with
industrial activity from construction
activities are not subject to the
requirements of part lfl.C.4 of this
permit. but are instead subject to the
following requirements. The storm water
pollution prevention plan shall Include
the following items:
a. Site description. Each plan shall
provide a description of the following
(1). A description of the nature of the
construction activity:
(2). Estimates of the total area of the
site and the area of the site that is
expected to undergo excavation or
graciing
(3). An estimate of the runoff
ccefficlent of the site and existing data
describing the soil or the quality of any
discharge from the site:
(4). A site map indicating drainage
patterns and approximate slopes
anticipated after major grading
activities, the location of major control
structures identified in the plan, and
surface waters: and
(5). The name of the receiving water(s)
and the ultimate receivmg water(s).
b. Cont.rols. Each construction
operation covered by this permit shall
develop a description of controls
appropriate for the facility, and
implement such controls. The
description of controls shall address the
following minimum components:
(1). Erosion and sediment controls.
(a). Vegetative practices. A
description of vegetative practices
designed to preserve existing vegetation
where attainable and revegetate open
areas as soon as practicable after
grading or construction. Such practices
may include: temporary seeding,
permanent seeding, mulching, sod
stabilization, vegetative buffer strips.
and protection of trees. The operator
shall initiate appropriate vegetative
practices on all disturbed areas within 7
calendar days of the last activity at that
area.
(b). Structural practices. A description
of structural practices to the degree
attainable divert flows from exposed
soils, store flows or ctherwise limit
runoff from exposed areas of the site.
Such practice. may include straw bale
dikes. silt fences, earth dikes, brush
barriers, drainage swales, check dams.
subsurface dram. pipe slope driin. level
spreaders. storm drmiri inlet protection.
rock outlet protection, sediment traps.
and temporary sediment basins.
(i) For sites with more than 10
disturbed acres at one time which are
served by a common drainage location.
a detention basin providing storage or
equivalent controls for runoff from
disturbed areas from a 10 year, 24.hour
storm, shall be provided where
attainable. For drainage locations with
more than 10 dIsturbed acres at one tim&
which are served by a common drainage
location where a detention basin
providing storage or equivalent controls
for runoff from disturbed areas from aW
year. 24-hour storm is not attainable, silt
fences, straw bale dikes, or equivalent
sediment controls are required for all
sideslope and downslope boundaries of
the construction area.
(ii) For drainage locations serving 10
or less acres, silt fences, straw bale
dikes, or equivalent sediment controls
are required for all sadeslope and
downslope boundaries of the
construction area or a detention basin
providing storage for runoff from
disturbed areas from a 10 year. 24-hour
storm shall be provided.
(2). Storm water managemenL A
description of measures to control
pollutants in storm water discharges
that will occur after construction
operations have been completed. Such
practices may include: infiltration of
runoff onsite; flow attenuation by use of
open vegetated swales and natural
depressions; storm water retention
structures and storm water detention
structures. Where such control. are
needed to prevent or minimize erosion.
velocity dissipation devices shall be
placed at the outfall of all detention or
retention structures and along the length
of any outfall channel as necessary to
provide a non-erosive velocity flow from
the structure to a water course.
Justification shall be provided by the
permittee for rejecting each practice
based on site conditions.
(3). Oher controls.
(a). Waste disposal. No solid waste.
including building materials, shall be
discharged.
(b) Off.site vehicle tracking of
sediments shall be minimtzed.
(c). The plan shall ensure and
demonstrate compliance with applicable
State or local waste disposal. sanitary
sewer or septic system regulations.
(4). Approved state or local plans.
Facilities which discharge storm water
associated with industrial activity from
construction activities must-include in
their storm water pollution prevention
plan procedures and requirements
specifled in avp!icable sediment a d
erosion site plans or storm water
management plans approved by State or
local officials. Applicable requirements
specified in sediment and erosion p!3 s
or storm water management plans
approved by State or local officf its are.
upon subrr.:ttul of an NO! to be
-------
Federal Resister / Vol. 58. No. 159 I Friday. August 16. 1991 / Proposed Rules
40999
authorized to discharge under this
permit. incorporated by reference and
a ’e enforceable under this permit even if
they are not specifically included In a
storm water pollution prevention plan
required under this permit Operators of
facilities seeking alternative permit
requirements shall submit an Individual
permit application in accordance with
part l.C.2 of the permit, along with a
desciiption of why requirements in
approved State or local plans should not
be applicable as a condition of an
NPDES permit
(5). Maintenance. A description of
procedures to maintain in good and
effective operating condition vegetation.
erosion and sediment control measures
and other protective measures identified
in the site plan. Procedures In a plan
shall provide that all erosion controls on
the site are inspected at least once every
seven calendar days.
(6). All storm water pollution
prevention plans required under this
permit are considered reports that shall
be available to the public under section
308(b) of the CWA. The owner or
onerator of a facility with storm water
discharges covered by this permit shall
make plans available to members of the
public upon request by the public.
However, the permittee may claim any
portion of a storm water pollution plan
as confidential in accordance with 40
CFR part 2.
(7). No condition of this permit shall
release the permittee from any
responsibility or requirements under
other environmental statutes or
regulations.
Part IV Numeric Effluent Limitoiions
A. SARA title III. section 313
Facilities. The effluent (100%) composed
in part or in whole of storm water
associated with industrial activity from
facth :es subject to reporting
requirements pursuant to SARA titJe Ill.
section 313 for chemicals which are
classified as “section 313 water priority
chemicals” that comes into contact with
any eqwpment. tank, container or other
vessel used for storage of a section 313
chemical, or located at a truck or rail car
loading or unloading area, shall not be
lethal to 20% or more of the more
sensitive of either appropriate fish or
invertebrate test organisms (96 hour
static replacement toxicity tests (96-hr.
LC2O> 100% effluent) for fish test
organisms and 48 hour static
replacement toxicity tests (48-hr. LC2O
> 100% effluent) for invertebrate teat
organisms). Failure to demonstrate
compliance with the acute whole
effluent toxicity requirement after the
“ompliance date of three years after the
te of issuance of this permit will
constitute a violation of thia permit (see
part V.D of this permit). Any untreated
overflow from facilities designed.
constructed and operated to treat the
volume of runoff from areas identified
above which is associated with a 25
year. 24 hour rainfall event shall not be
subject to the limitations of this part.
B. Coo/pile ,vnoff. Subject to the
provisions of part IV.D. any composed
in part or in whole of coal pile runoff
shall not exceed a maximum
concentration for any time of 50 mg/I
total suspended solids. The pH of such
discharge. shall be within the range of
6.0-9.0. Any untreated overflow from
facilities designed. constructed and
operated to treat the volume of coal pile
runoff which is associated with a 25
year. 24 hour rainfall event shall not be
subject to the limitations of this part.
Part V. Monitoring and Reporting
Requirements
A. Failure to Certify. Any facility that
is unable to provide the certification
required under paragraph ULC.4.b (11)
(testing for illicit connections), must
notify the Director within 180 days of
the effective date of this permit Such
notification shall describe: the
procedure of any test conducted for the
presence of non-storm water discharges:
the results of such test or other relevant
observations: potential sources of non-
storm water discharges to the storm
sewen and why adequate tests for such
storm sewers were not feasible.
B. Monitoring Requirements:
1. Section 313 of SARA title Ill
facilities. During the period beginning on
the effective date and lasting through
the expiration date of this permit.
facilities subject to requirements to
report releases (nto the environment
under section 313 of SARA title Ifl for
chemicals which are classified as
“section 313 water priority chemicals”
are subject to the following monitoring
requirements for storm water discharges
associated with industrial activity that
are discharged from any containment
area:
a. Parameters. The parameters to be
measured include: Oil and Grease (mgi
L): Five Day Biochemical Oxygen
Demand (BOD5) (mg/LI; chemical
Oxygen Demand (COD) (mg/Li; Total
Suspended Solids (mg/I.); Total Kjeldahl
Nitrogen (‘I’KN) (mg/L); Total
Phosphorus (mg/I.): pH: acute whole
effluent toxicity: and any Section 313
water priority chemical for which the
facility is subject to reporting
requirements under section 313 of the
Emergency Planning and Community
Right to Know Act of 1986. In addition:
the date and duration (iii hours) of the
storm event(s) sampled; rainfall
measurements or estimates (in Inches)
of the storm event which generated the
sampled rimoff the duration between
the storm event sampled and the end of
the previous measurable (greater than
0.1 inch rainfall) storm event: and en
estimate of the total volume (in gallons)
of the discharge sampled shall be
provided.
b. Frequency of Monitoring. Sampling
shall be conducted at least semi-
annually (2 time. per year) except as
provided by paragraph V.8.10. V.B..ii or
V.C.1:
2. Primary metal Industries. During the
period beginning on the effective date
and lasting through the expiration date
of this permit, facilities classified as
Standard Industrial Classification (SIC)
33 (Primary Metal Industry) are subject
to the following monitoring requirements
for storm water discharges associated
with industrial activity that are
discharged from the facility:
a. Parameters. The parameters to be
measured include: oil and grease (mg/L).
five day biochemical oxygen demand
(BOD5) (mg/U: chemical oxygen
demand (COD) (mg/Li: total suspended
solids (mg/I.); total Kjeldahl nitrogen
(TKN) (mg/L); nitrate plus nitrite
nitrogen (mg/L); total phosphorus (ing/
L); pH acute whole effluent toxlcnty
total lead (mg/L); total cadmium (mg/I.):
total copper (mg/LI; total arsenic (mg/
I.): and total chromium (mg/L). In
additioni the date and duration (in
hours) of the storm event(s) sampled.
rainfall measurements or estimates (in
inches) of the storm event which
generated the sampled runoff; the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event and an estimate of
the size of the drainage area (in square
feet) and an estimate of the runoff
coefficient of the drainage area (e.g. lcw
(under 40%). medium (40% to 65%) or
high (above 65%)) shall be providedi
b. Frequency of monitoring. Sampling
shall be conducted at least semi-
annually (2 times per year) except as
provided by paragraph V.8.10. V.B.11 or
V.C.1;
3. Land disposal units. During the
penod beginning on the effective date
and lasting through the expiration date
of this permit. storm water discharges
associated with industrial activity from
any active or inactive landfill, land
application site, or open dump that
received any industrial wastes are
subject to the following monitoring
requirements:
a. Parameters. The parameters to be
measured include: Ammonia (mg/Li.
-------
41060
Federal Register L Vol. 56. No. 159 I Friday. August 18. 991 / Propcscd Rules
Bica_-bonate (mg/L), Calcium (rug/LI.
Chloride (mg/LI, Total Iron (mg/LI,
Magnesium (total) (mg/LI. Magnesium
(dissolved) (rug/L), nitrate plus nitrite
nitrogen (mg/U, Potassium (mg/U),
Sodium (mg/U). Sulfate (mg/U),
Chemical Oxygen Demand (COD) (mg i
L), Total Dissolved Solids (TDS) (mg/LI,
Total Organic Carbon (TOC) (mg/L). oil
and grease (mg/U), pH. Total Arsenic
(mg/Li. Total Barium (mg/L). Total
Cadmium (mg/U). Total Chromium (mgi
U. Total C anide (tng/L). Total Lead
(mg/U). Total Mercury (mg/L). Total
Selen:um (mg/LI. Total Sliver (mg/LI.
acute whole effluent toxicity. In
addition: the date and duration (in
hours) of the storm event(s) sampled;
rainfall measurements or estimates (in
inches) of the storm event which
generated the sampled runoff the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event and an estimate of
the total volume (in gallons) of the
discharge samtled shall be provided:
b. Frequency of monitoring. Sampling
shall be conducted at least semi-
ar.nually (2 times per year) except as
provided by paragraph V.B.10. V 0.11 or
V.C.1:
4. Wood treatment (ch/orophenolic/
creosote forraulationsi. During the
period beginning on the effective date
end lasting through the expiration date
of this permit, storm water discharges
associated with industrial activity from
areas that are used for wood treatment
wood surface application or storage of
treated or surface protected wood at
any wood preserving or wood surface
facilities that currently use
chiorophenolic formulations and/or
creosote formulations are subject to the
following monitoring requirements:
a. Parameters. The parameters to be
measured include: oil and grease (mg/U),
pH. 80D5 (mg/LI. COD (mg/LI. TSS
(mg/L). total phosphorus (mg/U). total
Kjeldahl nitrogen (mg/Li. nitrate plus
nitrite nitrogen (mg/LI. acute whole
effluent toxicity, and pentachlorophenol
(mg/U). In additloni the date and
duration (in hours) of the storm event(s)
sampled: rainfall measurements or
estimates (In inches) of the storm event
which generated the sampled runoff the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event and an estimate of
the size of the drainage area (in square
feet) and an estimate of the runoff
coefficient of the drainage area (e.g. low
(under 40%). medium (40% to 65%) or
high (above 65%)) shall be provided;
b. Frequency of monitoring. Sampling
shall be conducted at least semi-
annually (Z times per year) except as
provided by paragraph V.B.10. V.B.11 or
V.C.1:
5. Wood treatment (arsenic or
chromium preservati yes). During the
period beginning on the effective date
and lasting through the expiration date
of this permit, storm water discharges
associated with industrial activity from
areas that are used for wood treatment
or storage of treated wood at any wood
preserving facilities that currently use
inorganic preservatives containing
arsenic or chromium are subject to the
following monitoring requirements:
a. Parameters. The parameters to be
measured include: oil and grease (mg/U.
pH. BOD5 (ing/U). COD (mg/U). TSS
(mg/L). total phosphorus (mg/U. total
Kjeldahl nitrogen (mg/LI. nitrate plus
nitrite nitrogen (mg/U). total arsenic
(mg/Li. total chromium (mg/L), and total
copper (mg/U). In addition: the date and
duration (in hours) of the storm event(s)
sampled; rainfall measurements or
estimates (in inches) of.the storm event
which generated the sampled runoff; the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event; and an estimate of
the size of the drainage area (in square
feet) and an estimate of the runoff
coefficient of the drainage area (e.g. low
(under 40%). medIum (40% to 65%) or
high (above 85%)) shall be provided
b. Frequency of monitoring. Sampling
shall be conducted at least semi-
annually (2 times per year) except as
provided by paragraph V.0.10 or V.0.11;
6. Coo/pile runoff During the period
beginning on the effective date and
lasting through the expiration date of
this permit, storm water discharges
associated with industrial activity from
coal pile runoff are subject to the
following monitoring requirements:
a. Poran-goters. The parameters to be
measured include: oil and grease (mg/Li.
pH, ss (mg/LI. copper, nickel and zinc.
In additioin the date and duration (in
hours) of the storm event(s) sampled:
rainfall measurements or estimates (in
Inches) of the storm event which
generated the sampled runoth the
duration between the storm event
sampled end the end of the previous
measurable (greater than 0.1 inch
ramfill) storm event and an estimate of
the size of the drainage area (in square
feet) and an estimate of the runoff
coefficient of the drainage area (e.g. low
(under 40%). medium (40% to 65%) or
high (above 65%)) shall be provided;
b. Frequency of monitoring. Sampling
shall be conducted at least semi-
annually (2 times per year) except as
provided by paragraph V.B.1o or V.8.11:
7. Oil and gas exploration or
production operations. During the period
beginning on the effective date and
lasting through the expiration date of
this permit, storm water di3charges
associated with industrial activity from
oil and gas exploration or production
operations are, except as provided in
part V.B.7.c. subject to the following
monitoring requirements:
a. Parameters. The parameters to be
measured include: oil and grease (mg/LI.
pH, BOD5 (mg/L). COD (mg/U. TSS
(mg/LI. total phosphorus (mg/L). total
Kjeldahl nitrogen (mg/LI. nitrate plus
nitrite nitrogen (mg/U). and any
pollutant limited in an effluent guideline
to which the facility is subject. In
addition: The date and duration (in
hours) of the storm event(s) sampled:
rainfall measurements or estimates (in
inches) of the storm event which
generated the sampled runoff: the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) stcrm event: and an estimate ci
the size of the drainage area (in sQuare
feet) and an estimate of the runoff
coeffic:ent of the drainage area (e.g. low
(under 40%), medium (40% to 65%) or
high (above 65%)) shall be provided:
b. Frequency of monitoring. Sampling
shall be conducted at least annually (1
time per year) except as provided by
paragraph V.0.10 or V.0.11:
c. £ngineenng certification. In lieu of
the monitoring requirements specified in
parts VB.7.a and b. a facility may have
a Registered Professional Eagineer
certify that a storm water pollution plan
has been prepared and Is being
implemented in accordance with the
requirements of part ffl.C. A Registered
Professional Engineer shall recertify the
plan every three years. By means of
these certifications the engineer, having
examined the facility and being familiar
with the provisions of this part, shall
attest that the storm water pollution
prevention plan has been prepared in
accordance with good engineering
practices. Such certifications shall in no
way relieve the owner or operator of a
facility covered by the plan of their duty
to prepare and fully implement such
plan.
& Other facilities. During the period
beginning on the effective date and
lasting through the expiration date of
this permit. storm water discharges
associated with industrial activity which
are covered by this permit, but are not
subiect to sampling requirementa under
parts V.8.1 through V.8.7 are sublect to
the following monitoring requirements:
a. Parameters. The parameters to be
measured include: oil and grease (mg/L).
-------
Federal Reginter / VoL 56. No. 159 1 Friday. August 18. 1991 / Proposed Rules
•1 •‘4•
L .1.. 1
pH. SODS (mg/I). COD (trig/LI. TSS
mg/L). total phosphorus (mg/L), total
rZ eldahl nitrogen (mg/I). nitrate plus
nitrite nitrogen (mg/U. and any
ooHu!ant limited in an effluent guideline
to which the facility is subject. In
addition: The date and duration (in
hours) of the storm event(s) sampled:
ainfall measurements or estimates (in
inches) of the storm event which
gcnerated the samplad runoff; the
duration between the storm event
sampled and the end of the previous
measurable (greater than 0.1 inch
rainfall) storm event; and an estimate of
the size of the drainage area (in square
feet) and an estimate of the runoff
cieiflcient of the drainage area (e.g. low
(under 40%). medium (10% to 65%) or
h; h (above 65%)) shall be provided:
b. Frequency of mon:tonng. Sampling
shall be conducted at least annually (1
ii.iie per year) except as provided by
paragraph V.B.10 or V.B.11.
9. Sample type. For discharges from
hclding ponds or other impoundments
with a retention period greater than 24
hours (estimated by dividing the volume
of the detention pond by the estimated
volume of water discharged during the
24 hours previous to the time that the
sample is collected), a minimum of one
grab sample may be taken. For all other
.lischarges. data shall be reported for
coth a grab sample and a composite
sample. All such samples shall be
collected from the discharge resulting
from a storm event that is greater than
0.1 inches in magnitude and that occurs
at least 72 hours from the previously
measurable (greater than 0.1 inch
sinfall) storm event. The grab sample
snatl be taken during the rirst thirty
n :nutes of the discharge. If the
collection of a grab sample during the
first thirty .‘runutea is impracticable, a
grab sample can be taken during the
first hour of the discharge, and the
discharger shall submit with the
monitoring report a description of why a
grab sample during the first thirty
mmr.u es was impracticable. The
conipos:te sample shall either be flow-
weighted or time-weighted. Composite
samples may be taken with a continuous
saniplar or as a combination of a
minimum of three sample aliqucts 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. Only grab samples must
be collected and analyzed for the
determination of pH. cyanide, and oil
and grease.
10. Sampling waiver. When a
discharger is unable to collect samples
due to adverse climatic conditions, the
discharger must submit in lieu of
sampling data a description of why
samples could not be collected.
including available documentation of
the event. Adverse climatic conditions
which may prohibit the collection of
samples includes weather conditions
that create dangerous conditions for
personnel (such as local flooding, high
winds, hurricane, tornadoes, electrical
storms. etc.) or otherwise make the
collection of a sample impracticable
(drought. extended frozen conditions.
etc.).
11. Representative discharge. When a
facility has two or more outfalls that.
based on a consideration of features and
activities within the area drained by the
outfall, the perinittee reasonably
believes discharge substantially
identical effluents, the permittee may
test the effluent of one of ouch outfalls
and report that the quantitative data
also applies to the substantially
identical outfalls. In addition, for each
outfall that the perinittee believes is
representative, an estimate of the size of
the dra:nage area (in square feet) and an
estimate of the runoff coefficient of the
drainage area (e.g low (under 40%).
medium (40% to 85%) or high (above
65%)) shall be provided.
C. Toxicity testing. In accordance
with Parts IV and V of this permit.
permittees that are required to monitor
for acute whcle effluent toxicity shall
initiate the series of tests described
below within 180 days after the issuance
of this permit or within 30 days after the
commencement of a new discharge.
1. The permittee shall conduct an
acute 48 hour static replacement toxicity
test on an appropriate invertebrate test
species (EPA/600/4—85/013, Table 1)
and an acute 96 hour static replacement
toxicity test using an appropriate fish
test species (EPA/60014—85/013, Table
I). (Recommer.da Lion: A Daphrudae
species, and the fathead minnow
(Pimephales promelas)). All test
organisms, procedures and quality
assurance criteria used shall be in
accordance with Methods for Measuring
the Acute Toiucaty of Effluent to
Freshwater and Marine Organisms.
EPA-eoOf4—85/013 (Rev. Match 1985).
EPA has proposed to establish
regulations regarding these test methods
(December 4, 1989. (53 FR 50210). Tests
shall be ccnducted semiannually. Such
tests shall be conducted on a grab
sample of the discharge at 100% strength
(no dilution). Compliance with the acute
whole effluent toxicity limit of no
significant difference from the control at
the 95% confidence interval will be
determined using the “t-test” statistical
method described in Appendix H of
Short-Term Methods for Estimatino th
Chronic Toxicity of Effluents and
Receiving Waters to Freshwater
Organisms (Second Edition. EPA/6O0 4—
89/001. March 1989 and subsequent
editions). Results of all tests conducted
with any species shall be reported
according to EPA/600/4—85/013. Section
3. Report Preparation and Data
Utilization, or its latest revision, and
shall be submitted to EPA with the
quarterly discharge monitoring report.
The permittees monthly Discharge
Monitoring Reports (DMR’s) will report
0’. if there is no statisttcal difference
between the control mortality and the
effluent mortality $
2. II acute whole effluent toxicity is
found in storm water discharges sub;ect
to the effluent limitation of Part (VA in
any samples collected after the
cempliance date of two years after the
date of issuance of this permit. it will
constitute a violation of this permit. The
permittee will then be subject to the
enforcement provisions of the Clean
Water Act. in the event a violation of
toxicity limits results in an enforcement
action, any different or more stringent
monitoring requirements imposed in that
enforcement action shall apply in lieu of
the requirements of this permit condihon
for whatever period of time is specified
by EPA in the enforcement action.
3. 11 acute whole effluent toxicit) is
detected in storm water discharges
subject to the effluent limitation of part
(V.A before the compliance date of two
years after the date of issuance of this
permit. and it is determined by the
permit issuing authority that a toxicity
reduction evaluation (TRE) is necessary,
the permittee shall be so notified and
shall initiate a TRY . immediately
theresiter. The purpose of the TRE wi!l
be to establish the cause of the toxicity.
tn order to provide consaliency with other
permits written in Region Viii. the percuss for
diachsrges In CO. WY. MT. ND and UT would
substitute the f&lowing language Ice Peal V C.i’
‘The permits. shah conduct an aciute 45.bour static
replacement toxicity tart using C iodapMaa up.
and en acute 96-hour isaac replacement toxicity test
unrig f.thead miwiows. The replacement static
toxicity tests eball be conducted in general
accordance with the procedures set out In the steal
revision of “Methods far Macluring the Acute
Torucity of Efftuenta to Fresliwete, sad Manna
Organisms”. A —96OI4..8$-OI3 (Rev. March 1985)
end the ‘Region Vifl ‘A NPD Acute Test
Condition,—Stebc Renewal Whole Effluent
Toxicity Tests Tests .h.li be conducted
semiannually Such tests shall be conducted c ii a
grab sample of the discharge at im% strength (no
dilution) Alter four (4) sets of tests of two (2)
species, the peinunse may limit aabaequeut ceauzig
Ia the most sensitive of the two (2) species. based
on the results of the previous tests Results of all
tests shaU be reported In e format consIstent with
th. latest ,evla ion of the ‘Region Viii Guidance Ear
Acute Whole Effluent Reporting”, sod shall ,ncluce
all chemical and physical data su speauhsid.
-------
.41002
Federal Register , Vol. 56. No. 159 I. Friday,. August 161 1991 I. Proposed.Rules
locate the source(s) of the toxicity, and
control or provide treatment for the
toxicity priority to the compliance date
of two years after the date of issuance
of this permit
D. Noncompliance reporting:
1. Anticipated noncompliance. The
perrnittee shall give advance notice. if
possible, at least ten days before the
date of any planned changes in the
permitted facility or activity which may
result In any bypass. upset. or other
noncompliance with permit
requirements.
2. Unanticipated bypass or upset. The
permittee shall submit notice of an
unanticipated bypass or upset Any
information regarding the unanticipated
bypass or upset shall be provided orally
within 24 how, from the time the
permittee became aware of the
circumstances. A written submission
shall also be provided within 5 days of
the time the permittee became aware of
the circumstances. The written
submission shall contain a description
of the bypass or upset and its cause: the
period of the bypass or upset. including
exact dates and tunes. and if the bypass
or upset has not been corrected, the
anticipated time it is expected to
continue; and steps taken or planned to
reduce, eliminate, and prevent
reoccurrence of the bypass or upset.
E. Reporting: where to submit.
1. a. Perinittees which are required to
conduct sampling pursuant to parts
V.8 .1. V.8.2. and V.8.3 must submit
monitoring results obtained during the
previous 8 months on Discharge
Monitoring Report Form(s) postmarked
no later than the 28th day of the month
following the completed reporting
period. The reports are due on the 28th
day of January and July. The first report
may indude less than the 6 months of
information.
b. Permittees which are required to
conduct sampling pursuant to parts
V.8.4, V.8.5, and V.8.0 must submit
monitoring results obtained during the
previous 8 months on Discharge
Monitoring Report Form(s) postmarked
no later than the 28th day of the month
following the completed reporting
period. The reports are due on the 28th
day of April and October. Th. first
report may Include less than the 6
months of Information.
c. Signed copies of discharge
monitoring reports required under parts
V.E.1.a and V.E.i.b. and all other reports
required herein, shall be submitted to
the Director of the NPDES program at
the following address:
Regional Office
2. Except as provided in part V.E.1 of
this permit. for discharges subject to
sampling requirements pursuant to parts
V.8.7 and V.8.8. pernuttees are not
required to submit monitoring results
pursuant to part V.E.1. However, such
permittees must retain monitoring
results in accordance with part V.P.
3. Additional Notification. Facilities
with at least one storm water discharge
associated with industrial activity
through a large or medium municipal
separate storm sewer system (systems
serving a population of 100,000 or more)
in addition to filing copies of discharge
monitoring reports in accordance with
paragraph V.E.1, must submit signed
copies to the operator of the municipal
separate storm sewer system of
monitoring results obtained during the
previous 6 months on Discharge
Monitoring Report Form(s) postmarked
no later than the 28th day of the month
following the completed reporting
period. For permittees which are
required to conduct sampling pursuant
to parts V.8.1. V.8.2, and V.B.3 the
reports are due on the 28th day of
January and July. For permittees which
are required to conduct sampling
pursuant to parts V.B.4. V.8.5. and V B.6
the reports are due on the 28th day of
April and October. The fust report may
include less than the 8 months of
information.
F. Retention of records:
1. The permittee shall retain records
of all monitoring information, copies of
all reports required by this permit, and
records of all data used to complete the
Notice of Intent to be covered by this
permit, for a period of at least three
years from the date of the measurement.
report, or application. This period may
be explicitly modified by alternative
provisions of this permit (see Part V.F.2
of this permit) or extended by request of
the Director at any time.
2. For discharges subject to sampling
requirements pursuant to part VS., in
addition to the requirements of part
V.F.1. permittees are required to retain
for a three-year period from the data of
sample collection or for the term of this
permit, which ever is greater. record. of
all monitoring information collected
during the term of this permit
Permittees must submit such monitoring
results to the Director upon the request
of the Director, and submit a summary
of such result as par! of renotificatlon
requirements in accordance with part
ILF.
Part Vi. Standard Permit Conditions
A. Duty to Comply. The permittee
must comply with all conditions of this
permit. Any permit noncompliance
constitutes a violation of CWA and is
grounds for enforcement action; for
permit termination, revocation and
reissuance. or modiflcation or for denial
of a permit renewal application.
I. Toxic pollutants. The perinittee
shall comply with effluent standards or
prohibitions established under section
307(a) of the CWA for toxic pollutants
within the time provided in the
regulations that establish these
standards or prohibitions, even if the
permit has not yet been modified to
incorporate the requirement
Z Penalties for violations of permit
conditions. Section 309 of the CWA
provides significant penalties for any
person who violates a permit condition
implementing sections 301. 302. 306. 307.
308. 318, or 405 of the CWA. or any
permit condition or linutation
implementing any such sections in a
permit issued under section 402. Any
person who violates any permit
condition of this permit is subject to a
civil penalty not to exceed $25,000 per
day of such violation, as well as any
other appropriate sanction provided by
section 309 of the CWA.
B Cont:nuar:on of the expired generd
permit. An expied general permit
continues in force and effect unttl a new
general permit is issued. Only those
facilities authorized to discharge under
the expiring general permit are covered
by the continued permit
C. Need to halt or reduce activity not
a defense. It shall not be a defense for a
permittee in an enforcement action that
it would have been necessary to halt or
reduce the permitted activity in order to
maintain compliance with the conditions
of this permit.
D. Duty to mitigate. The permittee
shall take all reasonable steps to
minimize or prevent any discharge in
violation of this permit which has a
reasonable likelihood of adversely
affecting human health or the
environment
£ Duty to provide information. The
permittee shall furnish to the Director.
within a reasonable time, any
information which the Director may
request to determine compliance with
this permit The permittee shall also
furnish to the Director upon request
copies of records required to be kept by
this permit.
F. Other informatiom When the
permittee becomes aware that he or she
failed to submit any relevant facts or
submitted incorrect information in the
Notice of Intent or in any other report to
the Director, he or she shall promptly
submit such facts or information.
C. Sign atoiy requirements. All
Notices of Intent, storm water pollution
prevention plans, reports. certifications
or information either submitted to the
Director or the operator of a large or
-------
Federal Register I Vol.’ 56. No. 159’ I Friday. August 16. 1991 I Proposed Rules
•t .jUJ
medium municipal separate storm sewer
system, or that this permit requires be
maintained by the permittee. shall be
signed.
1. All Notices of Intent shall be signed
as follows:
a. For a corporation: By a responsible
corporate officer. For the purpose of this
section. a responsible corporate officer
means:
(1) A president, secretary, treasurer.
or vice-president of the corporation in
charge of a principal business function,
or any other person who performs
similar policy or decision-making
functions for the corporation: or
(2) The manager of one or more
manufacturing, production or operating
facilities employing more than 250
persons or having gross annual sales or
expenditures exceeding S25.000.000 (in
second-quarter 1980 dollars) if authority
to sign documents has been assigned or
delegated to the manager in accordance
with corporate procedures:
b. For a partnership or sole
proprietorshzp By a general partner or
the proprietor, respectively: or
c. For a municipality: State. Federal.
or other public agency’ by either a
principal executive officer or ranking
elected official. For purposes of this
section. a principal executive officer of a
Federal agency includes (1) the chief
executive officer of the agency, or (2) a
senior executive officer having
responsibility for the overall operations
of a principal geographic unit of the
agency (e g. Regional Administrators of
EPA).
2. All reports required by the permit
and other information requested by the
Director shall be signed by a person
described above or by a daly authorized
representative of that person. A person
is a duly authorized representative only
if’
a. The authorization is made in
writing by a person described above
and submitted to the Director.
b. The authorization specifies either
an individual or a position having
responsibility for the overall operation
of the regulated facility or activity, such
as the position of manager. operator.
superintendent, or position of equivalent
responsibility or an individual or
position having overall responsibility for
environmental matters for the company.
(A duly authorized representative may
thus be either a named individual or any
individual occupying a named position).
c. Changes to authorization. If an
authorization under paragraph IV.D.2. is
no longer accurate because a different
individual or position has responsibility
for the overall operation of the facility, a
new authorization satisfying the
requirements of paragraph I D.2 must be
submitted to the Director prior to or
together with any reports. information.
or applications to be signed by an
authorized representative.
H. Certification. Any person signing
documents under this section shall make
the following certification:
I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision in
accordance with a system designed to assure
that qualified personnel properly gathered
and evaluated the information submitted.
Based on my inquiry of the person or persona
who menage the system, or those persons
directly responsible for gathering the
information, the Information submitted is. to
the best of my knowledge and belief. Due,
accurate, and complete. I am aware that there
are significant penatties for submitting false
information. in luding the possibility of fine
and imprisonment for knowing violations.
I. Penalties for falsification of reports.
Section 309(c)(4) oi the Clean Water Act
provides that any person who
knowingly makes any false material
statement, representation, or
certification in any record or other
document submitted or required to be
maintained under this permit. including
reports of compliance or noncompliance
shall, upon conviction, be punished by a
fine of not more than S1O.000. or by
Imprisonment for not more than 2 years.
orby both.
J. Penalties for falsification of
monitoring systems. The CWA provides
that any person who falsifies, tampers
with, or knowingly renders inaccurate
any monitoring device or method
required to be mdintained under this
permit shall, upon conviction, be
punished by fines and imprisonment
described in section 309 of the CWA.
K, Oil and hazardous substance
liability. Nothing in this permit shall be
construed to preclude the institution of
any legal action or relieve the permittee
from any responsibilities. liabilities, or
penalties to which the permittee is or
may be subject under section 311 of the
CWA.
L Property rights. The issuance of tins
permit does not convey any property
rights of any sort, nor any exclusive
privileges, nor does it authorize any
injury to private property nor any
invasion of personal rights. nor any
infringement of Federal. State or local
laws or regulations.
M. Severability The provisions of this
pcrmit are severable, and if any
provision of this permit. or the
application of any provision of this
permit to any circumstance, is held
invalid, the application of such provision
to other circumstances, and the
remainder of this permit shall not be
effected thereby.
N. Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director may
require the operator to apply for ano
obtain an individual NPDES permit a
staled in part l.C.
0 State laws. Nothing in this permi’
shall be construed to preclude the
institution of any legal action or relieve
the permittee from any responsibilities.
liabilities, or penalties established
pursuant to any applicable State law or
regulation under authority preserved by
section 510 of the Act.
P. Proper operation and main te.’ionce.
The pennittee shall at all times prope y
operate and maintain all facilities and
systems of treatment and control (2nd
related appurtenances) which are
installed or used by the permittee to
achieve compliance with the conditior.s
of this permit and with the requirements
of storm water pollution pre ent1on
plans. Proper operation and
maintenance also includes adequate
laboratory controls and appropriate
quality assurance procedures. Proper
operation and maintenance requires &e
operation of backup or auxiliary
facilities or similar systems. insiallea by
a permittee only when necessary to
achieve compliance with the conditions
of the permit.
Q. Monitoring and records:
1. Samples and measurements taken
for the purpose of monitoring shall be
representative of the monitored achy: ty.
2. The permittee shall retain records
of all monitoring information includ:rg
all calibration and maintenance recor 1s
and all original strip chart recordinqs for
continuous monitoring ir.struxnentat lc,.
copies of the reports required by this
permit, and records of all data used o
complete the application foi this permit.
for a period of at least 3 years from tI,
date of the sample, measurement, report
or application. This period may be
extended by request of the Director at
any time.
