[Federal Register Volume 61, Number 177 (Wednesday, September 11, 1996)]
[Notices]
[Pages 47932-47940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23067]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5604-7]


State Program Requirements; Approval of Application by Louisiana 
To Administer the National Pollutant Discharge Elimination System 
(NPDES) Program; Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Approval of the Louisiana Pollutant Discharge Elimination 
System Under CWA.

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SUMMARY: On August 27, 1996, the Regional Administrator for the 
Environmental Protection Agency, Region 6, approved the application by 
the State of Louisiana to administer and enforce the National Pollutant 
Discharge Elimination System (NPDES) for regulating discharges of 
pollutants into waters within the state. The authority to approve state 
programs is provided to EPA in Section 402(b) of the Clean Water Act 
(CWA). The Louisiana Pollutant Discharge Elimination System (LPDES) 
program will operate in lieu of the EPA administered NPDES program 
pursuant to Section 402 of the CWA. In making its decision, EPA has 
considered all comments and issues raised during the publicly noticed 
comment period.

EFFECTIVE DATE: Because CWA Sec. 301(a) prohibits new discharges until 
they are authorized by an NPDES permit, this action is effective August 
27, 1996 to avoid futher suspension of permitting actions in Louisiana 
and the unnecessary burden such a suspension would impose on new 
dischargers.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at U.S. EPA, Region 
6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas 
75202, or by calling (214) 665-7513, or electronically at

[email protected];

or Ms. Barbara Bevis at the Office of Water Resources, LDEQ, P.O. Box 
82215, Baton Rouge, Louisiana, 70884-2215, or by calling (504) 765-
2740, or electronically at [email protected].

SUPPLEMENTARY INFORMATION: Louisiana's application was described in the 
Federal Register (61 FR 15258) on April 5, 1996, in which EPA requested 
comments. Notices of EPA's proposal to approve the LPDES program were 
also published on April 8, 1996, in The Advertiser (Layfayette, La.); 
The Alexandria Daily Town Talk (Alexandria, La.); The Shreveport Times 
(Shreveport, La.); The Times-Picayune (New Orleans, La.); The Lake 
Charles American Press (Lake Charles, La.); The Courier (Houma, La.); 
The News Star (Monroe, La.); and The Baton Rouge Advocate (Baton Rouge, 
La.). Copies of the application were made available at the addresses 
below and could also be purchased from the state for the cost of 
$108.00. EPA provided copies of the public notice to permitted 
facilities, Indian tribes, and other federal and state agencies. `
    Both a public meeting and hearing were held in Baton Rouge, 
Louisiana, on May 9, 1996. The meeting (provided as an informal 
question and answer session), began at 3:00 pm and ended at 4:30 pm. 
The hearing started at 7:00 pm and lasted until 8:17 pm. Oral comments 
were recorded during the hearing and entered into EPA's official 
record. Written comments were accepted by EPA through May 27, 1996 (the 
original comment period, which was to end May 20, 1996, was extended to 
May 27, 1996, at the request of commenters). EPA's response to the 
issues raised during the comment period are contained in the 
Responsiveness Summary contained in this notice. A copy of EPA's 
decision and its Responsiveness Summary has been sent to all commenters 
and interested parties.
    The LPDES program description and agency agreements continue to be 
available to the public at the following internet address: http://
WWW.DEQ.STATE.LA.US--select Office of Water Resources.
    Copies of the final program documents for the LPDES program are 
also available to the public during normal business hours, Monday 
through Friday, excluding holidays, at:

EPA Region 6, 12th Floor Library, 1446 Ross Avenue Dallas, Texas 75202, 
(214) 665-7513
LDEQ Headquarters, 7290 Bluebonnet, Baton Rouge, LA 70884-2215, (504) 
765-2740
LDEQ Acadiana Regional Office, 100 Asma Blvd., Suite 151, Lafayette, LA 
70508, (318) 262-5584
LDEQ Bayou Lafourche Regional Office, 104 Lococo Drive, Raceland, LA 
70394, (504) 532-6206
LDEQ Capitol Regional Office, 11720 Airline Highway, Baton Rouge, LA 
70817-1720, (504) 295-8583
LDEQ Kisatchie Central Regional Office, 402 Rainbow Drive, Bldg. 402, 
Pineville, LA 71360, (318) 487-5656

[[Page 47933]]

LDEQ Northeast Regional Office, 804 31st Street, Suite D, Monroe, LA 
71211-4967, (318) 362-5439
LDEQ Northwest Regional Office, 1525 Fairfield, Room 11, Shreveport, LA 
71101-4388, (318) 867-7476
LDEQ Southeast Regional Office, 3501 Chateau Boulevard-West Wing, 
Kenner, LA 70065, (504) 471-2800
LDEQ Southwest Regional Office, 3519 Patrick Street, Room 265A, Lake 
Charles, LA 70605, (318) 475-8644

    The Regional Administrator has notified the State and notice of 
EPA's final decision has been published in the same newspapers in which 
the public notice of the proposed program appeared (listed above). As 
of August 27, 1996, EPA suspended issuance of NPDES permits in 
Louisiana (except for those permits which EPA retained jurisdiction as 
specified below). The State's LPDES program will implement federal law 
and operate in lieu of the EPA-administered NPDES program. EPA does, 
however, retain the right to object to LPDES permits proposed by LDEQ, 
and if the objections are not resolved, to issue the permit itself.

Scope of the LPDES Program and Clarifications on EPA Authority and 
Oversight

    All NPDES files under the jurisdiction of LDEQ will be transferred 
from EPA to the state within 30 days. NPDES permits under LDEQ's 
jurisdiction will become state administered LPDES permits and will be 
reissued (upon expiration) or modified by the state agency. All permits 
brought to public notice by LDEQ after this authorization and under its 
LPDES authority will be LPDES permits providing NPDES coverage to those 
dischargers. [NOTE: Until otherwise notified by the State, all Notices 
of Intent and Termination (NOIs and NOTs) for coverage under EPA's 
general permits for storm water (only) should continue to be sent to 
the EPA NOI processing center (4203), 401 M Street, S.W., Washington, 
D.C. 20460. Discharge Monitoring Reports (DMRs) under those general 
permits should be sent to LDEQ.]

