[Federal Register Volume 61, Number 239 (Wednesday, December 11, 1996)]
[Proposed Rules]
[Pages 65268-65296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30466]



[[Page 65267]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 22, et al.



_______________________________________________________________________



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

  Federal Register / Vol. 61, No. 239 / Wednesday, December 11, 1996 / 
Proposed Rules  

[[Page 65268]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 22, 117, 122, 123, 124, 125, 144, 270, and 271

[FRL-5656-5]


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

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
revisions to the National Pollutant Discharge Elimination System 
(NPDES) regulations (40 CFR parts 122, 123, 124, and 125). This 
proposal is part of an agency-wide effort to respond to a directive 
issued by the President on February 21, 1995, which directed Federal 
agencies to review their regulatory programs to eliminate any obsolete, 
ineffective, or unduly burdensome regulations. In response to that 
directive, EPA initiated a detailed review of its regulations to 
determine which provisions were obsolete, duplicative, or unduly 
burdensome. On June 29, 1995, EPA issued a rule (60 FR 33926) which 
removed some regulatory provisions in the Office of Water program 
regulations (including certain NPDES provisions) that were clearly 
obsolete. Today's proposal is intended to further streamline NPDES and 
RCRA permitting procedures by revising requirements in parts 122, 124, 
and 125 to eliminate redundant regulatory language, provide 
clarification, and remove or streamline unnecessary procedures which do 
not provide any environmental benefits. Conforming changes to 40 CFR 
parts 22, 117, 144, 270, and 271 are also proposed in today's notice. 
These proposed revisions are identified and discussed in the 
Supplementary Information section below.

DATES: Written comments on this proposed rule must be received by or 
postmarked by February 10, 1997 to be considered timely.

ADDRESSES: Commenters are requested to submit written comments to: The 
NPDES Round II Streamlining Rule, Comment Clerk, Water Docket MC-4101; 
U.S. Environmental Protection Agency, 401 M Street, S.W., Washington, 
D.C. 20460. Commenters are requested to submit any references cited in 
their comments. Commenters are also requested to submit an original and 
three copies of their comments. Commenters who would like 
acknowledgment of receipt of their comments should include a self-
addressed, stamped envelope. All comments must be postmarked or 
delivered by hand by the comment deadline. No facsimiles (faxes) will 
be accepted.
    EPA will also accept comments electronically. Comments should be 
addressed to the following Internet address: [email protected]. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption. Electronic comments 
will be transferred onto a paper version for the official record. EPA 
will attempt to clarify electronic comments if there is an apparent 
error in transmission. Comments provided electronically will be 
considered timely if they are submitted electronically by 11:59 P.M. 
(Eastern time) February 10, 1997. As EPA is experimenting with 
electronic commenting, commenters may want to submit both electronic 
comments and duplicate paper comments. This document has also been 
placed on the Internet for public review and downloading at the 
following location: gopher.epa.gov.
    The public may inspect the administrative record for this 
rulemaking at EPA's Water Docket, Room M2616, 401 M Street, S.W., 
Washington, D.C. 20460, between the hours of 9 a.m. and 3:30 p.m. on 
business days. For access to docket materials, please call (202) 260-
3027 for an appointment during the aforementioned hours. A reasonable 
fee will be charged for copying.

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

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are EPA, authorized 
State programs, and the Regulated Community.

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             entities          
------------------------------------------------------------------------
Federal Government........................  Federal NPDES Program.      
State Government..........................  State NPDES Program.        
Private...................................  NPDES Regulated Community.  
Private...................................  RCRA Regulated Community.   
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your organization is likely to be regulated by this action, you should 
carefully read the applicability language of today's rule. If you have 
any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

Organization

    Information in this preamble is organized as follows:

I. Background

II. Proposed Revisions

A. Proposed Revisions to Part 122
    1. Purpose and Scope (40 CFR 122.1)
    2. NPDES Program Definitions (40 CFR 122.2, 124.2)
    3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
    4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a), 
122.21(d), 122.26(c)(1))
    5. Effluent Characteristics (40 CFR 122.21(g)(7))
    6. Signatories (40 CFR 122.22)
    7. Group Permit Applications (40 CFR 122.26(c)(2))
    8. General Permits (40 CFR 122.28)
    9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv), 
122.48)
    10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
    11. Reopener Clauses (40 CFR 122.44(c))
    12. Best Management Practices (40 CFR 122.44(k))
    13. Termination of Permits (40 CFR 122.64)
B. Proposed Revisions to Part 123
    1. Requirements for Permitting (40 CFR 123.25)
    2. Transmission of Information to EPA (40 CFR 123.44)
C. Proposed Revisions to Public Hearing Requirements for NPDES 
Permit Actions and RCRA Permit Terminations
    1. Background of the Current Rule
    2. Proposed Elimination
    a. Legal Basis
    (1) The Language of Section 402(a)
    (2) Reasonableness of interpretation
    b. Proposed New System
    (1) Permit issuance
    (2) Termination of NPDES and RCRA Permits
    (3) Stays of Contested Permit Conditions
    (4) Procedures for Variances and New Source Determinations
    (5) Transition to New Procedural Requirements
    (6) Miscellaneous Changes

[[Page 65269]]

    (7) Effect on State Programs
D. Proposed Reservation of Part 125, Subpart K--Criteria and 
Standards for Best Management Practices Authorized under Section 
304(e) of the Act
    1. 40 CFR Part 125, Subpart K
    2. 40 CFR 122.44(k)
E. Miscellaneous Corrections

III. Administrative Requirements

A. Executive Order 12866
B. The Regulatory Flexibility Act
C. The Paperwork Reduction Act
D. The Unfunded Mandates Reform Act

I. Background

    On February 21, 1995, the President directed all Federal agencies 
and departments to conduct a comprehensive review of the regulations 
they administer and by June 1, 1995, identify those rules that are 
obsolete or unduly burdensome. EPA conducted a review of all of its 
rules, including those issued under the Federal Water Pollution Control 
Act, as amended (``FWPCA'') (33 U.S.C. 1158 and 1251 et seq.) (also 
cited below, as the Clean Water Act or ``CWA''), the Safe Drinking 
Water Act (``SDWA'') (42 U.S.C. 300f et seq.), and the Marine 
Protection, Research, and Sanctuaries Act (also known as the Ocean 
Dumping Act) (33 U.S.C. 1401 et seq.). In March and April of 1995, EPA 
solicited informal comments from the public, regulated entities, 
States, and municipalities on ways to identify rules that are obsolete, 
redundant, or unduly burdensome. Towards that end, a number of meetings 
were held in the Regions. On April 3, 1995, the Office of Water issued 
a preliminary report which identified those regulatory provisions that 
were amenable to streamlining.
    As a result of this review, EPA issued a final rule on June 29, 
1995 (60 FR 33926) which removed a number of regulatory provisions that 
were obsolete or redundant with other regulatory requirements. Today's 
proposal is a continuation of this effort by EPA to revise the NPDES 
program regulations in parts 122, 123, 124 and 125 to eliminate 
redundant requirements, remove superfluous language, provide 
clarification, and remove or streamline unnecessary procedures which do 
not provide any environmental benefits. Included in today's notice are 
proposed revisions which would revise the permit appeals process for 
EPA-issued NPDES permits by replacing the evidentiary hearing 
procedures found at part 124, subpart E with a direct appeal to the 
Environmental Appeals Board. This is not intended to affect the permit 
appeal procedures for State-authorized NPDES programs. Also contained 
in today's proposal are conforming changes to parts 22, 117, 144, 270, 
and 271. Today's proposal contains many of the revisions contained in 
EPA's June 1, 1995 report to the President. EPA also proposes in 
today's notice, amendments to its regulations that would correct 
typographical errors, drafting errors, and misplaced or obsolete 
references.
    Today's proposal may, at times, print extensive portions of 
existing regulatory text without change. This is done to better 
describe the proposed revisions. For example, Sec. 122.21(g)(7) is 
reprinted in its entirety to indicate where new paragraph headings are 
proposed to be inserted. However, EPA does not solicit, and will not 
respond to, comments on existing regulatory provisions not proposed to 
be amended, nor will such provisions be subject to judicial review upon 
promulgation of the final rule. EPA is soliciting comment only on the 
revisions described in this preamble.