3. Records contents. Records of
monitoring information shall include:
a. The date, exact place. and time of
sampling or measurements:
b. The initials or name(s) of the
individual(s) who performed the
sampling or measurements:
c. The date(s) analyses were
performed;
d The time(s) analyses were initia’ed;
e The initials or name(s) of the
individual(s) who performed the
analyses:
f. References and written procedures.
when available, for the analytical
techniques or methods used: and
g. The results of such analyses.
including the bench sheets. cistr rnent
-------
-41304
Federal Register I VoL 56. No. 159 f Friday; August 18 i 1 I Proposed Rules
readouts. composer disks or tapes. etc..
used to detennine these results.
4. Manitormg must be conducted
according to test procedures approved
under 40 CFR part 138 unless other test
procedures have been specified in this
permit
5. The C]pan Water Act provides that
any person who falsifies, tampers with,
or knowingly renders inaccurate any
monitoring device or method required to
be maaitained under this permit shall,
upon conviction, be punished by a fine
of not more than $10,000 per violation, or
by imprisonment for not more than 2
years per violation, or by both.
9. Bypass oftreatmentfacilizies:
1. NotIce:
a. Anticipated bypass. If the permittee
knows in advance of the need for a
bypass. he or she shall submit prior
notice. if possible. at least ten days
before the date of the bypass: including
an evaluation of the anticipated quality
and effect of the bypass.
b. Unanticipated bypass. The
permittee shall submit notice of an
unanticipated bypass. Any information
regarding the unanticipated bypass shall
be provided orally within 24 hours from
the time the permittee became aware of
the circumstances. A written submission
shall also be provided within 5 days of
the time the permittee become aware of
the circumstances. The written
submission shall contain a description
of the bypas. and its cause: the period
of the bypass. Including exact dates and
times. and it the bypass has not been
corrected, the anticipated time it Is
expected to continue: and steps taken or
planned to reduce, eliminate, and
prevent reoccurrence of the bypass.
2. Prohibition of bypass:
a. Bypass is prohibited and the
Director may take enforc nt action
against a pm’mittee for a bypass. Unless:
(1). The bypass was unavoidable to
prevent loss of life, personal injury, or
severe property damage:
(2). There were no feasible
alternatives to the bypass, such as the
use of aimIl Py treatment facilities,
retention of untreated wastes. or
maintenance during normal periods of
equipment downtime. This condition Is
not satisfied If the permittee shoul In
the exercise of r.”.on”ble engineering
judgement. have installed adequate
backup equipment to prevent a bypass
which occurred during normal periods of
equipment downtime or preventive
maintenance: and
(3). The permittee submitted notices
as required under Part 9.1 of this
section.
b. The Director may approve an
anticipated bypass after considering its
adverse effects. if the Director
deter’emes that it will meet the three
COndItiOns listed in part VIIL2.a. of this
section.
S. Upset conditions.
1. An upset constitutes an affirmative
defense to an action brought for
noncompliance with technology.based
permit limitations if Lbs requirements of
paragraph 2 below are met. No
determination made during
administrative review of claims that
noncompliance was caused by upset.
and before an action for noncompliance.
- if final administrative action subject to
judicial review.
2. A permittee who wishes to
establish the affirmative defense of an
upset shall demonstrate, through
properly sigued. contemporaneous
operating logs, or other relevant
evidence, that:
a. An upset occurred and that the
permittee can identify the specific
cause(s) of the upset:
b. The permitted facility was at the
time being properly operated:
c. The permit tee submitted notice of
the upset as required under Part V; and
d. The permittee complied with any
remedial measures required under IILF.
3. In any enforcement proceeding the
permittee seeking to establish the
occurrence of an upset has the burden of
proof.
T. Inspection end entry. The permittee
shall allow the Director or an authorized
representative of EPA. the State, or. in
the case of a facility which discharges
through a municipal separate storm
sewer, an authorized representative of
the municipal operator or the separate
storm sewer receiving the discharge,
upon the presentation of credentials and
other docoments as may be required by
law, to:
1. Enter upon the perm1ttee s premises
where a regulated facility or activity is
located or conducted or where records
must be kept under the conditions of this
permit
2. Have access to and copy at
reasonable times, any records that must
be kept under the conditions of this
permit and
3. Inspect at reasonable times any
facilities or equipment (including
monitoring and control equipment).
U. Permit actions. This permit may be
modified, revoked and reissued, or
terminated for cause. The filing of a
request by the permittee for a permit
modification, revocation and reissnance.
or termination, or a notification of
planned changes or anticipated
noncompliance does not stay any permit
condition.
Ptirt VIL Reopener Clause
A. if there is evidence indicating
potential or realized impacts on water
quality due to any storm water
discharge associated with industrial
activity covered by this permit, the
owner or operator of such discharge
may be required to obtain individual
permit or an alternative general permit
in accordance with part LC of this
permit or the permit may be modified to
include different limitations and/or
requirements.
B. Permit modification or revocation
will be conducted according to 40 CTR
122.62.122.63.122.64 and 124.3.
Part VIL Definitions
Best Management Prvaices (BMPs)
means schedules of activities.
prohibitions of practices. maintenance
procedures, and other management
practices to prevent or reduce the
pollution of waters of the United States.
liMPs also include treatment
requirements. operating procedures. and
practices to control plant site r.inoff.
spillage or leaks, sludge or waste
disposal, or drainage from raw material
storage.
Bypass means the intentional
diversion of waste streams from any
portion of a treatment facility
Coo/pile runoff means the rainfall
runoff from or through any coal storage
pile
CWA means Clean Water Act or the
Federal Water Pollution Control Act.
Director means the Regional
Adminisinstor or an authorized
representative.
F/ow-weighted composite sample
means a composite sample consisting of
a mixture of aliquots collected at a
constant time interval, where the
volume of each aliquot is proportional to
the flow rate of the discharge.
Landfill means an area of land or an
excavation in which wastes are placed
for permanent disposal, and which is not
a land application unit, surface
impoundment, injection well, or waste
pile.
Land application unit means an area
where wastes are applied onto or
incorporated into the soil surface
(excluding manure spreading
operations) for treatment or disposal.
Large and Medium municipal
separate storm sewer system means all
municipal separate storm sewers that
are either:
(il Located in an incorporated place
with a population of 100.000 or more as
determined by the latest Decennial
Census by the Bureau of Census: or
-------
Federal Register I Vol. 56. No. 159 I Friday. August 16. 1991 / Proposed R’ . es
41 35
(ii) Located in the counties with
unincorporated urbanized populations
of 100.000 or more, except municipal
separate storm sewers that ate located
in the incorporated places, townships or
towns riithin such counties: or
(iii) Owned or operated by a
municipality other than those described
in paragraph (i) or (ii) and that are
designated by the Director as part of the
large or medium municipal separate
storm sewer system.
NO! means notice of intent to be
covered by this permit (see part 11 of this
permit.)
Runoff coefficient means the fraction
of total rainfall that will appear at the
conveyance as runoff.
Section 313 water priority chemical
means a chemical or chemical
categories which are:
(1) Are listed at 40 CFR 372.65
pursuant to section 313 of Title UI of the
Superfund Amendments and
Reauthorization Act (SARA) of 1980.
also titled the Emergency Planning and
Comnurity Right.to.Know Act of 1986:
(2) Are present at or above threshold
levels at a facility subiect to SARA title
III. sect:on 313 reporting requirements:
and
(3) That meet at least one of the
following criteria:
(i) Are listed in appendix D of 40 CFR
part 122 on either Table U (organic
priority pollutants). Table U] (certain
metals. cyanides. and phenols) or Table
V (certain toxic pollutants and
hazardous substances);
(ii) Are listed as a hazardous
substance pursuant to section
311(b 2)(A) of the CWA at 40 CFR 116.4:
or
(iii) Are pollutants for which EPA has
published acute or chronic water quality
cr:teria.
Severe Property Damage means
substantial physical damage to property.
damage to treatment facilities which
causes them to become inoperable, or
substantial and permanent loss of
natural resources wh ch can reasonably
be expected to occur in the absence of a
bypass. Severe property damage does
not mean economic loss caused by
delays in production.
£‘gnificant materials includes, but is
not limited to:’Raw r atenals: fuels:
materials such as solvents, detergents.
end plastic pellets: finished materials
such as metallic products, raw materials
used in food processing or production:
hazardous substances designated under
secti on 101(14) of CERCLA any
chemical the facility is required to report
pursuant to section 313 of title III of
SA t fertilizers: pesticides: and waste
products such as ashes, slag and sludge
that have the potential to be released
with storm water discharges.
Significant spsiis Includes, but is not
limited to: releases of oil or hazardous
substances in excess of reportable
quantities under Recticn 311 of the Clean
Water Act (see 40 CFR 110.10 and CFR
117.21) or section 102 of CERCLA (see 40
CFR 302.4).
Storm Water means storm water
runoff, snow melt runoff, and surface
runoff and drainage.
Storm Water Associated with
Industrial Activity means the discharge
from any conveyance which is used for
collecting and conveying storm water
and which is directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. The term does not include
discharges from facilities or activities
excluded from the NPDES program. For
the categories of industries identifled in
subparagraphs (i) thrziugh (x) of this
subsection, the term includes, but is not
lunuted to, storm water discharges from
industrial plant yards: immediate access
roads and rail lines used or trat eled by
carriers of raw materials, manufactured
products. waste matenal. or by.products
used or created by the facility; material
handling sites: refuse sites: sites used for
the application or disposal of process
waste waters (as dcfned at 40 CFR part
401); sites used for the storage and
maintenance of material handling
equipment: sites used for residual
treatment, storage. or disposal; shipping
and receiving areas: manufacturing
buildings; storage areas (including tank
Farms) for raw materials, and
intermediate end finished prod icts: and
areas where industrial activity has
taken place in the past and significant
materials remain and are exposed to
storm water. For the categories of
industries identified in subparagraph
(xi). the term includes only storm water
discharges from all areas listed in the
previous sentence (except access roads)
where material handling eqwpment or
activities, raw materials, intermediate
products. final products. waste
materials. by-products. or industrial
machinery are exposed to storm water.
For the purposes of this paragraph.
material handling activities include the:
storage, loading and unloading.
transportation, or conveyance of any
raw material. intcrmed.ate product.
finished product. by-product or waste
product. The term excludes areas
located on plant lands separate from the
plant’s industrial activities, such as
office buildings and accompanying
parking lots as long as the drainage from
the excluded areas is not mixed with
storm water drained from the above
described areas. Industrial facilit es
(including industnal facilities that are
Federally or municipally owned or
operated that meet the descnption of the
facilities listed in this paragraph (i)—(xil)
inclide those facilities designated under
122 26(a)(1 (v) The following categories
of facilities are considered to be
engaging in ‘industrial activity” for
purposes of this subsection:
(i) Facilities subject to storm water
effluent l:rnitations guidelines. new
source performance standards. or toxic
pollutant effluent standards under 40
CFR Subchapter N (exceot facilities with
toxic pollutant effluent standards which
are exempted under category (xi) of this
paragraph):
(ii) Facilities classified as Standard
Industrial Classifications 24 (except
2434l, 26 (except 265 and 267), 28. 29. 30.
311. J2. 33. 3441, 373;
(iii) Facilities classified as Standard
Industrial Classifications 10 through 14
(mineral industry) inc ludir.g actite or
inactive mining operations (except for
areas of coal m:ning operations meet: g
the definitton of a reclamation area
under 40 CFR 434 11(1)) a d oil and gas
exploration, production. processing. or
treatment operations. or transmission
facilities that discharge storm water
contaminated by contact with or that
has come into contact with, any
overburden, raw material. intermedia’e
products. finished produc:s. byproducts
or waste products located on the Site of
such operations; inactive mining
operations are mining sites that are r.ot
being actively mined. but which hate an
identifiable owner/operaton
(iv) Hazardous waste treatment.
storage, or disposal facili’ies, :ncl ç
those that are operating under interim
status or a permit under Subtitle C of
RCRA;
(v) Landfills. land application site
and open dumps that have receited ar.y
industrial wastes (waste that is receit
from any of the facilities described
under this subsection) including those
that are subject to regulation under
Subtitle D of RCRA;
(vi) Facilities involved in the recycling
of materials, including metal scrapyaras,
battery reclaimers, salvage yards. an
automobile junki ards. including but
limited to those classified as Standard
Industrial Classification 5015 and 5093.
(vii) Steam electric power generating
facilities, including coal handling sites.
(viii) Transportation fac:liiies
classilied as Standard Industrial
Classifications 40. 41. 42, 44. and 45
which have vehicle maintenance shops.
equipment cleaning operations. or
airport deicing operations. Only those
portions of the factlity that are either
involved in vehicle matntenance
-------
41006
Federal Register I VoL 56. No. 159 I Friday, August 18 . 1991 I Proposed Rules
(including vehide rehabilitation.
mechanical repairs. painting, fueling.
and lubrication). equipment cleamng
operations, airport deic1ng operations, or
which are otherwise identified under
paragraphs (fl-(vii) or (ix).(xi) of this
subsection are associated with
industrial activity;
( Ix) Treatment works treating
domestic sewage or any other sewage
sludge or wastewater tiesOnent device
or syctem. used In the storage treatment.
recycling, and reclamation of municipal
or domestic sewage. including land
dedicated to the disposal of sewage
sludge that are located within the
confines of the facility, with a design
flow of 1.0 mgd or more, or required to
have an approved pretreatment program
under 40 CFR part 403. Not included are
farm lands, domestic gardens or lands
used for sludge inanagei’nent where
sludge is beneficially reused and which
are not physically loccted in the
confines of the facility, or areas that are
in compliance with 40 CFR part 503:
(x) Construction activity including
clearing grading and excavation
activities except operations that result
in the disturbance of less than five aces
of total land area which are not part of a
larger common plan of development or
sale:
(xi) Facilities under Standard
Industrial Classifications 20.21.22.23.
2434. 25. 265. 287, 27. 283. 31 (except 311).
34 (except 3441), 35. 38, 37 (except 373).
38, 39. 4221—25, (and which are not
otherwise included within categories (I).
(x)):
Time-weighted composite means a
composite sample consisting of a
mixture of equal volume aliquots
collected at a constant thne interval.
Waste pile means any
noncontainerized jwcnmulatlon of sour.
nonf lowing waste that Is used for
treatment or storage.
25.yeor. 24.hour precipitation event
means the m imum 24-hour
precipitation event with a probable
reoccurrence interval of once in 25
years. This information is available in
“Weather Bureau Technical Paper No.
40.”. May 1261 and “NOAA Atlas L
1973 for the 11 Western States. and may
be obtained from the National Climatic
Center of the Environmental Data
Service. National Oceanic and
Atmospheric Administration. U.S.
Department of Commerce.
(FR Doc. 91-18825 Filed 3-15-91: &45 am)
SIWNU COOS eO-IO.
-------
Federal Register I Vol. 56. No. 135 / Monday. July 15. 1991 I Notices
32209
surh that HDDs/HDFs would not be
produced.
Under the regulation, a request for
either an exclusion or waiver must be
made before September 4. 1987. For
persons manufacturing. importing, or
processing a chemical substance as of
June 5. 1987. or 60 days before
resumption of manufacture or
importation of a chemical substance not
being manufactured, imported, or
proceesed as of June 5. 1987.
Rhorie.Poulenc Inc. requests an
exclusion under 40 CFR 768.32(a)(1)(i)
and (a)(1)(ii) for 2.3.5.6- tetrachloro-2.5-
cyclnhexadiene-l,4..dione (CAS No. 118-.
75—2. chloranil).
IC! Americas Inc. requests an
exclusion under 40 CFR 768.32(a)(1)(ii)
far 2,3.5.8-(etrachloro-2 .5-
cyclohexadierie-i.4- dione (CAS No.
118—75-2. chloranil).
Pfister Chemical Inc. requests an
exclusion under 40 CFR 766.32(a)(1)(ii)
for 3.4’.5-tribromosalicylanilide (CAS
No. 87—10-5).
Confidential Business Information
(CBI), while part of the record. is not
available for public review. A public
version of the record, from which CB!
has been deleted, is available for
inspection in the TSCA Public Docket
O flce. rm. NE-C004. 401 M St.. SW..
Washington. DC from 8 a.m. to 12 noon.
Rnd from 1 p.m. to 4 p.m.. Monday
through Friday. except legal holidays.
Dated. June 14. 1991.
Chad.. M. Auev.
Director. £x:sung Chemical Assessment
Division. Office of Toxic Substances,
(FR Doc. 91—18746 Filed 7—12— al: 845 aml
UIU.iNG COO! S5IS- 4
FRL-3914-3 l
Revision of the Alabama National
Pollutant Discharge Elimination
System (NPDES) Program To isau•
General Perrolta
.1
AoENcr Environmental Protection
Agency.
ac’norc Notice of Approval of the
national Pollutant Discharge Elimination
System General Permits Program for the
State of Alabama.
SUMMAR On June 26. 1991. the Regional
Administrator for the Environmental
Protection Agency (EPA). Region IV
approved the State of Alabama’s
National Pollutant Discharge
Elimination System General Permits
Program. This action authorizes the
State of Alabama to issue general
permits in lieu of individual NPDES
permits.
FOR FURTHER INFORMATION CONTAC1
Jim Patrick. Acting Chief. Facilities
Performance Branch. U.S. EPA. Region
IV, 345 Courtland Street. NE.. Atlanta.
Georgia 30365. 404(347—2913.
SUPPLEMENTARY INFORMATIOIC
I. Background
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate discharge of
wastewater which result from
substantially similar operations, are of
the same type wastes, require the same
effluent limitations or operating
conditions, require sirmlar monitoring.
and are more appropriately controlled
under a general permit rather than by
individual permits.
Alabama was authorized to
administer the NPDES program ui
October 1979. Its program as previously
approved, did not include provisions for
the issuance of general permits. There
are several categones which could
appropriately be regulated by general
permits. For those reasons the Alabama
Department of Environmental
Management requested a revision of Its
NPDES program to provide for issuance
of general permits. The categories which
have been proposed for coverage under
the general permits program include:
storm water discharges from municipal.
industrial and construction sites:
hydrostatic test water, non-contact
cooling waten once-through discharges
from wet-decking operations: off-shore
oil and gas activities not discharging
drilling muds and cuttings: underground
storage tank remediation sites: and sand
and gravel operations.
Each general permit will be sublect to
EPA review as provided by 40 CFR
123.44. Public notice and opportunity to
request a hearing is also provided for
each general permit.
II. Discussion
The State of Alabama submitted. in
support of its request. copies of the
relevant statues and regulations and
proposed regulations. The State also has
submitted a statement by the Attorney
General certifying. with appropriate
citations to the statues and regulations.
that the State will have adequate legal
authority to administer the general
permits program consistent with 40 CFR
123.28. Based upon Alabama’s Program
Description and its experience in
administering en approved NPDES
program. EPA has concluded that the
State will have necessary procedures
and resources to administer the general
permits program.
Under 40 CFR 123.62. NPDES program
revisions are either substantial
(requiring publication of proposed
program approval in the Federal
Register for public comment) or non•
substantial (where approval may be
granted by letter from EPA to the stael.
EPA has determined that assumption b’:
Alabama of general permit authority .s i
non-substantial revision of its . ‘PDES
program. EPA has generally viewed
approval of such authority as non
substantial because it does not alter tle
substantive obligations of any
discharger under the State program. but
merely simplifies the procedures by
which permits are issued to a number of
point sources.
Moreover, under the approved state
program, the State retains authority to
issue individual permits where
appropna(e. and any person may
request the state to issue an individual
permit to a discharger eligible for
general permit coverage. While not
required under I 123.82, EPA is
publishing notice of this approval action
to keep the public informed of the status
of its general permit program approvals.
Ill. Federal Register Notice of Approval
of State NPDES Programs or
Modifications
The following table provides the
public with an up-to-date list of the
status of NPDES permitting authority
throughout the country. Todays Federal
Register notice is to announce the
agproval of Alabama’s authority to Issue
general permits.
— -— — — — — — —
Cs m a . - - - --
Cotcisdo - -.. ..-.-- - .-. ..--. --
Ca.w .ecncu l . - ... -
STATE NPDES PROGRAM STATUS
10/19119
1 1 /0 1/88
05/14/73
03127/75
09 120113
06lZ619i
11101188
03101/83
A groved Stale NPOES
peinvI progrem
ftiççiov.d to requtat.
Federal I acihilea
Aecroved State
9t,eal,nent proqf am
Apçrov.d itale general
perT I.ta croqram
10/19/79
11/01 1 88
05/05/is
01//09/89
10/ 19179
11/01/88
09/22/89
06/03/81
-------
1.,.,
to——
Federal Register / Vol. 56. No. 135 / londiy. July 13. 1991 1 Notices
STATE NPOES PROGRAM STATUS—Continued
.
Approved law NPOES
pertnd program
Approved 10 regulate
Federal lacduUes
Approved State
Pretreatmeni program
Appcovsd state gerierSi
permits program
.
04/01/74
—
—
—
— .. ._ . -. -
06/28/74
11128174
12108180
06101179
03 /12/81
08/12/83
01/28191
—
Illinois . . ..
10123177
09/20179
—
01/04/84
— . .
01101/75
17109178
—
04102/9 1
—. .... -
Kansa S . ....
Ken a icA y.... —— _ — ...
08/10179
06128/74
09/30/93
08/10/78
08/28/85
09/30/83
06/03 101
—
09130/83
—
—
09/30/83
MarØsnd ..__._...._ —. .
09105/74
II/1O/07
09/30/05
—
. - -. -. .._ ....
Minn esota — — ..
....
Missoiji... .__..._ . .. ..
. ._.__ ._ ..
Ne8 rui ia.._. ...... .... - ............_
10 1 17 173
09/30/74
05/01/74
10 130/74
06/10/74
06112174
12/09/78
12109/79
01/20/83
06/26179
06123/81
11/02/79
06/07/83
07/16179
05/13/82
06/03/81
—
09/07/84
—
12,15/al
1211218$
04/29/83
07/23/39
Ne
09/19/75
01/13/82
10/20/91
10/19175
0 8/31/7 8
04/13/82
09/13180
09/28/84
—
04/13 / 92
—
06/14 /82
—
04/13/ 82
—
—
New Jets y._ . ._...... . .. . ... . ._. .....
New Yo .__...__ ._.._....
N0r8 1 Cam8na___.. .._.... ..
Noilh Dakota... . . ..... —- .....
Ohio — .. .__
Oregon... . ..
06 /13/75
03111/74
09/26/73
06/30/78
09/17/U
01/22/90
01 /20/83
03/02/79
06/30/70
09/17/84
—
07/21/83
03/12181
—
09/ 17/U
61 /22 /90
—
02/23/82
—
09 /17/84
Pe rv is)dvania ....._. -
Rhode Island.._. . ._..._._____...
SoutIt CetcAts .. _.. . -. ... . . . .... . ... .. -
06/10 1 75
08/25/80
04109/82
—
Tenness..._._. .. ._ -
12 /28/77
09/30/88
0 6/10/83
04/18/91
——
07/07/81
07/07187
07/07/87
07107 187
Vennor*_ ._.._..._____. ...
03/11/74
—
03/16/82
—
Virgin lstam ... ._._._
06/30/76
—
—
—
Vngina...... . . -. - .. .. ....
03/31 1 75
02/09/82
04/14/39
C5 3/9l
Wasl i ing lo i i . . ...... .
West Virgr _ .. .
Weco res,_._______ . ..
11/14/73
05/10/82
02/04/74
—
05/10/82
11/26/79
09/30186
05/10/82
12/24/80
00 /25 /99
12/19/36
Wyoming......._
T i is .
01/30/75
06/18/81
—
—
39
34
27
IV. Review Under Executive Order
12291 and the Regulatory Flexibility Act
The Office of Management and &idget
has exempted this rule from the review
requirements of Executive Order 12291
pursuant to section 8(b) of that Order.
Under the Regulatory Flexability Act.
EPA is required to prepare a Regulatory
flexibility Analysis for all rules which
may have a significant impact on a
substantial number of small entities.
Pursuant to section 605(d) of the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). I certify that this Slate General
Permits Program will not have a
significant impact on a substantial
number small entitles. Approval of the
Alabama NPDES State Generat Permits
Program establishes no new substantive
reqwremente. nor doen it altar the
regulatory control over any industrial
category. Approval of the Alabama
Stale General NPDES Permits Program
mnerely provides for a eimplifled
administrative process.
Jane2 199L
Je.cph R. Frsnzmathe. .
e4sst Regional Adm:n,slmtor.
FR IJoc. 91—18784 Filed 1-12—91. 8:45 aml
wL&an ones
FEDERAL RESERVE SYSTEM
Exchange Bankahares CorporatIon of
Kan a Formation of, Acquisition by.
or Merger of Bank HoldIng Companies
The company listed in this notice has
applied for the 8oard s approval wider
section 3 of the Bank Holding Company
Act (12 U.S.C. 1842) and § 225.14 of the
Board s Regulation Y (12 CFR 225.14) to
become a bank holding company or to
acquire a bank or bank holding
company. The factors that are
considered in acting on the applications
are set forth in section 3(c) of the Act (12
U.S.C. 18121 c)).
The application is available for
immediate inspection at the Federal
Reserve Bank indicated. Once the
application has been accepted for
processing, it will also be available for
inspection at the office, of the Board of
Governors. Interested persons may
express their views in writing to the
Reserve Bank indicated for that
application or to the offices of the Board
of Governors. Any comrnrnt on an
application that requests a heanng must
include a statement of why a wntten
presentation would not suffice in lieu of
a hearing, identifying specifically any
questions of fact that are in dispute and
summarizing the evidence that would be
presented at a hearing.
Comments regarding this application
must be received not later than July 31.
1991.
A. Federal Reserve Bank of Kansas
City (Thomas M. Hoentg. Vice President)
925 Grand Avenue. Kansas City.
Missouri 84198
1. Exchange Bankshores Corpora:io’n
of Kansas. Atchison. ‘Kansas; to acquire
100 percent of the voting shares of The
Fir3t Kansas Bancorp. Leavenworth.
Kansas. and thereby indirectly acquire
First National Bank & Trust Company.
Leavenworth. Kansas.
Board of Governors of the Federal Resert’s
System. July 9. I2SL
Jennifer). Johnson.
Associate Seciwatyof the Boom!
(FR Doc. 91-10721 Filed 749 : 8:45 aml
SIWNO COOS 5310414
First Virginia Banks. lnc4 AcquisItIon
of Company Engaged In Permissible
Alonbanking Activities
The or’gaiization listed in this notice
has applied under I 2Z5.23(a )(Zl or (fl of
the Board s Regulation Y (U CFR
225.23(a )(2) or (1)) for the Board’s
-------
Federal Register I Vol. 56. Nb. 128 / Wednesday, uIy 3. 1991 / Notices
30573
70480. (2021 554-1404. TOO (202) 554-
0551.
SUPPLEMENTARY INFORMATION: The
following notice contains information
extracted from the nonconfidential
version of the submission provided by
the manufacturer on the PMNa received
by EPA. The complete nonconfidential
document is available in the TSCA
Public Docket Office. NE—G004 at the
above address between 8 a.m. and noon
and 1 p.m. and 4 p.m.. Monday through
Friday. excluding legal holidays.
Y 91—142
Manufacturer. Confidential.
Chemical. (C) Polyester polyurethane.
Use/Production. (S) Polymeric
coating. Prod. range: 300.000—000.000 kg/
yr.
Toxicity Data. Eye imta tion: strong
species (rabbit). Skin irritation: strong
species (rabbit).
V 91—143
,‘ifanufacturer Confidential.
Chemical. (C) Polyester polyurethane.
Use/Production. (S) Polymeric
coating Prod. range: Confidential.
Toxicity Data. Eye irritation: strong
species (rabbit). Skin irritation: strong
species (rabbit).
V 91-144
Manufacturer. Confidential.
Chemical. (C) High solids long oil
alkyd resin.
Use/Production. (S) Architectural.
Prod. range: Confidential.
V 91—149
Manufacturer. Confidential.
ChemicaL (C) Modified soya/linseed
ailcyd.
Use/Production. (S) Resin
Intermediate. Prod. range: Confidential.
V SI—l4?
Manufacturer. Confidential.
Chemical. (C) Aerylic modified eoya/
linseed polymer.
Use/Production. (S) Binder in
archit ctural coatings. Prod. range:
Confidential.
V 91-149
Manufacturer. Confidential.
Chemical. (C) Acrylic modified soya
alkyd polymer.
Use/Production. (S) Binder for
coatings. Prod. range: Confidential.
V 9 1—149
Manufacturer. Confidential.
Chemical. (C) Slyrene.acrylic
copolymer.
Use/Production. (C) Coatings
ingredient. Prod. range: Confidential.
V
Importer U.S. Point Corporation.
Chemical. (C) Polymer of iaophthallc
acid, fatty acid.
Use/Import. (C) Open. nondispersive
use. Import range: Confidential.
V 91—153
Importer. Kyowa Yuka Co., Ltd.
Chemical. (C) Polymer of: phathallc
acid, fatty acid, polystyrene alkyl
alcohol.
Use/Import. (C) Open. nondispersive
use. Import range: Confidential.
V 91-194
Manufacturer. S. C. Johnson & Sons.
Inc.
ChemicaL (C) Aqueous acrylic
polymer.
Use/Production. (C) Open.
nondiapersive use. Prod. range:
Confidential.
v ei—ess
Manufacturer. S. C. Johnson & Sons.
Inc.
Chemical. (C) Aqueous acrylic
polymer.
Use/Production (C) Open.
nondispersive use. Prod. range:
Confidential.
V.1-Is.
Manufacturer. Confidential.
Chemical. (G) Carboxylated styrene-
acrylate copolyrner salt.
Use/Production. (C) Open.
nondispersive use. Prod. range:
Confidential.
V 9 1—1 17
Manufacturer. Confidential.
Chemical. (C) Carboxylated styrene.
acrylate copolytner saIL
Use/Production. (C) Open.
nondispersive use. Prod. range:
Confidential.
V e1—1s
Manufacturer. Confidential.
Chemical. (C) Carboxylated atyrene-
acrylate copoiymer salt.
Use/Production. (C) Open.
nondispersive use. Prod. range:
Confidential.
V .1—I ..
Manufacturer. Confidential.
Chemical. (C) Carboxylated styrene-
acrylate copolymer salt.
Use/Production. (C) Open.
nondispersive use. Prod. range:
Confidential.
V Si-leo
Manufacturer Confidential.
Chemical. (C) Carboxylated styrene.
acrylate copolyrner quIt.
Use/Production. (C) Open.
nondispersive use Prod. range:
Confidenti.il.
V 91—192
Manufacturer. Confidential.
Chemical. (C) Aliphatic polyester
urethane.
Use/Production. (C) Coatings. Prod
range: Confidential.
v.1-lea
importer. Confidential.
Chemical. (C) Polyurethane resin.
Use/Import. (C) Printing inks. Import
range: Confidential.
V 91—194
Importer. Confidential.
Chemical. (C) Phathallic alkyd resin.
Use/Import. (C) Paints and coatir.gs.
Import range: Confidential.
V 91—195
Manufacturer Confidential.
Chemical. (C) Isophihallic acid.
terephthalic acid. trimelhtic. dieih e’ie
glycol. neopentyl glycol polymer sodiur i
neutralized.
Use/Production. (C) Dispersi’.e use
as a coating. Prod range 250.000—
500.000 kg/yr
V Si—ia.
Importer. Reichhold Chemicals. l c
Chemical. (C) Polyester.
Use/Import. (C) Polyester for glass
fiber sizing. Import range: Confidentidl.
Dated: June 27. 1991.
Steven Newbur .RInn.
Acting D,reczor. Information Management
Division. Office of Toxic Substances
(FR Doc. 91—15834 Filed 7—Z—91: 845 dm1
WWMG COOl 1510.5O.#
Revision of the Virginia National
Pollutant Discharge Elimination
System (NPOES) Program To Issue
General Permits
AGENCY: Environmental Protection
Agency.
ACTiON: Notice of approval of the
National Pollutant Discharge
Elimination System General Permits
Program of the Commonwealth of
Virginia.
SUMMARY: On May 20. 1991. the
Regional Administrator for the
Environmental Protection Agency (EPA).
region III approved the Commonwealth
of Virginia’. National Pollutant Discharge
Elimination System General Permits
Program. This action authorizes the
Commonwealth of Virginia to issue
general permit. in lieu of individual
NPDES permits. EPA ha, determined
this program modification to be non-
substantial for the following reasons’ ill
The State regulations have already bi en
-------
2fl5 ’4
Federal Register / Vol. 56. No. 128 I Wednesday. July 3. 1991 1 Notices
suhiect to public notice by the Slate and
( ) (‘us modification involves the
adoption of an administrative
r.iechanism to facilitate coverage of
numerous discharges by a general
permit rather than new program
authority.
FOR FURTHER INFORMATION CONTACT:
Kenneth J. Cox. Chief. Program
Development Section. U.S. EPA. region
III. 841 Chestnut Street. Philadelphia.
Pennsylvdnia. 19107. 215 597—8221.
SUPPLEMENTARY INF0RMATIOtI
I. Background
EPA regulations at 40 CFR 122.28
provide for the issuance of general
permits to regulate the discharge of
astewater which results from
substantially similar operations, are of
the same type wastes, require the same
effluent limitations or operating
conditions, require similar monitoring.
and are more appropriately controlled
under a general permit rather than by
individual permits.
V rgima was authortzed to administer
the NPDES program in March 1975.
Their program. as previously approved.
did not include provisions for the
issuance of general permits. There are
several categories winch could
appropriately be regulated by general
permits. For those reasons the Virginia
State Water Control Board requested a
revision of their NPD program to
provide for issuance of general permits.
The categories which have been
proposed for coverage under the general
permits program include: Sewage
discharges with flows less than or equal
to 1000 gallons per day. leaking
underground storage tanks, water source
heat pumps, noncontact cooling water.
separate storm sewers, storm water
discharge. and any other class of
discharge that meets the requirements of
section 8.2 of Virginia Permit Regulation
VR680-14-01.
Each general permit will be subject to
EPA review and approval as provided
by 40 CFR 123.44. Public notice and
opportunity to request a hearing is also
provided under Virginia law for each
general permit.
IL Discussion
On April 15. 1991 the Commonwealth
of Virginia submitted in support of’ its
request, copies of the relevant statutes
and regulations and an amendment to
the Memorandum of Agreement dated
March 31, 1975. The Commonwealth has
also submitted a statement by the
Attorney General dated March 15, 1991
cerlifying. with appropriate citation of
the statutes and regulations. that the
Commonwealth will have adequate legal
authority to administer the general
permits program as required by 40 CFR
123.23(c) upon adoption of it’s proposed
regulations. In addition, the
Commonwealth submitted a program
description supplementing the original
application permits program. including
the authority to perform each of the
activities set forth in 40 CFR 123.44
Bused upon Virginia’s program
description and upon its experience in
administering en approved NPDES
program. EPA has concluded that the
Commonwealth will have the necessity
procedures and resources to administer
the general permits program. c
Ill. Federal Register Notice of Approval
of State NPDES Programs or
Modifications
EPA mus: provide Federal Register
notices of any action by the Agency
approving or modifying a State NPDES
program. The following table provides
the public with an up-to-date list of the
status of NPDES permitting authority
throughout the country. Today’s Federal
Register notice is to announce the
approval of Virginia’s authonty to issue
general permits.