A. EPA Authority

    Louisiana's LPDES program generally covers all discharges of 
pollutants subject to the federal NPDES program, with some exceptions 
and clarifications. EPA will retain the permitting authority for the 
following discharges in the State of Louisiana:
    1. Municipal Sewage Sludge: LDEQ has not elected to not seek 
authorization for the municipal sewage sludge regulatory program at 
this time. EPA will thus continue to regulate municipal sewage sludge 
disposal in Louisiana in accordance with Section 405 of the Act and 40 
CFR Part 503.
    Since EPA desires all treatment works treating domestic sewage 
(TWTDS) in the State of Louisiana to be covered under a permit, EPA is 
currently preparing a draft general permit to cover eligible TWTDS. 
TWDTS includes facilities generating sewage sludge or otherwise 
effectively controlling the quality of sewage sludge or the manner in 
which it is disposed.
    Enforcement for sludge management and reporting authority as 
defined by 40 CFR Part 503 will be retained by EPA Region 6 until such 
time as the State of Louisiana is authorized to run the sludge disposal 
program.
    2. Jurisdiction over Discharges in Indian Country: As noted in EPA/
LDEQ MOA (Sec. II.C.2.b, at page 7), LDEQ does not seek to administer 
the LPDES program in Indian Country. EPA will thus issue NPDES permits 
for discharges in Indian Country within the geographic boundaries of 
Louisiana, i.e., the reservations of the Chitimacha, Coushatta, and 
Tunica-Biloxi tribes. Until they are deleted by regulatory amendment, 
the references to ``an Indian tribe or an authorized Indian tribal 
organization'' in the definition of ``municipality'' and to ``an Indian 
tribe'' in the definition of ``state'' at L.A.C. 33:IX.2313 should thus 
be regarded as mere surplusage. They do not suggest that LDEQ will seek 
to regulate discharges from POTWs or other facilities on Indian lands 
in Louisiana. The LDEQ will work with EPA Region 6 to identify any 
potential discrepancies having to do with Indian Lands or Tribes, and 
will address them in the first revision to the LPDES regulations.
    3. Discharges to U.S. Waters Beyond the Territorial Seas: EPA 
retains the permanent NPDES authority for discharges seaward of the 3 
mile territorial seas limit and within the jurisdiction of the United 
States. Many of these discharges are from oil and gas exploration and 
production operations in the Outer Continental Shelf area of the 
Western Portion of the Gulf of Mexico, currently regulated under NPDES 
general permit No. GMG290000.
    4. Discharges from Cleanup of Petroleum UST Systems: In the July 
22, 1996, Federal Register, EPA proposed a general NPDES permit 
(LAG280000) authorizing discharges resulting from the implemention of 
Corrective Action Plans for the cleanup of Petroleum UST Systems in 
Louisiana. A Petroleum UST System is an undergound storage tank system 
that contains petroleum or a mixture of petroleum with de minimis 
quantities of other regulated substances. Such systems include those 
containing motor fuels, jet fuels, distillate fuel oil, etc. In 
accordance with the EPA/LDEQ MOA, EPA will retain authority to issue 
the final decision on this permit. Once the permit is final it will be 
transfered to the State for administration.
    5. Status of applications, proposed permits, contested permit 
actions, and unresolved EPA enforcement actions: Except for the files 
listed below, all pending NPDES permit applications and issued NPDES 
permits under jurisdiction of LDEQ will be transferred to Louisiana 
within 30 days of the approval of the LPDES program. In accordance with 
the signed Memorandum of Agreement, EPA will retain temporary authority 
for all proposed permits until final issuance; permits contested under 
evidentiary hearing proceedings until those are resolved; and 
compliance files and authority for all open enforcement orders until 
such time as LDEQ has issued parallel orders or EPA has resolved the 
enforcement action.
    Proposed Permits: EPA shall retain permit decision-making authority 
over permits which are currently public notice until they are final 
issued and effective. Once these permits are effective, they will be 
transferred to LDEQ unless contested. The permit files will be 
transferred to the state as the permits become effective.
    Contested Permit Actions: EPA will retain permits for which 
variances or evidentiary hearings have been requested until such time 
as they are resolved. As each request is resolved, EPA will notify LDEQ 
and transfer jurisdiction of the permit to LDEQ. EPA shall also 
maintain enforcement lead over discharge permits with a pending 
evidentiary hearing request; these will be transferred to the state 
upon resolution of the issue for which the hearing was requested.
    Enforcement Actions: EPA Region 6 will retain primary enforcement 
authority after the date the LPDES program is approved for a number of 
facilities which have unresolved compliance issues. These permittees 
will continue to report to EPA on all compliance issues including 
regular submittals of Discharge Monitoring Reports for their NPDES 
permits. Authority for these permits can subsequently be transferred to 
the State one of two ways: 1) The outstanding compliance issue can be 
resolved and the permittee has returned to compliance, or, 2) the State 
can issue a parallel administrative action to address the outstanding 
compliance issue. As a practical consideration, enforcement authority 
for municipal or parish

[[Page 47934]]

facilities that are operated by the same governmental entity will not 
be transferred to the State as long as one of its major facilities has 
an unresolved compliance issue. NOTE: EPA in coordination with LDEQ 
will inform all permittees in writing of their reporting 
responsibilities. Permittees should continue to report as specified by 
both their State and Federal permits until otherwise notified.

B. Penalty Policy Status and Regulation Corrections

    In a letter dated March 29, 1996, J. Dale Givens, LDEQ Secretary, 
committed to developing and promulgating a penalty policy by April 1, 
1997. The State is in the process of drafting the policy. EPA will work 
with the State in an effort to assure that policy is consistent with 
Federal policies.
    The definition of ``Waters of the State'' is not included in the 
definition section of the LPDES regulations. The definition of ``Waters 
of the State'' for LPDES purposes is in La. R.S. 30:2073(7). This 
definition will be added to the LPDES regulations at the first 
opportunity.