II. Proposed Revisions

A. Revisions to Part 122

1. Purpose and Scope (40 CFR 122.1)
    Section 122.1 provides a general description of the purpose and 
scope of the NPDES program regulations. Today, EPA proposes to amend 
this section to remove superfluous language and to provide better 
clarification. Paragraph (b)(2) states that concentrated animal feeding 
operations, concentrated aquatic animal production facilities, 
discharges into aquaculture projects, discharges of storm water, and 
silvicultural point sources are all point sources requiring NPDES 
permits for discharges. This information is already provided at 
Secs. 122.23, 122.24, 122.25, 122.26, and 122.27. EPA proposes to 
remove paragraph (b)(2). Existing paragraphs (b)(3) and (b)(4) are 
proposed to be redesignated as (b)(2) and (b)(3) respectively. 
References to existing Sec. 122.1(b)(3) are found at Sec. 122.2 and 
Sec. 124.1. Today's notice would insert a reference to 122.1(b)(2) in 
their place.
    To provide better clarification, EPA is proposing to remove and 
revise language found at paragraphs (c), (d), (e), and (f) and place it 
in three new paragraphs (a)(3), (4), (5). Paragraphs (c), (d), (e), and 
(f) would be removed. By these revisions to Sec. 122.1, EPA does not 
intend to change any existing substantive requirements of the NPDES 
program. EPA also proposes to provide a note at the end of this section 
to assist readers in contacting EPA if they have questions regarding 
the NPDES program or its rules. EPA may also provide for the electronic 
submission of queries concerning the NPDES program and solicits comment 
on that practice.
2. NPDES Program Definitions (40 CFR 122.2, 124.2)
    In this proposed rule, EPA seeks to streamline the NPDES program 
definitions found at parts 122 and 124 by removing redundant or 
superfluous language found in its regulatory definitions.
    a. EPA intends to amend Sec. 122.2 to add references to definitions 
that are found elsewhere in parts 122 and 123. The inclusion of such 
references in a single location is intended to assist readers in 
finding specific provisions in the NPDES regulations. However, this 
action is not intended to expand the application of those definitions 
if they are restricted to a particular section. This proposed rule 
would provide references to the following terms.

Animal feeding operation
Aquaculture project
Bypass
Concentrated animal feeding operation
Concentrated aquatic animal feeding operation
Individual control strategy
Municipal separate storm sewer system
Silvicultural point source
Sludge only facility
Storm water
Storm water discharge associated with industrial activity
Upset

    b. In 40 CFR 124.2, EPA intends to remove definitions that are 
already found in 122.2. This includes the terms, ``applicable standards 
and limitations'', ``variances'', and ``NPDES''. EPA believes such 
multiple definitions to be redundant because Sec. 124.2(a) already 
provides that the definitions of Sec. 122.2 (as well as definitions for 
the sludge management, UIC, PSD, 404, and RCRA programs) apply to part 
124.
3. New Sources/New Dischargers (40 CFR 122.4, 124.56)
    Section 122.4(i) prohibits the issuance of a permit to a new source 
or new discharger if the discharge would cause or contribute to a 
violation of water quality standards. A new source or new discharger 
may, however, obtain a permit for discharge into a water segment which 
does not meet applicable water quality standards by submitting 
information demonstrating that there is sufficient loading capacity 
remaining in waste load allocations (WLAs) for the stream segment to 
accommodate the new discharge and that existing dischargers to that 
segment are subject to compliance schedules designed to bring the 
segment into compliance with the applicable water quality standards.
    EPA is proposing to revise these information submission 
requirements to