STATE NPDES PROGRAM STATUS
AWOVd
slat. NPOES
aemis
1 .. . .qam
— t.
regulate
FeOersI
Iaaht,es
A pmv
list,
prevesiment
AP O Sd
siat. general
pentals
pro ..m
10 /19 179
11101/86
05/14/73
10 /19 178
11 101 18 6
O5 O5I78
iou s /is
1 1/0 1 180
09/22/89
01109189
11/01/88
09/22/89
09/04/83
08/03/81
Atabams_,.._... ._ -
Cati l om,a.,_ ._. , ,..,,. .. -. - - ________ ________
Conredo______ _____
Connecticut
____________
itttfl ci s .... .._..._..,,. ......,.
InCiana, —— —
Iowa ...__._ __....._ .‘..—‘—‘-.‘.—... , ,,
— ____________
Keniucity .. _. . .. ,..
Me,vuand...._. _ ______ ______
___________
— -. . — —
Morn Sit,,,,,_, —— ..-——— -- —.—..-.‘.-‘- — ‘ -
Necrasica.. .. .... .. ..
—
New Ycit__________ . _______ .._____________
Nc Car r s ,,_ _____
- . ..
Ohio.. .. ,, , , -
O ’eqcn______._._._..____,..._..,. ,.. ..,...... -
Pennsy?va_as._._______.__ .. ...... -- . .-——— - ——
RProUo tliat , ,.._..,_... - ._.. - ‘ —. - . — . -. — ‘ .—.“ - —
Sou InCa ro iaia.,....,... - . ... — ... — -
Tenn s _ ., ... - . . .. _._. . -—
Utah .._ .. .. —.-.—-—.‘.. -‘
Vermont .—————— —-—.—‘-‘. - —.
Vuqin Iliaf .___,...._...., _.... -. ... ._._._._. ... . — ..
12108 /80
06/01/78
09 120!79
12 (09 /78
08/10/18
03/12101 0I 1Z8l91
08/12/83
01/04/84
01102/ SI
08/03/81
09/26/73
04/01/74
06/28/74
t1 128/74
10/23/77
01/01/75
08/10/78
06 (28/74
09/30/83
09,09,74
10/17/73
06130174
06/01/74
10/ 30(74
06110/74
06112/74
09/16/75
04/13/82
10/28/75
10 119 115
06/13/75
03/11/74
09/26/73
08/30/18
09/17/04
06/10/75
12/25/77
07/07/87
03/11/74
JO WD
09/30/83
09/30/83
09/30/83
1 1/10/87
09/30/85
12109(78
06/07/83
..._
12/09/78
07/16/79
12/15/87
01/28/83
05/13/82
-
06/28/79
09/30/81
12/12/85
00f23 /81
04/29/83
11/02/78
09/07184
07/20/89
08/31/78
04/13/82
04/13/82
01/13/82
08113 / 0 3
, .
-‘--.—‘-.-.
09/28/84
06/14/82
._.... -
01/ 2 2/90
..._, ... ...._
01/22/90
01 /28183
07/27183
03102/79
03/12/81
02123182
06/30/78
.....
..
09/17/84
09/17/84
09 1 17 191
09/28/80
04 /09/82
... .
09/30/86
00/10/83
04/18/91
07/07/87
07/07/87
07107/97
. _._. .. .
03 /10/82
04/14/89 I 05 (20/SI
02/09/82
03131/75
-------
Federal Register / Vol. 56. No. 128 1 Wednesday. July 3. 1991 / Notices 30573
STATE NPDES PROGRAM STATUS—Continued
A groved
state NPOES
permit
program
Approsed Ia Appro..ied Aooroved
regulate state stale çeneciil
Federal preveauttent permits
I acthbas program program
•__...... oo,aoiae 09/26/99
05/10/82 05 /10/82 05i 10/92
11/26179 12124/80 12119156
05116181 . —
W a stt 1 o n - . .._..._ . - . . .. .. -. ... - . ...
West Virginia - - . - -- . — .. —
WiscOfl Stfl - ... . ..
Wyoming . — .. . - -
Totaj — . .. . ... -
/14/73
05/ 10/82
02104174
01/30/75
39
34 27’ 21
Number of Complete NPOES Programs (Federal Fecdilies. Proveavrent. General Permits) 15
IV. Review Under Executive Order industrial category Approval of the persons contemplating certain mergers
12291 and the Regulatory Flexibility Act Vuginia NPDES State General Permits or acquisitions to give the Federal Trade
Program merely provides a simplified Commission and the Assistant Attorney
The Office of Management and Budget administrative process. General advance notice and to wait
has exempted this rule from the review designated periods before
requirements of Executive Order 12291 Dated. June ..O. 1991. consummation of such plans. Section
pursuant to section 8(b) of that Order. A.R. Moms. 7A(b)(2) of the Act permits the agenc:’s.
Under the Reguldtory Flexiblity Act. Acting Re 1 ponaIAdministro .ir in individual cases. to terminate this
EPA is required to prepare a Regulatory IFR Duc 91—158354 Filed 7—Z—91 845 aml waiting period prior to its expiration and
Flexiblity Analysis for au rules which RiWNU COOS u4o 14 requires that notice of this action be
may have a significant impact on a published in the Federal Register.
eubstantiol number of small entities. The following transactions were
Pursuant to section 605(d) of the FEDERAL TRADE COMMISSION granted early ternination of the walt.r2
Regulatory Fle’ublity Act (5 U S C. 601 et period provided by law and the
seq). I certify that this State General Granting of Request for Early
Permits Program will not have TerminatIon of the Waiting Period premerger noiification rules The ‘r i’ :
Under the Premerger Notification were made by the Federal Trade
significant impact on a substantial Rules Commission and the Assistant Altorn,w
number of small entities. General for the Antitrust Division of ne
Approval of the Virginia NPDES State Section 7A of the Clayton Act. 15 Department of Justice. Neither agency
General Permits Program establishes no U S.C. 18a. as added by title II of the mtends to take any action with respect
new substantive requirements, nor does Hart.Scott.Rodino Antitrust to these proposed acquisitions during
It alter the regulatory control over any Improvements Act of 1976. requires the applicable waiting period.
TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 061091 ANO 062191
Nami of acquinng person, name of acquired person, name of acquwed enSty PMN No Cate
terminated
Martin Marietta Corporation. Sus .n Whyle. Banow-Gernnett Stan. Co .. - . ,. _...._.__...... 91-0954 C6 1 111)1
Jaroin. Mailteson Holthngs L imited. Ross S Gilbert. RGMB Corp - .... _...._. _..... Pt- I C lB 061’1 91
Gary Vos.. Secisity National Fin.ncial Carporseon. bwestors Equity Life Insurance Company of Hawus. LIa........_....__............... 91-0863 06/12. 91
JWP!nc.Gowan HoMingCom pany, Inc.. G ow n Ho ld lngCom pany. Inc - - ...... . . ._ . ..... 91- 1013 06/’2/9I
Harry Gray. Mel Klem&Pa era, LP, U nitedG asHol l ngCoiporabon .. , ,. - 9l-I031 06a ’2,9l
United Gas Hi’lding Corporation ... ..
Wiiiiwr T 3taham. Newell Co., Newea Co . ......._ .. — - .. .... ...__..__..___..___ I 9 1-0932 ‘ 06/1 3/P I
Student Loan Marketing Ae.ooulion. Rioitd C. Hawk. HEMAR Corporation . ... ... ..._.. ....._._.. . - . 9 1- 1005 06 ’ 13 19l
Amencan Financial Corporation. Enwonmsntai Convol Group Inc.. ridelity Environmental Insurance Company.._._... _...._.. 9 1- 1020 I 06i 13,91
HAL Trust. Pacific Northern Oil Corpora n, PsalIc Northern Oil Corporation ..... - ..... ._........ . ...._...._ 9I-l034 I 06i 13/91
Siemen& Akiienge,ellectiaft __...__.__ . . ._ 91-1015 06/11/0I
Ferraro k emaaonel plc, Cerolan EMcvo . ,. , Inc ._......._. - - ... ..
HoU-Houstcn 01 Caiiip.ny, Had.l4aiwuan Oft liOra, Ha1I4lOust n Off shore ._ 91- 1022 06114/Pt
Oecnt&i nv e .tmennc,.PsturW.Ston.Cmwnp.aflc ,u t I._ ,..... - -- ....... ........._.. . 91-1026 06/14/91
Metauigeseilemaft AG. TWC Oslut. Prwkssts. tito. & Ollute Products of Canada. Ltd - . ........... 91-1029 06’ 14/91
Robert L Nancu, Clwrvan Corporation. Chevron u.S.A . lnc__........ _ _. .. -. 91-1036 06/14/91
Health Management Aurn i _ . trio., The Missionary Servants of the Moss 8lesaed TrInity. The Holy Name of .Jasus Medical Center. Inc 91-1040 06/14191
JWP Inc.. Busgwjaalartd. l,r_., Busmusoferal, hio..._._...._..._....._ ......... ._.. ........ . _.__....... ..... 91-1044 06/14/91
Thomas 4 Lee. CNCI .gC paration, Child World, inc ,,.,, - . -. .... _.... .. 91-1054 6dI4/9I
Marucera Corporation. Tr.x Holdatg Company. Inc.. Tras Holding Company. Inc - - ..... ... 91.0981 06/11191
Sony Corp. Gannett Co.. inc. ......._....,. ,.._....._........ ......... . - - ... ..... - 9 1- 1004 06/17/91
The Culver Studios, Inc . . . — ...... .... .. . -
Ford Motor Company. Fund C under Trust Agreement of Garvic. 0 Kincaid. Kentucky Finance Co. li x ... - - . 9i - 1055 06/11.91
Comitisco. Inc US & G Corporation. Information Pvoceaainq Systema. Inc - . . 91- 1059 06/ 1 ‘ 0!
Mr Omar Z N Askari. do United Technical Service., Maurice Oidermann. .j Scrioeneman Inc . . -- . . 91-0986 06’ IS. I
Ono,ia Cement Co. Ltd.. National Intergroup. Inc.. The Permuan Corporation . ... ... - 91-4)995 06/ 18 . 1
EfiJonnOyAb . . 9 11041 06i’8191
Crown Crui 5e Line Inc. S A. (Joint Venture) Crown Cruise L.ine Inc.. S A (JoinI-Venturel -
Mr Oddmund A Grunostad. Crown Cruise Line Inc. SA (Joint Venture). Crown Cruise Line Inc S A. (Joint VenliLee ) - 91-1048 • 06! ‘8,91
Gannett Co Inc. m, rime. Journal Company. The Time. .tOumsl Company - .. . 91-1052 I 06119/91
Amoco Corporation Apache Corporation Apache Corporation . - 91-1045 i 06/19,91
Ashland Oil Inc. Onoda Cement Company Ltd California Panitand Cement Conipany 9 1-0996 06. :0.91
Onooa Cement Co - Lid. Assliand Oil. Inc. APAC. Inc. - - . - . 91-0997 06/20,31
-------
Federal Register I VoL 58. No. 110 / Friday. June 7. 1991 / Notices
bacillus Lhurirtgienazs variety kurseakL
(MYX-7 5}.
Use/Production. (S) The TME
substances are agricultural pesticide
intermediates. The engineered
miaoorgaiusms produce the delta
endotoxin during growth ma fermenter
under controlled condition., end are
killed and fixed. Encapsulation of the
b.t. delta endotoxin within the killed.
fixed p. fluoresceas cell provide.
protection from the elements, end
extends the reaidual activity of the toxin
to 5-7 days. Prod. range: 45 batches max.
1’ 91-20
Close of Review Period. July 5. 1991.
Manufacturer. Mycogen Corporation.
Chemical. (C) Pseudomono:
fluoz’escens engineered to contain a gene
For production of delta endotoxin from
bacillus thunngiensis variety son diego.
IW(X-2806).
Use/Production. (S) The TME
substances are agricultural pesticide
intermediate.. The engineered
microorganisms produce the delta
endotoxin during growth in a fermenter
under controlled conditions, and are
killed and fixed. Encapsulation of the
b.L delta endotoxin within the killed.
fixed p. fluorescens cell provides
protection from the elements, end
extends the residual activity of the toxin
to 5-7 days. Prod. range: 18 batches wax.
Dated: June 4. 1991.
Douglas W. Sellers.
etctang Director. Inforrno&ron Monogement
Division. Office of Toxic Substances.
JFR Doc. 91—13520 Filed 6-0-91 845 aml
BIU.ING coCa 5 5*0-504
I OW-FRt-3862 -81
Assessment and Control of
Bloconcentratab le Contaminants
Surface Wateru Draft Guidance
in
AGENCY: Environmental Protection
Agency.
ACTIOIC Notice of extension of public
comment period.
SUMMARY: This notice aceouncea an
extension of the public comment period
on the draft guidance document entitled
“Assessment and Control of
Bioconcentratable Contaminants in
Surface Waters.” The draft guidance
document was made available on March
29. 1991 (56 FR 13150).
oaTEs: All comments must be received
by EPA on or before July 26. 1991.
ADORESSE Interested persons should
submit written comments to William J.
Morrow. Ofilce of Wastewater
Enforcement and Compliance. EN-330.
U.S. Environmental Protection Agency.
401 M Street. SW.. W”.lnngton. DC
FOR Rfl4EN U 5EO A7ION enNTACr
William J. Moirow at (2I ) 475-0531.
su ismesTAuv u esaAnose On
Maich 29. 1991. EPA made available a
draft guidance document entitled
“Assessment and Control of
Bioconcentratable Contaminants in
Surface Waters. The purpose of this
draft guidance document I. to provide
guidance to State and Fedeisi regulators
on assessing arid, where necessary.
controlling the release of pollutant.
which, due to their chemical properties,
accumulate In the tissues of aquatic
organisms. The Environmental
Protection Agency solicits onmmenta
from the public on all aspects of this
draft guidance document. The March 29
notice sets a period of 60 days for the
receipt of publIc comment.. Since
publication of that notice. EPA has
received several requests to lengthen the
comment period. In response to these
requests. EPA has decided to extend the
comment period to July 20. 1991.
Dated: May29. 1991.
Michael B. Cook.
D,,actor. Office of Wostewater rforcemen:
and Compliance.
fFR Doe. 91-13533 FIled 6-8-01; 5i45 aml
_coot u .
IFRC—3161—9l
Availability and Review of New
Financial Assistance Program NPDES
Related State Program Support—State
Grants
AGENCY: lJ.S. Environmental Protection
Agency.
ACTIOIC Notice of availability and
review.
SUMMARY: The Environmental Protection
Agency (EPA) announces the
availability of $16,500,000. under section
104(b)(3) of the Clean Water Act. to
support new requirements related to
National Pollutant Discharge
Elimination System (NPDES) program
implementation. Funding will be
available for unique investigation.,
special one time studies. pilots and
demonstrations so as to implement
NPD related activities. These
activities include: (1) The development
of NPDES permits and other
admuzustrutive activities (induding
enforcement) for combined sewer
overflow (CSO) and storm water
discharges, and (2) the implenicntution
of municipal waler pollution prevention
pilot programs. Eligible applicants
include. Stale water pollution control
agencies: Interstate water pollution
control agendee, and other public
agencies. Grant funds must lead to
Implementation with tangible results:
they con not be used to support ongoing
State water quality programs. Our
schedule is to review and appw.. all
project proposals by July 15. 1991
FOR RJRThER INFO AATI0N CONTACY:
Applicants should request ap 1 rni 1 inate
grant application forms from their
Regional Grants Administration Office.
For programmatic or technical
information, applicants should work
closely with their Regional water
program contact.. Applicants should
work with the Regions to develop
Informal grant proposals for
Headquarters review and concerrence
before completing formal grant
application.. For further assistance and
to apply for funds, applicants should
contact the following EPA Regional
staft
EPA Region I (Maine. Vermont.
Connecticut. New Hampshire.
Massachusetts and Rhoda Island):
William Nozzo, Water Management
Division, John F. Kennedy Federal
Building. room !03. Boston. MA. (12360
(617) 565—3480:
EPA Region 11 (New York, New Jersey,
Puerto Rico. Virgin islands): Patrick
Harvey. Water Management Division,
Jacob K. Javltz Federal Building. 28
Federal Plaza, New York, NY. 10238.
(212) 264-895&
EPA Region III (Pennsylvania.
Delaware. Maryland. Virginia. West
Virginia. District of Cohimbraj Ken Cax.
Water Management DIvision. 842
Chestnut Building. Philadelphia. PA.
19107, (215) 597—8211:
EPA Region IV (North Carolina. South
Carolina, Tennessee. Kentucky. Georgia.
Alabana. Mississippi and Florida):
James Patrick. Water Management
Division, 345 Courtland Street, NE..
Atlanta, GA. 36085. (404) 347-301
EPA Region V (Illinois, Wisconsin,
Michigan. Ohio. Indiana): Easy DeCraff.
Water Management Division. 230 South
Dearborn Street. Chicago. IL. 60840,
(312) 353—0147:
EPA Region V I I’exaa . Arkansas.
New Mexico. Oklahoma, Lotilainna).
Jack Ferguson. Water Management
Division. First lnsterstate Bank Tower at
Fountain Place. 1445 Ross Avenue. 12th
floor suite 1200. Dallas. TX. 75202—2333.
(214) 655—7170
EPA Region VU (Missouri. Kansas.
Nebraska. Iowa). Larry Ferguson. Water
Management Division. 728 Minnesota
Avenue, Kansas City. KS. 66101. (913)
551—7447;
EPA Region V I II (Colorado. North
Dakota. South Dakota. Utah. Wyonwig.
-------
26412
Federal Resister / Vol. 56. No. 110 I Friday. June ‘. 1991 / Notices
Montana): Janet LaCombe. Water
Management Division. 999 18th Street.
Denver. CO. 80202. (303) 293-1654:
EPA Region IX (California. Arizona.
Hawaii. Nevada. Trust Territories):
William Pierce. Water Management
Division. 75 Hawthorne Street. San
Francisco. CA. 94015. (415) 744— 187ft
EPA Region X (Washington. Oregon.
Alaska. Idaho): Harold Geren. Water
Management DIvision. 1200 Sixth
Avenue. Seattle, WA. 98101. (ZOO) 442—
1258.
For information at EPA Headquarters.
Office of Wateri Rita Smith. Office of
Wastewater Enforcement and
Compliance (EN-335). U.S. EPA. 401 M.
Street. SW.. Washington. DC. 20480.
(202) 475-8488.
SUPPI.8NENTARY INFORMATIOIC EPA will
award $18.500.000 in grants. under
authority of the Clean Water Act (CWA)
section 104(b)(3), to State and interstate
water pollution control agencies and
other public agencies which commit to
undertake specific, targeted activities to
strengthen NPDES related program
implementation. Assistance will be
targeted to agencies for special studies.
demonstrations, unique one time
investigations or pilot programs that will
enable the NPDES program to
effectively implement CSO and storm
water control programs. Eligible
activities must be relatively short time
frames (one or two years) and produce
concrete results.
First priority for the use of grants will
focus on the establishment of schedules
and requirements for controlling CSOs.
Second priority will involve
implementing storm water discharge
control strategies. Eligible activities
include: Addressing unique
requirements (permits and/or
enforcement orders) relating to CSO
.controls: controlling CSO and storm
water discharges in targeted
watersheds; demonstrating successful
implementation of State CSO strategies:
developing model general permits for
storm water and CSOs: evaluating
toxicity data and toxicity testing for
storm water discharges; and
demonstrating municipal wastewater
pollution prevention pilot programs. All
grants will require specific outputs
which will be negotiated at time of grant
award: for example, monitoring and
planning work must lead to
implementation. such as permit
issuance.
This program is eligible for
intergovernmental review under
Executive Order 12732 and Is subject to
the review requirements of section 204
of the Demonstration Cities and
Metropolitan Development Act. States
choosing to review applications in this
program must notify the following office
within thIrty days of this publicatiorc
Grants Adniizustration Division (PM-
210F. U.S. Environmental Protection
Agency. 401 M. Street. SW.. Washington
DC. 20460. ATI ’N; Corinne Allison).
Applicants must contact their State’s
Single Point of Contact ISPOC) for
intergovernmental review as early as
possible to find out if the program is
subject to the State s official E.O. 12732
review process and what material must
be submitted to the SPOC for review. in
addition. applications for projects within
a metropolitan area must be sent to the
areawide/ Regional/local planning
agency designated to perform
metropolitan or regional planning for the
area for their review. SPOCs and other
reviewers should send their comments
on an application to the appropriate
EPA Regional Grants Management
Office, no later than sixty days after
receipt of the applciation and other
required material for review.
States are encouraged to work dosely
with their Regional water programs to
develop project proposals that will
effectively address the critical goals of
this new grant program.
Dated June 3. 1991.
Michael B. Cook.
D,rector. Office of Wostewater Enforcement
and Comp!,anra.
(FR Doc. 01-13531 Filed 0-8-81: &45 amj
ajji coos
FEDEJIAL COMMUNICATIONS
COMMISSION
IGEN Doclmt No. 91-59; DA 91-1221
Wyoming Region Public Safety Plan
AO!NCY Federal Communications
Commission.
acitoic Notice.
suuuasr The FCC is accepting
Wyoming’s (Region 48’s) plan for public
safety. By accepting this plan, the FCC
enables the licensing of 821—824/860-869
hD4z spectrum for public safety to begin.
FOR PURTHER INFORMATION CONTAC1
Betty Woollord. Private Radio Bureau.
Policy and Planning Branch.
Washington. DC 20554. (202) 632-0497.
SUPPI.RMW(TARV INFORUATIOIR
1. On October 20. 1990. Region 48
(Wyoming) submitted its public safety
plan to the Commission for review. The
plan sets forth the guidelines to be
followed in allotting spectrum to meet
current and future mobile
communications requirements of the
public safety and special emergency
entities operating in its region. On
March 1. 1991. Wyoming filed revisions
to the plan, based on conversations with
the Commission’s stalL
2. The Wyoming plan was placed on
Public Notice for comments on March
12. 1991. 56 FR 11555(3—19—91). The
Commission received no comments in
this proceeding.
3. We have reviewed the plan
submitted for Wyoming and find that it
conforms with the National Public
Safety Plan. The plan includes all the
necessary elements specified in the
Report and Order in Gen. Docket No.
87—112,3 FCC Rcd 905 (1987) 53 FR 1022,
January 15. 1988, and satisfactorily
provides for the current and projected
mobile communications requirements of
the public safety and special emergency
entities in Wyoming.
4. Accordingly. ills ordered fifeS the
Public Safety Radio Plan for Wyoming is
accepted. Furthermore, licensing of the
821-824/888-869 hfl iz band in Wyoming
may commence immediately.
Federal Communications Commission.
Beverly G. Baker.
Deputy Chief Private Radio Bureau.
(FR Doc. 91—13430 Filed 6-6-81. 8:45 aml
OILUNO COOS S712 .OI-d
FEDERAL EMERGENCY
MANAGEMENT AGENCY
(FEMA-109-ORI
Major Disaster and Related
Determinations. AK -
aoascr. Federal M nagement Agency.
ACTIO* Notice.
SUMMARY This is a notice of the
Presidential declaration of a major
disaster for the State of Alaska (FE 1vIA—
909-OR), dated May 30. 1991. and
related determinations.
— oATs May 30. 1991.
FOR FURThER INFORMATiON CONTACT
Neva K. Elliott. Disaster Assistance
Programs. Federal Emergency
Management Agency. Washington, DC
20472(202) 640—3614.
NOflC Notice is hereby given that, in a
letter dated May 30. 1991. the President
declared a major disaster under the
authority of the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq..
Pub. L. 93-288, as amended by Pub. L
100-707). as follows:
I have determined that the damage in
certain aiee. of the State of Alaska. insulting
from heavy snow, flooding, and ice jams
beginning on April 30. 1991. is of sumcieni
seventy and magiutude to warrant a major
disaster declaration wider the Robert T.
-------
13828
Federal Register / Vol. 58. No. 65 I Thursday. April 4. 1991 / Notices
exposure assessment methods: permit
issuance procedures: toxicity reduction
evaluations (TREs): and
recommendations for enforcing water
quahty.based permits. An overall
summary of each chapter as well as the
most significant changes since the
original TSD are provided below:
Chapter 1: Approaches to Water
Quality-Based Toxics Control
This chapter describes the regulatory
and scientific bases for water quality-
based toxics control and contains much
of the information that was contained in
the original TSD. In particular, the
“integrated’ approach to water quality.
based toxics controls (i.e.. use of
assessment and control techzuques for
both individual chemicals and whole
effluent toxicity) is still strongly
emphasized. The chapter is now
jupported by new documentation and
‘ cplanations.
Chapter 2: Water Quality Criteria and
Standard.
The discussions in this chapter lay the
groundwork for the “standard.to-
permits’ process by describing key
features of water quality criteria and
standards for both aquatic life and
human health protection. One addition
is the presentation of specific
procedures for deriving reference
ambient concentrations (RAC) for
human health protection. The discussion
of mixing zones from the previous 1985
version of the document has been
revised. Biological and sediment criteria
are introduced as future elements of
standards.
Chapter 3: Effluent Characterizatioa
This chapter describes the procedures
for determining, either with or without
effluent data, whether an effluent
causes, has the reasonable potential to
cause, or contributes to an excursion
above a water quality criterion. The
effluent characterization
recommendation. described in this
chapter have been completely revised
and streamlined as compared to the
original TSD. Where effluent data are
available, effluent characterization can
now be performed in a single step with a
minimum of data. A statistical
procedure for determining the
reasonable potential for exceeding
water quality criteria has been added to
this chapter.
Chapter 4: Exposure Assessment and
Wasteload Allocation
Where effluent characterization
indicates the need for a water quality-
based permit limitation, the water
quality .inalyst develops a wasteloaj
allocation (WLA) using the procedure.
described in chapter 4. Information Is
provided for modeling exposure of an
effluent both with mixing zones and
where mixing is complete.
Recommendations for both steady state
and dynamic models are provided. As
with the original TSD, ambient criteria
to control acute toxicity to aquatic life
may be met within a short distance of
the outfall. However, this provision is no
longer restricted to outfalls which have
high rate diffusers, but is now available
ror any type of outfall for high
monitoring data indicate that the
criterion maximum concentration (CMC)
is met within the short distances
specified.
Chapter 5: Permit Requirements
Chapter 5 provides procedures for
translating various types of WLA
outputs into permit limitations. Other
permit.related issues such as permit
documentation and toxicity reduction
evaluations are also presented. No
major changes have been made in the
substantive recommendatior.s in the
original TSD. all of these have been
clarified and supported with additional
tables and figures. Better guidance on
detection levels and limits for metals
was added.
Chapter 6: Enforcement
Compliance monitoring and
enforcement considerations for water
quality’based permits are summarized
in this chapter. The discussions
emphasize the regulatory principle that
any failure to meet a permit lunitat.ion is
a violation subject to the full range of
possible enforcement responses.
Enforcement discretion is explained.
Dated. March 27. 1991.
lame. R. Elder.
D,rsceor. Office of Water Enforcement and
Permits.
Dated. March 27. 1991.
Martha G. Prothzu.
Director. Office of Woter Regulations and
Standard,.
IFR Doc. 91—7928 Filed 4—3—91. 8’45 am
eeo c
FEDERAL COMMUNICATIONS
COMMISSION
Public Information Collection
Requirements Submitted to Office of
Management and Sudget for Review
Mdn.h 3. 1991
The Federal Communications
Commission has submitted the following
information collection requirements to
0MB [ or revii’w and clearance under
the Paperwork Reduction Act of 1980 (44
U S.C. 3507).
Copie . of these submissions may be
purchased from the Commission’s copy
contractor. Downtown Copy Center.
1114 21st Street. NW. Washington. DC
20036. (202) 452—1422. For further
information on these submissions
contact Judy Boley. Federal
Communications Commission. (202) 63:!—
7513. Persons wishing to comment on
these information collections should
contact Jonas Neihardt. Office of
Management and Budget. Room 3235
NEOB. Washington. DC 20503. (202) 395—
4814.
0MB number: 3060-0405.
Title: Application for Authority to
Construct or Make Changes in an FM
Translator or FM Booster Station.
Form number: FCC Form 349.
Action: Revision.
Respondents. Businesses or other for-
profit (including small businesses).
Frequency of response: On occasion
reporting.
&-timoted annual burden. 600
responses; 35.5 hours average burt cn
per response. 21.300 hours total annual
burden.
Needs and uses: FCC Form 349 is used
to apply for authority to construct a new
FM translator or FM booster broadcast
station. or to make changes in the
exisiting facilities of such stations. The
Commission adopted Report and Order
in h.Qvl Docket No. 88-140, which
amended the part 74 of the Rules
governing FM Translator stations. The
form has been revised to reflect the
new/revised rules with an additional
burden of 10.33 hours. The form has also
been revised to include fee data. The
data on the form is used by FCC staff to
ensure that the applicant meets basic
statutory requirements and will not
cause interference to other licensed
broadcast services.
0MB number: 3000-0041.
Tide: Applichuion for Authority to
Operate a Broadcast Station by Remote
Control.
Form number: FCC Form 301-A.
Action: Revision.
Respondents: Business or other for-
profit (including small businesses).
Frequency of response: On occasion-
reporting.
Estimated annual burden: 40
responses; 5 hours average burden per
response: 20 hours total annual burden.
Needs and uses: FCC Form 301—A is
required to be filed by AM licensees or
permictees with directional anten.nas
when requesting authority to operate a
station by remote control. The form ha
been re ised to include fee data and
incorporate change. regarding CharaL t.
-------
Federal_Register! Vol. 58. No. 65 / Thursday. April 4. 1991 I Notices
13827
In 1977. EPA and CE published a
document entitled “Ecological
Evaluation of Proposed Discharge of
Dredged Materials Into Ocean Waters”
(The “Green Book”). This technical
testing manual provided guidance for
implementing the environmental
evaluations required under the ocean
dumping regulations to determine the
acceptability of dredged materials for
ocean dumping. The manual made
available t day. the 1991 “Green Book.”
entitled “Evaluation of Dredged
Material Proposed for Ocean Disposal.
Testing Manual” replaces the 1977
document for testing dredged materials
proposed for ocean disposal to ensure
compliance with EPA’s environmental
criteria.
Since the 1977 testing manual was
published. EPA and CE have gained a
great deal of experience in testing
dredged material For environmental
effects. New tests have been developed
which represent the rapidly advancing
state-of-the-art in sediment
ecotoxicology. Those new tests and the
experience of both Agencies was used
to prepare a revised draft testing manual
which was made available to the public
through a notice of availability in the
Federal Register on March 7. 1990.
Subsequent to the 1990 Federal
Register notice of availability. EPA and
CE conducted a public meeting in
Washington. DC on April 2. 1990. and
regional’sneetings in: Narragansett. RI;
Gulf Breeze. FL Vicksburg. MS
Newport. OR: San Francisco. CA: and.
Washington. DC. to discuss the draft
manual and receive comments. The
comments received at these meetings
and those received in writing were
carefully considered in the development
of the 1991 revised testing manual which
is now available.
This final testing manual entitled.
“Evaluation of Dredged Material
Proposed for Ocean Disposal-Testing
Manual.” describes the procedures for
ecological evaluation of dredged
material required by the 1977 ocean
dumping regulations. It contains tests to
implement these procedures. definitions.
sample collection and preservation
procedures. valuative procedure,.
calculations and supporting references.
A mathematical model Is used In
conjunction with the manual to assist In
determining initial mixing of dumped
material in the water column. The
manual sets out a tiered approach to
testing materials for their acceptability
to be ocean disposed. This tiered
approach is a scientifically valid, cost
effective means of testing material and
is highly reliant on toxicity and
binaccumulation bioassay.. The
bloassays also employ exposure
conditions which are more scientifically
defendable based on research and
development activities which have
transpired since the 1977 testing manual
was prepared.
The revised testing manual and its
accompanying computer disks
containing the initial mixing model are
available to the public and can be
obtained by writing to the individual
listed under ADDRESSES.’
The 1991 revised testing manual will
be phased into use by the EPA Regions
and CE Districts over the next several
months. It is expected that all permit
and project decisions regarding the
suitability of dredged material for ocean
disposal an the U.S. will be following the
guidance in the 1991 revised testing
manual by October 1, 1991.
Dated: March 29. 1991.
Robert H. Wayland Ill.
Deputy Assistant Adm,n,stmtor. Office of
Water.
(FR Doc. 91—7927 Filed 4..3. .91 8.45 aml
mLuiio coca 5355.45.
IOW-FRL-3919-7l
Technical Support Document for
Water Quality-Based Toxics Control’.
Final Guidance Availability
AGENCY: Environmental Protection
Agency.
acnoia Notice of availability .
SUMMARY: This notice announces the
availability of the final guidance
document entitled “Technical Support
Document for Water Qua lity.Based
Toxic. Control” (TSD) and the
responsiveness summary for the ma or
comments received on the June. 1990
draft document. The goal of this
document is to provide comprehensive
technical recommendations for water
quality-based toxics control. These
recommendations are intended to
provide scientifically sound and useful
procedures to regulatory authorities and
the regulated community.
DATE& Copies of this guidance
document and the responsiveness
summary are available beginning today.
ADORES3E Copies of the TSD can be
obtained through the National Technical
Information Service (NTIS). U.S.
Department of Commerce. 5285 Port
Royal Rood. Springfield. VA 22161. (703)
487—4850. When requesting the
document, please reference the NTIS
No. P891—127415. Copies of the
responsiveness summary can be
obtained by writing Ms. Jacqueline
Romney. Office of Water Enforcement
and Permits. EN.-336. U S
Environmental Protection Agency. 401 M
Street. SW.. Washington. DC 20460.
FOR FURTHER INFORMATION CONTACt
Jackie Romney at (202) 475—9528. U.S.
Environmental Protection Agency, at the
above address.
SUPPLEMENTARY INFORMATION: The U.S.
Environmental Protection Agency’s
(EPA) national “Policy for the
Development of Water Quality-Based
Permit Umitations for Toxic Pollutant.”
(March 1984) states that to control
pollutants beyond Best Available
Technology Economically Achievable
(BAT), secondary treatment, and other
Clean Water Act technology-based
requirements and in order to meet water
quality standards, the EPA will use an
integrated strategy consisting of both
biological and chemical methods to
address toxic and noncoventional
pollutants from industrial and municipal
sources,
In addition. EPA’s surface water
to ’xics control regulation (54 FR 23888
Uune 2. 1989)). established specific
requirements for assessing and
controlling point source discharges of
pollutants which cause, have the
reasonable potential to cause, or
contribute to an excursion above any
State water quality standard.
The final guidance document
announced in today’s notice is intended
to support the implementation of both
the policy and the regulation. The
document is agency guidance only. It
does not establish or affect legal rights
or obligations. It does not establish a
binding norm and is not finally
determinative of the issues addressed.
Agency decisions in any particular case
will be made applying the law and
regulations on the basis of specific facts
when permits are issued or regulations
promulgated.