C. Consultation Agreements Under the Endangered Species Act and the 
National Historic Preservation Act

    1. Agreement with U.S. Fish and Wildlife Service: Consultation 
under Section 7 of the Endangered Species Act has been completed on 
EPA's approval of the LPDES program. An agreement has been reached 
between EPA Region 6 and the U.S. Fish and Wildlife Service (FWS) to 
provide EPA oversight of LPDES permit actions with respect to federally 
listed species. The conditions of the agreement signed by EPA and FWS 
are listed below:
    a. EPA Region 6 will oversee activities conducted by the Louisiana 
Department of Environmental Quality to ensure that the conditions in 
the EPA/LDEQ Memorandum of Agreement are followed (particularly 
Sections III.E.1.b and III.E.1.d pertaining to provisions and 
agreements in the LDEQ/FWS Memorandum of Understanding).
    b. U.S. Fish and Wildlife Service will work with LDEQ in the 
development of permits and provide comments on draft permits in 
accordance with LDEQ/FWS Memorandum of Understanding (hereby 
incorporated by reference).
    c. When the FWS and LDEQ cannot agree on appropriate actions for 
the protection of listed or proposed species or critical habitat 
associated with a LPDES permit, and EPA is notified of FWS concerns by 
LDEQ, EPA will determine whether to make a formal objection to the 
issuance of the permit (in accordance with 40 CFR 123.44). EPA will 
formally object to the issuance of the draft permit if FWS determines 
that the action is likely to jeopardize the continued existence of a 
listed or proposed species or destroy designated critical habitat. 
Procedures for an EPA formal objection are outlined in the EPA/LDEQ 
MOA.
    d. EPA will work with LDEQ and FWS to resolve issues of concern. 
Should EPA be able to facilitate a resolution of the issues that 
prompted the formal objection, the objection may be withdrawn, and LDEQ 
may proceed with the issuance of the permit.
    e. If EPA determines to issue the permit, they will consult with 
FWS, prior to permit issuance, when it is determined that the permit 
action may have an effect on a federally listed species or may 
jeopardize the continued existence of a proposed species or adversely 
modify critical habitat, in accordance with Section 7 of the Endangered 
Species Act (regulations found at 50 CFR Part 402).
    The U.S. Fish and Wildlife Service and U.S. EPA Region 6 agree that 
the provisions in the LDEQ/FWS MOU and the above-listed procedures 
describing EPA's oversight activities of the Louisiana program are 
appropriate mechanisms for the protection of federally listed or 
proposed species for LDEQ issued LPDES permits; and thus the 
authorization of the Louisiana State permitting program under NPDES is 
not likely to adversely affect listed species or adversely modify 
critical habitat, nor is likely to jeopardize the continued existence 
of a proposed species in the state of Louisiana. Signed by William B. 
Hathaway, Director, Water Quality Protection Division, U.S. EPA Region 
6 [date: June 12, 1996]; and David Fruge, Field Supervisor, Louisiana 
Field Office, U.S. Fish and Wildlife Service [date: June 20, 1996].
    2. Agreement with National Marine Fisheries Service: Consultation 
under Section 7 of the Endangered Species Act has been completed on 
EPA's approval of the LPDES program (letters dated August 16, 1996 and 
August 19, 1996). Informal consultation produced agreement between EPA 
Region 6 and the National Marine Fisheries Service (NMFS) that transfer 
of authority for permitting point source discharges to LDEQ would not 
be likely to adversely affect federally listed marine species. The 
conditions agreed upon by EPA and NMFS are listed below:
    a. EPA Region 6 will oversee activities conducted by the Louisiana 
Department of Environmental Quality (LDEQ) to ensure that the 
conditions in the EPA/LDEQ Memorandum of Agreement are followed.
    b. Annually, the National Marine Fisheries Service (NMFS) will 
provide LDEQ with a list of federally-listed threatened, endangered, 
and proposed species under NMFS jurisdiction, as well as proposed 
critical habitat, that occur in Louisiana and that are dependent upon 
marine habitat for all or part of their existence. NMFS will provide 
comments on draft permits in accordance with LDEQ/NMFS Memorandum of 
Understanding.
    c. When the Service and LDEQ cannot agree on appropriate actions 
for the protection of listed or proposed species associated with a 
LPDES permit, and EPA is notified of NMFS concerns by LDEQ, EPA will 
work with NMFS and LDEQ to resolve the issue, and will determine 
whether to make a formal objection to the issuance of the permit (in 
accordance with 40 CFR 123.44). Procedures for an EPA formal objection 
are outlined in the EPA/LDEQ MOA.
    d. EPA will work with LDEQ and NMFS to resolve issues of concern. 
Should EPA be able to facilitate a resolution of the issues that 
prompted a formal objection, the objection may be withdrawn, and LDEQ 
may proceed with the issuance of the permit.
    e. If EPA determines to issue the permit, it will consult with NMFS 
when it is determined that the permit action is likely to adversely 
affect a federally listed species or may jeopardize the continued 
existence of a proposed species or adversely modify critical habitat, 
in accordance with Section 7 of the Endangered Species Act.
    f. Where NMFS or LDEQ believes a State-drafted permit is likely to 
adversely affect a federally listed species or designated critical 
habitat, but EPA determines a formal objection to the permit is not 
justified, EPA will work with LDEQ and NMFS to try to find a resolution 
to the expressed concerns.
    The National Marine Fisheries Service and U.S. EPA Region 6 agree 
that the above-listed procedures are appropriate mechanisms for the 
protection of federally listed or proposed species for LDEQ issued 
LPDES permits; and that the authorization of the Louisiana State 
permitting program under NPDES, will not be likely to adversely affect 
listed species or adversely modify critical habitat, nor is likely to 
jeopardize the continued existence of a proposed species. [Letter 
signed by William B. Hathaway, Director, Water Quality Protection 
Division, U.S. EPA Region 6 [date: August 16, 1996]; and concurrence 
letter from Dr. Andrew Kemmerer, Director, Southeast Region,

[[Page 47935]]

National Marine Fisheries Service dated: August 17, 1996.]
    3. Agreement with State Historic Preservation Officer: Consultation 
under Section 106 of the National Historic Preservation Act has been 
completed on EPA's approval of the LPDES program. An agreement has been 
reached between EPA Region 6 and the Louisiana State Historic 
Preservation Officer (SHPO) to provide EPA oversight of LPDES permit 
actions with respect to properties listed or eligible for listing in 
the National Register of Historic Places. The conditions of the 
agreement signed by EPA and the SHPO are listed below:
    a. EPA Region 6 will oversee activities conducted by the Louisiana 
Department of Environmental Quality to ensure that the conditions in 
the EPA/LDEQ Memorandum of Agreement are followed.
    b. The Louisiana State Historic Preservation Officer will work with 
LDEQ in the development of permits and provide comments on draft 
permits in accordance with LDEQ/LSHPO Memorandum of Understanding.
    c. When LSHPO and LDEQ cannot agree on appropriate actions for the 
protection of historic properties associated with a LPDES permit, and 
EPA is notified of LSHPO's concerns by LDEQ, EPA will determine whether 
to make a formal objection to the issuance of the permit (in accordance 
with 40 CFR 123.44). Procedures for an EPA formal objection are 
outlined in the EPA/LDEQ MOA.
    d. EPA will work with LDEQ and the LSHPO to resolve issues of 
concern. Should EPA be able to facilitate a resolution of the issues 
that prompted the formal objection, the objection may be withdrawn, and 
LDEQ may proceed with the issuance of the permit.
    e. If EPA determines to issue the permit, they will consult with 
the LSHPO and the Advisory Council on Historic Preservation (ACHP) when 
it is determined that a permit action will have an effect on a historic 
property listed, or eligible for listing in the National Register of 
Historic Places, in accordance with Section 106 of the National 
Historic Preservation Act.
    The Louisiana State Historic Preservation Officer and U.S. EPA 
Region 6 agree that the above-listed procedures are appropriate 
mechanisms for the protection of historic properties listed or eligible 
for listing on the National Register of Historic Places for LDEQ issued 
LPDES permits; and that the authorization of the Louisiana State 
permitting program under NPDES, will not effect the above mentioned 
properties. Signed by William B. Hathaway, Director, Water Quality 
Protection Division, U.S. EPA Region 6 [date: March 20, 1996]; and 
Gerri Hobdy, Louisiana State Historic Preservation Officer, Office of 
Cultural Development, Louisiana Department of Culture, Recreation and 
Tourism [date: March 25, 1996].