The overall approach taken in this
document is to provide additional
explanations and clarifications based on
accumulated experience and data
related to the various recommendation.
which were made in the original (1985)
TSD. Additional data is provided to
support the scientific basis for whole
effluent toxicity testing and the contro.
of the discharge of toxic pollutants
through the “integrated strategy”. The
TSD strongly recommends the use of an’
integrated water quality-based approach
(i.e.. employing chemical-specific, whole
effluent, and biocriteno components) for
preventing impacts to receiving waters
from toxic pollutants. The document
also discusses mixing zones for toxicity.
non-pereistent toxicants, and
bioaccumulative pollutants effluent
charactenzation with and without data:
-------
Thursday;
March 21, 1991
Part IV
Environmental
Protection Agency
c pirt 122
r li izI Pollutant t r ga EWmln&lIwi
System Po Jt A ,ALst1mv Regulations
(Cr orm Water Dscharges Appfl flca
D.adlh Final Rule d Pmpo d Rule
-------
12098 Federal Register / VoL 58, No. 55 I Thursday. March 21. 1091 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 122
LFRL 3915.41
National Pollutant DIschsrg.
Elimination System Pemift Application
Regulations for Storm Water
Dlacharge Application Deadline for
Group Applications
AOanCY Environmental Protection
Agency (EPAJ.
*crtotc Final rule.
MIMARY EPA Ii extending the
deadline for submission of Part 1 of
group Industrial storm water
applications to September *1991. EPA
Is also establishing a fixed deadline of
no later than May 18. 1992 for Part 2
group applications. EPA Ii mnkl g these
change. because EPA has received
numerous requests from the regulated
community that they were, until
recently, unaware of the Impact of
EPA. November19, 1990 rule or have
had difficulty determining whether or
not the regulations apply to them. These
changes will provide the regulated
community with additional time to
determine their status under the
November18. 1990 rule, to organize
groups and to prepare and submit Part I
applications, In establhklng May18,
1992 as a fixed data for guh.iiI .fo 5 of
Part Iota group application. EPA Is
attempting to ensure that there will be
no practical change In the time by which
full group applications will be filed end
thus when final storm water permits will
be Issued.
UPECTIVI OATL March 28. 1001.
r ca rtmnem u s.non couvacn
Thomas J. Seaton, Office of Water
Enforcement and Permits ( 1-338),
United States Environmental Protection
Agency, 401 M Street, SW .. Washington.
DC 20480. (202)475-0518
Su LIMmsTAav w wncen
L Background
On November18, 1998. EPA
promulgated regulations (55 FR 47990)
specifying, inter ella. NPD application
requirement. and application deadline,
for storm water discharges associated
with Industrial activity. These
requirements lnduded a new procedure
for applying for NPD permits through
a group application process. The group
application process allow, for a group of
similar discharges to file a permit
application which requires storm water
sampling data from a subset of the
facilities covered by the application.
Under I 122.26(e)(2) of the November
18.1990 regulations. Part 1 of the group
application must be submitted to EPA
no later than March 28, 1991. Part Its to
Include a list of the facilities applying.
basic narrative Information about each
facility, and a proposed designation of
the facilities In the group to perform the
quantitative sampling. The regulation
provides that EPA has a 60 day period
after receipt to review the Part 1
applications and notify the groups as to
whether they have been approved or
denied as a properly constituted “group”
for purposes of thi. alternative
application process. Under the
November18. 1990 regulations. once
Pert I Is approved by EPA. part 2 of the
group application, which contains
requirement. for sampling data, must be
filed with EPA Headquarter, within one
year of EPA providing notification of Its
approval.
As EPA explained in the preamble to
the November 18, 1990 regulation. the
group application process merely
establishes a set of procedure. to obtain
sufficient Information about industrial
facilities to allow for Issuance of NPD
permit., In the hopes of Implementing
the statutory mandate of section 402 (p)
of the Clean Water Act as expeditiously
and efficiently as possIble. 55 FR 40022.
48028 The group application process
attempts to lessen the burden on the
regulated community by mfnlnd,lng the
amount of quantitative sampling dat.a
collected. It also mlnlml,a the number
of Individual storm water permit
applications flied, which helps to Lessen
the a,hnhd.fratlve burden on EPA and
the NPDES.euthorlzed State.. The group
application process does not, howeven
change the requirement to apply for and
obtain a permit, nor does It limit EPA’.
discetlon to collect additional
Information from an applicant. It
represents a new form of application
procedure, not a change to the storm
water requirements.
II. ° ‘ . for Today’. Ride
The group application process ha.
been designed by EPA as a one-time
adi ,.4 ..4.tradvs procedure to ease the
burden on the regulated community and
permitting authorities In the Initial stage
of the program. As noted above, EPA
has estabH.I d a single deadline for the
Sling of group applications. To facilitate
meeting this deadline. the Agency has
undertaken substantial efforts to
provide the public with notice of the
group application process. As part of
thi. outreach effort, the Office of Water
Enforcement and Permits (OWEP)
established a hotilne which has fielded
thousands of telephone Inquiries on
group applications and related Issue..
OWEP has also held workshops In ten
cities aeroas the country during the first
six weeks of 1991. and ha. addressed
storm water requirements at 30 other
conference. and speaking engagements.
Staff In EPA Regional offices have also
contributed to this effort by participating
In numerous State and local workshop.
and conference. on storm water
dlschargs permit application
requirements.
Despite these efforts. EPA has
received an extensive number of
requests to extend the March 18. 1991.
deadline for filing Part I of the group
application. Numerous Industry and
municipal representatives have
expressed concern that although they
are currently forming groups. they may
not be able to file the Part I application
by the March 18, 1991 deadline.
Particular concerns have been raised by
municipal governments. Under the
November18, 1990 rule, operations
owned or operated by a Federal, State.
or municipal entity that results Ln storm
water discharges associated with
Industrial activity must also apply for
Industrial storm water permits. 55 FR
48013. (The regulations impose
additional permit application
requirements on large and medium
municipal separate storm sewer
systems. Deadlines for complying with
these requirements are not affected by
today’s nile.) EPA has learned that
several small municipalities were
largely unaware of the Impact of the
new storm water regulation. on thenu
many apparently believed that since
their municipal separate storm sewer
system . were not yet covered by the
rule, they were unaffected.
EPA I. also aware that many
Industrial facilities, whether or not
mimlclpally .owned. have had difficulty
determining whether the new
regulations apply to them. EPA defined
the scop. of coverage In the November
19,1900 rule on the basis of SIC code..
However, many facilities engage In more
than one operation falling Into more
than one SIC code some of these
operadem are c.,.d . while other. are
not. EPA has received over 50 letters
arid 3.000 phone inquiries to date
regarding the scope of the final rule alt
applies to Industrial activity. Since
many facilities could not quickly
determine whether they were covered
by the regulation. many got a late start
In forming groups to file group
applications.
For these reasons, EPA Is today
extending the March 18. 1991 deadline
for Part 2 group applications to..
September30. 1991 for all storm wale?
discharges associated with Industilal
-------
Federal Register/VoL 58. No. 55 I Thursday, March 21, 1991 / Rules and Regulations
adtivfty.EPAhasdeterm lned that a sin
mouth e nA1Iu1 Is an appropsiata
amount of additional time for members
of the regulated community to determine
their status under the November16, 1990
rule, to organize groups, and to prepare
and submit Part I applications. EPA
notes that the Part 1 applIcation Is not
particularly burdensome, Part I requires
only a list of the facilities applying.
basic narrative information about each
facility, and a proposed designation of
the famlitles in the group loperforns the
quantitative sampling. Several large
groups have already formed and have
submitted their applications before the
March 18,1991 deadlIne. EPA alm
believe,, however, that a shorter
extension may not be sufficient.
particularly for those small
munimpalitieawhinh own ereperat.
operations which discharge storm water
associated with industrial activity.
Municipalities may face a more difficult
task In deternuning which of their
operations constitute Industrial activity.
Groups of such municipalities also face
particular problems of coordination.
Municipal governments may need to
seek specific local or state legislative
approval to join a group. In addition.
many functions of municipal
governments that lead to storm water
discharges associated with industr ial
activity are not reflected in existing
organizations which could take the lead
in org uil (ng groups. EPA also believes
that non-municipally owned or operated
Industrial facilities may also experience
coordination problems in forming
groups, particularly groups that extend
a oss State lines. Therefore, EPA
believes It appropriate to grant them an
extension as well and, In any event,
believes it should maintain a single data
for submission of all group applications
to avoid further confusion in the
regulated community.
Thus. EPA believes that extending the
application deadline six months will
address all of the concerns raised. EPA
strongly encourages. however, that
discharger. submit their group
applications as soon as possible.
Today’s rule also establishes a fixed
deadline of May18, 1992 for submission
of Part 2 group applications. While
under the November16, 1990 regulatIon.
Part 2 was not due until one year after
the Part 1, under today amendment
Pen 2 of the group application will be
due no later than May iS. 1992, even If
EPA’s approval of the Patti occurs after
May 18, 1091. In other words, groups
that take advantage of the deadline
extension In today’. rule to file their
Pain applications would potentially
have less than the full year to complete
their Part L 5 y establishing a fixed date
of no later than May. 1992, EPA has
made no effective riailwg . in the time by
which both Pails of all group
applications will be filed, and us when
final storm water permits should be
issued. This will ensure that the
environmental benefits of the November
16. 1990 rule are not delayed. EPA does
not believe that any further delay In the
ultimate ts .m r , of storm water permits
Is appropriat, ce neceseery. Section
4 0 2 (p) suggests a strong Congressional
desire to implement the storm water
program expeditiously, and EPA does
not want the exienainnof the Pad I
deadline to hohi up the r 1 ’ of dre
group application pmc .
This deadline may possibly esnes
those groups that file significantly later
than March 18.1991 to baee lam the.
ans year to complete the psst2
application. Thus, even with today’s
extension. It 1 , in the beet inini is of
facilities to file group ep Ii .*4 m es
soon as possible to allow for the
maximwn time to collect Part 2 samplIng
information. particularly those In arid
climates. EPA also note, that nothing
prevents facilities from collecting
quantitative sampling data from a
representative storm event that occurs
between now and when the Part I
application is approved. Certain groups
of facilities may need to engage in such
preliminary sampling if they do not get
their group application, In at an early
date.
Elsewhere in today’s Federal Register.
EPA is proposing to amend the other
deadline, for individual Industrial storm
water applications to establish a May
18, 1992 deadline far all individual
applications for storm water discharges
associated with industrial activity,
either from those facilities who do not
join a group or those facilities who are
rejected from a group.
ilL APA Requirements
Today’s rule is being issued without
notice and comment. EPA believes that
notice and comment are not required
because today’s rule does not change
any substantive requirements imposed
on the regulatory community. The nile
only specifies a date when group storm
water permit applications should be
filed for EPA processing. It does not
change the requirement in section
402(p 4) of the CWA to submit an
NPDES storm water permit application
or the general requirement of the CWA
not to discharge without a permit.
Furthermore, this rule does not change
the date by which group applications
are ultimately due, in that Part 2
applications are due no later than
originally contemplated under the
November 18.1990 ride. Thus, EPA
believes today’s rule has no substantial
impact on the regulated community and
the public. The role is therefore merely a
“rule(] of Rrniy • ‘precedure” and
Is thus exempllrom APA requirements
pursuant to 5 U.S.C 553(b)tA). See
American Hospital A.ss’n v. Bowen, 834
F.2d 1037 [ D.C Ch. 1987 .
In addition even if today’s rule is
subject to the mandatory natica and
comment requirements of the APA, EPA
believes that there Is good cause for
issuing this rule without notice and
comm nf , pursuant 105 U.S.C. sa(b)( ).
EPA bases this determination on two
grounds. That, seeking notice and
comment before the existIng March 18.
1991 deadlIne would be impracticable
and contrary to the public Interest. This
rule must be Issued In final form
Immediately so that those affected by
the March 18, 1991 deadline will no
longer be compelled to submit a group
application by that date, which will eip
to alleviate the confusion in the
regulated community. Similarly, tlie
establishment of the fixed May .a. 1 i:
deadline must be issued in final form so
that the regulated community is fully
aware of its obligations to complete
group applications as quickly as
possible and so that groups can start to
complete the Part 2 application.
Promulgation of today’s rule will also
have the effect of encouraging
additional participation In the group
application process by those who are
recently aware of their regulated status.
Today’s rule will reduce the number of
Individual applications subnutteci,
improve the quality of those group
applications which are submitted, and
decrease the arlmrnh ,tratlve workload
on EPA and authorized States In
processing large numbers of Individual
applications and, for EPA. in processing
poorly and hastlly.prepared group
applications. Thus, today’s rule will
ultimately advance the statutory goal of
reducing point source discharges of
pollutants. EPA therefore believes that
immediate promulgation of today’s rula
Is in the public interest and failure to
promulgate Immediately would
adversely affect these interests.
EPA also believes notice and
comment is unnecessary because the
rule has no eubstantive effect on the
regulated community’s requirement to
submit a permit application or the
ultimate date for submission of Part 2
group applications and subsequent
permit issuance and compliance, leading
to the desired water quality benefits.
For the same reasons as discussed
above, there Is good cause to make this
-------
12100 Federal Register I VoL * No. 55 I Thursday, March 21, 1991 Rule. and Regulations
rule immediately effective, pursuant to S
U.S.C. 553(d)(3).
IV. Ragulatosy Requirements
Today’s rule makes no rhange in the
substantive requirements of the storm
water program, only the date by which
storm water permit applications are due.
Thus, the rule meets none of the criteria
for a major rule under section 1(b) of
Executive Order 12291. The information
collection requirements In this rule have
already been approved by the Office of
Management and Budget and been
assIgned 0MB control number 3040-
0080. SInce this rule does not r h ge any
existing substantive requirements, I
certify that It will not have a significant
impact on a substantial number of small
entitles under the Regulatory Flexibility
Act EPA has submitted this regulattou
to the Office of Management and Budget
for review. Any written comments
received will be put into the public
docket.
List of Sub .cts In 40 CFR Past 1
Administrative practice and
procedure. Reporting and recordkeeping
requirements. Water pollution controL
Confidential business Information.
Dated: March ii. 1991.
William K. Reilly,
Administrator.
For the reasons set out above, part
122. chapter 1 of tItle 40 of the Code of
Federal Regulations is amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS; ThE NATIONAL
POWJTANT DISCHARGE
EUMINATION SYSTEM
Subpwt B—Permit Application and
Sp.Uat NPOES Program Requirement.
1. The authority citation for part 122
continues to read as follows:
• in.a 8te. n water 1i& ..
( IPP’ to StstS NPDES P(Uw.IftL em
2. In paragraph 122.28(e)(2)(i). “March
18.1991” is revised to read “September
30. 1901.”
3. Paragraph l _ R(e)(2)(iii) Is revised
to read as follows:
• • • e S
(e)
(2)
(lii) Part 2 of the application shall be
submitted to the Director. Office of
Water Enforcement and Permits no later
than 12 months after the date of
approval of the part I application or
May18. 1992, whichever comes first.
• • • S •
IFR Dec. 91— 37 Filed 3—1341: 9 15 .ini
AUthIMtT Cleen Wuter Act. 33 U.S.C. 1251
8L seq.
-------
Federal Register / Vol. 58, No. 55 I Thursday. March 21. 1991 / Proposed Rules
12101
AGENCY
4 CFR Part 122
(FRL 3915-63
Natlonol Pollutant Diachaig.
ElimInatIon Syatem Permit Application
RegulationI for Storm Water
Dlscharge. Application Deadlines
AOVICY Environmental Protection
Agency (EPA).
ACTIOIO Proposed rule.
mJMMARr EPA Ii proposing to extend
the deadline for submission of
individual Industrial storm water
applications to May 11 1992. EPA I. also
proposing to establish a fixed deadline
of no later than May 18. 1992 for
submission of Individual applications
from rejected members of storm water
groups. These proposed changes are
designed to reduce confusion in the
regulated community over what
application requirements affect which
faalitles and on which dates. In
addition, the proposed changes are
designed to treat all regulated facilities
as equitably as possible, and to avoid
serious delays in the Issuance of storm
water permits and the Implementation of
necessary controls leading to the
desired water quality benefit..
DATum EPA will accept comments until
April 1991.
aDO— US The public should send en
original and two copie. of their
comment. to Tom Seaton, Office of
Water Enforcement and Permits (p4-.
338), unIted States Environmental
Protection Agency. 401 M Street. SW.,
Washington. DC 20480, ( ) 475-0518.
The public docket for this proposal is
located at EPA Headquarters (the above
addres.). room NE-208 and I . available
for viewing from 9:30 a.m. to 4p.m.,
Monday through Friday. excluding
Federal holidaye. Appointments may be
made by n.HIng Shavonn. SImm . at
( 2) 475-0541. CopIes cost 15 cents per
page.
MThan . 80IATlON CONT5C
Thomas J. Seaton. Office of Water
Enforcement and Permits ( 1-33e) ,
United States Environmental Pvotectl on
Agency. 401 M Street SW, Washington.
DC 20460, (280) 475-0518.
emst.mmiiv*ai ATIO
On November18. 1998. EPA
promulgated regulatIon. (58 FR 47990)
specifying. inter ella. NPD application
requirements and application deadlines
for storm water discharge. associated
with Industrial activity. These
requirement. Included a new procedure
for applying for NPDES permits through
a group application process. The group
application process allow. for a group of
similar discharger, to file a permit
application which requires storm water
sempLing data from a subset of the
facilities covered by the application.
Under 122.20(eJ(2) of the November
iS. 1990 regulation., Part I of the group
application must be submitted to EPA
no later than March 15, 1991. Part I Is to
include a list of the facilities applying.
basic narrative information about each
facility, and a proposed designation of
the facilities in the group to perform (ha
quantitative sampling. The regulation
provides that EPA has a 80 day period
after receipt to review the Part I
applications and notify the group. as to
whether they have been approved or
denied as a properly constituted “group”
for purposes of thi. alternative
application process. Under the existing
regulations, once Part I Is approved by
EPA. Part 2 of the group application.
which contains requirements for
sampling data, must be filed with EPA
Headquarter, within one year of EPA
providing notification of Its approval.
The group application process has
been designed by EPA as a one-time
ailminhifrative procedure to ease the
burden on the regulated community and
permitting authorities in the Initial stage
of the program. As noted above. EPA
hu established a single deadlin, for the
filing of group applications. To facilitate
meeting this deadline. the Agency ha.
undertaken substantial effort . to
provide the public with notice of the
group application process. A. part of
this outreach effort, the Office of Water
Enforcement and Permit. (OWEP)
established a hotlin. which has fielded
thousand, of telephone inquiries cm
group application. and related Issues.
OWEP has also held workshops In ten
dtles earn., the country during the first
six week. of 1991. and ha. addressed
storm water requirements at 30 oth.i’
conference, and speaking engagement,.
Staff in EPA Regional offices have also
contributed to this effort by participating
In numerous State and local workshop.
and conferences on storm water
discharge permit application
requirements.
Despit, these efforts, EPA ha.
received an extensive number of
requests to extend the March18. 1991.
deadline for filing Part 1 of the group
application. Numerous industry and
municipal representatives bay.
expressed concern that although they
are currently forming groups, they may
not be able to file the Part 1 applIcation
by the March 18. 1991 deadline.
Particular concerns have been raised by
munldpal governments. Under the
November18. 1990 rule, operations
owned or operated by a Federal. State.
or municipal entity that result. In storm
water discharges associated with
Industrial activity must also apply for
Industrial storm water permits. 55 FR
48015. (The regulations Impose
additional permit application
requirements on large and medium
munldpal separate storm sewer
systems. Deadlines for complying with
these requirements are not affected by
today’s rule.) EPA has learned that
several small municipalities were
largely unaware of the Impact of the
new storm water regulations on them
many apparently believed that since
their municipal separate storm sewer
systems were not yet covered by the
rule, they were unaffected.
EPA I. also aware that many
Industrial facilities, whether or riot
municipally-owned. have had difficulty
determIning whether the new
regulations apply to them. EPA defined
the scope of coverage In the November
18. 1990 rule on the basis of SIC codes.
However, many facilities engage in mcr
than one operation falling Into more
than one SIC coder some of these
operations are covered, while others are
not. EPA has received over 50 letters
and 3800 phone inquiries to date
regarding th. scope of the final rule as It
applies to industrial activity. SInce
many facilities could not quickly
determine whether they were covered
by the regulation, many got a Late start
In forming svuys to file group
application..
For these reason,, EPA has extended
this deadline from March 18, 1991 In a
separate final rule published elsewhere
in wdajs Fedmal Register and
established a fixed final deadline of
May 18. 1992 for submission of part : of
the group application. However, many
questions .main regarding the effect of
today. change on the other deadlines in
the storm water regulations. Therefore.
as discussed below, EPA I, proposing.
and accepting public comment on
______ to other related application
deadlines in the storm water program in
light of the change to the Part I group
application d.adIi ,i
lLTed.y’s , ..--
Under I t .2O(e)(I), Individual
application, for storm water discharge,
essociated with industrial activity are
currently due on November 18. 1991.
Under I 1fl (e)(2ftl) (as amended
today). Pert I of group applications are
due on September 30. 1991. SectIon
122.28(a)(2) (as amended today)
specifies that EPA will approve or deny
-------
121w
F dse af R8 sfo I VoL &a 51 1 Thireday . Maxcb. . 1 V aes &sJe
woui applL . t .e witftht d yv of
receipt and th P rt Z of the uug
app4lee en leduvoan yraft rther? rt
1 1.apprevet bIat rthmrMayt8.
1992.
EPA I. ypiepoaiz temslce twe
other change. to the deadlhiew specified
in the November18. 1990 regulationm
These change, me deei ted In
accomplish several goals: to reduce
confusion In the regulOted comu t)-
over whal application equlremento
affect which iccifltioeeewhlthdnt e.
and to heal al regulated McllItfee so
equitably a. xes,bfs baialwtee,old
serious. del . ). In ’ the Isseaaeeofst.rm
water per ts. and the Imphmentatleiref
necessary controle fe.dng’ I D the
desirod wa r qua bean te .
To Iu l g t tha s ateg . EPA 1.
first proposing thmefaclit an th
EPA rejects farlnthsieale. 5led
application . hM file an
applica ban an l.tst thee May I L
EPA I proposing thlad iig loathe
same reasons that I! has already
established a flxad.daadM fas
submisalenof the Part 2.appiicatin ior
those who thegroupi EPA
does ant beIIe that sap feather
In the ultimate Iev eoi s t
pumM.leappse rlatoon ssy .
Sectiee490(p eeg Isas
Congressional .iyla.t*ut the
storm watan pon am w, caaly meh
EPA dQesaat wish to delay thelatsadsé
water qualitp bssa tsoi the . tmmi
watsa pro ’am.
Those fa iM1ee thai jolea greet
application whisk lefi lmL Iaisethea the
original March18. 1991 deadllee may be
req ii..d to completo so lodLvidiaal.
application In lens. than one yeast the
event they ars’°’ dfrow the gr.9p . -
EPA notes that sach iUtp tare gz e
will have already rxip& i ie e e
thus refected fn jlfflu will. mad snip
compfaia Foom2f htdQ.d. a relectad.
facility Is one that. was oc1aJnafl
designated far sampling to the Pad)
group appliastlon. the fo wnplleg
data aed other e Lba map already
have beeornfl dby aszd.bss.vallabl .
to the facility by the time ItaecaLvs&tba
notica oLrsj mi
EPA recognizan. hotemier. that (an
facilities in certain
It may be difficult to collect quantitative
storm water sampling Wgiie. Isi
than one year to sample. EPA n ee that
It Is In the bust Inlpr aJ f 4!Ifla n’
file group applications aasoan.se
possible te allow rot the .il ifncm tims
to collect Part Z Infemattan. pasticelarly
those La arid cliinatas EPA aEon nnte&
that nothing prey f rfI ( s frese
collecting quaitftaifva nmpD ’ig date
from a representahive alarm event that.
oceure between now an when the Part
1 appllcatfon Is approved. EPA f
requesthlg comment on creation of the
May18. l99Zflxeddeadllne fur
Individual applicaflona ofre [ ecfed gr.up
members.
EPA Is not proposfng any changee to
the Internal regulatory reqlifrPrnPnt to.
proceer group applications xln .Oa
daye ofrecaipL4OG ’R *e( (JI
EPA Is stifl.comnutlad to processing
group applications within that 60 day
perted and notifying the group mPmhRr
of approval or deniaL
EPA fa alto proposing to-extend the
Indlvidhal appilcaffoir deedhlnn for
Indus faf rl¼tharger, whe tin not [ ln a.
group teM y 1& 1992. ThEe will have the
effect of ensurfng that all fndnthtaf
applfca ons . whether fn&icfdualua
up ,, will be due on the sarm day. EPA
be eve , thaf..u with than
who are now attempting, to join a. group..
there may be many facilities affected hy
the November18. IMI] rule who am
pl ’.r’nfrig to file an Individual appllcatloa
and who have only recently become
aware O(LYteIZ status under the
reguIntfnn EPA agelabaflaves this tn be
a pa hicular problem for smalL
munlcfpafltfea who ewe onsporate
oper .tlnrt. w k r . ’ . ”I ’ lea s - wat
diIri rr naw &Lwlikindss iaL
a vlty. EP A b eves that those who
have bean unable to join egrnup
ap (ca on mann diLElr. bo term.eL
prnIalais with co 11 ’ . ’ with the n ow
regulations tki those who End. grau .
tojoin. -
EPA wishes te emphM4 that todays.
proposaL doe. not. affect th.’epplkatiee
thaNovaathos II.
1990
sewes sydame. Part 1. appLtant a.he
large mmklpeL separn starm sewsi
systemseonstlflidas Nnr.h a 18. 1 &
Patti applications. far syd
are dos May 18.1602. EPA. ho. a
Infor ’ aaIUeM that these
systeme. which son epec allp
en . ’—’ ’ . ” d I. the final. mgulello . f.
55 ER 48 74( ppas Gr.. P .4 to pest
iaZli. ass unaware at the Nosa 1O.
1990 ,egnla$Lean arthal Ibe9 need soy
additional. the. t.complet. Past t al the
application, In addMIo largeand
medium cities have an additional.
to completoPeslZot the- . --‘-
appilcatl which sstoh11 . • floaè
date fosfllbs efuIheppIIontisn to walk
beyond 1990..
EPA requssto’ to on all te
of todays prepssa&.
111. R ut ..l.i.y £q.ifi.’wrn itu
Tads e proposed rule makasiw.
change In tha substantive rsqtaremanl .
of the s ian water pro s only the
date bywhl’ch Phrt I
due. Thus, the rule meeta none of the
criteria fore major rule unds s
1(b) of Executive Order 12291. The
Information collection requIxem , . ’ j
this rile have already been approv
the Office of Management and
antI been assigned OP4E oan eam
2040-0088.Stflcw thin rife does
change any axfst1iig substantive
requlremants. I certify that It w
have a significant Impact on a
substantial number of sme1
mderth, F bility Aci
EPA be. . ih è this r gule
Office of hfanngoneat and Pudget S w
review. Any written ouument
t*tiethpubIledo
list of SIIbI.SWJ. 48 QB Peit
Mm? f .ImL!ve ,nu.Uur and
procedUre. Reporting and
requIrsinen Water poLIU6an coiin
ConflJeutf l business Information.
WIfllamL lEy
Adnua,W rnio&
Fartha masses sat oat shave it Is
prop d I. part1 thapte, jul
tMle4O.at th . dJeOLPederal
Regulation, as loile
PAST lU—EPA ADMINISTERED
PERMTrPROGRA3 ThE NATIOMM ,
POLUJTAICE DISCHARGE
EUMlN*11OlIoT IsM
Subpst-FtomUAppIcatb n
$psc NPO Pru i , . ’m Req*sa.
1. Tbe a.thsrity citation to, pert i
as feflewer
An ae.iL Wat Mt D IL&C .i I.
at i .
2. In) 1 2I!s)f1P. “RCvanê 18.
1991” lerr’ ,d to rind “May18. h ’ .
C stus I .W21P1vf Is added”
read a wur
I 122.25 Stern water dI .Ji.
• a a a a
(a) S S
S.
(Iv) Facilities that are ref ected an
member. of the group shall aefimit an
Individual application no later thee 11
months after the date of receipt of the
notice of refei.lLru orMay 18. 19DZ
whidI... , , . on thut
• C a C S
(FR l c .9E1O ‘ i
— . coal ma mu
-------
Federal Register I Vol. 58, No. 42 / Monday. March 4. 1991 I Proposed Rules
8973
event a committee Is established. lie
first meeting will be on March 14 and 15.
If a negotiated nil ldT%g comnuttee is
not established, a Notice to that effect
will be published.
The purpose of the meeting is to
discuss and ratify the organizational
protocols by which the committee will
operate. organize workgroups and
charge them with developing
information and recommendations to the
committee concerning specific topics.
develop th. committees specific agenda
for its operations. and begin to consider
the substantive issues involved.
The meeting will be open to the public
without advance registatlon.
D*T! The meeting will be held on
March 14 from 9 a.m. until 6p.m. and on
March 15 and from 9 a.m. until 4p.m.
ACORESSEni The meeting will be held at
the Quality Hotel Capitol I-fill. 415 New
Jersey Avenue NW.. Washington. DC
00Oi. (202) 638-1510.
FOR FURThER INFORMATION CONTACT
Persons needing further tnformatlon on
substantive aspects of the rule should
call Carol Menninga of EPA’s Motor
Vehicle Emission Laboratory. Office of
Mobile Sources. (313) 668-4575, with
respect to issues concerning
reformulated fuels, and Alfonse
Manna to of EPA’. Field Operations and
Support Division, Office of Mobile
Sources. (202) 382—2667, with respect to
issues concerning oxygenated fuels.
Persons needing further information on
adnwustrative matters such as
committee arrangements or procedures
should contact Chris Kirtz of EPA’s
Regulatory Negotiation Project, or one of
the Committee’s Independent
facilitators, Philip J. Harter at (202)887—
1033 or Mans S. Knaster at (818) 702’-
9526.
Dateth February 26. 1992.
Paul
Dlmctor, RJayMoogeilienIDlvsaien.
Office olPohcy. Planning and Evaluation.
[ FR Don. 91-5018 Piled 2-v-e2. 1 pmj
cons
40 CFR Pert 123
(FRL-3910-Sl
State of Colorado’s Subniladon of a
Substantial Program Revteon to Its
Authoiteed National Pollutant
Olscharg. Elimination System (NPOES)
Program
AGENCY: Environmental Protection
Agency (EPA).
aC’notc Notice of application, public
comment period, and public hearing.
SUMMARY: The State of Colorado has
submitted it Aquatic Life Blomonitortng
Regulation. COW. ADMIN. CODE title
5. chapter 1002, article 2, sectIon 6.9 . 7
(SCCRIOOZ—2) (adopted by the Colorado
Water Quality Control Commission in
November 1988) (hereinafter the
Colorado Biomonitortng Regulation) to
EPA for review as a revision to the
State’s authorized National Pollutant
Discharge Ehinination System (NPDES)
program. EPA has determined that the
regulation constitutes a substantial
revision to Colorado’s authorized
NPDES program. Accordingly, EPA
requests public comment and Is
providing notice that a public hearing on
the submitted regulation will be held
pursuant to 40 G’R 1 t-R’-(b) and part
25. EPA seeks public comment on
whether to approve or disapprove the
Colorado Olomonitoring Regulatirm as a
revision to Colorado’s authorized
NPDES program.
Copies of the Colorado regulation are
available for public inspection as
indicated below.
DATES: Comments must be received
before May 3. 1991. A public hearing has
been scheduled for April 19. igei, at the
Hyatt Regency. 1750 Welton Street,
Denver, Colorado 8t O2 . from 2p.m. to 5
p.m. (or later as necessary) and 7p.m. to
10p.m. (or later as necessary).
£nomissu Comments should be
addressed to Robert J. Rum, U.S. EPA.
Region VIII. 8WMC, 999 18th Street.
Swte 500. Denver. Colorado 80202-2405.
FOR FURTHER INFORMATiON CONTACT
Robert J. Bum. (303) 293—1587, at the
above address.
5UP I.EMENTARY INFORMAT1OIC Section
402 of the Federal Clean Water Act
(CWA) created the NPDES program
under which the Administrator of EPA
may issue permits for the discharge of
pollutants into the waters of the United
States under conditions required by the
CWA. Section 4021b) allows States to
assume NPDES program responsibilities
upon approval by EPA. On March V.
1975, Colorado received approval to
assume the NPDES program: on March
4. 1983, the State was authorized by EPA
to issue general permits under the
NPDES Program.
EPA has issued regulations In 40 QR
part 123 that establish the requirements
for NPDES State Programs. Section
123.62 establishes procedures for
revision of authorized NPOES Stats
Programs. Under 123.62(a). a State
may initiate a program revision and
must keep EPA informed of proposed
modifications to its regulatory authority.
In January 1990, the State of Colorado
submitted its biomonitonng regulation
for formal review by EPA. Under
123.82(b)(l). a State program submittal
is complete whenever the State submils
such documents as EPA deteimines are
necessary under the circumstances. In
this Instance. EPA has determined that
the State submission is complete.
Section 123.62(b)(2) requires EPA to
Issue public notice by publication In the
Federal Register and in newspapers
having Statewide coverage, and to
provide a period of public comment of at
least 30 days whenever the Agency
determines that a program revision is
substantial. EPA has determined that
the biomorutoring regulation, which is
described below, constitutes a
substantial revision to Colorado’s
NVDES program. Section 123.82(b)(2)
aLso requires EPA to hold a public
hearing regarding the proposed revision
“11 there is significant public interest
based on requests received.’ EPA
believes based upon contacts with the
State of Colorado and the public in the
last two years that there is already
eubstactial public interest in the
proposed revision and accordingly has
proceeded to schedule a public hearing
at this time.
The Colorado Biomonitoring
Regulation describes the State’s
requirements for conducting whole
effluent taiaoty testing, for establishing
effluent limitations in NPOFS permits to
control whole effluent toxicity. for
enforcing established limitations, and
for eliminating the cause(s) of the whole
effluent toxicity.
Following passage of the Colorado
regulation. NPDES permits were drafted
by Colorado containing the provisions of
the new regulation. Numerous permits
were subsequently formally obiected to
(vetoed) by EPA because they did not
satisfy the minimum requirements of the
CWA. Formal admimsirative
proceedings on such permits proceed
according to 40 R parts 123 and 14.
and the permits will not be the subject
of public comment and hearing under
this notica.
On June 2,1989. EPA promulgated
regulations at 40 CFR 122.44 d)(1), which
clarify existing requuements for
developing waterquality”based effluent
limitations. See 54 FR 23868 . The
regulations require permitting
authorities to set whole effluent toxicity
limitations where necessary to acnieve
(as described in the regulation) a
numeric criterion for whole effluent
toxicity or a narrative criterion within
an applicable narrative water quality
standard. Section 123.25 (15) of the
NPDES State Program regulations
requires NPDES authorized States to
have the legal authority to Implement
-------
0974
Federal Register I Vol. 56. No. 42 I Monday. March 4. 1991 I Proposed Rules
the requiremeaLs of the provisions of
I 122.44.
At the close of the public comment
period (including the public hearing), the
EPA Regional Administrator, with the
concurrence of the Associate Ceneral
Counsel for Water and the Director of
the Office of Water Enforcement and
Permits. will decide whether to approve
or disapprove the Colorado
Biomonitoring Regulation as a revision
to the Colorado NPDES program. The
decision to approve or disapprove will
be based upon the requirements of the
CWA and 40 Q ’R part 123. A public
hearing to consider the Colorado
Biomonitoring Regulation has been
scheduled for April 19. 1991. at the Hyatt
Regency. 1750 Welton Street. Denver.
Colorado ‘2 from 2p.m. to 5p.m. (or
later as necessary) and from 7 p.m. to 10
p.m. (or later as necessary).