Responsiveness Summary

    The following is a summary of the issues raised by persons 
commenting on EPA's proposed approval and EPA's response to those 
issues.
    1. Comment Summary: Some commenters favoring approval of the LPDES 
program cited Union Electric Co. v. EPA, 427 U.S. 246 (1976), claiming 
EPA is required to approve the LPDES program as long as it meets CWA's 
minimum requirements. Others, who oppose such approval, suggest EPA has 
far more discretion in its program approval decisions and that it 
should disapprove the LPDES program.
    Response: In Union Electric, the Supreme Court essentially held 
that EPA had limited discretion to disapprove a State Implementation 
Plan under Section 110 of the Clean Air Act. The case has no direct 
application to EPA actions under the Clean Water Act, but might be 
instructive in determining EPA obligations in reviewing state water 
quality standards. Nevertheless, EPA ``shall approve'' state NPDES 
programs that conform to the requirements of CWA and 40 CFR Part 123. 
In implementing this requirement, EPA does not merely look to the state 
program's theoretical or ``paper'' conformity; it also examines the 
state's capacity to implement a conforming program. EPA Region 6 has 
examined the resources LDEQ will devote to the LPDES program and 
supports (via the CWA grant process) the development of LDEQ expertise 
and skills necessary for a successful program. In the judgment of EPA 
Region 6, LDEQ is now capable of undertaking primary responsibility for 
administration of the NPDES program in Louisiana.
    2. Comment Summary: Some commenters expressed support for program 
authorization, pointing out LDEQ staff was ``knowledgeable and 
experienced.'' They note that LDEQ has historically issued permits for 
minor discharges in more timely fashion than EPA and suggest LDEQ may 
thus devote more staff resources to permitting tasks than EPA. Others, 
however, claimed the Program Description lacked sufficient information 
on program costs and sources of funding. They also claimed LDEQ will 
necessarily be understaffed because the Program Description (Section 6, 
p. 12) states that ``workload analysis of the anticipated number of 
enforcement actions the LDEQ will prepare over the next two years is 
difficult to project.''
    Response: Chapters 4, 6, and Appendix H of the Program Description 
provide detailed information on LDEQ's organization, positions, 
projected costs, and sources of funding, including a projection of 
enforcement resource needs. EPA Region 6 agrees with LDEQ that it is 
``difficult'' to project enforcement resource needs for the next two 
years, but finds the State's estimate of 600 enforcement actions 
consuming 5280 workdays reasonable. Based on its review of the Program 
Description, Region 6 found the LPDES program adequately staffed and 
funded.
    3. Comment Summary: Commenters provided anecdotal information on 
LDEQ's implementation of EPA-approved programs under the Clean Air Act 
(CAA) and Resource Conservation and Recovery Act (RCRA), and state 
Louisiana Water Discharge Permit System (LWDPS) program in support of 
LPDES program approval. Some contended that the State's adoption of new 
regulations consistent with EPA's NPDES regulations showed LDEQ 
understood the program and was capable of administering it. Other 
commenters providing anecdotal information on LDEQ's implementation of 
RCRA and CAA programs contended it showed the State was incapable or 
unwilling to administer an effective NPDES program. Some pointed to the 
number of Louisiana's waters which have not attained applicable water 
quality standards. They claimed LDEQ is likely to render decisions 
affecting water quality on the basis of political considerations and 
expressed concern that federal ``monitoring'' of the LDEQ program would 
be insufficient to avoid attendant declines in water quality. They 
pointed out that water quality is important to the State's fishing, 
recreation, and tourism industries.
    Response: Whether or not anecdotal examples show Louisiana's 
implementation of the CAA and RCRA programs to be exemplary or 
deficient, it is not an issue which EPA can weigh heavily in its 
decision to approve or disapprove a state program. EPA can not 
appropriately withhold approval of a state NPDES program to coerce 
improvements to a state RCRA program, nor can EPA appropriately approve 
a state NPDES program just because it was satisfied with that state's 
RCRA program. Each state program must be approved or disapproved on its 
own merit and oversight decisions on each program must stand on their 
own. EPA does not believe past administration of a state program 
accurately indicates

[[Page 47936]]