The Colorado Biomonitoring
Regulation may be reviewed by the
public from 8a.m. to 4 p.m. at the EPA
office in Denver. Monday to Friday
(excluding holidays), at the address
appearing earlier in this notice. Copies
of the submittal may be obtained for a
fee by contacting Robert J. Burm at the
above telephone number or address.
The following are the policies and
procedures which shall be observed at
the public hearing: (1) Any person may
submit written statements or documents
for the record: (2) the Presiding
Officer(s) may establish reasonable
limits on the time allowed for oral
statements; (3) the transcript taken at
the hearing, together with copies of all
submitted statements and documents
shall become a part of the record of this
proceeding: (4) the hearing record shall
be left open until May 3. 1991, as
described below, to permit any persona
to submit additional written statements
or to present views or evidence tending
torebut testimony.which was presented
at the public hearing: and (5) the
Presiding Officer(s) shall have the
authority to open and conclude the
hearing and to maintain order.
Immediately following the public
comment period, a complete hearing
record will be prepared. The record will
be made available for public review,
and copies of the record may be
obtained by the public at cost.
Hearing statements may be oral or
written. Written copies of oral
statements are urged for accuracy of the
record. Statements should summarize
any extensive written materials.
All comments or objections received
as discussed above, by May 3. 1991, wIll
be considered by EPA before taking
final action on the program revision.
Please bring the foregoing to the
attention of persons whom you know
will be interested in this matter. All
written comments and questions on the
hearing should be addressed to Robert J.
Burm at the above address or telephone
number.
Dated: February 26.1991.
Lajuasa S. Wllcher,
AusatantAdministrator for Water.
£nvzronmentoi Protection Agency.
Dated February 26.1991.
— J. Scharer.
RegionalAdmmistmtor. Environmental
Protection Agency. Region Viii.
(FR Doc. vi-insi FIled 3-1-91: &45 am)
— ‘ coca -m-
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 13
(MM Doc .t No. 91-32, RM-7600j
Radio Broadcasting Services; Chetek,
WI
AGENCy Federal Communications
Commission.
ACTIOSt Proposed rule.
SUUMAR This document requests
comments on a petition ified by Chetek
Broadcasters proposing the allotment of
Channel 294C2 to Chetek. Wisconsin. as
that community’s first local seMce
There Is a site restriction 2 kilometer.
(1 . 3 mile.) east of the community to
avoid a short spacing to Channel 298C2,
New Richmond. Wisconsin, Canadian
concurrence will be requested at
coordinates 45-19-23 and 91—37—27.
DATU Comments must be filed on or
before April 19, 1991. and reply
comments on or before May 6, 1991.
ADO ESUI Federal Communications
Commission. Washington. DC 20554. In
addition to Sling comments with the
FCC. interested parties should serve the
petitioner, or Its counsel or consultant.
as follows: Richard J. Hayes, Jr.. 1359
Black Meadow Road. Spotsylvanla.
Virginia 22553. (Counsel to petitioner).
U R TNEU INPORUATION CONTACI
Kathleen Scheuerle. Mass Media
Bureau, (202) 634-0530.
su.es. rraav INFORUATIOIC This is a
synopsis of the Commission’s Notice of
Proposed Rule Miildng MM Docket No.
91—32. adopted February 11. 1991. and
released February 26.1991. The lull text
of this Commission decision Is available
for Inspection and copying during
normal business hours in the FCC
Dockets Branch (room 230), 1919 M
Street NW.. Washington. DC. The
complete text of this decision may also
be purchased from the Commissions
copy contractors. International
Transcription Service. (202)857-3800.
2100 M Street NW.. suite 140.
Washington. DC 20007.
Provisions of the Regulatory
flexibility Act of 1980 do not apply to
this proceeding.
Members of the public should note
that from the time a Notice of Proposed
Rule Making is issued until the matter is
no longer subject to Commission
consideration or court review, all ax
parts contacts are prohibited in
Commission proceedings. such as this
one, which involve channel allotments.
See 47 CFR 1.1204(b) for rules governing
permissible ex parts contacts.
For information regarding proper filing
procedures for comments, see 47 CFR
1.415 and 1.420.
List of Subjects In 47 GR Part 73
Radio broadcasting.
Federal Communications Commission.
Aedrew j.
Acting Chief. Allocations Branch. Policy and
Rules Division. Mass Media Buiuau.
(FR Doc. 91-4950 Filed 3-1-01: &45 am)
COO! 1712.,-O
47 CFR Part 73
(MM Doc st No. 91-30, RM-76001
Television Broadcasting Services;
VanderbIlt, Ml
aov.cv Federal Communications
Commission.
acnose Proposed rule.
SUMMARV This document requests
comments on a petition filed by GRK
Productions. Inc.. proposing the
allotment of Channel 45 to Vanderbilt.
MIchigan. as that community’s first local
commercial TV service. Canadian
concurrence will be requested for this
allotment at coordinates 45-436-42 and
84-3648.
DATt Comments must be filed on or
before April 22. 1991. and reply
comments on or before May 7. 1991.
aocanaa Federal Communication.
Commission. Washington, DC 20554. In
addition to filing comments with the
FCC. Interested parties should serve the
petitioner, or its counsel or consultant.
as follow.: Carry R. Knapp. GRK
Productions. Inc.. 7400 South 45 Road.
Cadillac, MIchigan 40601. (PetitIoner).
FOR FURTHER iNFORMATiON CONTACT:
Kathleen Scheuerle. Mass Media
Bureau, (202) 634-8530.
SUPPLININTARY INFORMATICIC This is a
synopsis of the Commission. Notice of
Proposed Rule MakIng. MM Docket No.
-------
Thursday,
January 24, 1991
Part III
Environmental
Protection Agency
40 CFR Part 125
Modification of Secondary. Treatment
Requirements for Discharges Into Marine
Waters; Proposed Rule
-------
•1
Federal Register I Vol. 56. No. 16 I Thursday. January 24. 1991 I Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 125
(FRL-3S17-61
RIN 2040-AB2S
Modification of Secondary Treatment
Requirements for DIscharges into
Marine Waters
AGENCY: Environmental Protection
Agency (“EPA”).
ACTION: Proposed rule.
$UMMARY ’ EPA is proposing
amendments to the regulations
contained at 40 CFR part 125. subpart C.
which implement section 301 (h) of the
Clean Water Act (the “CWA” or “Act”).
33 U.S.C. 1311(h). Section 301(h)
provides for modifications of secondary
treatment requirements for discharges
into marine waters by publicly owned
treatment works (POPiVs) that
demonstrate their compliance with the
301(h) criteria. These proposed revisions
to the 301(h) regulations and application
requirements are primarily intended to
im lemnnt amendments to secuon 301(h)
contained in section 303 of the Water
Quality Act of 1987 (“WQA ”) A’ the
same time, changes to the
questionnaires and regulations have
been proposed to reflect program
experience and to clarify requirements
for permit renewaL These amendments
will supplement and revise the existing
part 125. subpart C regulations and
simplify arid revise the application
requirements contained in appendices A
and B of subpart C. Only POTWs which
submitted 301(h) applications prior to
December 28. 1982. are eligible to
receive section 301(h) waivers: the part
125. Subpart C regulations apply only to
POTWs that applied by that date.
DATES: Comments on these proposed
amendments, the Application
Questionnaire revisions, and the
amended Technical Support Document
( ISO) must be submitted on or before
March 25. 1991. The public hearing on
these proposed regulations will be held
in Washington. DC on March 7. 1991
from 1-5 pin at the EPA Headquarters
Education Center Main Auditorium. 401
M Street. SW.. Washington. DC.
ADonassas: Comments and requests for
the amended section 301(h) Technical
Support Document should be addressed
to: Virginia Fox Norse. Office of Marine
and Estuanne Protection (WH—556F).
U S. Environmental Protection Agency.
401 M Street. SW.. Washington. DC
20460 (202) 475—7129. The official record
for this rulemaking a available for
viewing in the Public Information
Reference Unit, room 2904. WaIP rqIdfi
Mall. 401 M Street. SW.. Washingtoa.
DC 20480. (202) 382-5928. from a a.m. to
4 p.m.. Monday through Friday,
excluding legal holidays. The EPA
public information regulatiaa (40 CFR
part 2) provides that a reasonable fee
may be charged for copying. The March
7. 1991. 1—5 pm public hearing will be
held at the EPA Headquarters. 401 M
Street SW. Washington. DC ‘in the
Education Center Main Auditorium.
FOR FURThER INFORMATiON CONTACT
Virginia Fox.Norse. Office of Marine
and Estuarine Protection (WH—556F).
U.S. Environmental Protection Agency.
401 M Street. SW.. Washington. DC
0460 (202) 475-7129.
SUPPLEMENTARY INFORMAI1OIC
L Introduction
A. Stalutory Background
Under section 301(b)(1)(B) of the
Clean Water Act (CWA or Act) (33
U.S.C. 1311(bJ(1)(B)). POTWs were
required to achieve secondary treatment
by July 1. 1977. Congress amended the
CWA in 1977 to add section 301(h). 33
U.S.C. 1311(h). to allow the
Administrator, upon application by a
POTW and with the concurrence of the
State, to issue a National Pollutant
Discharge Eliriunation System (NPDES)
permit which modifies the secondary
treatment requirements of section
301(b)(1)(B). POTWe were allowed for a
limited time to apply for a section 301(h)
modified NPDES permit into marine or
estuarine, waters if the applicant could
demonstrate to the satisfaction of the
Administrator that the proposed
discharge would comply with the
section 301(h) criteria and all other
NPDES permit requirements.
Section 30’L (h) was later amended by
the Municipal Wastewater Treatment
Construction Grants Amendments
(MINTCGA) of 1981 (Pub. L 97—117. 95
Stat. 1623). These amendments resulted
in the following changes:
(1) Any POTW which proposed to
discharge into marine waters was
eligible to apply for a section 301(h)
modified permit within the specified
time period. Previously, only P011W.
actually discharging into such waters as
of December 27. 1977. were eligible.
(2) The deadline for submission of
301(h) applications (in section
301(jll l)(A) of the Act) was extended
until December 29. 1982.
(3) POTWs achieving secondary
treatment could apply to discharge
pollutants at less than secondary
treatment levels.
(4) EPA was prohibited from granting
section 301(h modified permits for the
discharge of sewage sludge.
(5) Section 301(h)(8), which slated that
construction grant funds available to
section 301(h) waiver recipients had to
be used to carry out best practicable
evastewater treatment technology or the
reqwrements of section 301(h). was
repealed.
8. New Statutory Requirements
On February 4. 1987. Congress passed
the Water Quality Act of 1987 (Pub. L
100-4). which amended CWA section
301 (h) in several important respects.
Section 303 of the WQA. which Contains
the amendments to section 301(h).
resulted in the following changes:
(1) Discharges. in accordance with
modified requirements. cannot interfere.
alone or in combination with pollutants
from other sources. with the attainment
or maintenance of water quality which
assures the protections and uses listed
in section 301(h)(2).
(2) The scope of required monitoring is
limited to only those Investigations
necessary to study the effects of the
proposed discharge.
(3) For PO1’Ws serving a population of
50.000 or more, with respect to any toxic
pollutant introduced by an industrial
source for which poilutant there is no
applicable pretreatment requirement in
effect, the applicant must demonstrate
that sources introducing waste into the
P01W are in compliance with all
applicable pretreatment requirements.
the applicant will enforce those
requirements. and the P01W has in
effect a pretreatment program which, in
combination with the POIW’s own
treatment processes, removes the same
amount of the toxic pollutant as would
be removed if the P01W were to apply
secondary treatment and had no
pretreatment program for the pollutant.
(4) At the time the 301(h) modification
becomes effective, the applicant will be
discharging effluent which has received
at least primary or equivalent treatment
and which meets water quality criteria
established under CWA section
304(a)(1) after initial mixing in the
waters surrounding or adjacent to the
point at which the effluent is discharged.
(5) No modification may be issued for
a discharge into marine waters unless
those waters exhibit characteristics
assuring that water provding dilution
does not contain significant amounts of
previously discharged effluent from the
P01W.
(8) No permits may be issued for
discharges into estuarine waters which
exhibit certain specified stressed
conditions, without regard to whether
the applicant’s discharge is causing or
will cause those conditions. No permits
may be issued for discharges into the
-------
Federal Resister / Vol. 50. No 16 I Thursday. January 24. 1991 / Proposed Rules
2.315
New York Bight Apex under any
conditions.
(7) Any POTW that had a contractual
agreement before December 31. 1982. to
use an outfall operated by another
POTW which has applied 1 , or
received a section 301(h) modified
permit may apply for a 301(h) permit in
its own right within 30 days of WQA
enactment.
(8) Certain provisions of the WQA
amendments do not apply to
applications which received final or
tentative approval before enactment of
the WQA. These permits will, however.
be subject to the new section 301(h)
requirements upon permit renewal.
Unless noted otherwise, the statutory
citations in the remainder of this
preamble will refer to section 301(h) of
the CWA and its vanous subsections, as
amended by the WQA. rather than to
section 303 of the WQA.
C Regulatory Development
EPA initially promulgated regulatiolis
iznplementuig section 301(h) of the CWA
on June 15. 1979 (44 FR 34784: 40 CFR
part 123. subpart C). Those regulations
were challenged in part in the U.S. Court
of Appeals for the District of Columbia
Circuit. As a result, the Court
Invalidated three provisions of the
regulations in Natural Resources
Defense CounciL Inc. v. PA (“NRDC1,
656 F.Zd 788 (DC Ci ,. 1981).
In response to the statutory
amendments of the MWTCCA and the
results of the NRDC suit, EPA
promulgated amendments to the section
301(h) regulations on June 8. 1982 (47 FR
24916) The preamble to those final
amendments explains the results of the
lawsuit, the MWTCGA statutory
changes. and the ensuing regulatory
amendments. On November 28. 1982.
EPA promulgated further amendments
to the section 301(h) regulations (47 FR
53666). These amendments were
intended to reflect EPA’s program
experience, to respond to Executive
Order 12291. and to respond to the
September 11. 1981. rulemakIng petition
from the Pacific Legal Foundation.
The current part 125. subpart G
regulations (i.e., prior to today’s
proposed amendments) require a POTW
seeking a section 301(h) modified permit
to demonstrate the followingi
(1) There is an applicable water
quality standard specific to the
pollutants for which the modification is
sought:
(2) The modified requirements will not
interfere with the attainment of water
quality which protects public water
supplies, provides a balanced
indigenous population of shellfish, fish
and wildlife, and allows recreational
activity:
(3) It has established a system to
monitor impacts on aquatic biota. to the
extent practicable:
(4) The modified requirements will not
result in additional requirements on
other point or nonpoint sources:
(5) All applicable pretreatment
requirements for sources introducing
wastes into the POTW will be enforced;
(8) It has established a schedule of
activities to eliminate the introduction of
toxic pollutants into the POTW from
norundustrial sources, to the extent
practicable;
(7) There will be no new or
substantially increased discharges from
the point source of the pollutants to
which the modification applies above
the discharge volumes specified in the
permit.
POTWs receiving 301(h) variances are
required to develop and implement
effluent, receiving water, and biological
monitoring programs. Permittees that
have known or suspected industrial
sources of toxic pollutants are required
to have an approved pretreatment
program in accordance with 40 CFR part
403 and are required to meet NPDES
permit requirements. including the use of
appropriate biological techniques (such
as whole effluent toxicity testing. where
necessary; 49 FR 9016. March 9. 1984) as
a complement to chemical specific
analyses to assess effluent toxicity,
which can lead to a modification in
permit limitations.
The purpose of monitoring toxic
pollutants and pesticides in the PO’fliV
effluent is to emphasize the detection of
toxic pollutants and relate discharge
characteristics to receiving water
quality, to evaluate treatment plant
performance and compliance with
effluent limitations in pernuts. and to
determine the effectiveness of toxics
control programs required for both
industrial and non-industrial sources
discharging to the POTW. The 301(h)
regulations also require an analysis by
the applicant of whether treatment of a
POTW’s discharge at less than
secondary treatment levels will require
other point or nonpoint pollutant
sources to increase their treatment
levels or apply additional controls.
Today, EPA is proposing amendments
to the regulations to reflect program
experience. to implement the
requirements of the Water Quality Act.
and to clarify the permit renewal
process.
D. Status of Permit Decisions
EPA received 208 permit applications
by the statutory deadline of December
29. 1982. As of the end of 1988, 142
permit modifications had been finally
denied or withdrawn, and 48 had
received final EPA approval. EPA has
not reached decisions on the remaining
18 permit applications. A number of the
48 modified permits will expire in the
near future. These perrnittees should
begin to consider how they intend to
comply with the new proposed
regulatory requirements. In particular.
they should give early consideration to
the new requirements in proposed
H 125.60 (primary or equivalent
treatment) and 125.65 (urban area
pretreatment program). including the
possible need to develop local limits or
require additional treatment to satisfy
the latter provision, as discussed below.
E. O on,zoL,on of Preamble
Section U of this preamble discusses
the EPA’s proposed changes to the
existing regulations in response to the
statutory amendments. Section III
contains a section-by-section analysis of
the proposed regulations, indicating
where changes have been proposed to
the existing regulations and the
reasoning for the cha’iges. Section IV
addresses compliance of the proposed
regulations with Executive Order 12291.
Regulatory Flexibility Act. and
Paperwork Reduction Act. The agency
has completed analyses of the scope
and magnitude of impacts related :o
these proposed regulatory changes.
More detail regarding these impacts can
be found En Section IV or in the
Economic Impact Analysis (EM) and the
Information Collection Request (ICR)
II. Response to the Statutory
Amendments
The following is a description of
today’s proposed changes to the
regulations implementing section 301(h),
as summarized In the table below. The
discussion is organized according to the
subsections of section 303 of the WQA.
Citations to parts of the part 125.
subpart C regulations in the discussion
below refer to the section numbers of
the regulations as renumbered under
today’s proposal.
-------
2816
Fedez Ragister I Vol. 56. No. 16 / Thursday. January 24. 1991 / Proposed Rules
Pm r e w isii
Contents of Rewis.d Section
Crrant & osit S
Changes to Cirent Sinoart S
125.56.............
Sco s and Ptaioa. ._.
125.51
Unchanged.
12557 ..__.
Law gonarenig esuanci of a section 30 1(h) modified penril.
125.57. .
fnc jratea new Water Quality Act (PiZ. L 100-4) prow.
s ion
125 SI
125.59...._.....,,,,,,
Definitions. .... ..
General...
125.55. —
125.59... -
Adds and danfles de& .iti . . . ..
A.. ..ltdU 10 widWtfi tO new statutory ifItonta and
adds reaoglicadon procediaes.
125 60............._.__..
Pilniary or eQuivalent treatment requirements .. .... -.
... ._.._
New section.
12561 .___.
E ...t.n* of and mingliance with s glicebI. water quaifty
5
125.60 ... ._.
Redesignated. otitsnmse unchanged.
12562 . . . . ._
Attainment or maintenance of water auaiufy wfluch asswes
plotection of waler supplies. a,to no protection and prop.
agation of a balanced, indigenous popuiaeon of shelifi n.
fish and wildlife, and allows ruaeational activmas,
12561
Amended to conform to new statutory requirements, reoes-
ignated
125 63.._.
Establishment of a molvtonrig program - ...
125.62..._____..
Amended to coitfons to new statutory requirements; recow.
ignated.
125.64 ..._._ .
Effect of disctlwge on oilier pont and nonpoint eowces......,,.
12563... ... .
Redesignelad. otherwise unchanged.
12565 Urban area preveatinent program - _ . . .. . .. .. ___
125 66 ._._........_ . ... Toxtc control progrsm....................._......._...... . . . .. . 125 64...__,, . ..._._.
I
12567 .. . . .._. . .... lnaease in effluent volume or amount of pollutants dia. 11256S
charged.
12568 . . Special condifions for section 301(h) modified permits 125.67 ._ ..._ .
Appendo ... Applicant questionnaire for modification of secondary treat- Appondo .__..
mont noqtmomen I
New section
Amended to update deadknes for pretreatment program
approvaP redesignated.
Redesignated. ot?wwiae uncharged.
Minor conforming changes; redesignated.
Amended to consolidate unto one contoned quesuornnre
.
WQ .4 section 303(o). aniendiny CLV .4
section 3021’h)(2): Previously, this section
required a demonstration ihat the
applicants discharge will not interfere
with the attainment or maintenance of
water quality which assures protection
of public water supplies and the
protection and propagation of a
balanced indigenous population (BIP) of
fish, shellfish, and wildlife, and allows
recreational activities. Under the WQA
amendments, the applicant must now
demonstrate that there will be no such
interferences attributab:e to its own
modified discharge. alone or in
combination with pollutants from other
sources.
Under the existing section 301(h
regLiations ( 1.25 92( 0), EPA already
con tders the combined effects of the
moJified discharge and other pollutant
sources when evaluating compliance
with the requirements of 301(h)().
S eciflcally. under * 125.bz(fl. the
applicant must demonsirnie compliance
with the requirements in the rest of
125.62 unless it can show that the
failure to meet those requirements is
enii:ely attributable to other sources. In
other words, the applicant is already
required to make these water quality
damonstratians with respect to its
discharge alone or in combination with
those from other sources: it is released
from these requirements only if t can
showihat the interferences are entirely
attributable to the other sources. The
current regulations are thus already
fully consistent with the requirement
8dded by WQA section 303 (a).
Nitvertheless. because this is now a
statutory requirement. EPA is proposing
to add lang’.iaçe to 125 62ffl to cLinfy
this issue. This new language makes
clear that it is not sufficient to
demonstrate that an applicant’s own
modified discharge will not interfere
w:th the attainment or maintenance of
water quality as specified in the
remainder of 125.62. Instead. EPA will
evaludte such compliance based on the
combined effects of the applicant’s
modified discharge and poUutants from
other sources.
WQA .rect,on 303(b). o.raending CW.4
section 301(h)(3/: This aecton states that
the scope of inomioring under section
301(h) ii to be (ignited to only those
scientific investigations necessary to
study the effects of the applicant’s
proposed diiicha;;e. The specific
morutorrn.g programs to be implemer.ted.
by indz’iidual applicants are developed
on a case-by-case basis.
The requirements for monitoring
programs under the ex.istmg regulations
are in fact already generally focused on
the effects of the applicant’s discharge
(see. e.g.. * 125.83(b), which provides
that the program shall be adequate to
evaluate the impact of the discharge on
marine biota. and 125.63(aJ(’i)(iv).
which provides that the frequency and
extent of monitoring programs should be
determined after taking into account the
nature of the discharge and potential
impacts on receiving waters: see also
125.63(aJ(1 )). However, to make this
new statutory limitation an explicit
requirement. EPA proposes adding this
limitation to 125.53 of the regulations.
As in the past, the rationale for and
scope uf 301(h) monitoring programs will
be discussed in the 301(h) decision
document and supporting record for
each permit decision.
WQ.4 Sect!On 303(c). amenthng CL V. I
section 301(h)(8/: This amendment adds
a new requirement, the urban area
pretreatment program, to section 301 hI.
This requirement applies only to
POTWa serving a population of 50.000 or
more. and only with respect to to’cic
pollutants introduced by industrial
discharger’s. Under this provision, each
such applicant must demonstrate. for
each toxic pollutant introduced by an
industrial discharges’. that it either (1)
has an “applicable pretreatment
reqiureznenf’ in effect or (2) has an effect
a program that achieves “secondary
removal equivalency.” as described
further below. This new statutory
requirement complements the toxics
control program requirements cor.tamed
in the existing section 301(h) regulatons
(* 125.66).
Section 3OUh)(O) as.amended also
requires POT’Ns to demonstrate that
industrial sources are in compliance
with all of the’.r pretreatment
requirements. including numerical
standards set by local limits, and that
those requirements will be enforced.
This part of section 301(hffo)
complements the existing requirement in
section 301(h)(5) for applicants to
demonstrate that all epplicable
pretreatment requirements for sources
introducing waste into a POTW will be
enforced.
The requirement for POTWs to
demonstrate that industrial sources “are
in compliance” with all pretreatment
requirements will not necessanly
require a demonstration that 100 percent
of industrial sources are in compliance.
For urban area PO’l’We with significant
numbers of industrial users. at any givrn
-------
I edsraL Regis I Vol 5 L%Zo. rn I Thursday. J uiuacy 1991 1 Proposed RuIe
2f17
time. l t ta Pn.t mie iaav
of thu u iIIiem of cwnpllaisee.
Adwptm en tn rpr t1em rmun ng itn
aiuipIi .mth bs
i .ncaI and esuld eEes wLp
prohbt flh waiverav hty for
large POTWa.
instead.. A believ. it is appropna
to consider. ons ca.e.by-case besi ,. tie
number and nature of the
noncomplisace.. it is seasesiahi. not to.
desy modifications t POTWt that are
diligeisdy plenienti a petreatmeut
progran merely becava. ther, i s m
Lr.subetaatial degree of noneompbanee
with pretreatment reqpeemeuia.b i
ir.dustriai uaees. instead. EPA will.
exerciqe dssczelion. hr detetnuning the
aigniLl zice of the nones ances. antI
will . mi’w the ires the PQTW ia
taking ta asatare c.m Uasos and.
Lrplement an. affective preiaeatsuent
p ogram .Thia. interpretation I a
consistent with the directives in a
Senate Report on. an earlier vers& n. of
the bill sea S. Rap. No 1128. 99th Cong..
1st Seas. 14 1 5)J_
To implement these new
requwPmP rtts. EPA. proposes to adil
§ 12565 to the regu1aim and toadd.er
revise certain de thitiona.in I 125.58.
The term. c,un.pollidant La defined in
the existing 301 reguratiana
( 125.58. aaJ]. and today. proposaL
wouid. not change that definition. As a
result under that deflnillon. the
requfremerits of’propoaed (125.65
would apply to thn.t2 pnonty
poi! itants listed La 40 CFR 40115. Zn
addition. proposed I 1 65TaTt2T
ciarifles the relationship of the toxics
control requirementa contained in
proposed 125.65 and the existing
general pretreatment req iaremer.ts in 40
CFR part 403. This provision makes
clear that the requirements of proposed
12565 are to apply in addition to any
applicable pretrea ent requirements
contained, in 40 CFR pafl 403. Nothing in
prooceed 125.65 is iirtended to waive
or relax the part 403
requirements.
1. Applicable Preireat ent R eoaezt
in FJfec&
The first manner in w chan
applicant may setisfy prepesed’ f 125 M I
is to. show that there ft applicabfr
pretreatment req meur hr effeet fore
toxic pollutant Applicable pretresonent
requirements. may tale the fore, of
federal categorical pretreatment
atandards promulgatetf by EPA under
section 307 of theAct. locaclimits
developed izr accordance with 40 .CFR
pal 403. or a combinatfoep of both.
A combination of both type. of
pretreatment sTandard o will often be
requirsil IT, order to s tsfy section
3OtS7asacallecfWe appl1cabl
prs a0n.nt r quwsment CätPgaTICal
standards and sJ hni a are distinct
and complewenta.r iypea.af
pretreatment standard.. Cat icah
etandarde are at fly ce ai u..
techimloqy- based ltmel developed fcn’
specific indoatnes. in contrast. under4O
CFR. part 403. POTWa imiat develop
local limits far all wdustsiel eaune, as
necessary tn. prevent intarferenee anti
pass.through and. in mpincieea the
specific pToblbition. of 40 R 403.5tb .
Under todays piupasel. P07W. may
also need to. develop 1oca limits to
ensure’ thus, the requiremei . of I 1.25.O
are satisfied. (sea proposed I 125 .65(cfl. .
Thus, the existence of categorcal
standards that c er certain industrial
discitargers. does not relieve a PCITWoI
any obligation it may have to develop
local limits for those uuiustrial
dischargers or others. bi addition, where
an industrial discharger is subject to
both a categorical standard and a focat
limit. themore smngent of the two limits
applies.
Murtuver. to.quaflfy as an “appttcabfe
pretreatment reqmri!Tfleflt” a
reqnuement OiS t of ic u uiCTttS Titus?
apply to .ffhidia thscharye
inu ..u 5 the f u pollutant into the
P07W. A toxic pollutdxzf often may be
intr..i ai.e& by aeverat industrial sources.
some of which are subject to a
categorical sta Jard forthal polfutant..
and someof . .htiui are nat. Fxi such
cases. in order to show that there is an
I b [ epretreaflneot reqmrmnenr
in effect apphcanta wouLd rTeed to
deveim, local limits to ensure that alt
industrial users urtrvduciug the toxic
pollutazit into the POTW are subject to
applicable pret’eatment requirements.
In light of the above. A piuposea to
define an “applicable pretreat nent
requiivrnenr for a toxic pollutant as one
that consists of the foUowing two
elements ( 125.65 (c )): (a) As to each
Industrial discharger to the applicant’s
treatment waits for which there is no
applicable categorical pretreatment
standard for the toxic pollutant. a local
limit or limits an the toxic pollutant
satisfying the requfrements of 4(1 C7R
part 403 and ensuring that the
requirements of 125.62 wilX be met.
and(bJ as to each industrial discharger
to the appllcenrs tree finest worka that
is covered by a categorical pretreatment
standard for the toxic pollutant, the
categoncalstundardplusa local Limit or
liziits as necessary to satisfy 40 CFR
part 403 and 125 OZ Put another way.
EPA wiff find that there is an
“apphcable pr t1 ci DTieflt ruqmrrmenr
for a toxic polfntarTt ii? S3tiIfJCOOii of
section 301(PtJ(ft} only uiider the
buoying conditions’ Frsr. f each
inda. ,el discharger that ma not eo,erert
by a categorical pretreatment standard
for that pollutar .l. there mist it t elf owes
be a local Ifiree air the pollutant
approved by A imi- uuifl to the
requnemeizia of 45 CFR part 459 an the
requirements of ?2S.8 second. eveir
for Fac i litie, that err subject ten
categorical standard fur the puflirtent.
there ernst be an EPA ,, ied local
limit on the pollutant which satisfies 4
CFR part 401 and t”-9 ”
bt addition. POTWa reeking to
demonstrate that they have an
applicable pretreatment req iuemenL in.
effectfoz a. parucular tsn pollutby
relym an Insal h te for thet al tw
must demonstate that the local lkmtu are’
adequate’ and enforceable. Under
proposed. I “ 5(c)l,2 ,. EPA may
require l aJ. louitz La be revised where
necessary to satisfy the ra irewma oI
both. 4OCFR part 4413. 4 125. . EPA
refers appliesat.. to the tackateal
guidance dacunrent issued by EPA in
December. i9 In, the porposes of
CFR pert 3. fU S. Enviremnentab
Protectiet, Agenq’ Office .1 Water
Enforesnieitt and Permit,. Giaderice
Manunl on the Develuyu .rM and
Impienierstaban of Locof Dzscbar
Limitations Under the P -i..—..I
Prngra ber 7. 330 pp3. As to
the e rements of EWI
of • lh apphcad might
reveaL for exaenpht. d mare somgeut
pretreatment to
protection of a balanced indigenous
population oF flab, shellfish. sad wifd Ife
under § 125J2 C _SUnILarIy. under
proposed i2SiOZa) . Ufh)iappiicacH,
must demonstrate that apph€abie water
quality standard, or EPA araterqirallty
criteria, as. appropriate. will be met al
and bevend the boundary of the Zone of
hutialDihinon RID! midercriflcai
env iromeental and’ treatment plant
conditi ms. SecIleis 301(17) modified
permits held by P07Ws will conta in
effluent limits based on these and other
iequirementsr us turw. each POTW 1 must
demonstrate that thete are Focal
prseennnent reqisiemente m place that
wiU allow it to meet these p rnr limits.
These’ reqwrementw eie subject t
approval by the Administrator as part of
the 301(h) review pruu-v s
2. Secondary Removal Equivalency
The second manner in which an.
applicant may atrsfy proposed (125 65
is to demonstrate that the conibinanon
of its own trce truant plus pretreatment
by irrdusma dfschtir vr, achieves
“secondary removal equivalency —
Applicants m’.zst make this
demonstriitian whenever they cannot
ihow thata toxic pollutant in roduce€f
-------
28t8
Fedcrl Register I Vol. F . No. 1’3 I Thursd’v ar . ary -L 1991 1 Proposed RUes
by an industrial discharger is subject to
an “applicable pretreatment
requirement” in effect.
This proposed regulatory provision us
intended to implement the new
requirement in section 30l(hJ(8) that.
where there is no applicable
pretreatment requirement in effect For a
toxic pollutant, applicants must
demonstrate that they have in effect the
following’
).‘ j pretreatment program which. in
combination with the treatment of discharges
From such works, removes the seine amount
of such pollutant as would be removed if
such works were to apply secondary
tmauneni to discharges and if such works
had no pretreatment program with respect to
such pollutant.
EPA has termed this the “secondary
removal equivalency’ requirement. and
proposes to add the definition of that
term in 125 58(w).
Secondary treatment is intended to
control conventional, non-toxic
pollutants (40 CFR part 133). However.
where secondary treatment is applied, a
certain amount of the toxic pollutants in
the wastewater is also removed. in
essence, this part of section 301(hJ(8)
requires a program that achieves the
same amount of toxic pollutant removal
(considering both the pretreatment and
the applicant’s own treatment at below
secondary levels) as would be achieved
if the applicant were to apply secondary
treatment and there were no
pretreatment requirements covering the
pollutant.
Under today’s proposal, to
demonstrate secondary removal
equivalency, an applicant would need to
use a secondary treatment pilot plant.
By diverting part of its influent to the
pilot plant. the applicant would
empirically determine the incremental
amount of a toxic pollutant that would
be removed from the influent if the
applicant were to apply secondary
treatment. The applicant would then
demonstrate to EPA that it has a
pretreatment program in effect which. in
combination with its own treatment
processes, ensures at least that amount
of toxic pollutant removal from the
POTW’s discharge. This demonstration
would likely require the POTW either to
Install additional treatment, or to
develop or revise local pretreatment
limits.
More specifically, for “secondary
removal equivalency.’ the statute
requires a showing that the amount of a
toxic pollutant removed by the
applicant’s existing treatment plus its
pretreatment program Is equIvalent to
the amount of that pollutant that would
be removed if the applicant were to
apply secondary treatment and if the
arplcant had rio pretreatment prcgrnm
at all with respect to the pollutant. This
can be represented as follows:
POTW exis l.ng treainient + indusin,i!
pretreatment POTW exisiir,
treatment upgmded to secondary
treatment + no industrial pretreatment
EPA recognizes, however, that it
t ou d be much simpler for applicants to
perform this empuncal demonstration by
using a pilot plant to apply secondary
treatment to the appticant’s regular
iniluent—, e. influent that has already
received industrial pretreatment in
accordance with the requiremen’s of 40
CFR part 403. This approach would alter
the above showing as follows:
POTW existing treatment + industrial
pretreatment upgmded to secordary
treatment = PO1’W existing treatment +
industrial pretreatment
EPA has determined that the
empirical demonstration of second.iry
removal equivalency using influent that
has received industrial pretreatment
would be conservative—i e. it would
overstate the amount of toxic puilutant
that would be removed by applying
secondary treatmenL as compared with
art empirical demonstration using
inuluent that has not received industrial
pretreatment, since the demonstration
takes into account the toxic pollutants
removed through the industrial
pretreatment program. Therefore, under
today’s proposal, to demonstrate
secondary removal equivalency using
the pilot plant approach. the applicant is
permitted to make that demonstration
(although it need not) by using influent
that has received industrial
pretreatment (qee proposed
125.58(w)—definition of “Secondary
Removal Equivalency”).
EPA refers commentors to the
Amended Technical Support Docwnent.
which is located in the public record for
this rulemaking, and provides’ guidance
and illustrations on the methods that
may be used to make the demonstration
of Secondary Removal Equivalency.
WQA section 303(d). adding CWA
section 361(h) 1 ’9). This section of the
WQA adds new language to 301(h)
providing that at the time the waiver
becomes effective, the applicant must be
discharging effluent that has received at
least primary or equivalent treatment
and that meets EPA water quality
criteria after initial mixing. In addition
to requiring an applicant to demonstrate
that its discharged effluent has received
pnmary or equivalent treatment.
* 12.5 00 would also require applicants to
monitor to ensure compliance with this
treatment requirement based on the
monthly aver.ige results of the
monitonng To implement the primary or
equit alert treatment pro -’sicn. EPA
proposes to add 125.60 to regulations
WQA section 303(d) defines primary
or e;:zv: cnt tr:atmer.t as “treatment by
screening. sedimentation, and skimm:r.3
adaquate to remove at least 30 percent
ci the biochemical oxygen demandir.
IBODI material and of the suspended
s&ids (SS) in the treatment works
influert. and disinfection, where
appropriate.” In light of WQA section
3OJjd). EPA believes that a definition of
“primary or equivalent treatment” is
nec esar ,’, and p op ses to define th’s
term in 1Z5.58(qJ exactly as it is
defined in the WQA.
EPA believes thet the terms
‘sedimentation” and “skimming”
include a range of treatment techniques
For example. these techniques would
include coagulation and precipitation
(physical adjuncts to sedimentation).
and flotation and subsequent removal
by skimming These techniques would
be adequate forms of treatment under
section 303(d) and todays proposed
regul.itions ( ) 125 38(r) and 125 OOj as
long dS they satisfy the stated
conditions for no less than 30 perce’.t
BOO and SS removal.
WQA section 303(d) alio requires (r
new CWA section 301(h)(9)), ci the tirri
the wavier becomes effective, that
discharges meet water quality criteria
estabished by EPA under CWA section
304(a)(1J of the Act after initial mixing in
the waters surrounding or adjacent to
the point of discharge. En general, CWA
section 304(a) criteria serve only as
guidance to the States. States may base
their development of water quality
standards on the 304(a) criteria as
modified to reflect site-specific
conditions or on other scientifically
defensible methods (see 40 CFR
131 11(b)). In ed&tion. water quality
standards are subject to EPA appro al.
and are approved by EPA
notwithstanding differences with the
304(a) (1J criteria where they are deemed
appropriate with respect to local
conditions.
Accordingly. EPA believes that
Congressional intent behind this part of
section 31fl(hj(9) will best be satisfied if
the applicant demonstrates compliance
with directly corresponding numerical
water quality standards, instead of
section 304(aJ(l) criteria, where such an
EPA-approved numerical standard
exists for a pollutant. If there is no
directly corresponding numerical water
quality standard with respect to a
pollutant, then applicants would need to
demonstrate compliance with the
304(a)(1) criteria. For example. in some
cases there is a numerical water quality
standard for a group of chemicals. such
-------
F Z d Register I Veii ig I ThtIr,dny , J nuniy 24. ? 1 I
as total toMc meials. and there is.
3O4(a fl cnlenew fore apec fle
inOr m chenucaL sach .aea mmo.
The applicant would be required to meet
the 3O4(alf1Perite ’ ,forcadm,en, si,ce
it refers toe specific chenricel rather
than to a g pidcheuuca !. This.
applicants would n,ed tedeywenetrale
compliance w,th tha M(a) )) c,T1 nee.
not the water qcali$y standard.
This appresclr 1. adopted today in
proposed I 129.62(eJf1 ’J fi and fii . hi
addItion, proposed t25.62 aJ9)finJ ’
makes it clear thut the’ requirements n
125.S to meet waterquality standards
o criteria app 1 y hr addttfer , to any
requirement.. to. meet water quality
standards is’ and that these stew
rcquirementa do isol waive or sebstitute’
for requiremeiwa to t2 .fl l the
requireilreln, of the two sectiene differ
the more stringent would appiy.
EPA believe, thai did not
in tend to deny 30)fh} wewera in casee
‘.t hero nuistencof waf rqws4rty
standard. he e bee,, adopted and
approved bp EPA a, repfecement, for
the 3O4t’,e)f cri!erre and theapp eaot
demonstrate, cemplienre with they
sandards athe beendmyofthnZID
instead. Congress appear, to ’ have
added the reivpaienrfi,eeeftow
3O1(hJf9 t, eneure’a?ineas .general
level of pcefec on eesbethed m EPA’.
water qe.liPy criteria a caans where.
ful’ raegeei water quality ,lestda,d,
corresponding-t i, dtue. i(eri. hove no,
been’ adepted Therefore. eempliance
v.ith an EPA.appr,ved nnrne,ival water
quality stanth.rdfeva ,peiiccular
pollUtant I, suf cieiW order today’.
propoaeI ?egeri ese of whether the
standard is mere or lea. ft ui their
the correspondIng ons under
section 3o4 a)f1Jt
The section’ 3t)fta ’)(? ciiiene tsr the
protection’ eF.quacle ’ life. arid human’
health. for non-eureiieganse pellotant,.
recowm .,4 meisene value. I.e ambient
levels ef the polinfant fo many. but stat
all, cases (e gt. speellicm.xlustan srZS .
hour a er’ng. cata irnoa for, tev .frj A
believes thau these evohanU
where specified. are
sectien J tlh a Ik .be.Jd be
required to iseet to ssflafy the stoletery
reqwremesor to “beer mc an
304(a)(1) critovm A, sane, where .
aectmn . 30q’ .Jcl critenan far the
protec os’e aqu c life or for the
prote es’ of human heatiS for nor,-
carcinogenic. peAiton . doe. stat
recoium.nd • rwimancj.,4. theret, to
section 304(aJ (1J criterfenlerthe
applicant to “ meL. ’ and the . icant
would - to do a
Accei’dmgl . , uo toJay ’ pseposed
rule. so appLf sI “ eta” the s.ct [ e
304(a)(T) a’iferi. foraq eeec life and
human’ health for noce,ciui, uic
poffutants where if tAo’
recoamninded calves. [ fatty. sped fled fir
the sienen’ } criteria for ambient
levels of fire pollutant.
In the case oFcai-i.i , gis. EPA’s
section 3G4taK ’? 7 human healib criteria
for carc nagenic puftutanm recoimnend a
concentration of zero’ for the ma’ximum
protection of human health. The section
304 1a)tfl criteria documents far
carcinogens also present rnformatrnn on
the range of peThstant Cuu iiUutlofla
that correspetid tc ,inaemental cancer
risks of 10’, 3T. and’1 ’ fie.. sue
additienaf case of cancer over. lifetime
in a population of errehuadred
thou .and one million. and ten miThon)
at specified anpeewe petter, , ,.
!ecauae a zere level is esseritis fly
unattainable. vndersacttrnr 30! of the
CWA EPPv hee approved numeric State
water quality criteria for cervino on,
that correspond to ’aeceptsble’nafr
ranges shove zero If there is seth an
EPA-approved numeric Stare waler
quality standard ?cra particular
pollutant. thro se previously discussed.
a demens ’atfon ofco ,npli ,mt.-ewith that
standard would be sufficient See.
proposed 125.82(a)(1 j cy.
Howe,er. in the abeeseeefeii EPA-
approvedmeiteric State waterqua iy
standard or eunslator precedere fore
p.articvlar pefiniant. e wiff be ste ai-y
for applicante todernonstrele
compliatree. wrf , the applicable 5w flon
304(a)rilerltecie , See.
T25-82fa ))(ii) .Cieen that the level’ of
zern recommended a, the’ EPA criteria
forcrrtruveerne pollutants. is’ r u(raIFy
unattainable. EPA will deterrmne am,
appro - ate non-zero level of risk hr thf
cirvumataoce’b! crmsidenr ,g- .ll relevant
infonneiomr EPA wilt theri nie the
serMon 3O al( ? criterie cements.
supplemented by ether reievestt
tnfuriu tioii, to dii Perinthe the specific
pollutant cancestaurion’ that eo
to theeelectedrfek 7eveP
h selecting a risk levels for purposes
of this regulation. EPA will consider
whether there are EPA-approved sate
water quality standards in the ptirtfcutar
State for othorcarcmogvnlc potlufarita
that generuUy reflect a single risk level
employed by the Store in its water
quality staridaid. Inc exposure to
carcinogens. If the Stare has consIstently
employed seth e single’ risk level in
establishing- ife’ water quality .tand.rda.
EPA vail tim’ this n .h level as the eneon
which to bean numeric Iimila?Ion . for
the earcinegenic poWutesmt neqoestiest.
The .ppNca.i would steed to meet these
hrnitatiorts to show thai 14 neete the
(section’ 304 a1t?7} o ’iterfa’ Icr ike
pariIcufar rcm n
While EPA will consider whether tI e
State’s . . .r& quality ot sUdd!* for other
cmogemcpo*hiteiits reflect a level of
exposure’ c 1 nsietentPp cvrresprmdTng to
a single’rrihi level, the risk levels forthe
t arious csrcmogens need not alP be
eiiact!y’tbesanie Forexample. it may
be that theState-hnrarnimberof EPA -
approved standard, that .urr , urtd tea
level of! x if”, andetue standard that
correspond, to a level of 1.5 )c ic-s In
that case. EPA could determine that
there is a single risk level consistently
employed by the’S?are. antI the agency
would apply that nadt level with respect
to’ setting limitations on the eurcino en
iii question. Orrtheotherhend if a Slate’
has several EPA-approved warerquahty
standard, that correspond to wicfeiy
%arye’ig ’rsk levelw(eg. i(T’ ,ir some
casee and m etherej EPA would
determme that there is’ no single risk
level consistently employed by the
State.
Under the’ Agency’s water qua hl’y
standards program. Slate, are currently
required to develop numeric criteria far
the priority poliutante free c tiuiw
3O3(c) 2)( of the Clean Water Act
EPA therefore expects. that many or
most of the coastal state, wilt have one’
or mere -eppi ed water quality’
standards farcarc , wurr. pellatanteby
the tune theflgewcppromidgs’t!s’tbday’s’
nilemfuialform seshertly thereefter
Aep 2alfri 0 ti 10 5’ risk
level based an a consistent Stats’ policy.
the applies at may. at [ hi option, work
with the Stale to have the State
rew iuiend a particidarrisk level based
on e . &atioir that the
receecnimded level 1, acceptable. The
Siatewevid’ bear the lj 4. . . . of
just*jirig the ... ,m. . . ,.ded risk levet
La. theStateweutd’needtoexplam the
baste upon’ wliith II believe, that the
re cnuzmmded level will assare the
prorentluri of human heaMt wmñt}
consider tAle r.couensstdathm, but hr all
cases-EPA wiAe’thefhiaf
det w lftnp Iwfifth rIsk level I,
acceptable,
The Stats’, w Jitiarr must
drmonafrafr’t the’sathfactiom of the
Admmfstrwcr. that the- icwiuiaended
level 1. sufffJvutf i protective of human
health In fIght of the expomne ’ and
uncertainty factort a cfated with the
estimate of the acttiat risk posed by the
appflcant’ , discharge. tpo o factors
would inclode, far example. h,caf
patterns of ffsh’corrsemptien. CWTT 111UrIVe
effects of multipt, ccnts.nthianta, and
local populattem, seiwitleitlee. FuCts’r
related to. uncertainty would include. far
example. fire weIght of scienttftc
-------
2820
Federal Register I Vol . 56 No. 18 I Thursday. anuary 24. 1991 I Proposed Rules
evidence concerning exposures and
health effects and the reliability of
exposure data.
The State’s demonstration should be
supported by sufficient documentation
to allow EPA to judge the scientific
soundness of the demonstration. The
State must also show that It has held a
public hearing to review the selection of
the risk level, in accordance with
provisions of State law and public
participation requirements of 40 CFR
part 25. and has considered the
comments received pursuant to the
heating. EPA’s intent Is that the public
participation process should be
substantially similar to that required at
40 CFR part 130 for the establishment of
State waler quality standards. The State
would also need to show that its
recommendation is based on the best
information available. EPA will consider
these and other pertinent health and risk
factors to complete an overall judgment
on acceptability.
In summary, under today’s proposal
EPA will first determine if there is an
EPA-approved State waler quality
standard that directly corresponds to
the EPA section 304(a)(l) criterion for
the carcinogenic pollutant under
consideration. Under proposed
125,62(a)(1)(iii). an EPA-approved
State water quality standard would be
deemed to “directly correspond” If (1)
the State water quality standard
addresses the same pollutant as EPA’s
water quality criterion and (21 the State
water quality standard specifies a
numeric criterion (or that pollutant or
objective methodolo for deriving such
a pollutant-specific aiterion. EPA would
apply this directly corresponding State
standard where available. Absent iuch
a Stale standard, EPA will consider all
relevant information In determining the
pollutant concentration that represents
an acceptable level of risk. This
information would Include evidence that
the State has consistently used a single
risk level when establishing EPA-
approved water quality standards, In
the absence of such a consistent State
policy. EPA will also consider a State
recommendation of a risk Level if the
State demonstrates to the satisfaction of
tha Administrator that the particular
risk level Is justified. The Slate
demonstration would need to account
for the relevant exposure and
uncertainty (actors, show adequate
public participation In the selection of
the risk level, and show that use of the
Identified risk level Is sufficiently
protective of human health.
In cases where there Is no Consistent
State policy or satisfactory State
demonstration on which to base a risk
level EPA has decided not to set a
specific risk level (e.g.. l0 ) In today’s
proposal that applicants would need to
meet (either presumptively, or in all
caseal. Instead, in such Instances, EPA
will select an acceptable risk level
based on the circumstances of each
case. EPA requests comment, however.
on whether these regulations should
specify the risk level that applicants
would need to meet in such cases. and if
so, what that level should be and the
basis for that leveL
EPA recognizes that section 3o1(h)( )
could be read to require compliance
with 304(a) criteria in all cases,
regardless of whether a standard exists
that Is better tailored to site-specific
conditions. Supporting this reading of
compliance with 304(a) criteria in all
cases is the recognition that EPA water
quality criteria and water quality
standards may differ, yet Congress
specifically referred only to the former
in section 301(h)(9). Therefore, for
proposed t 125.62(a). EPA considered
the alternative of requiting strict
compliance with 304(a) criteria in all
cases, but rejected this alternative for
the above reasons. EPA specifically
requests comment, however, on this part
of today’s proposaL
EPA is interpreting “after initial
mixing in the waters surrounding or
adjacent to the point at which (the)
effluent is diacharged’ to mean at the
boundary of the ZID (proposed
I 125.62(a)(1)). The ZID is defined in the
existing regulations as “the region of
initial mixing surrounding or adjacent to
the end of the outfall pipe or diffuser
ports. provided that the ZID may not be
larger than allowed by nuxing zone
restrictions in applicable water quality
standards” ( 125.58(cc)J. Under today’s
proposaL the applicant’s diffuser must
be located and designed so as to provide
adequate initial dilution, dispersion, and
transport of wastewater to meet water
quality standards or criteria, as
applicable, at and beyond the boundary
of the ZID under critical environmental
and treatment plant conditions (see
proposed 0 125.82(a)). This Is consistent
with EPA’s existing practice as reflected
In the Technical Support Document.
which recommends that compliance
with water quality criteria under critical
conditions be determined at and beyond
the boundary of the ZW.
In light of the new section 301(h)(9)
reqwrements. today’s proposal also
requires the applicant to provide, as part
of Its monitoring program, data (or
evaluating compliance with applicable
waler quality standards or criteria, as
applicable f 125.83(c)(1J).
WQA section 303(e). o .rneading
section JO1(hj: The purposes of this
section are (1) to require applicants to
take into account plume recirculation
and re-entrainment of previously
discharged effluent when determining
compliance with water quality
standards or criteria, and with the other
301(h) criteria, and (2) to prohibit
permits that would allow discharges into
the New York Bight Apex and all
stressed saline estuarlne waters, This
new recirculation requirement applies to
ocean as well as estuarine waters,
For all applicants WQA section 303(e)
calls for a determination of whether the
dilution waters contain “significant
amounts” of previously discharged
effluent from the treatment works,
Section 125.62(a)(1) currently requires
that the applicant’s diffuser be located
and designed so as to provide initial
dilution. dispersion and transport
sufficient to ensure that all applicable
water quality atandards are met at and
beyond the Zfl) boundary wider critical
envtronmentai and treatment plant
conditions. Where all water quality
standards are met. EPA believes that the
dilution water does not contain
significant amounts of previously
discharged effluent from the treatment
work., That Ia. EPA vIews the current
regulatory requirement to provide
adequate Initial dilution at the ZID
boundary to be a sufficient criterion for
ensuring that “significant amounts” of
previously discharged effluent sie not
entrained. This Is consistent with.the
statement in the Report by the
Conference Committee regarding this
statutory amendment that the reference
to water supplying dilution does not
include those waters immediately
surrounding the point at which the
effluent is discharged In which initial
mixing occurs. See CoaL Rep. Nn. 99-
1004.09th Cong.. 24 Sesa. at 119(1988).
Therefore. EPA has not proposed any
changes to the regulations, although
changes to the questionnaire
(incorporated Into the regulations as an
appendix) have been proposed to reflect
this WQA provision.
In addition. EPA Is proposing changes
to the 1 ’SD to revise the location of
monitoring stations used to determine
compliance with water quality
standards or water quality cnteria, as
appropriate. These sampling Location
changes have been proposed to ensure
that ambient conditions are not
impacted by the previously discharged
effluent of the POTW.
EPA proposes to add the WQA
section 303(e) provisIon on stressed
saline estuaries to the prohibitions listed
in 125.59 (see proposed f 125.59(b) (4)).
-------
Federal Register I Vol.56, No. 16 I Thursday. January 24. 1991 / Proposed Rules
2821
This provision would ban, without
exception. all permit waivers for
discharges into stressed estuaries. This
provision would not, however, affect
any current 301(h) applicants for new or
renewed permits because no applicants
are currently discharging into stressed
estuaries. To ensure that 301(h)
permittees will not discharge into
estuaries that have become stressed.
EPA will evaluate the condition of
affected saline estuaries when
reviewing applications for permit
renewal.
WQA section 303(e) makes clear that
discharges into stressed estuarine
waters are prohibited in all cases,
without regard to whether the stressed
conditions are caused by the applicant’s
discharge. Section 125.62(f) of the
regulations. however, currently allows
discharges into stressed estuanne
waters where an applicant demonstrates
that it will not contribute to the stressed
conditions This allowance must be
eliminated in light of the blanket
prohibition of V vQA 303(e). Therefore, in
ioday’s action. EPA proposes to limit the
scope of 125 82(1) by making it
applicable only to stressed ocean waters
(thereby excluding estuarine waters).
WQA section 303(f). amending CWA
section 301(j)(1)(a): This section allows
P01W. that had contracted prior to
December 31, 1982 to use outIalls of
section 301(h) POTWs, to apply for their
own 301(h) modification within 30 day.
of enactment of the WQA. This section
was intended to allow the Irvine Ranch
District in California to apply for a
modified 301(h) permit. However, no
P01W applied under this section within
30 days of WQA enactmenL Therefore.
there is no need to revise the regulations
to reflect WQA section 303(f).
WQi’t section 303(g)’ This section
exempts applicants that received
tentative or final approvals of 301(h)
modified permits prior to the date of
WQA enactment from meeting certain
requirements of the WQA until the time
of permit renewal. Today’s proposal
adds these “grandfatheruig” exemptions
in new 125.59(j). Specifically, this
section exempts grandlathered
applicants from meeting the
requirements of 125.59 (b)(4) and
(b)(5), 125.60. and 125.65 until the time of
permit renewal. In addition. EPA
believes that applicants may need up to
two years from the promulgation of
these regulations in any event to come
into compliance with the latter two
provisions (a e., 125.80 (primary or
equivalent treatment) and 125.65 (urban
area pretreatment program)). Therefore.
125.59(j) would allow applicants
additional time as deemed appropriate
on a case-by-case basis, but not to
exceed this two-year period, to meet
these two requirements in cases where
permit renewal will occur before the end
of the two-year period.
While WQA section 303(g) also
extended grandfathertng protection to
other parts of WQA section 303. these
provisions are not accounted for in
proposed 125 59(j). Specifically. WQA
section 303(g) also applies to section
303(a) (applicant’s discharge must be
evaluated “alone or in combination”
with those of other sources) and the first
part of section 303(e) (dilution water
must not contain “significant amounts of
previously discharged effluent”). As
explained above, however, these two
provisions are already effectively
included in the existing section 301(h)
regulations. Therefore. EPA has
determined that there is no resscn to
include these two provisions of WQA
section 303 in the proposed regulation
concerning grandfathenng.
EPA believes that the purpose of this
“grandfather” provision is to avoid the
need to reopen a decision already
approved or near approval at the time of
WQA enactment, In some cases. EPA
may have initially granted a tentative
approval, but, in light of new
information. may have subsequently
withdrawn that tentative approval or
issued a tentative denial prior to
enactment of the WQA. In other cases,
prior to enactment of the WQA.
applicants withdrew applications that
EPA had tentatively approved. EPA
considers such applications not to have
been near approval at the time of WQA
enactment. Therefore, under proposed
* 125.59(j), they may not take advantage
of the WQA section 303(g) grandfather
provisions.
Other requirements ’ Under today’s
proposal, applicants must demonstrate
compliance with all of the part 125.
subpart G requirements before EPA will
issue a final section 301(h) modified
permit (see proposed * 125.59(i)(1)).
Where an apphcant has not
demonstrated such compliance.
however, but is making a good faith
effort to come into compliance, EPA
may tentatively approve a permit
modification based upon a schedule that
the applicant must meet with respect to
the outstanding requirements (see
proposed 125.59(h)). With respect to
the new requirements in § § 12560
(primary or equivalent treatment) and
12565 (urban area pretreatment
program). EPA will grant in no case
more than two years to achieve
compliance (see proposed
§ 125 59(fl(3)(ii)) (except for
grandfathered applicants, as described
above). This provision for tentative
approvals is consistent with existing
regulations Iii part 125. subpart C and 40
CFR part 122 and will allow flexibility in
EPA’s 301(h) permit modification
decisions in cases where applicants
have met some, but not all, of the 301(h)
regulatory requirements and are using
reasonable, good faith means to come
into compliance with the remaining’
requirements.
EPA considered an alternative
approach of not making tentative
decisions available in cases where an
applicant has not satisfied the new
requirements of * * 125.60 and 125 65.
Under this approach. after
promulgation of today’s regulations, the
Agency would make final decisions an
waiver applications based upon whether
the applicant is in full compliance with
all of the existing and new regulatory
requirements in part 125. subpart C.
The Agency determined that this
approach should not beadopted. It
would result in denials of waiver
applications in cases in which
applicants jusuulably need more time to
meet the new regulatory requirements
These denials would lead to the
imposition of secondary treatment
requirements pursuant to schedules
extending well beyond the additional
time that would have been needed to
meet the new 301(h) requirements.
Instead, the strategy adopted in today’s
proposal would allow additional time
before a final EPA decision for
applicants who are making good faith
efforts to comply, but would set
reasonable limits on the additional time
allowed.
EPA seeks comments on the approach
in today’s proposal regarding the time
period’ for demonstrating compliance, in
particular, the Agency seeks comments
on whether the approach of allowing up
to two years to come into compliance
with 125.60 and 125.65 is appropriate.
or whether it would be more appropnate
to allow a shorter time or. conversely.
an extension of the two-year period for
good cause.
EPA has also added a sentence to
* 125.59(f)(4) stating that a failure to
submit the required State certifications
under H 125.61(b)(2) and 125.64(b) will
be grounds for denial of an application.
This does not represent a change to the
regulatory scheme but has been added
simply to make explicit EPA’s existing
authonty to deny applications on this
basis.
EPA also proposes to add a
requirement in § 125.59(e) that
permittees and applicants, including
those that have been grandfathered
under WQA section 303(g). must submit
-------
2822
Federal Register I Vol. 56. No. 16 I Thursday. January 24. 1991 I Proposed Rules
to the Mminigtrator within 90 days of
the effective date of these regulatory
revisions additional information
regarding their intention to demonstrate
compliance with the new requirements
under 125.80 and 125.85 upon permit
renewal If necessary, the Administrator
may reopen such permits to insert
schedules, ensuring that these new
requirements will be met upon peonit
renewal.
III. Sectioa.By-Sectlon Analysis
In addition to the above changes. at
venous other places in the regulations.
as explained below. EPA proposes
language to clarify requirements for
permit renewal.
Section 125.58: This section
establishes the general scope and
purpose of the regulations. This section
remains unchanged.
Section 725.57: This section sets Forth
the statutory language applicable to
section 301(h) modified permits.
including the statutory amendments
enacted on December 29. 1981 (Pub. L
97—117) and on February 4. 1987 (Pub. L
100-4).
Section 125.58: This section sets forth
the definitions applicable to the Subpart
C regulations. As a result of Section 303
of the WQA. definitions of primary or
equivalent treatment, pretreatment.
categorical pretreatment standard.
secondary removal equivalency, water
quality criteria. permittee. and New
York Bight Apex have been added. The
definition of industrial source has been
revised to include the term “Industrial
discharger” which appears in section
303(c) of the WQA. As explained in the
1979 regulations, waters landward of the
baseline were included in recognition of
indentations in the coast which were
considered to be marine waters but
were still inside the baseline. EPA
proposes to amend the term “ocean
waters’ to clarify that ocean iaters are
distinct from saline estuarine waters.
since saline estuaries are subject to
specific additional regulatory criteria
not applicable to oceans. The definition
of application has been modified to
include applications for permit renewal.
The definition of application
questionnaire has been changed to
reflect the combining of Lbs
questionnaires for small and large
applicants.
Section 125 59. This section describes
the general requirements applicable to
301(h) applications, including filing
deadlines and procedures, procedures
for revising applications, and procedures
for State determinations. Several
changes to this section reflecting the
new statutory requirement . are
proposed. EPA has also added
procedures for permit renewal, and for
submitting additional information
(specifically, letters of intent and project
plans, including schedulesj to
demonstrate compliance with the urban
area pretreatment program and primary
or equivalent treatment requirements in
order to ensure that timely
implementation of the requirements is
accomplished.
Section 125.60 This new section
requires an applicant’s discharge to
have received at least primary or
equivalent treatment (section 303(d) of
the WQA).
Section 125.61: This section requires
an applicant to demonstrate that there is
a water quality standard for the
pollutant for which the modification is
requested. The section also requires that
the applicant obtain a certification from
the state which documents that the
modified discharge will comply with
applicable provisions of state law.
including state water quality standards.
No changes are proposed to this section.
Section 125.82. This section
implements section 301(hJ(2) of the
CWA. and contains requirements to
ensure the attainment or maintenance of
water quality. The stressed waters
subsection ( 125.52(f)) has been
modified by adding the word “ocean’ to
stressed waters, thereby complementing
proposed I 125.59(bl(5). which prohibits
discharges into stressed estuaiine
waters under any conditions. EPA
proposes to amend I 125.62(afll) to
provide that applicants must meet EPA
water quality criteria established under
section 304(al(l) of the Act. or EPA.
approved numencal water quality
standards where such standards directly
correspond to 304(a)(1) water quality
cntena.
Section 125.63: This section outlines
the general requirements for monitoring
programs required under section
301(h)(3 ) of the CWA. In response to
section 303(b) of the WQA. EPA
proposes adding language to restrict the
required scope of the 301(h) monitoring
program. EPA is also proposing that
applicants monitor their discharge. to
ensure compliance with water quality
criteria (if applicable under proposed
I 125.62(a)). in addition to water quality
standards, as part of the applicants’
monitoring programs.
Section 12.5 64: This section contains
criteria related to the Impacts of the
modified discharge on other point end
nonpoint sources and implements
section 301(h)(4 1 of the CWA. This
section remains unchanged.
.Section 125.65: This proposed new
section sets Forth the urban pretreatment
program requirements of section 303(c)
of The WQA.
These new requirements are
discussed In section II of the preamble.
Section 725.68 This section includes
the criteria for • control program of
toxic pollutants and pesticides, and
implements sections 301(hJ(5) and (h)(6)
(in part) of the CWA. To update
compliance deadlines. EPA Is proposing
a minor change (see proposed I 125.68
(c)(1)) in reference to deadlines by
which applicants were required to
develop approved iretreatment
programs.
Section 125.67: This section discusses
the criteria related to increased
discharges and implements section
30I(h)(7) of the CWA. This section
remains unchanged.
Section 125.6& This section sets forth
special permit conditions to be included
in 301(h) modifIed NPDES permits. No
changes to these requirements have
been made.
Application questionnaires: There are
currently two mandatory questionnaires.
one each for small and large applicants.
in the Appendices to the section 301(h)
regulations. EPA is today proposing to
require all applicants, regardless of size.
to complete one combined
questionnaire. This single questionnaire
has been developed. based on EPA’s
301(h) program experience. to clarify
responses from all applicants and
faolitate EPA’s review as to whether the
applicant’s modified discharge meets the
criteria of section 301(h) and the subpart
C regulations. Information requested by
EPA in the questionnaire has changed in
response to new WQA requirements.
The questionnaire is still in two
sections. a general information and
basic requirements section (part II) and
a technical evaluation section (part UI).
IV. Compliance With Executive Order
12291. Regulatory Flexibility Act, and
Paperwork Reduction Act
A. Executive Order 12291
Under section 3(b) of Executive Order
12291. the agency must judge whether a
regulation is mapor and thus subject to
the requirements of a Regulatory impact
Analysis. The proposed regulation
published today is not major because
the rule will not result in an annual
effect on the economy of 100 million or
more, will not result in increased costs
or prices, will not have significant
adverse effects on competition.
employment, investment, productivity.
and Innovation and will not significantly
disrupt domestic or export markets.
Therefore, the agency has not prepared
a Regulatory Impact Analysis under the
Executive Order. EPA has submitted this
regulation to the Office of Management
-------
Federal Register / Vol. 56. No. 16 I Thursday. January 24. 1991 I Proposed RuIe
2823
and Budget (0MB) for review as
required by Executive Order 12291.
B. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to 0MB
under the Paperwork Reduction Act. 44
U S C. 3501 et seq An ICR document has
been prepared by EPA (ICR No. 138) and
a copy may be obtained from Sandy
Farmer. Information Policy Branch (PM—
223). U.S. Environmental Protection
Agency, 401 M Street. SW., Washington,
DC 20460. (202) 382-2706.
The average annual burden hours for
the collection information is
approx.mately 1.006 hours per POTW
respondent. and 120 hours per state
respondent. Of that, the incremental
burden from these regulatory changes is
itpproxunately 192 hours per small
facility, and 258 hours per large facility,
and 40 hours per state respondent.
These estimates include the time for
POTWs to collect additional information
to comply with this proposed rule, to
conduct monitoring and toxics control
activities, and to prepare an application
for permit renewal, and time for states
to prepare the state determinations and
certifications.
Send comments regarding the burden
estimate or any other aspect of this
collection of information. induding
suggestions for reducing this burden by
February 25, 1991. to Chief. Information
Policy Branch (PM—223), U.S.
Environmental Protection Agency. 401 M
Street. SW.. Washington. DC 20460 and
to the Office of Information and
Regulatory Affairs. Office of
Management and Budget. Washington,
DC 20503, marked “Attention: Desk
Officer for EPA.” The final rule will
respond to any 0MB or public
comments on the information collection
requirements contained in this proposaL
C. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
of 1980 (5 U.S.C. 601 at seq.), federal
agencies must, when developing
regulations, consider their Impact on
small entities (small businesses, small
government lunsdictions. and small
organizations). To evaluate whether this
proposed rule will have a significant
economic impact on a substantial
number of small entities, the Agency has
prepared an EIA. The Agency has
concluded, based on the EIA, that this
rule as proposed would not have a
significant impact on a substantial
number of small entities because it will
not create significant economic impacts
and will affect only a small number of
applicanta /permittees.
There are 66 current applicants or
permittees in the 301(h) permit program.
Out of these 68 applicants or permittees.
only ten are both subject to the primary
or equivalent treatment requirements
and meet the Small Business
Administration (SOA) definition of a
small entity (having a service area
population of less than 50.000). All those
applicants or permittees subject to the
urban area pretreatment requirements
and one of the perinittees subject to the
primary or equivalent treatment
requirements have service area
populations of greater than 50.000. and
t itus are not small entities. The SBA
considers twenty percent to be a
substantial number of small entities. The
ten small entities represent only about
fifteen per cent of the total current
applicants or permittees in the 301(h)
permit program. Therefore, this
proposed rule does not affect a
substantial number of small entities.
On a national level, the total
estimated capital cost of meeting the
primary or equivalent treatment
requirements for the ten small entities
amounts to a little more than $13 million
with an associated operations and
maintenance cost of 8565.000 per year.
Assuming a 20 year repayment schedule.
the total annualized cost, for the ten
small entities, equals approximately
$870,000 a year. After compliance with
the primary or equivalent treatment
requirements, the total annual sewer fee
for these ten small entities is less than
one percent of the community s median
household income. Consequently, none
of the small entities affected by this rule
are expected to incur significant
economic impacts.
In summary, I certify that this
proposed rule will not have a significant
economic impact ott a substantial
number of small entities.
List of Subjects in 40 CFR Part 125
Water pollution controls. Waste
treatment and disposal.
Dated January ii. 1991.
F. Henry Habicht.
Aci,ng Adm,n,sir’oior.
For the reasons set out in the
preamble. part 125 of title 40 of the Code
of Federal Regulations are amended as
set forth below.
Note: For claniy. EPA has set forth below
Part 125. subpart C in its entirety as it would
look after incorporation of the amendment.
In todays proposal However. EPA is
requesting comments only on the portions of
these regulations that the Agency is
proposing to amend in today’s notice.
Although the existing portions of subpart C
that EPA Is not proposing to amend are also
sat forth below. EPA is not reconsidering
those portions and they ate not subject to
comment as part of this proposed rulemaking.
PART 125—CRITERIA AND
STANDARDS FOR ThE NATIONAL
POLLUTANT DISCHARGE
FUMINATION SYSTEM
40 CFR part 125 is amended as
follows:
1. The authority citation for subpart G
of part 125 continues to read as follows:
Authority: Clean Water Act Sections 301.
30L501.Pub L92-508,88Stat.810.as
amended by Pub. L 95-217. 91 Stat. 1568. as
amended by. Pub. L 97—117.95 Stat 1623. as
amended by Pub L 100-4. 101 Stat. 29—37
2.40 CFR part 125, subpart C is
revised to read as follows:
Subpart 0—Criteria to . Modifying tile
Secondary Treatment Requirements Under
Section 301(h) of the Cleen Water Act
Scc.
125.56 Scope and purpose.
12557 Law governing issuance of a section
301(h) modified permit.
125.58 Definitions
125.59 General.
12560 Primary or eqwvalent ueatment
requuements
125.81 Existence of and compliance with
applicable water quality siandards.
125.62 Attainment or maintenance of water
quality which assures protection of water
supplies, and the protection and
propagation of a balanced, indigenous
population of shellfish, fish and wildlife.
and allows recreational acuvities.
12563 Establishment of a motutoruig
program.
12584 ElTect of the discharge on other point
and nonpoint sources.
125 85 Urban area pretreatment program
12568 Toxics conu’ol program.
125.87 Increase in effluent volume or
amount of’pollutants discharged.