how it will administer the NPDES program. As EPA has previously stated, 
``the Agency does not intend to disapprove all State programs which 
have had problems in the past. It views the decision on whether or not 
to approve as being forward looking; the Agency is primarily concerned 
that the program be effective in the future.'' 98 Fed. Reg. 33290, 
33377 (May 19, 1980). Because the State's new LPDES regulations 
replicate the decisional criteria of EPA's own NPDES regulations, LPDES 
permits will be as least as stringent as NPDES permits issued by EPA, 
and therefore, will provide equivalent protection of water quality. 
LDEQ's permitting process will be subject to federal oversight and 
public participation.
    4. Comment Summary: Some commenters argued EPA should not approve 
the LPDES program unless and until LDEQ adopts a penalty policy similar 
to EPA's. Citing a decline in State-imposed penalties since 1992, they 
claimed that LDEQ abuses its enforcement discretion in assessing 
penalties and that the lack of a written State penalty policy leaves 
EPA without a necessary oversight tool. Others suggested penalties are 
a poor indicator of program effectiveness, claiming LDEQ's enforcement 
program appropriately emphasizes compliance instead of penalties.
    Response: EPA encourages, but does not require, that states 
implementing the NPDES program adopt penalty policies equivalent to 
EPA's. In a letter dated March 29, 1996, from LDEQ Secretary Dale 
Givens, the State has committed to developing and promulgating a 
penalty policy by April 1, 1997. EPA will work with the State in an 
effort to assure that policy is consistent with federal policies.
    5. Comment Summary: Some commenters requested that EPA delay 
approval of the LPDES program until an ongoing FBI investigation into 
influence peddling by State officials is completed.
    Response: If the ongoing FBI investigation reveals criminal 
wrongdoing by anyone currently associated with the LPDES program, it 
seems likely that association will end. Further discussion of an 
ongoing law enforcement investigation would be inappropriate here.
    6. Comment Summary: Some commenters opposed approval on the grounds 
that Louisiana law does not provide minimum (``not less than'') 
penalties for program violations. Some also expressed concern that the 
Louisiana Legislature might pass an environmental audit statute 
inhibiting LDEQ's ability to penalize violators.
    Response: Neither CWA Sec. 402 nor 40 CFR Part 123 require that 
state law mandate minimum penalties to obtain NPDES approval. The 
regulation instead requires that states possess authority to assess 
civil penalties of at least $5,000 per day, per violation and criminal 
penalties of at least $10,000 per day, per violation. Louisiana law 
authorizes assessment of both civil and criminal penalties exceeding 
these amounts. See La. R.S. 30:2025. Post-approval changes to Louisiana 
law, if any, will be subject to review by EPA (in accordance with 40 
CFR Sec. 123.62). If any changes render the LPDES program noncompliant 
with federal requirements, EPA may withdraw program approval in 
accordance with 40 CFR Sec. 123.63.
    7. Comment Summary: Some commenters contended LDEQ must have the 
Permits Compliance System (PCS) in place before EPA approves the LPDES 
program.
    Response: 40 CFR Part 123.26(e)(1) requires states to maintain a 
``comprehensive inventory of all sources covered by NPDES permits and a 
schedule of reports required to be submitted by permittees to the State 
agency.'' EPA strongly encourages states to use the PCS system for 
compliance with this requirement. LDEQ is currently connected to PCS 
and EPA is actively training LDEQ staff in its use.
    8. Comment Summary: One commenter suggested EPA should not approve 
the LPDES program until it revises its own system of determining 
significant noncompliance (SNC) and penalty assessment. The commenter 
apparently believes EPA's present system precludes assessment of 
penalties for more than one day's violation of a daily maximum 
limitation.
    Response: Nothing in its current system precludes EPA from seeking 
penalties for each day a daily maximum effluent limitation is exceeded. 
As pointed out in a recent General Accounting Office report, however, 
EPA's existing compliance tracking system does not take such violations 
into proper account in targeting enforcement actions against facilities 
in SNC and the Agency is thus expanding its systemic definition of SNC 
to better address such violations. That EPA is updating and improving 
its own enforcement system, however, has no bearing on whether or not 
it should approve the LPDES program. The MOA between EPA and LDEQ 
commits LDEQ to address SNC in a timely manner. If EPA's definition of 
SNC is expanded, there will simply be more facilities in SNC for EPA 
and LDEQ to address.
    9. Comment Summary: Some commenters claimed EPA has inappropriately 
waived its right to oversight review of many of the State's permitting 
actions.
    Response: CWA Sec. 402(e) authorizes EPA to waive oversight review 
of state permit actions on categories of point sources, thus allowing 
the Agency to concentrate its oversight resources on actions which may 
have the greatest effect on water quality or in which there is a 
paramount federal interest. These ``must review'' categories of 
discharges are generally described at 40 CFR Sec. 123. 24(d). In the 
MOA with LDEQ, EPA has retained its oversight of those categories and 
added to them, requiring that LDEQ submit proposals to permit 
discharges from sanitary sewer overflows, discharges from municipal 
separate storm sewers, discharges which may adversely affect endangered 
or threatened species, and discharges which may adversely affect 
historic sites. In addition, EPA has retained its right to add to the 
classes of permitting actions it will review and to require review, on 
a case-by-case basis, of permits for which it has waived review.
    10. Comment Summary: Some commenters contended EPA should retain 
jurisdiction over all permits for which applications are currently 
pending.
    Response: Pursuant to CWA Sec. 402(c) and 40 CFR Sec. 124.15(a), 
EPA may not unilaterally retain jurisidiction over NPDES permits for 
which it has not yet issued a final permit decision in accordance with 
40 CFR Sec. 124.15. See generally Central Hudson Gas & Electric Corp. 
v. U.S. EPA, 587 F.2d 549 (2d Cir. 1978). To render programmatic 
transition more efficient and less confusing for permit applicants and 
the public, EPA and LDEQ have agreed that EPA will retain jurisdiction 
over permitting actions it has already proposed. The far broader 
jurisdictional retention suggested by the commenters would extend the 
transition period indefinitely and thus indefinitely delay the benefits 
of program authorization. Therefore, all permit applications which were 
submitted to EPA (except for those designated in Scope of the LPDES 
program part A.5. above) will be transferred within 30 days to the 
State for permitting action.
    11. Comment Summary: Some commenters claimed that EPA should not 
approve LDEQ's use of general permits or should restrict it to 
instances in which EPA has already issued general permits. They 
expressed concern that general permits allow permit coverage for 
discharges without public notice or review. They also

[[Page 47937]]

claimed such general permits may not include monitoring or reporting 
requirements, depriving the public of access to effluent data. Other 
commenters supported LDEQ's use of general permits as a streamlining 
mechanism for both LDEQ and dischargers.
    Response: EPA agrees that regulation of large numbers of similar 
discharges, for which similar effluent limitations are appropriate, is 
often more efficient with general permits. See generally 40 CFR 
Sec. 122.28. Although LDEQ and EPA procedures for developing general 
permits are different, LDEQ's procedures provide for equivalent public 
notice and review. When it proposes general permits, LDEQ provides 
notice to interested parties on mailing lists and in newspapers of 
general circulation throughout the State, soliciting comments on those 
proposals. Copies of draft general permits and fact sheets are 
available for public review in the same manner as for individual 
permits. Louisiana Administrative Code (L.A.C.) 33:IX.2369 requires 
that all LPDES permits, including general permits, impose monitoring 
and reporting requirements as needed to assure compliance with permit 
conditions. Discharge monitoring reports submitted to LDEQ by general 
permittees will be maintained in individual facility files which are 
available for public review.
    12. Comment Summary: Some commenters claim LDEQ has authority to 
grant broader variances than allowed by 40 CFR Sec. 124.62.
    Response: LDEQ's authority to grant variances to LPDES program 
requirements is not broader than EPA's corresponding NPDES authority. 
The Louisiana Attorney General (AG) has explained in the AG's Statement 
that the words ``as appropriate'' in the law which gives LDEQ the 
authority to grant variances [La. R.S. 30:2074(B)(4)] does not allow 
for variances which would not be allowed by the CWA. This statement by 
the AG is consistent with Louisiana regulation L.A.C. 33.IX.2317(A) 
which prohibits LDEQ from granting variances ``which under federal law 
may only be granted by EPA''; and L.A.C. 33.IX.2317(A) which prohibits 
issuance of permits ``when the conditions of the permit do not provide 
for compliance with the applicable requirements of the CWA * * *'' This 
would also be a violation of the EPA/LDEQ MOA.
    13. Comment Summary: Some commenters expressed concern that LPDES 
program approval would eliminate environmental protection afforded by 
the National Environmental Policy Act (NEPA) and the Endangered Species 
Act (ESA). They requested that EPA not approve the LPDES program until 
the State adopts equivalent statutes. Others claimed the LPDES program 
would provide equivalent protection as a result of the Louisiana 
Supreme Court's decision in Save Ourselves, Inc. v. Louisiana 
Environmental Control Commission, 452 So.2d 1152 (La. 1984) and the 
EPA/LDEQ MOA.
    Response: Because state permit actions under EPA-approved programs 
are not federal actions, neither NEPA nor ESA apply to them. See, e.g., 
Chesapeake Bay Foundation v. United States, 453 F.Supp. 122 (E.D. Va. 
1978). Nor does CWA or 40 C.F.R. Part 123 require that states adopt 
equivalent statutes to obtain NPDES program approval. EPA's approval of 
state NPDES programs is itself moreover excluded from NEPA requirements 
by CWA Sec. 511(c)(1). Although it is thus immaterial to its program 
approval decision, EPA Region 6 hopes the Save Ourselves decision 
provides a degree of environmental protection comparable to NEPA's, but 
believes it may be too early to tell.
    In Save Ourselves, the Louisiana Supreme Court reversed a hazardous 
waste permit decision of the Louisiana Environmental Control Commission 
(an LDEQ predecessor), finding the Commission had failed to explain or 
document its decisions on issues raised by public commenters. The 
Court's decision was based in part on a public trust doctrine 
established by the Natural Resources Article of the Louisiana 
Constitution. At 452 So.2d 1156-57, the Court stated:

    The Constitutional standard requires environmental protection 
``insofar as possible and consistent with the health, safety, and 
welfare of the people.'' La. Const. art. IX Sec. 1. This is a rule 
of reasonableness which requires an agency or official, before 
granting approval of a proposed action affecting the environment, to 
determine that adverse impacts have been minimized or avoided as 
much as possible consistently with the public welfare. Thus, the 
constitution does not establish environmental protection as an 
exclusive goal, but requires a balancing process in which 
environmental costs and benefits must be given full and careful 
consideration along with economic, social and other factors.

    Because the Court's decision was also grounded in provisions of 
Louisiana statutory law, some may interpret its public trust doctrine 
discussion as nonprecedential dictum. Others may read the Save 
Ourselves case as authorizing or requiring LDEQ to consider a broader 
range of environmental issues in permit actions than are specifically 
encompassed by its permit regulations. Under the latter reading, the 
decision's effect on the development of Louisiana environmental law may 
be considered comparable to the effect of Calvert Cliff's Coordinating 
Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 
1971) on development of federal NEPA jurisprudence. Recent Louisiana 
judicial decisions have referenced the public trust doctrine of Save 
Ourselves, but none have yet provided clear direction on LDEQ's 
authority to consider or act in response to environmental issues not 
otherwise addressed by its regulations. See, e.g., In the matter of 
Cytec Industries, Inc., 94 1693 (La. App. 1st Cir. 02/23/96), 672 So.2d 
179.
    Regardless of the scope of LDEQ authority, however, it appears the 
public trust doctrine imposes no specific ``action forcing'' mechanism 
equivalent to NEPA's environmental impact statement requirement and 
thus does not assure LDEQ will ferret out unforeseen issues not 
otherwise addressed by requirements specific to its various programs. 
To obtain LDEQ consideration of specific environmental problems and 
potential alternatives in LPDES permit actions, interested parties 
would thus be well advised to raise their concerns and suggest specific 
alternatives in comments submitted for LDEQ's administrative record in 
those actions.
    EPA's approval of the LPDES program should not diminish the federal 
protection ESA affords threatened and endangered species. Because 
Louisiana law does not specifically require LDEQ to provide the same 
protection, EPA and LDEQ have developed procedures, in consultation 
with the U.S. Fish & Wildlife Service and National Marine Fisheries 
Service, to assure program approval is unlikely to adversely affect 
listed species or critical habitat. See Consultation Agreements Nos. 1 
and 2, Section C, Scope of the LPDES Program, above. Region 6 
anticipates that LDEQ and the appropriate Service(s) will usually avoid 
such harm without the need for EPA intervention, but will not hesitate 
to use its oversight authority to provide protection due under ESA.
    14. Comment Summary: Some commenters urge EPA not to approve the 
LPDES program because the protection now provided by the National 
Historic Preservation Act (NHPA) to historic sites would be altered. 
These commenters claimed the procedures outlined in the EPA/LDEQ MOA 
and associated consultation agreements are insufficient protection for 
historic properties in Louisiana. These commenters additionally express

[[Page 47938]]