12588 Special conditions of section 301(h)
tooth hed permits.
Appendix Applicant Questionnaire for
Modi&atlon or Secondary Treatment
Requirement.
Subpart G—Crlterla for ModIfying the
Secondary Treatment Requirementa
Under SectIon 301(h) of the C!ean
Water Act
125.56 Scope and purpose.
This subpart establishes the criteria to
be applied by EPA in acting on section
301(h) requests for modifications to the
secondary treatment requirements. It
also establishes special permit
conditions which must be included in
any permit Incorporating a section
301(h) modification of the secondary
treatment (“section 301(h) modified
permit”).
-------
Z 4
Federal Re pster I Vol. 56. No. to / Thursday. January Z4. 1991 I Proposed Rules
§ 125.57 Law gov.rnlnglsau,c.ota
section 301(h) modlflsd psnn&L
(a) Section 301(h) of the Clean Water
Act provides that:
The Administrator, with the concurrence of
the State. may issue a permit under section
402 which modifies the requirements of
subsection (bflh)(B) of this section with
respect to the discharge of and poUutant from
a publicly owned treatment works into
marine waters, if the applicant demonstrates
to the satisfaction of the Administrator that—
(1) There is an applicable water quality
standard specific to the pollutant for which
the modification is requested. which has been
identified unuer section 3041aJ(Ol of this Act
(2) The disclinrge of pollutants in
accordance with such modified recuirements
will not interfere, alone or in combination
with pollutants from other sources, with the
attainment or maintenance of that water
quality which assures protection of public
waler supplies and protection of shellfish.
fish and wildlife, and allows recreational
activities, in and on the water
(3) The applicant has established a 5) stein
of monitoring the impact of such discharge on
a representative sample of aquatic biota. to
the e’ctent practicable: and the scope of such
monitoring is limited to include only those
investigations necessary to study the effects
of the proposed discharge:
(4) Such modified requirements will not
result in any additional requirements on any
other point or nonpoint sourcm
(5) All applicable pretreatment
requirements for sources introducing waste
into such treatment works will be enforced.
(0) In the case of any treatment works
serving a populetion of 50.000 or more, with
respect to any toxic pollutant introduced tnto
such works by an Industrial discharger for
which pollutant there is no applicable
pretreatment requirement in effect, sources
introducing tsaste into such works are in
compliance with all applicable pretreatment
requirements, the applicant will eiifurce such
requirements, and the applicant has .ii effect
a pretreatment program which, in
combinatIon with the treatment of discharges
from such works. removes the same amount
of such pollutant as would be removed if
such works were to apply secondary
treatment to discharges and ii suco works
had no pretreatment program with respect to
ouch pollutant
(7) To the extent practicable, the applicant
has established a schedule of activities
desigited to eliminate the entrance of toxic
pollutants from nonindustrial sources into
such treatment works:
(81 There will be no new or substaiuially
increased discharges from the point source of
the tiollutant to which the modification
applies above that volume of discharge
specified in the permit.
(9) The applicant at the time such
modification becomes effective will be
discharging effluent which has received at
least primary or equivalent treatment and
which meets the criteria established under
section 304(a((1) of this Act afh’r initial
mixing in the waters surl’ouni ing or adjacent
to the point ai which such effluent is
diiicriarged.
For the purposes of this subsection. the
plirase”th. discharg, of any pollutant inti’
marine waters’ refers to waters of the
contiguous zone, or into saline estuanns
waters where there is strong tidal movement
and other hydrological and geological
charactenstics which the Administrator
determines necessary to allow compliance
with paxagrapb (2) of this subsection, and
section 101(a)(2) of this Act. For the purpose.
of paragraph (9), “primary or equivalent
treatment” means treatment by screening.
sedimentation, and skimming adequate to
remove at least 30 percent of the biological
oxygen demanding material and of the
suspended solids in the treatment works
tnuluent. and disinfection, bere appropriate.
A municipality which applies secondary
treatment shall be eligible to receive a permit
pursuant to this subsection which modifies
the requirements of subsection (b)(1)(B) of
this section with respect to the discharge of
any pollutant from any treatment works
owned by ouch municipality into marine
waters. No permit issued under this
subsection shall authonze the discharge of
sewage sludge into marine waters. In order
for a permit to be issued under this
subsection for the discharge of a pollutant
into marine waters, such marine waters must
e’thibit characteristics assuring that water
providing dilution does not contain
significant amounts of previously disc’iarged
effluent from ouch treatment works No
permit issued under this subsection shall
authorize the discharge of any pollutant into
saline estuarine waters which at the time of
application do not support a balanced
indigenous popuiation of shellfish, fish and
wildlife, or allow recreation in and on the
waters or which exhibit ambient water
quality below applicable water quality
standards adopted for the protection of
public water supplies, shellfish, fish and
wildlife or recreational activities or such
other standards necessary to assure support
and protection of audi uses, The prohibition
contained in the preceding sentence shall
appiy without regard to the presence or
absence of a causal relationship be’ween
such characteristics and the apphcant’a
current or proposed discharge.
Notwithstanding any other provisions of this
subsection, no permit may be issued under
this subsection for discharge of a pollutant
into the New York Bight Apex consisting of
the ocean waters of the Atlantic Ocean
westward of 73 degrees 30 minutes west
longitude and northward of 40 degrees 10
minute. north latitude.
(b) Section 301(i)(l) of the Clean
Water Act provides that:
Any application fled under this section for
a modification of the provisions of—
(A) Subsection (bl(1)ffl) under subsection
(h) of this aection shall be filed not later than
the 385th day which begins after the date of
enec’ment of the Municipal Wastewatev
Treatment Construction Grant Amendments
of 1081: except iliiit a publu.ly owned
treatment works which prior to December 31.
i98Z. had a contractual arrangement to use a
portion of the capacity of en ocean outfall
operated by another publicly owned
treiiimeni works which has applied for or
received inodificauon under subsection fli).
may app 1 y for a modification of subsection
(hI in its own right not later than 30 days
after the date of the enactment of the Water
Quality Act of 1987.
(C) Section 22(e) of the Municipal
Wastewater Treatment Construction
Grant Amendments of 1981, Public L.
97—117, provides that
The amendments made by this section
shall take effect on the date of enactment of
this Act except that no applicant, other than
the city of Avaloii. California. wno applies
after the date of enactment of this Act for a
permit pu.”luant to subsection Iii ) of section
301 of the Federal Water Pollution Conu’ol
Act which modifies the requirements of
subsection (b)(1)(B) of section ZaI of such Act
shall receive such permit during the one.year
period which beguas on the date of enactment
of this Act.
(d) Section 303(b)(2) of the Water
Quality Act, Pub. L 100-4, provides that:
301(la)(3) shall only apply to modifications
and renewals of modifications which are
tentatively or r uy approved after the date
of the enactment of th:s ACL
(e) Section 303(g) of the Water Qualify
Act provides that:
The amendments made to 011h1 and (h)( l.
as well as provisions of Ihl (8 1 and (hl(9). snail
not apply to an application for a permit under
secuon 301 (h) of the Federal Water Pollution
Control Act which has been tentatively or
finally approved by the Administrator before
the date of the enactment of this Act: except
that such amendments shall apply to all
renewals of such permits after such date of
enactment.
125.58 Definition ,.
For the purposes of this subpart:
(a) Administmror means the EPA
Administrator or a person designated by
the EPA Administrator.
(b) Altered d,scJ,ar e means any
discharge other than a current discharge
or improved discharge. as defined in this
regu lation.
(c) Applicant means an applicant for a
new or renewed section 301 h) modified
permit. Large applicants have
populations contributing to their POTWs
equal to or more than 50.000 people or
average dry weather flows of 5.0
millions gallons per day (mgd) or more:
shall applicants have contributing
populations of less than 50.000 people
and average dry weather flows of less
than 5.0 ingd. For the purposes of this
definition the contributing population
and flows shall be baaed on projections
for the end of the five year permit term.
Average dry weather flows shall be the
average daily total discharge flows for
the maximum month of the dry weather
season.
(dl Application means a final
appl.cution previously submitted in
-------
Federal Register I Vol. 56. No. 18 / Thursday, January 24. 1991 / Proposed Rules
2825
accordance with the June 15. 1979.
section 301(h) regulations (44 FR 34784):
an application submitted between
December 29. 1981 and December 29.
198Z; or a 301(h) renewal application
submitted in accordance with these
regulations. It does not include a
preliminary application submitted in
accordance with the June 15. 1979.
cection 301(h) regulations.
(e) Application questionnaire means
EPA’. “Applicant Questionnaire for
Modification of Secondary Treatment
Requirements”, pubLished as an
appendix to this subpart.
(fl Balanced, indigenous population
means an ecological community which:
(1) Exhibits characteristics similar to
those of nearby. healthy communities
existing under comparable but
unpolluted environmental conditions: or
(2) May reasonably be expected to
become re-established in the polluted
water body segment from adiacent
waters if sources of pollution were
removed
(g) Categorical pretreatment standard
means a standard promulgated by EPA
under 40 CFR chapter I. subchapter N.
(h) Current discharge means the
volume, composition, and location of an
applicant’s discharge at the time of
permit application
(i) Improved discharge means the
volume, composition and location of an
applicant’s discharge following:
(1) Construction of planned outfall
improvements. including, without
linutation, cutfall relocation, outfall
repair. or d.ffuser modification, or
(2) Construction of planned treatment
system irnarovements to treatment
levals or discharge or characteristics; or
(3) Implementation of a planned
program to improve operation and
maintenance of an existing treatment
system or to eliminate or control the
introduction of pollutants into the
applicant a treatment works.
(j) Industrial discharger or industrial
source means any source of
nondomestic pollutants regulated under
section 307(b) or (c) of the Clean Water
Act which discharges into a POTW.
(k) Modified discharge means the
volume, composition, and location of the
discharge proposed by the applicant for
which a modification under section
301 (h) of the Act is requested. A
modified discharge may be a current
discharge. improved discharge. or
altered discharge.
(I) New Fork Bight Apex means the
ocean waters of the Atlantic Ocean
westward of 73 degrees 30 minutes west
longitude and northward of 40 degrees
10 minutes north latitude
(m) Nonindustrial source means any
source of pollutant, which is not an
industnal source.
(n) Oceon wager, means those coastal
waters other than saline esruanne
waters landward of the baseline of the
territonal seas, the deep waters of the
temtonal seas. or the waters of the
contiguou, zone
(0) Permittee means an NPDES
permittee with an effective 301(h)
modified permit.
(p) Pesticides means demeton.
guthion. malathion. inirex,
methoxychlor. and parathion.
(q) Pretreatment means the reduction
of the amount of pollutants, the
elimination of pollutants. or the
alteration of the nature of pollutant
properties in wastewater prior to or in
lieu of discharging or otherwise
introducing such pollutants into a
POT’iN The reduction or alteration may
be obtained by physical. chemicaL or
biological processes. process changes or
by other means, except as prohibited by
40 CFR part 403’
(r) Primary or equivalent treatment
for the purposes of this subpart means
treatment by screening, sedimentation.
and skimming adequate to remove at
least 30 percent of the biological oxygen
demanding material and of the
suspended .ohds in the treatment works
influerit. and disinfection, where
appropriate.
(s) Public water supplies means water
distributed from a public water system.
(t) Public water system means a
system for the provision to the public of
piped water for human consumption, if
such system has at least fifteen (15)
service connections or regulaEly serves
at least twentv.flve ( ) individuals.
This term includes (1) Any collection.
treatment. storage and distribution
facilities under the control of the
operator of the system and used
pnmarily in connection with the system,
and (2) any collection or pretreatment
storage facilities not under the control of
the operator of the system which are
used primarily in connection with the
8) stem.
(u) Publicly owned treatment worAs or
“POTW” means a treatment works, as
defined in section 212(2) of the Act.
which is owned by a State. municipality.
or ntermunicipal or interstate agency.
(v) Saline es:uarine waters means
those semi-enclosed coastal waters
which have a Free connection to the
terntonal scu. undergo net seaward
exchange with ocean wz ters. and have
salinities comparable to those of the
ocean. Generall). these waters are near
the mouth of estuanes and have cross-
sectional annual mean salinities greater
than twenty-five (25) parts per thousand.
(w) Secondary removal equivalency
means that the amount of a toxic
pollutant removed by the combination of
the applicant’s own treatment of its
irifluent and pretreatment by its
industrial users is equal to or greater
than the amount of the toxic pollutant
that would be removed if the applicant
were to apply secondary treatment to its
discharge where the discharge has rot
undergone pretreatment by the
applicant’s industrial users.
(x) Secondary treatment means the
term as defined in 40 CFR part 133
(y) Shellfish, fish and wildlife means
any biological population or community
that might be adversely affected by the
applicant’. modified discharge
(z) Stressed waters means those
ocean waters which an applicant can
demonstrate to the satisfaction of the
Administrator, that the absence of a
balanced, indigenous population is
caused solely by human perturbations
other than the applicant’s modified
discharge
faa) Toxic pollutants means those
substances listed in 40 CFR 401 15
(bbl Water qua/it;’ criteria means
scientific data and guidance developed
and periodically updated by EPA under
section 304(a)(1) of the Clean Water Act.
which are applicable to manne waters.
(cc) Water quality standards means
applicable water quality standarda
which have been appro ed. left in effect,
or promulgated under section 303 of the
Clean Water Act.
(dd) Zone of initial d J hon (ZID)
means the region of initial mixlr.g
surrounding or adiacent to the end of the
outfall pipe or diffuser ports, provided
that the ZID may not be larger than
allowed by mixing zone restrictioria in
applicable water quality siandaz’ds
§ 125.59 G.n.raL
(a) Basis for applicatio An
application under this subpart shall be
based on a current. improved, or altc:ed
discharge into ocean waters or saline
estuarine waters,
(b) Pmhio:tions No section 301(h)
modified permit shall be issued:
(1) Where such issuance would not
assure compliance with all applicable
requirements of this subpart and part
12
(2) For the discharge of sewage
sludge:
(3) Where such issuance would
conflict w;th applicable pro isions of
State. local, or other Federal la ss or
Executive Orders. This includes
compliance with the Coastal Zone
Management Act of 1972. as amended.
10 U.S.C. 1451 et seq.: the Endangered
Species Act of 1973. as ameided. 18
-------
2828 ’
Federal Register /‘VoL 56. No. 16 I Thursday. January 24. 1991 / Proposed Rules
U.S.C. 1531 et seq. and title Ill of the
Marine Protection. Research and
Sanctuaries Act, as amended. 16 U.S.C.
1431 at seq.:
)4) Where the discharge of any
pollutant enters into saline estuarine
waters which at the tune of application
do not support a balanced indigenous
population of shellfish, fish and wildlife.
or allow recreation in and on the waters
or which exhibit ambient water quality
below applicable water quality
standards adopted For the protection of
public water supplies, shellfish, fish and
wildlife or recreational activities or such
other standards necessary to assure
support and protection of such uses. The
prohibition contained in the preceding
sentence shall apply without regard to
the presence or absence of a causal
relationship between such
characteristics and the applicant’s
current or proposed diahcarge; or
(5) Where the discharge of any
pollutant is into the New York Bight
Apex.
(c) Applications. Each applicant for a
modified permit under this subpart shall
submit an application to EPA signed in
compliance with 40 CFR part 122
subpart B which shall contain:
(1) A signed. completed NPDES
Application Standard form A. parts I, U.
II I:
(2) A completed Application
Questionnaire;
(3) The certification in accordance
with 40 CFR 122.22(d):
(4) In addition to the requirements of
4 125.59(c)(1)—(3), applicants for permit
renewal shall support continuation of
the modification by supplying to EPA.
the results of studies and monitoring
performed in accordance with § 125.63
during the life of the permit. Upon a
demonstration meeting the statutory
criteria and requirements of this
subpart, the permit may be renewed
under the applicable procedu.res of 40
CFR part 124.
(d) Revisions to applications. (1)
POTWe which submitted applications in
accordance with the June 15. 1979,
Regulations (44 FR 34784) may revise
their applications one time following a
tentative decision to propose changes to
treatment levels and(or outfall and
diffuser location and design in
accordance with 4 125.59(f)(2)(i); and
(2) Other applicants may revise their
applications one time following a
tentative decision to propose changes to
treatment levels and/or outfall and
diffuser location and design in
accordance with 4 125.5gffl(2)(i).
Revisions by such applicants which
propose downgrading treatment levels
and/or outfall and diffuser location and
design must be justified on the basis of
substantial changes in circumstances
beyond the applicant’s contrnl iince the
time of application submission.
(3) Applicants authorized or requested
to submit additional informatuin under
4 125.59(g) may submit a revised
application in accordance with
* 125.59(f )(2)(ll) where such additional
Information supports changes in
proposed treatment levels and/or outfall
location and diffuser design. The
opportunity for such revision shall be in
addition to the one-time revision
allowed under § 125.59(d) (1) and (2),
(4) POTV%f a which revise their
applications must:
(1) Modify their NPDES Form and
Application Questionnaire as needed to
assure that the information filed with
their application is correct and
complete:
(ii) Provide additional analysis and
data as needed to demonstrate
compliance with this subpart:
(iii) Obtain new State determinations
under §4 125.61(b)(2) and 125.64(b); and
(iv) Provide the certification described
in paragraph (c)(3) of this subsection.
(5) Applications for permit renewals
may not be revised.
(e) Submittal of additional
informat,on to demonstrate compliance
w,th 125.60 and 125.65. (1) On or
before the deadline established in
paragraph (f)(3) of this section.
applicants shall submit a letter of intent
to demonstrate compliance with
4* 125.60 and 125.65. The letter of intent
Is subject to approval by the
Administrator based on the
requirements of this paragraph and
paragraph (l)(3) of this section. The
letter of intent shall consist of the
following:
(i) For compliance with 4 125.60:
(A) A description of the proposed
treatment system which upgrades
treatment to satisfy the requirements of
1 125.60.
(B) A project plan, including a
schedule for data collection and for
achieving compliance with §125.60. The
project plan shell include dates for
design and construction of necessary
facilities, submittal of influent/effluent
data and submittal of any other
Information necessary to demonstrate
compliance with §125.60. The
Administrator will review the project
plan and may require revisions prior to
authorizing submission of the additinnal
Information.
(ii) For compliance with 4 125.65:
(A) A determination of what approach
will be used to achieve compliance with
4 125.65.
(B) A project plan for achieving
compliance. The project plan shall
include any necessary data collection
activities, submittal of additional
information, and/or development of
appropriate pretreatment limits to
demonstrate compliance with 4125.65.
The Administrator will review the
project plan end may require revisions
prior to submission of the additional
information.
(iii) POTWa which submit additional
inforniatlon must:
(A) Modify their NPDES form and
Appiication Questionnaire as needed to
assure that the information filed with
their application is correct and
complete:
(B) Obtain new State determinations
under 44 125.61(b)(2) and 125.64(b); and
(C) Provide the certification described
in paragraph (c)(3) of this section.
(2) The information required under
this subsection must be submitted in
accordance with the schedules in
I 125.59(f)(3)(ii). If the applicant does
not meet these schedules for
compliance. EPA may deny the
application on that basis.
(I) Deadlines and d,s:ribution—(1)
Applications.
(i) The application for an original
301(h) permit for POTWs which direc:ly
discharge effluent into saline waters
shall be submitted to the appropriate
EPA Regional Administrator •o later
than December 29. 1982.
(ii) The application for renewal of a
301(h) modified permit shall be
submitted no less than 180 days prior to
the expiration of the existing permit.
unless permission for a later date has
been granted by the Administrator. (The
Administrator shall not grant permission
for applications to be submitted later
than the expiration date of the existing
permit.)
(iii) A copy of the application shall be
provided to the State and interstate
agency(s) authorized to provide
certification/concurrence under
§4124.53—124.55 on or before the date
the application is submitted to EPA.
(2) Revisions to Applications. (i)
Applicants desiring to revise their
applications under 4125.59(d) (1) or (2)
must:
(A) Submit to the appropriate
Regional Administrator a letter of intent
to revise their application either within
45 days of the date of EPA’s tentative
decision on their onginal application, or
within 45 days of November 28, 1982.
whichever is later. Following receipt by
EPA of a letter of intent, further EPA
proceedings on the tentative decision
under 40 CFR part 124 will be stayed.
(B) Submit the revised application ds
described for new applications in
4 125.SOffl(1) either within one year of
the date of EPA’s tentative deusion on
-------
Federal Register I Vol. 56. No. 10 / Thursday, January 24. 1991 I Proposed Rules
2827
the original application or within one
year oF November 28. 1982, ii a tentative
decision has already been made.
whichever is later.
(ii) Applicants desiring to revise their
applications under 125.59 (dfl3) must
submit the revised application as
described for new applications in
125.59lf’)(I) of this part concurrent with
submission of the additional information
under § 125.59(g)
(3) Deadline for additional
information to demonstrate compliance
with § 125.60 and § 125.65.
(i) A letter of intent required under
§ 125.59(e) (1) must be submitted by the
following dates: for perlnittees with
301(h) modifications or for applicants as
to which a tentative or final decision has
been issued, within 90 days of
promulgation of this provision: for all
others, within 90 days after the
Administrator issues a tentative
decision on an application. Following
receipt by EPA of a letter of intent
containing the information required in
§.125 59(e)(1), further EPA proceedir.gs
on the tentative decision under 40 CFR
part 124 will be stayed.
(ii] The project plan submitted under
§ 123 59(e)(1) snaIl ensure that the
applicant meets all the requirements of
§ § 12560 and 125.85 by the following
deaahnes
(A) Within two years of promulgation
of this subsection for applicants that are
not grandlathered under § 125.59(j).
(B) At the time of permit renewal or
within two eara of promulgation of this
subsection, whichever is later, for
applicants that are graidfathered under
§ 125 59(i)
(4] State deterimna ,an deadline
State determinations, as required by
§ § 125 61(b) 2] and 125 84(b) shall be
filed by the applicant with the
appropriate Regional Administrator, no
later than 90 days after submission of
the revision to the application or
additional information to EPA.
Extensions to this deadline may be
protided by EPA upon requesi
However. EPA will not begin review of
the revision to the application or
additional information until a favorable
State determination is received by EPA.
Failure to provide the State
determination within the timeframe
required by this subsection is a basis for
denial of the application.
(g)(lJ The Administrator may
authorize or request an applicant to
submit additional information by a
specified date not to exceed one year
from the date of authorization or
request.
(2) Applicants seeking authorization
to submit additional information on
currentf modified discharge
characteristics, water quality, biological
conditions or oceanographic
characteristics must:
(i) Demonatrate that they made a
diligent effort to provide such
information with their application and
were unable to do so. and
(ii) Submit a plan of study, including a
schedule for data collection and
submittal of the additional Information
EPA will review the plan of study and
may require revisions prior to
authorizing submission of the additional
information
(h) Tentative decisions on section
301(h) modifications The Administrator
shall grant a tentative approval or a
tentative denial of a section 301(h)
modified permit application. To qualify
for a tentative approval, the applicant
shall demonstrate to the satisfaction of
the Administrator that it is using good
faith means to come into compliance
with all the requirements of this subpart
and that ii will meet all such
requirements based on a schedule
approved by the Administrator in
accordance with § 125.59(f’)(3)fii )
(i) Decisions on section 301(h)
modifications (1) The decision to grant
or deny a section 301(h) modification
shall be made by the Administrator and
shall be based on the applicant’s
demonstration that it has met all the
requirements of § 125.59 through
125.68.
(2) No section 301(h) modified permit
shall be issued until the appropriate
State certificate/concurrence is granted
or waived pursuant to * 124.54 or if the
State denies certification/concurrence
pursuan’ to § 124 54
(3) In the case of a modification issued
to an applicant in a State administering
an approved permit program under 40
CFR part 123 the State Director may’
(i) Revoke an existing permit as of the
effective date of the EPA issued section
301(h) modified permit. and
(ii) Cosign the section 301(h) modified
permit if the Director has indicated an
intent to do so in the wntten
concurrence.
(4) Any section 301(h) modified permit
shall:
(i) Be issued in accordance with the
procedures set forth in 40 CFR part 124.
except that, because section 301(h)
permits may only be issued by EPA. the
terms “Administrator or a person
designated by the Administrator” shall
be substituted for the term “Director” as
appropriate, and
(ii) Contain all applicable terms and
conditions set forth in 40 CFR part 122
and § 12568.
(5) Appeals of section 301(h)
determinations shall be governed by the
procedures in 40 CFR part 124.
(j) Gmndfother:ng pro vision
Applicants that received tentative or
final approval for a section 301(h)
modified permit pnor to February 4.
1987. are not subject to § 125.60. the
water quality criteria provisions of
§ 125.62(a ) (1), or § 125.65 untIl the time
of permit renewal. In addition, if permit
renewal will occur prior to two years
after promulgation of this subsection,
applicants may have additional time to
come into compliance with H 125.60
and 125.65, as determined appropriate
by EPA on a case-by-case basis Such
additicnal time, however, shall not
extend beyond the date that is two
years after promulgation of this
subsection, This subsection does not
apply to any application that was
initially tentatively approved. but as to
which EPA withdrew its tentative
approval or issued a tentative denial
prior to February 4. 1987
§ 125.60 Pilmary or equivalent tree enent
requirements.
(a) The applicant ahal! demonstrate
that, at the time its modification
becomes effective, it will be discharging
effluent that has received at least
primary or eqwva lent treatment.
(b) The applicant shall perform
monitoring to ensure. based on the
monthiy average results of the
monitoring, that the effluent it
discharges has received primary or
equivalent treatment
§ 125.61 Exlatsncs of end compliance wIth
applicabl, water quality standards,
(a) There must exist a water quality
standard or standards applicable to the
pollutant(s) for which a section 301(h)
modified permit is requested. including:
(1) Water quality standards for
biochemical oxygen demand or
dissolved oxygen:
(2) Water quality standards for
suspended solids, turbidity. light
transmission, light scattering or
maintenance of the euphotic’zone; and
(3) Water qual;ty standards for pH.
(b) The applicant must:
(1) Demonstrate that the modified
discharge will comply wtth the above
water quality standard(s); and
(2) Provide a determination signed by
the State or interstate agency(s)
authorized to provide certification under
§ 12453 and 12454 that the proposed
modified discharge will comply with,
applicable provisions of State law
including water quality standards. This
determination shall include a discussion
of the basis for the conclusion reached,
-------
2823
Federal Register I Vol. 56. No. 16 I Thursday. January 24, 1991 / Proposed Rules
125.62 Attalnm.nt or inslnt.nancs of
witor quality wIlIcfl assures protectIon of
water supplies. and tile protection and
propagation ala balanced, Indigenous
population of shefIfisli, 9 .1 1, and wtIdllfL
and allows recreational activities.
(a) Physical characteristics of
discharge. (1) At the time the 301(h)
modification becomes effective, the
applicant’s outfall and diffuser must be
located and designed to provide
adequate initial dilution, dispersion, and
transport of wastewater such that the
discharge does not exceed at and
beyond the zone of initial dilution:
(I) All applicable EPA approved State
water quality standards that directly
correspond to EPA water quality
criteria, and:
(ii) All applicable EPA water quality
criteria for pollutants for which there is
no applicable EPA approved State water
quality standard directly corresponding
to the EPA water quality criterion for
the pollutant.
(iii) For purposes of paragraphs (a)(l)
(i) and (ii) of this section. a State water
quality standard “directly corresponds’
to an EPA water quality criterion only if
(A) the State water quality standard
addresses the same pollutant as the EPA
water quality criterion and (B) the State
water quality standard specifies a
numeric criterion for that pollutant or
State objective methodology for deriving
such a numeric criterion.
(iv) The evaluation of compliance
with paragraphs (aJ(1 ) (i) and (ii) of this
section shall be based upon conditions
reflecting periods of maximum
stratification and during other periods
when discharge characteristics, water
quality, biological seasons, or
oceanographic conditions indicate more
critical situations may exist.
(2) The evaluation under paragraph
(affl)(ii) of this section as to compliance
with applicable section 304(aJ(1) water
quality criteria shall be based qn the
followinç
(i) For aquatic life criteria: The
pollutant concentrations that must not
be exceeded are the nwneric ambient
values, if any, specified In the EPA
section 304(a)(1) water quality criteria
documents as the concentrations at
which acute and chrome toxicity to
aquatic life occurs or that are otherwise
Identified as the criteria to protect
aquatic life.
(ii) For human health criteria for
carcinogens: (A) For a known or
suspected carcinogen, the Administrator
shall determine the pollutant
concentration that shall not be
exceeded. To make this determination.
the Administrator shall first determine a
level of risk associated with the
pollutant that is acceptable for purposes
of this subsection. The Administrator
shall then use the information in the
section 304(a)(1) water quality criterion
document, supplemented by all other
relevant information, to determine the
specific pollutant concentration that
corresponds to the identified riak level.
(B) For purposes of paragraph
(a )(2)(iiflA) of this section; an
acceptable risk level will be a single
level that has been consistently used. as
determined by the Administrator, as the
basis of the States EPA.approved State
water quality standards for carcinogenic
pollutants. Alternatively, the
Administrator may consider a
recommendation by the State of an
acceptable risk level, which may be
submitted at the applicant’s option. The
State recommendation must
demonstrate, to the satisfaction of the
Administrator, that the recommended
level is sufficiently protective of human
health in light of the exposure and
uncertainty factors associated with the
estimate of the actual risk pcsed by the
applicant’s discharge. The State must
Include with its demonstration a
showing that the risk level selected is
based on the best information available
arid that the State has held a public
hearing to review the selection of the
risk level, in accordance with provisions
of State law and public participation
requirements of 40 CFR part 25. If the
Administrator neither determines that
there is a consistently used single risk
level nor accepts a risk level
recommended by the State, then the
Administrator shall otherwise determine
an acceptable risk level based on all
relevant information.
(iii) For human health criteria for non-
carcinogens: For non.carcinogenic
pollutants, the pollutant concentrations
that must not be exceeded are the
numeric ambient values, if any,
specified in the EPA section 304(a)(1)
water quality criteria documents as
protective against the potential toxicity
of the contaminant through ingestion of
contaminated aquatic organisms.
(3) The requirements of paragraphs
(a)(1) and (a)(2) of this aection apply in
addition to. and do not waive or
substitute for the requirements of
125.01.
(b) Impact of discharge on public
water supplies. (a) The applicant’s
modified discharge must allow for the
attainment or maintenance of water
quality which assures protection of
public water supplies.
(2) The applicant’s modified discharge
must not:
(i) Prevent a planned or existing
public water supply from being used, or
from continuing to be used, as a public
water supply; or
(ii) Have the effect of requiring
treatment over and above that which
would be necessary in the absence of
such discharge in order to comply with
local, and EPA drinking water
standards.
(cI Biological impact of discharge. (a)
The applicants modified discharge must
allow for the attainment or maintenance
of water quality which assures
protection and propagation of a
balanced indigenous population of
sheilfish. fish, and wildlife.
(2) A balanced indigenous population
of shellfish, fish, and wildlife must exist:
(i) Immediately beyond the zone of
initial dilution of the applicant’s
modified discharge and;
(ii) In all other areas beyond the zone
of initial dilution where marine life is
actually or potentially affected by the
applicant’s modified discharge.
(3) Conditions within the zone of
initial dilution must not contribute to
extreme adverse biological impacts.
including, but not limited to. the
destruction of distinctive habitats of
limited distribution, de presence of
disease epicenter. or the stimulation of
phytoplankion blooms which have
adverse effects beyond the zone of
initial dilution.
(4) In addition, for modified
discharges into saline estuanne water’
(i) Benthic populations within the zone
of initial dilution must not differ
substantially from the balanced
indigenous populations which exist
immediately beyond the boundary of the
zone of initial dilution;
(ii) The discharge must not interfere
with estuarine migratory pathways
within the zone of initial dilution: and
(iii) The discharge must not result in
the accumulation of toxic pollutants or
pesticides at levels which exert adverse
effects on the biota within the zone of
initial dilution.
‘(d) Impact of discharge on
recreational activities. (1) The
applicant’s modified discharge must
allow for the attainment or maintenance
of water quality which allows for
recreational activities beyond the zone
of initial dilution, including, without
limitation, swimming. diving, boating.
fishing, and picnicking, and sports
activities along shorelines and beaches.
(2) There must be no Federal. Slate or
local restrictions on recreational
activities within the vicinity of the
applicant’s modified outfall unless such
restrictions are routinely imposed
around sewage outfalls. This exception
shall not apply where the restriction
would be lifted or modified, in whole or
in part, if the applicant were discharging
a secondary treatment effluent,
-------
Federal Register / Vol 56. No 16 / Thursday. January 24. 1991 ‘ Proposed Rules
(e) Additional requirements for
applications based on improved or
altered discharges. An application For a
section 301(h) modified permit on the
basis of an improved or altered
discharge must include’
(I) A demonstration that such
improvements or alterations have been
thoroughly planned and studied and can
be completed or implemented
expeditiously:
(2) Detailed analyses projecting
crianges in average and maximum
monthly flow rates and composition of
the applicant’s discharge which are
expected to result from proposed
improvements or alterations:
(3) The assessments required by
paragraphs (a) through (b) of this section
based on its current discharge:
(4) A detailed analysis of how the
applicant’s planned improvements or
alterntions will comply with the
requirements of paragraphs (a) through
(dl of this section.
(F) Stressed waters An applicant must
demonstrate compliance with
paragraphs (a) through (e) of this section
not only on the basis of the applicant’s
own modified discharge. but also taking
into account the applicant’s modified
discharge in combination with
pollutants from other sources. However.
if an applicant which discharges into
ocean waters believes that its failure to
meet the requirements of paragraphs (a)
through (e) of this section is entirely
attributable to conditions resulting from
human perturbations other than its
modified discharge (including, without
limitation, other municipal or industrial
discharges. nonpoun source runoff and
the applicant’s previous discharges). the
applicant need not demonstrate
compliance with those requirements if it
demonstrates, to the satisfaction of the
Awninistrator. that its modified
discharge does not or will not:
(1) Contribute to. increase, or
perpetuate such stressed conditions:
(2) Contribute to further degradation
of the biota or water quality if the level
of human perturbation from other source
increases: and
(3) Retard the recovery of the blota or
water quality if the level of human
perturbation from other source
decreases.
§ 125.83 Eatabtlsiim.nt o le mwitt 1 .rlng
proqrs
(a) General requirements. (1) The
applicant must:
(i) Have a monitoring program that Is
(A) Designed to provide data to evaluate
the impact of the modified discharge on
the marine biota. demonstrate
compliance with applicable water
quality standards, and meas toxic
substances in the discharge. and (B)
limited to include only those scientific
investigations necessary to study the
effects of the proposed discharge:
(ii) Describe the sampling techniques.
schedules and locations (including
appropriate control sites). analytical
techniques, quality control and
verification procedures to be used in the
monitoring program:
(iii) Demonstrate that it has the
resources necessary to implement the
program upon issuance of the modified
permit and to carry it out for the life of
the modified permit: and
(iv) Determine the frequency and
extent of the monitoring program taking
into consideration the applicant’s rate of
discharge, quantities of toxic pollutants
discharged, and potentially significant
impacts on receiving water quality,
marine biota. and designated water
uses.
(2) The Administrator may require
revision of the proposed monitoring
program before issuing a modified
permit and during the term of any
modified permit.
(b) Biological monitoring program
The biological monitonng programjor
both small and large applicants shall
provide data adequate to evaluate the
impact of the modified discharge on the
marine biota.
(1) Biological monitoring shall include
to the extent practicable:
(I) Periodic surveys of the biological
communities and populations which are
most likely affected by the discharge to
enable comparisons with baseline
conditions described in the application
arid verified by sampling at the control
stations/reference sites during the
periodic surveys:
(ii) Periodic determinations of the
accumulation of toxic pollutants and
pesticides in organisms and
examination of adverse effects, such as
disease, growth abnormalities.
physiological stress or death;
(lii) Sampling of sediments in areas of
solids deposition at the vicinity of the
ZID. In other areas of expected impact.
and at appropriate reference sites to
support the water quality and biological
surveys and to measure the
accumulation of toxic pollutants and
pesticides; and
(iv) Where the discharge would affect
commercial or recreational fisheries.
periodic assessments of the conditIons
and productivity of fisheries.
(2) Small applicants are not subject to
the requirements of paragraphs (b )(1)
(iIHlv) of this section if they discharge
at depths greater than 10 meters and can
demonstrate through a suspended solids
deposition analysis that there will be
negligible seabed accumulation in the
vicinity of the modified discharge
(3) For applicants seeking a section
301(h) modified permit based on:
(I) A current discharge, biological
monitoring shall be designed to
demonstrate ongoing compliance with
the requirements of § 125.62(c).
(ii) An improved discharge or altered
discharge other than outfall relocation.
biological monitoring shall provide
baseline data on the current impact of
the discharge and data which
demonstrate, upon completion of
improvements or alterations, that the
requirements of § 125.62(c) are met. or
(iii) An improved or altered discharge
involving outfall relocation, the
biological monitonog shall.
(A) Include the current discharge site
until such discharge ceases: and
(B) Provide baseline data at the
relocation sits to demonstrate the
Impact of the discharge and to provide
that basis for demonstrating that
requirements of § 125 62(c) will be met
(c) Water quality monitoring program.
The water quality monitoring program
shaLl to the extent practicable:
(1) Provided adequate data for
evaluating compliance with water
quality standards or water quality
criteria, as applicable under
§ 125.62(a)(1);
(2) Measure the presence of toxic
pollutants which have been identified or
reasonably may be expected to be
present In the discharge.
(d) Effluent monitoring program In
addition to the requirements of 40 CFR
part 122. to the extent practicable.
monitoring of the POTW effluent shall
provide quantitative and qualitative
data which measure toxic substances
and pesticides in the emuent and the
effectiveness of the toxic control
program.
§ 125.14 Effect of the dIsdiw s on OOISr
— II - n t sowces.
(a) No modified discharge may result
in any additional pollution control
requirements on any other point or
nonpoint source.
(b) The applicant shall obtain a
determination From the State or
Interstate agency(s) having authority to
establish wasteload allocations
indicating whether the applicant’s
discharge will result In an additional
treatment pollution control, or other
requirement on any other point or
nonpoint sources. The state
determination shall Include a discussion
of the basis For its conclusion.
-------
125.66 Ur n ares pretPs. .nt
(a) Scope and applicability. i The
requirements of this section appiy to
each POTW servings population of
50.003 or more that has toxic pollutants
introduced intø the P07W by one or
more industhal dfschargerv and that
seeks a section 30 1(h) mothficatian
FZ7 The requirements of this seclion
appiy in addition to any applkable
requiren ientso(40 CFR part 4 and do
not waive or substitute for the part 403
requirements in any way.
(b) Toxic peilueon: conieL (1 As to
each io ac pollutant introduced by an
industrial discharger. each POTW
subject in the requirements of this
section shall demaas ate that it either:
(i) Has an applicable pretreatment
requirement in effect in accordance with
( c of this seition: or (iij has
in effect a pru -u i that achieves
Secondary Removat Eçui&eiwy in
accordance with parngr:’pli (d) of thie
sectioti.
(2) Eath applicant U demozzsnara
that se es mtwduc ng waste inu the
applicant, treatment works are in
compliance with all applisable
pretreatment requirements. including
numerical stansLards set by local limI ab
and that it will enlbrce those
requirements.
(C) Applicable pro L-eatment
raqufremenL f7 An appllca&e
pretreatment requirement under
paragraph (b)(lfli} fthi. section with
respect to. tonic pollulanl shalt cousie?
of the foUaw in
(i) As to each Lmhistxial cantor
dischar ng to the applica, trea nent
works for whiah there is no appliea4 e
categorical prefts it staiw4 rcl for
the tQmc pollutant. • lecal limit or limits
on the toxic pollutant ae1ieiyiu the
requirements of 4 Q’P. part 403 sad
ensuring that the isquizements of
I 125.62 are mat and.
(ii) As to each induatrial source
discharging to the applicant’s treatment
woike that ta sabiuct to
pretreatment si iM fcrths tame
pollutant, the categorical s dath plus
a locaf rumi or limits as aecemasy to
satisfy the requirements altO Q ’R part
403 and to ensere that tile requirements
of section 125.82 are mat.
(2) Any local haute to nest
the requl eueenteofpa.. . .,yha (bIftihli
adfc)( ?04thc ltnosha be(F)
Consistent with .11 applIcable
reqwremn.nt. o440 1 ’R pert 4( J end (0)
sublea to approval by the
as part04the3O? t )eppiicati redaw.
The Adziun&.oeror’may reqinra s eth
local limits to be revised no macemery to
oweS the req m ir5 04 thin
125.82. or4OCPRporl 403.
(d) Seo ndwy removal eqvivoiency.
An applicant shell demonstrate that it
achieves Secondary 9emoval
Equivalency Cheoa tJi the see of a
s condary tree Iment pilot
(demonetratsen) plant at the appkcante
Facility which provide, an empirical
determninaitan of t amount ol a tonic
pAlluliJint remaved by the application of
secondary treatment to the applicac(s
iifhuent. where the applicant’s inilnent
h.is not been pretreeted. Alternatively.
an applicant may make ths .
determination using mfluent that has
received industrial pretreatment.
notwithstanding 125.58(wJ.
f 1:5.86 Toslc, coffirof progreir.
(a) C. em,cal analysis. (1) The
applicant shall submit at the time of
applicadon a chemical analysis of it
current dIscharge for all toxic pollutants
and pesticides as defined In f 125.5
(ia) and (p1. The analysis shall be
performed on two 24 hour composite
samples (one &y weather and ime wet
weather). Applicants ow supptement or
substitute chemical analyses if
composition of the supplemental or
substitnie samptes typifies that which
occurs dorfngdry end wet weather
conüit ione.
(27 Unless reqmred by the State. this
rer ni nt that? not apply to any small
section 301(h) applicant which certifies
that there are no or suspected
sources of toxic po1lutanworwcofi .hIes
and document, the certification with an
industrial user survey a, described by
4OCFR 48 M2 f7f2).
(b) !dent’,7icotkm ofoaerres. The
applicant shell selsrat a? the’ hare of
application an snatym, of the known or
suspected sources of tonic pollutants or
pesticides identified in t5.66(a ) The
applicant shall to the extent practicable
categorize the sources according to
industrial and isoofreduenial typee
(e) lPthzoIpfrectnrent
requirements (1) An applicant that Ptee
known or suspected iirdaethal sourcen
of ionic poUutan shell have an
apprtwedpretreetemw - ae fr i
accordanc, with 40 CFR pan .
(2) The requirement shalt nut apply to
any applicant which ha. no kn own or
suspected Industrial of tonic
polluCanta eepe.$tcade. and .ocastlfie,
to the Administrator.
i )Tha iicevamient prO 5 rNJw
submitted buy the applicant wider this
section .ha tee .obi.cf to r.vlaten a.
required by the Athnsnistraror prior to.
isormq or renewmg any s c oo 303 hJ
modified permit and during thee tart of
any aich pm,mc.
14) haphemcatiooofailentainq
ptttrcatmaru requirements and
RiithOt%tmS mum be maintained through
the period of development of any
additi & . t tment sequn rts
that may be necessary to cearply with
the rcqsuremants of this sabparL
(d) Noninthistriol source’ control
pi•ogram (1) The applicant shell submit
a proposed public education program
designed to mrnhnize the entrance of
rronindustriaf toxic pollbtar.ts and
pesticides info ifs PfYrW( ) which sf al?
be implemented no later than 76 months
&iitcr issuance of a 30 1(h) madifTed
permit.
(2) The applicant shall also de etop
end implement additional nonindbstn.il
source control programs on the earliest
possible schedule. This requirement
shall not apply to a small applicant
which certifies that there are no known
or suspected water quality, sediment
accumulaiion. or biological problems
related to toxic pollutants or pesticides
in itS discharge.
(3) The applicant’s nonindca1na
source control programs under
paragraph (dl(2) of his se€non shall
inciude the following scbeth. lee whidi
bre to he r .p merited no later than t9
months after issuance of a3t31 (li
modified permiP.
(i) A schedu.le of actrcities for
identifying norimduitrral ces of
toxic polhiiimta and pesnciden and
(ii ) F. schedule for the development
and impleorenlation of csoi of programs.
to the extent practicable. for
noniiidastrmal sces of texic po4 Manfs
and peeticid e.
(47 Each nanindns iaf
source’ cJuith.t anal or hvdule ’
submitted by the applicant mider this
section shall be sublect to revighur, as
determined by the Athnmsstratur prior
to Im or renewing any section 301(h)
modified permit and during the term of
any such permit.
4125.67 torrtrial4 u
amuntntpo iit .
- (a) Ne modified discharge may- result
in airy new oreetstantiail y hiaeased
dIscharges of the’ p ,lluranr fu which the
modification applies above the
discharge specified in the section 301(171
modified permit
(b) Where pollutant discharges are
attributable in part to combined sewer
overflow.., the applicant shall minim e
existing overflow. and prevent
increema a, the 04 pdles&ite
discharged.
(a) The applicant shell provide
o ecZkune of dfluant volume awl mass
Io .Ieraeypelhi(entetowhich the
modification applies inS year
incrementa for the dee n l ife of it.
facility.
-------
t’edcrcl Register / Vol 6, No 16 / Thursday, J triu irv 21 l’191 I Proposrd Ruli s
. 831
125.68 SpecIal condItions for section
301(h) modifIed permits.
Each section 301(h) modified permit
issued shall contain, in addition to all
applicable terms and conditions
required by 40 CFR part 122. the
following
(a) Effluent limitations and mass
luadin s v hich will assure compliance
i%Ith the requirerrter.ts of this subpart.
(b) A schedule or schedules of
compliance for
(1) Pretreatmer’t program development
required by § 125.86(c).
(2) Nonindustral tolucs control
program reçuired by § 125 66(d). and
(3) Control of combined sewer
overflows required by § 125.87
(c i Monitoring program requirements
that include’
(1) Biomoni taring requirements of
§ 125 63(b).
(21 Water quality requt ements of
§ 125 63(c).
(3) Effluent monitoring requirements
of § 125 60(b) and 125 63(d)
(dl Reporting requirements that
include the results of the monitoring
programs reqwred by paragraph (c) of
this section at such frequency as
p-escrtbed in the approved Inon:tonng
program
Appendix—Applicant Quesbotinaire for
Modification of Secondary Treatment
Requiremeata
1 Izt:roduciion
This questionnaire is to be si binitted by
both small and large applicants for
modification of secondary treatment
requirements under section 301(h) of the
Ct.ian Water Act (CWA) A small applicant is
ef nec as a POTW that has a c.onmbu tng
pooulai’on to its wasiee iter treatment
faL.iit% ci 1 ess than 50000 and a projected
a%erage dry weather flow of less than 50
“ lion gallons per day (mpd. 022 cubic
rneters/sec (40 CFR 125 58(c)) A large
aopiicant is defined as a POTW that has a
population contributing to Its wastewater
treatment facility of at least 50.000 or a
projected average dry weather flow of its
discharge of at least 50 million gallons per
day (mgd 022 cubic meters/sac) (40 CFR
123 sa(c ) ) The questionnaire is in two
sections. a general information and basic
requirements section (Part II) and a technical
e aluation section (Part III). Satisfactory
completion b) small and large dischargeis of
the appropriate questions of thIs
questionnaire is necessary to enable A to
determine whether the applicant’s modified
discharge meets the criteria of sectIon 301(h)
and EPA regulations (40 CFR part 125.
subpart C)
Most small applicants ahuuld be able to
complete the questionnaire using available
information. However, small POTWs with
low initial dilution discharging into shallow
waters or waters with poor dispersion and
transport characteristics. discharging near
distinctive and susceptible biological
habitats or diirharging substantial quantities
of to iCs should anticipate the need to collect
additional infurmation and/or conduct
additiondl analyses to demonstrate
compliance with section 301(h) cntena If
there are questions in this regard applicants
should contact the appropriate EPA Rcgional
Office for guidance
Guidance for re pondtr.g to this
questionnaire is provided by the newly
amended section 301(h) technical support
docutiieni Where available information is
incomplete and the applicant needs to colleci
additional data during the period it to
preparing the application or a letter of intent.
ElM encourages the applicant to consult wtth
EPA pnor to data collection and submission.
Such consultation, particularly tithe
applicant provides a project plan. will help
assure that the proper data are gathered in
the most efficient manner
The notation (L) means large applicants
must respond to the question. and (S) means
small applicants must respond.
Ii Getiemi Information and Basic Data
Requirements
A Treatment Syste.n Description
I (L S) On which of the following are you
basing your application A current discharge.
improved discharge. or altered discnarge. as
defined to 40 CFR 125 58’ (40 CFR 125 59(a ))
2 IL S) Description of the Treatment/
Outfall System (40 CFR 125 62(a) and
125 62(e))
a Provide detailed descriptions and
diagrams of the treatment system and outfall
configuration which you propose to satisfy
the requirements of section 301(h) and 40 CFR
part 125 subpart G What is the total
discharge design flow upon which this
application is based?
b. Provide a map showing the geographic
location of proposed outfalifa) (i.e..
dischargel What is the latitude and longitude
of the proposed outfall(s)?
c For a modification based on an improved
or altered discharge. provide a description
and dtagram of your current tree mient system
and outfall configuration. Include the current
outfall’s latitude and longitude. if different
from’the proposed outfall
3 IL SI Primary or equivalent treatment
requirements (40 CFR 125 60)
a Provide data to demonstrate that your
effluent meets at least pnmary or equivalent
treatment requirements as defined in 40 CFR
12558(r)? (40 CFR 125 603
b If your effluent does not meet the
primary or equivalent treatment
requirements. when do you plan to meet
them? Provide a detailed schedule, including
design. construction, start up and full
operation wtth your appltcation. This
requirement must be met by the effective
date of the new section 301(h) modified
permit
4 (LS( Effluent Limitations and
Characteristics (40 CFR i5 a libI and
125 6(e)(2)j
a Identify the final effluent limitations for
five’day biochemical oxygen demand (BOO 1 ).
suspended solids, and pH upon which you
application for a modification Is based’
—BOO1 mg/I
—Suspended solids mg/I
—pH (range)
b Provide data on the folluwtng effluent
characteristics for your current discharge as
well as for the modified discharge if difIprprt
from the current discharge
Flow (mused
—Mtnimum
—Average dry weather
—Average wet weather
—Maximum
—Annual average
I3OO1 (mg/I) for the following plant flos s
—Minimum
—Average dry weather
—A’.erage wet weather
—Maximum
—Annual average
Suspended solids (mg/I) For the following
plant flows
—Muwnum
—Average dry’weather
—Average wet weather
—Maximum
—Annual average
Toxic pollutants and pesticides (Mg/I)
—List each toxic pollutant and pesticide
pH
—Muurnum
—Maximum
Dissolved oxygen 1mg/I prior to chlortnaion(
for the following plant flows
—Minimum
—Average dry weather
—Average wet weather
—Maximum
—Annual average
Lininediale dissolved oxygen demand (mg/I)
5 (LS) Effluent Volume and Mass
Emissions (40 CFR 125.62(e)(2( and 125.6;’)
a Provide detatled analyses showing
projections of effluent volume (annual
average. m 5 /sec) and mass loadings (mt/yr)
of BOO1 and suspended solids for the design
life of your treatment facility in five year
increments U the application is based upon
an improved or altered discharge. the
projections must be provided with and
without the proposed improvements or
alterations
b. Provide projections for the end of our
five-yea, permit term for (1) the treatment
facility contributing population and (2) the
average daily total discharge flow for the
maximum month of the dry weather season.
6. (LS) Average Daily Industrial flow (rr. 3 1
sec) Provide or estimate the average daily
industrial inflow to your treatment facility for
the same tune increments ss in question
11 A.4 above (40 CFR 125.86)
7 (LS) Combined Sewer Overflows (40
CFR 125.67(b))
a. Does (will) your treatment and collectton
system include combined sewer overflows?
b. If yes. provide a description of your plan
for minimizing combined sewer overflows to
the receit ing Water
8 (LS) Ouifall(DilTuser Design Pro ide ihi’
following data for your current discharge as
well as for the modified discharge if different
from the current discharge. (40 CFR
125 62(a)( 1))
—Dismeter and length of the outfall(s)
(meters)
-------
213Z
Fedoral Register / Vol. 56. No.181 Thitcsday. )anuary Z1. 19Q1 Proposed Roles
—Diameter and length .1 the diiluaer(sl
(mst
—Angla (aI of port orientation(s) from
bnnzoaial (d ees
—Port d!ameter(aJ (meteral
—Orifice contraction coefficient(s). fl.nown
—Vertical distance front mean lower row
waler (or mean low wator) sudace and
outfall port(s) centethnu ( mete.. )
—Number of ports
—Port spacing (meters)
—Design flow rate lot each pert if mu iple
portse umd (aa secI
a Receiving Waler Description
1. (L.S) Are you applying for a modification
based on a discharge to the ocean (40 CFR
125.58 1n)) or to a saline estuary (40 OR
25.56 (vl)? (40 CFR 123..59(a))
2. (LSJ I. year cmrm kcbergeor
modified discharge to stressed wateew ac
defined an (40 CYR 1 23.58(z) )? II yes. wAaf er
the pollution sources co holIng to e
stress? (40 CFR 125.59(b)fI) sad 125. U )J
3. (LS) Provide a description and des. mu
the seasonal circulation patter.. in the
vicinity of your current arid modiSad
discharge(s)i (40 G’R 125. aI)
4. (LI Oceanographic conditions in the
vicinity of the current and proposed moduriad
discharie(s). Provide data on the IoI owizig.
(40 CYR 125.62 (a ))
—Lowest te, , pevceiitile current speed lmF
sec)
—Predominant current apeed (mFsec end
direction ltrue) during the Fore seasons
—Period(s) of maximum s0.1t catx,iu
Imonths l
—Period(s) of natural upwelling uv.rne
Idwalion and fr y.mmttha)
—Density profile, during period(s) of
mazinuun stratlEcatfan
5. (LS) Do the receiving waters for your
discharge contain aignilicanl amounts of
effluent previously discharged tauu, the
neatmetit works for wMdi you ate appfyi g
fore section 3 0 1(b) madiffedpermirT(40GR
6. AmbIent wafer quality conditions during
the penod(,) of maximum strenficettom at
the zone offtmtofdlfanatrfZID boattdary at
other areas of pcreneet impacT. and at control
stations. (40 CFR 125.62(a))
a. fT.) Provide profile, (with depth) on the
Following (or the current discharge locattomi
and for the modified discharge Focaufois. if
different from the cieront discharger
—BOtA (mg /i)
—ounygeis (nigh)
—Suapended solida (mg /f)
-pM
—Temperature r q
— Salinity ( ppi )
— ‘rraaap. 1 ., idIL% uant t gliI
transmittance)
—Othe, aigmOcans vu athe (eg.aiutdenm.
toxic poflusmn, and p fenal
wlth iueabae )
b. 5 ) PIVITdO .vmlabI, mutb,
Following in the vicinity of
discha,g, location sod (so’ thu modified
discharge locaimsa. it èIfe,anp lieu, he
current discharge: (40C1 r2n.uIIb) ifl
—Diaaolved oxy (myjI )
—Susper.ded solids 1mg/I)
—pH
—Temperature ( C)
—Other sigratleamis vsbfa.frp.umtneate .
toxic ante and pesticide.. fee.l
cohiome smn
C. (L 53 Are the,s ode. ’ periods wbeie
receiving water quality condP”— may be
more critical di... de ponod (a of maxionim
atratificailontil so. describe these said other
entice? parted. ‘data rpoue,red ms. . La,
the odor critical perloma). 40 OR
I . 6 a ) (1 ) )
7 IL) Provuf.daiao.atiedy state
se .i .ula dissolved axyqea demand and
disoolved ygen deeiauI duet.
rcse.pemeson of aedhuenta us the vicilasy of
current and inimilafied discharge(s) (mg /
,. —
I/day ).
C. Biological Candiiioit,
1. (14 Pronide ad i 1 d
repruaanzahv. biologicaL cowaiuintues ( a.g..
plankton. mnacrobundaoa. damursaL f1 . atc
in the vicinity of your current and modified
diachargefsk Wide. di. ark. ZR)
boundary, at other areas of potentiaL
discharge-related Impact. and at reference
(control) sites. Community characteriatica to
be described ahal? mdude (but not be limited
to) species composition: abundance:
dominance end diversity: spauatitemporaf
disuibunon: growth and reproducnon
disease frequency: trophic structure end
productivity patterns: presence of
opportunistic species; bioaccumulation of
toxic materials, and the occurrence of mass
moi’tubties.
2. IL 5) a. Are distinctive habitati of
limited distrrbunoo tsuchas kelp beds or
coral reef.) located In areas petrottally
affected by the modified d1scliarge (40OR
1 2 5. 62 (c ))
(b) if yes. provide inThrinatfori on type.
e tsnt, and location of habitats.
Z fL Sla. Rue commercial or recucadcna(
fisheries located in areas potentially affected
by the drectiarge? (40 OR 125.62 c) and (d ’II
b. if yes. provide information on types.
locetfo,.. end value of fisherte,.
D Stats and Federal Law. 4a CIR 122.6! and
125.02 (a)(1 I)
1. (L S) Are there wetar çzshty standards
applicable to the following poltutanis for
which. modification te equastod
— ndzmnacth oxygen demand so’donolved
—Suspended solids. turbidity, light
tranamiaai light acastorieg, or
maintenance of liii ueplioac zone?
—pH of di. race.vsogmarari
2. (L.53 if yea. what is the waler ma
clasaificatfon yma’drchargeareal What
are the apphcabl. standard. for your
discharge ate. for each at the pmau . fur
which a aroddiomidomi as requested? Ptuwda.
copy of all applicable water quality
standards or a citauma t. where they cam be
found.
3. (L S) If there are no directly
co, nw aci applicable wates
quality standards ayiproved by EP& provide
data ted write that waterqusbtp
criteria extabllahcd uiulrr,eci ws3O4(aIfi) of
the Clean Water Act are tact at and beyond
the boundaryof the ZID wider critical
environ.mml and fruatelunt pleat
conditions in the wateeasumeeadliiger
adlac t.th.pofet at wloth yam el8ueni le
discharged. 143 CP 125.621a)(1 )
4. IL S) WilL di. modified discharge: 140
CFR 125.59(b)j3J
—Be consisreni wim applicable Slate coastal
zone management program(s) approved
under ike Cosirat Zone M .ns enf A i
as ememfrd. 16 U . S.C. 7467 et se .1 See ‘0
USC 145 11c 1f3 1 (A ))
—Be located i.e macma sanctuary
designated under title Ill of the h me
P,oectsoa. Reseerchi sad $amtuenes Act
(MPRSA)as amended. ia U.S.C. 3401
seq.. or in ansatuacine sanctuary
designated tinder the Coastal Znr.a
Management Act as amended. 20 U.S.C.
1481? If located in a marine sanctuary
designated under title I I? of the MPRSA.
attache copy of any cernflcartoi, orperim,
required under regulations govemimi auth
marinancetaly. See WUSC 1402?f) )
—Be consistent with the Endangered S iecies
Act ae amended. I$IJ.S.C. 2531 ci seq.?
Provide the names of any threatened or
endangecedap.ciea that inhabit or obtaus
nutrients from wale,, that may be aifecinti
by the modufiad discharge. Identify any
critical habi)at that maybe mTectedby the
modr5eddlacharge and evaluate whether
the modified discharge w,fl affect
threatened or erithmgeted or
modify a critical hobuteL See 10 U SC
1536(u 1 (2 ))
IlL S}Are you aware of any Slate or
Federal laws or regulations (other than the
Clean Wafer Act or the three statutes
identified in item 4 above) or an Executive
Order which is applicable to your discharge!’
If yes. prove?. sufficient nfor-’ ” to
demonstrate that yourmnttifl d discharge
will comply withsuch lawa(a ) .,rsgula.tioats ) .
or order(s). (40 Oil 1.25.59 (bJ (3 13
111 TerAnzcai EvcAmct,on
A. Physical arncienstics of Diac.b.arge ItO
CFR 125.82(aI)
1. (L. 2) Whati, the critical initial dilunan
for you c ’2leni and modiBed discharge(s)
during (1) the period(s) of mazunimi
strauficatirmraed( 2 ?as,ethercr iticai
period(s) of discharge valuineFcqaquniaon,
water quality. biological seazoas. or
orean aphic c idoea ?
2. fL 54 What ma di. dimensions 01 the
zone of initial dllatimuloryourmoddied
discharge (i)?
3. (L) What are di i effects .1 ambeml
eu ananlisafton on dispamo. and
transport or rat discharge piumnetwaetefleld?
I(S) Will these be signd’want
sedimentation 01 saspetided solids us the
vidnfty of the mailed discharge?
S. ft.) S. l . . . .1.tfea01 sespesidait solids.
.. What frectinmi ofib. meddled
discharge’s auspatided solids wilt accemufe Ce
within the vicinity of the modified discharge?
b. What ace the cafciale ama( a) and
rate(s) of sedhneiat accusiuilatimi soihia the
vicinity of the modified diacheigets) lgi&l
yrl?
c. What ii the fate of settiosbic solids
transported beyead the caIcala d aedimuni
accumulatfomi ares?
-------
Federal Register / Vol. 56. No. 16 / Thursday. January 24. 1991 / Proposed Rules
2833
B Compliance With Applicable Waler
Quality Standards (40 CFR 125 81(b) and
125 82(a))
I (LS) What is the concentration of
dissolved oxygen immediately following
initial dilution for the penod(s) of maximum
air tificatton and any other critical period(s)
of discharge volume/composItion, water
quality biological seasons, or oceanographic
conditions?
2. (L SI What is the farfield dissolved
oxygen depression and resulting
concentration due to DOD exertion of the
wastefleld during the period(s) of maximum
stratification and any other critical penod(s)
3 (U What are the dissolved oxygen
depressions and resulting concenirstions
near the bottom due to steady sediment
demand and resuspension of sediments?
4 (L SI What is the increase in receiving
water suspended solids concentration
immediately following outial dilution of the
modified discharge(s)?
5 IL) What is the change in receiving water
pH immediately followir,g initial dilution of
the modified discharge(s)?
6 IL SJ Does (will) the modified d.ichnrge
comply with applicaole water quality
stanoards For
—Dissolved oxygen?
—Susoencied solids or surrogate standards?
—pH?
7 IL SI Provide the determination requied
b 40 CFR 125 61(b (:) or if the dete-mination
has not et been received a copy of a letter
to the app-opriate agenc}(s) requesting the
required determination
C Impact on Public Water Supplies (40 CFR
125 62(b))
1. IL 5) Is there a planned or existing
public water supply (desalir.ization facility)
intake in the vicinity of the current or
modified di3charge
2. (L SI If yea.
a Vhat is the location of the ntake(aJ
(iatii.ide and long:rudel?
b i l the modified dtschargei ) prPv ni
the use of intakc(s( for oublic we er suppl)’
c Will the modified discharge(sl cause
i .creased treatment requiremen:s fcr public
waler siippl (s) to meet local, state, and EPA
dnnz in water standaras?
o Biological Impact of Discha -ge (40 CFR
125 6(c 1 J
I L 5) Does twill) a balanced indigenous
populaticn of sneilfish, fish, and wilulife
exist
—Immediately beyond the Zil) of the current
and modif ed discharge(s)?
—In all other areas beyond the ZID where
marine life is actually or potentia1ly
affected by the c’.irrent and modified
dtscharge(a)?
2 IL S) Have dititincove hahitata of limited
distribution been impacted adversely by the
current discharge and will such habitats be
impacieci adversely by the modified
discharge?
3 (L SJ lla’.e commercial or recreatiurtail
f henes been impacted adversely by the
curren’ discharge (e g. warnings, restrictions.
claaures. or mass mortalities) or will they be
impacted adversely by the modified
discharge?
4 (U) Does the current or modified
discharge cause the following within or
beyond the ZID (40 CFR 125 82 (c)(3))
—Mass mortality of fishes or invertebrates
due to oxygen depletion, high
concentraiions of toxics, or other
conditionsi?
—An increased incidence of disease in
marine organisms?
—An abnormal body burden of any toxic
material in marine organisms?
—Ar’y other extreme. aaverse biological
impacts?
5 (L S) for dl5charges into saline eetujrtne
waters (40 CFR 125 02 L)(4))
—Does or will the current or modified
discharge cause aubstential differences in
the benthic population within the ZID and
beyond the ZID?
—Does or w ijI the current or modified
discharge interfere with migratory
pathways witnin the ZID?
—Does or wiil the current or modified
discnarge result us bioacctiniulauion of
toxic pollutants or pesticides at levels
which exert adverse effects on the biotti
within ZID?
No seciion 3tJ1(h) muddied permit shall be
issued where the discharge enters into
streqqed saline estuarine waters as stated in
40 CFR 125 59(b)(4)
6 IL S) For improied discharges will the
proposed improved discharge(sl comply with
the retluirernenta of 40 CFR 125 b2la) through
15 621d (’ (40 CFR 125 621ei)
7 IL 5) For altered discr.arge(s( will the
altered discnargels) comply with the
reqwrements of 40 CFR 125 62(a) through
125 82(d)? (40 CFR 325 62(e))
8 (L 5) If your current aischargc is to
stressed ocean water , does or will your
current or modified d.scharge (40 CFR
1..562(flJ
—Contribute to iocrease. or perpetuate such
streised condition?
‘—Contrthute to fj”tner dreradatton c the
biota or atrr quali’y i me level of human
peturoa’ion from o tivr sources incre:ises?
—Re ’ad the reco e’y of the bioia or water
quai’Iy .f human periuthation from other
sources , t.reases?
E Imparts of Discharge on Recreational
Ac,vities 40 CFR 125 62 1uJ)
I ‘IL SI L)escribe the existing or potential
recreational ar,tivtties lil elv to be siffectea by
the modtf.ed discharge(c; beyond the zone of
initial dilution
2. IL 5) Whct are the existing and potential
impacts of the modified discharge(s) on
recreational uc:i iti s? Your answer should
include but not be ilmited to a discussion of
fecal colifcirm l’,acteria
3. IL S) Are ihere any Fecieral. State. or
local restrictions an recreational activities in
the icinuty f tr.e modified discharge(s)? If
yes describe .l’e restrict ons and provide
citations to a ailaljlp efe -ences
4 (I.. SI If recreatuonul restr,e’ions exist
would such rrxirlc’z.inq IC li!’L’d Or rr,o,IiI i’d
if you were d’scnargi-ig a secondary
treu:ment e.T.ucnt?
F Eztabliihment of a Mur.iior ng Prngram (40
CF’R 1256 J
3 IL 5) Describe thc biologicaL water
quality, and effluent monitoring programs
which you propose to meet the cntena oF 40
FR 125.83. Only those scienufic
investigations that are necessary to study the
effects of the proposed discharge should be
included in the scope of the 301 (h) monitoring
program (4OCFR 125 83(a)(1)(iJ(b))
2. (L S) Describe the sampling techniques.
schedules. and locations, analytical
techniques, quality control and verification
procedures to be u.,ed
3 (L S) Describe the personnel and
financial resources availaole to implement
the monitoring programs upon issuance of a
modified permit ar,d to carry it out for the life
of the modified permit
C Effect of Discharge on Othe Poir.t and
Nonpoint Sources 140 CF’R 125 64)
1 IL S) Does (will) your trcdii ’ .1
discharge(s) cause additional tre ,,rient or
control requirements for any otnr: poitt or
nonpoint pollution sourcetsj’
2. (L S) Provide the determination requi:ed
by 40 CFR 125 64(b) or if the determination
has not yet been received a copy of a letter
to the appropriate agency(s) requesiir,g the
required determination
H To ics Control Program 140 CFR 125 661
I a IL S) Do you have an kr.own or
suspected lnd’jsu’ial sources of toxic
pcill tants or pesticides?
b (L S) If no provide the certification
re’qui-ed by 40 CFR 125 66 1a)2)
c fL) If yes provide the results of wet and
dry weather effluent sral)’ses for ioIic
polutants and pesticides
d (U Provide an analysis of known or
suspected industrial sources of toxic
pollutant, and pesticides Identified ,n ( Il(c)
above
2. (S)a Are there any known or suspected
water quality sediment accumulation or
biological problems related to tOxic
pollutants or pesitcides f-on your rrodif’ed
discharge(s)
b If no. pru ide the certific ‘lion required
by 40 CFR us 66,dJ(2 1 ‘ogctr,er v.itt
available supporting data
c. If yes pro icie a schcdi le for
detelopment and implementation of
noninaustria! toxics control proerams to meet
the requiremer’ts’ot 40 CFR 325 C6(dl (3 1
3 (L S ‘I Po ioe the results of w i and J-y
weather effluent analyses for tus.ic psllu:an:s
end pesticides as required by 40 CIR
125 eSa)(1)
4 IL S ‘1 Provide and or.al} SiS of known or
suspected industrial sources of toxic
pollutants and pestic.ides identified in 2
above
5. (L S) Do ou have an approved
industrial pretreatment program?
a. If yes, provide the date of EPA approval
b. If no. and if required by 40 CFR part 403
to have an industrial prctrea:ment proeram
provide a proposed schedule fcr deveiopnent
and implementation of sour industrial
pretreaur.ent program to meet the
requirements of 40 CFR part i03
It Urban area pretreatment requiremen 4’J
CFR 12565)
Dischargera serving a population ci 50 0(10
or more must respond
To 1 1w esteni prscli ,stjIe
-------
Z 4
Federal Register / Vol. 56. No. 16 I Thursday. January 24. 1991 I Proposed Rules
a. Provide data on all toxic pollutant.
introduced into the treatment works from
Industrial sources (categorical and
noncategoncal).
b. Note whether applicable pretreatment
requirements are in effect for every industrial
source of each toxic pollutanL Are the
industrial sources introducing such toxic
pollutants in compliance with all of their
pretreatment requirements? Are these
pretreatment requirements being enforced?
(40 CFR 125 851b1 12)J
c. if applicable pretreatment requirements
do not exist for each toxic pollutant in the
POTW effluent introduced by Industrial
sources.
—Provide a description and a schedule for
your development and implementation of
applicable pretreatment requirements (40
CFR 125.65(c) . or
—Describe how you propso. to demonstrate
secondary removal equivalency for each of
those toxic pollutants. including a schedule
for compliance, by using a secondary
treatment pilot plant. (40 CFR 125.65(d))
7. (L. S) Describe the public education
program you propose to minbniza the
entrance of noninduefrtai toxic pollutants and
pesticides into your treatment system. (40
CFR 125.66(dlllll.
& (L) Provide a schedule for developmen.
and implementation of a nonindustrial toxit
control program to meet the requirements of
40 CFR 125.66(dfl3 .
(FR Doc. 91-1397 Filed 1-23-91: 8:45 am)
siujisa coce ssao4o.d
------- |