the opinion that EPA is responsible for making determinations of 
``affect'' in consultation with the State Historic Preservation Officer 
(SHPO) on all permits issued by the authorized program (citing the 1992 
Congressional redefinition of ``undertaking''). They viewed the MOA 
provisions on consultations between LDEQ, the SHPO, and EPA Region 6 as 
an unauthorized attempt to evade the procedural requirements of the 
consultation regulations under Section 106 of the NHPA.
    Response: EPA Region 6 agrees that the 1992 amendments to the NHPA 
revised the statutory definition of ``undertaking'' for purposes of the 
section 106 consultation process. However, the Advisory Council on 
Historic Preservation has not yet amended its implementing regulations 
to interpret the effect of that statutory change. In consultation with 
the SHPO on LPDES program approval, the Region and LDEQ have thus 
developed procedures for protecting historic properties, as documented 
in agreements among EPA Region 6, LDEQ, and the SHPO. Under those 
procedures, the Region and SHPO agree that LPDES program approval will 
have no effect on historic properties. When the Advisory Council 
promulgates regulations implementing the 1992 NHPA amendment, it may be 
necessary to review the procedures/agreements and possibly amend them.
    In view of the agreements among Region 6, LDEQ, and the SHPO, 
Region 6 does not agree with the commenters' suggestion that EPA must 
itself consult each time LDEQ proposes action on an LPDES permit 
application. Even as federal NPDES permit actions, many of those 
proposals (e.g., most permit renewals) would have no potential adverse 
effect on historic properties; and LDEQ may tailor others to avoid such 
potential effects after coordination with the SHPO under the outlined 
procedures. If LDEQ, the SHPO, or the Advisory Council requests its 
assistance to resolve issues concerning adverse effects to such 
properties, EPA Region 6 will consult and, when appropriate, use its 
program oversight authority to resolve potential adverse effects to 
historic properties.
    15. Comment Summary: Some commenters opposed approval of the LPDES 
program on ``environmental justice'' grounds, contending that LDEQ may 
issue permits to facilities in economically depressed areas or areas 
primarily populated by minorities, while denying permits or requiring 
more stringent limitations in more affluent neighborhoods. They request 
that EPA Region 6 withhold approval of the LPDES program until an 
ongoing investigation by EPA's Office of Civil Rights is completed.
    Response: EPA is not at this time investigating any civil rights 
violations by LDEQ. EPA headquarters is reviewing a complaint to 
determine if that complaint meets the criteria for an investigation. 
Both EPA and LDEQ are firmly committed to environmental justice and 
will work together to address it in permitting actions. Current EPA 
regulations provide little room for consideration of such factors in 
NPDES permitting (except in EPA's permitting actions involving ``new 
sources'' to which NEPA applies). Possibly, the Louisiana public trust 
doctrine (see response number 13) provides LDEQ greater ability to 
respond to environmental justice concerns than EPA possesses.
    16. Comment Summary: Commenters both supporting and opposing 
program approval encouraged EPA to review LDEQ's new rules for 
protecting confidential business information for conformity with 
federal requirements. Some expressed concern the rules might inhibit 
citizen access to information necessary to effective public 
participation in the LPDES program.
    Response: Like CWA Sec. 308(b), La. R.S. 30:2074 (D) provides trade 
secrecy protection for confidential business information submitted to 
LDEQ, but contains an ``effluent data'' exclusion for information 
relating to discharges. Both federal and Louisiana statutes thus strike 
a balance between protection of competitive business interests and of 
the public's right to participate in important governmental decisions 
of public effect. LDEQ's new rules [L.A.C. 33:I.Chapter 5], are 
functionally equivalent to EPA's [40 CFR Part 2, Subpart B], as they 
both rely on similar procedures and substantive elements for evaluating 
business confidentiality claims. LDEQ's regulations do not define 
``effluent data,'' but there is little reason to believe LDEQ and EPA 
would reach different decisions on public access to information given 
the common purpose of the federal and State statutory exclusions, i.e., 
promoting public participation in permitting and enforcement actions. 
It is more likely EPA's regulatory interpretation [at 40 CFR 
Sec. 2.302(a)(2)] would be accorded persuasive weight in State 
confidentiality proceedings. Louisiana's regulations also provide 
confidential treatment to documents in investigatory files if necessary 
to ``prevent impairment of an ongoing investigation or prejudice to the 
final decision regarding a violation.'' L.A.C. 33:I.501(1). This 
regulation appears comparable to 5 U.S.C. Sec. 552(b)(7)(A) and 40 CFR 
Sec. 2.118(a)(7)(i)(A), allowing LDEQ to avoid disclosure of sensitive 
information, e.g., privileged predecisional staff recommendations or 
evaluations, to the targets of potential or proposed enforcement 
actions. It may not, consistent with the intent underlying La. R.S. 
30:2074(D), be applied to the objective effluent data necessary to 
establish a violation in enforcement proceedings. Although the public 
may have to obtain independent analysis of such data (instead of 
relying on written LDEQ evaluations) to effectively participate in 
enforcement proceedings, that burden is consistent with EPA's own 
regulations and practices.
    17. Comment Summary: Some commenters opposed program approval on 
the basis of claims that LDEQ copying charges unduly inhibit access to 
public information needed for effective public participation in the 
LPDES program. They claimed the State should provide copies of public 
records free of charge, consistent with EPA practices. Others claimed 
LDEQ does not respond to requests for public information.
    Response: Although the federal Freedom of Information Act and EPA 
regulations allow it to provide document copies at reduced or no charge 
to public interest requestors, neither CWA nor EPA's regulations impose 
such a requirement on states with approved NPDES programs. Unless state 
information access practices frustrate the mandate of CWA Sec. 101(e) 
or conflict with controlling EPA regulations, they provide no reason 
for disapproval of a state program. Louisiana's practices are 
consistent with that mandate and with EPA's regulations. Consistent 
with 40 CFR Sec. 124.10(d), for instance, LDEQ notices of proposed 
permitting actions provide the name, address, and phone number of the 
person from whom a copy of the draft permit, fact sheet or statement of 
basis, and application may be obtained. Charges LDEQ assesses reflect 
its cost for providing the requested documents and should not greatly 
inhibit public access. Even citizens unable to pay the indigent rate of 
5 cents a page copy cost may freely examine such information at LDEQ 
offices during normal business hours, taking notes or rendering hand-
written copies. Additionally, LDEQ no longer charges those who use 
personal copiers in such onsite examinations. Commenters claiming LDEQ 
has been nonresponsive to information requests provided no specific 
examples. EPA Region 6 notes that La. R.S. 44:35

[[Page 47939]]

provides for expedited judicial review of a Louisiana agency's failure 
to produce requested records and authorizes award of reasonable 
attorney's fees for prevailing parties.
    18. Comment Summary: Some commenters contended EPA should 
disapprove the LPDES program for inconsistency with CWA Sec. 402(b)(3), 
which requires that states provide opportunity for public hearing 
before permit issuance. The commenters pointed out that L.A.C. 
33:IX.2419 requires that LDEQ provide a hearing only if it finds ``a 
significant degree of public interest'' in a permit action; and claim 
such a provision is insufficient for compliance with the statute's 
mandate.
    Response: The statute requires only an ``opportunity'' for public 
hearing; it does not require that a hearing be convened merely because 
there is a single request. The minimum requirements for providing such 
opportunity are reflected by 40 CFR Sec. 124.12(a) (i.e. when there is 
sufficient public interest or at the discretion of the Director). 
L.A.C. 33:IX.2419 is almost a verbatim copy of that federal regulation.
    19. Comment Summary: Some commenters claimed the Program 
Description's explanation of the judicial review process on LDEQ 
permitting decisions was inadequate and misleading. They claimed an 
applicant's request for de novo review pursuant to La. R.S. 30:2024(A) 
would result in the Nineteenth Judicial District Court rendering final 
permit decisions independent of LDEQ. They also claimed this was unfair 
inasmuch as citizens adversely affected by permit actions were limited 
to seeking judicial review under La. R.S. 30:2024(C)(1) in which the 
review is normally limited to the administrative record.
    Response: These commenters appear to confuse the standard of review 
with scope of review under La. R.S. 30:2024(C). As explained in the 
Program Description, controlling State jurisprudence limits the scope 
of judicial review under that provision to LDEQ's decision (or 
indecision) on whether to grant an adjudicatory hearing requested under 
LRS 30:2024(A); the merits of LDEQ's permit decisions are not subject 
to review in such proceedings. See In the matter of Carline Tank 
Services, Inc., 623 So.2d 669 (La. App. 1st Cir. 1993). The de novo 
(i.e., new evidence) review standard presumably allows LDEQ to 
interpose reasons for denying a hearing which do not appear on the 
administrative record when, for instance, it has rendered no formal 
decision within the 30 days provided by the statute.
    The commenters claim Pardue v. Stevens, 558 So.2d 1149 (La. App. 
1st Cir. 1989) shows that Louisiana law allows a reviewing court to 
``issue its own permits'' following de novo review. Pardue involved 
review of a Coastal Use Permit under La. R.S. 49:213.16(F), a statute 
which does not apply to the LPDES program. Indeed, Louisiana's 
legislature has specifically excluded the LPDES program from a similar 
State statutory provision which would otherwise allow judicial issuance 
of permits in ``show cause'' proceedings. See La. R.S. 49:962.1(D). It 
is difficult to imagine a clearer manifestation of legislative intent 
that the judiciary is not to ``issue'' LPDES permits.
    Simply stated, the State court reviews LDEQ's decision to grant a 
hearing, not the conditions or requirements of the final permit under 
consideration. The only issue on which de novo review is allowed is 
whether LDEQ should have granted a permit applicant's request for 
adjudication. Following such review, the court will presumably either 
find no hearing was required or remand the matter for adjudication. 
``Aggrieved parties,'' whether permit applicants or citizens with 
potentially affected aesthetic or recreational interests, may obtain 
judicial review of final decisions on LPDES permit terms only in 
accordance with La. R.S. 30:2024(C)(1), which provides for summary 
review in accordance with La. R.S. 49:964, i.e., on the administrative 
record. See generally In the Matter of Recovery I, Inc., 635 So.2d 690 
(La. App. 1st Cir. 1994); In the matter of Carline Tank Services, 
supra.
    20. Comment Summary: Some commenters requested that EPA disapprove 
the State's program submission until the State enacts a statute 
providing for State court jurisdiction over citizen suits equivalent to 
federal district court jurisdiction under CWA Sec. 505. These 
commenters were concerned that, under La. R.S. 30:2026, LDEQ could 
preempt State court jurisdiction over a citizen suit by issuing a 
compliance order and requested EPA ``reassurance'' that CWA Sec. 505 
would continue to apply in Louisiana.
    Response: Neither CWA nor 40 CFR Part 123 requires that a state 
provide its courts with jurisdiction over citizen suits to obtain EPA 
approval of its NPDES program. La. R.S. 30:2026, however, provides such 
jurisdiction in Louisiana. That State statute is comparable to CWA 
Sec. 505, but differs in several respects, one of which appears to be 
the basis for the comment. In contrast to corresponding CWA provisions, 
the Louisiana statute prohibits citizen suits if, within 30 days of 
notice, the alleged violator ``is * * * under any order issued * * * to 
enforce any provision of this Subtitle.'' La. R.S. 30:2026(B)(3)(a).
    EPA approval of a State NPDES program does not divest the federal 
courts of jurisdiction over citizen suits under CWA Sec. 505. Pursuant 
to CWA Sec. 309(g)(6)(A)(ii), however, state proceedings ``comparable 
to'' EPA administrative penalty assessments preempt subsequent penalty 
actions, including actions under CWA Sec. 505, for the same violations. 
EPA does not believe that non-punitive compliance orders issued by 
state agencies are comparable to EPA administrative penalty actions 
under CWA Sec. 309(g). The federal courts, however, have reached 
differing conclusions on that issue. Compare Citizens for a Better 
Environment v. Union Oil Co. of California, 83 F.3d 1111 (9th Cir. 
1996) with North & South Rivers Watershed Ass'n v. Scituate, 949 F.2d 
552 (1st Cir. 1991).
    21. Comment Summary: Some commenters submitted a petition raising 
concerns on alleged pollution from Hunt Correctional Center and the 
Louisiana Correctional Institute for Women. The petition urged public 
officials to bring these facilities into compliance.
    Response: The petition raises no issues of direct relevance to 
EPA's program approval decision. EPA has recently received a notice of 
intent to file suit against these State correctional facilities from 
Sierra Club Legal Defense Fund. EPA is currently discussing the matter 
with LDEQ and the Louisiana Department of Corrections.
    22. Comment Summary: Some commenters supporting LPDES program 
approval noted that it is both inconvenient and expensive to obtain 
permits for surface water discharges from two separate agencies. They 
claimed that program oversight is a more appropriate role for EPA and 
that EPA retains the right to withdraw the program if LDEQ does not 
implement it appropriately.
    Response: ``It is the policy of Congress that the States * * * 
implement the permit programs under sections 402 and 404 of this [Clean 
Water] Act.'' CWA Sec. 101(b). Today's program approval is also 
consistent with that policy and with the goal of preventing ``needless 
duplication of paperwork'' under CWA Sec. 101(f).

[[Page 47940]]

Other Federal Statutes

A. Small Business Regulatory Enforcement Fairness Act

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

B. Regulatory Flexibility Act

    After review of the facts presented in this document, I hereby 
certify, pursuant to the provisions of 5 U.S.C. 605(b), that this 
authorization will not have a significant impact on a substantial 
number of small entities. The approval of the Louisiana NPDES permit 
program merely transfers responsibilities for administration of the 
NPDES permit program from Federal to State government. This change will 
allow small entities more convenient access to the regulatory process.
    I hereby authorize the LPDES program in accordance with 40 CFR part 
123.

    Dated: August 27, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-23067 Filed 9-10-96; 8:45 am]
BILLING CODE 6560-50-P