[[Page 65270]]

allow the Director to waive the present submittal of information 
requirements under Sec. 122.4(i) where the permitting authority 
determines that it already has the required information. In many 
instances the information required to be submitted by the applicant 
(such as waste load allocations available or compliance schedules for 
existing discharges) may already be in the Director's files. Where the 
information is not available or current, the Director may not waive the 
requirement for the applicant to generate all supporting documentation. 
EPA notes that this information (as with any information which details 
how permit limits are derived) should be included in the fact sheet or 
statement of basis for the permit. See 40 CFR 124.7, 124.8, and 124.56. 
To underscore the importance of such information and to clarify an 
existing requirement, EPA also proposes to include an express 
requirement in Secs. 122.4(i) and 122.56(b)(1) that information which 
demonstrates how the criteria for permit issuance in Sec. 122.4(i) are 
met is included in the fact sheet for the permit. EPA notes that this 
revision merely clarifies existing requirements found at Secs. 124.7, 
124.8, and 124.56 and does not result in an increased burden to the 
regulated community or permit issuing authorities.
4. EPA Application Forms (40 CFR 122.1(d)(1), 122.21(a), 122.21(d), 
122.26(c)(1))
    EPA's regulations contain two provisions, Secs. 122.1(d)(1) and 
122.22(d) which require the use of EPA application forms for EPA-issued 
permits. In today's notice EPA proposes to consolidate these provisions 
and move them to a new location, Sec. 122.21(a). Section 122.1(d)(1) 
requires that applicants for EPA-issued permits must submit 
applications on EPA application forms when available and indicates that 
most of the information requested on these application forms is 
required by EPA's regulations. The provision also indicates that the 
basic information required in the general form (Form 1) and the 
additional information required for NPDES applications (Forms 2A 
through 2D) are listed in Sec. 122.21. Applicants for State-issued 
permits must use State forms which must require at a minimum the 
information listed in EPA's application regulations.
    Similarly, Sec. 122.21(d)(3)(i) requires that all applicants for 
EPA-issued permits, other than POTWs, new sources, and ``sludge-only 
facilities,'' must complete Forms 1 and either 2B or 2C of the 
consolidated permit application forms to apply under Sec. 122.21. 
Section 122.21(d)(3)(ii) requires that in addition to any other 
applicable requirements in this part, all POTWs and other ``treatment 
works treating domestic sewage,'' including ``sludge-only facilities,'' 
must submit with their applications the information listed at 40 CFR 
501.15 (a)(2) within the time frames established in paragraph 
Sec. 122.21(c)(2) of this section. Finally, Sec. 122.26(c)(1) requires 
storm water discharges associated with industrial activity to submit 
Form 1 and Form 2F.
    Most of the requirements in these two paragraphs are duplicative. 
Consequently, EPA proposes to consolidate the requirements of 
Secs. 122.1(d) and 122.1(d)(3) and place them in a new paragraph 
designated as Sec. 122.21(a)(2). EPA believes paragraph (a) is a more 
appropriate location because it pertains to all permit applicants, 
whereas, paragraph (d) concerns situations involving permit 
reapplications. Section 122.1 is also not a particularly suitable 
location because it concerns the scope of the NPDES program and not 
application requirements. The requirements currently found at 
Sec. 122.21(a) would be retained in new paragraph (a)(1). Section 
122.21(d)(3) would be removed and reserved for future use. In 
Sec. 122.21(c)(2)(i), EPA proposes to revise a reference to paragraph 
(d)(3)(ii) found in Sec. 122.21(c)(2) (i) and (ii) to reflect those 
provisions' new location, paragraph (a)(2). EPA is also in the process 
of revising some of its application forms (60 FR 62546, Dec. 6, 1995). 
Those proposed revisions, once finalized, will be coordinated with the 
revisions proposed in today's notice. EPA also proposes to add language 
in proposed Sec. 122.21(a)(2) to clarify which EPA forms may be 
required for a particular discharger. This new language will also allow 
for the possibility of electronic submittal of application information 
in the event that the Agency approves the electronic application 
submittal process. At that time, authorized-States would have the 
option of using electronic submission of application information. EPA 
notes that there are other ongoing efforts to update the EPA's forms 
which may result in nonsubstantive revisions to paragraph (a)(2).
5. Effluent Characteristics (40 CFR 122.21(g)(7))
    Section 122.21(g)(7) requires that applicants for permits for 
existing manufacturing, commercial, mining, and silvicultural 
discharges must submit information on effluent characteristics. On 
November 16, 1990 (55 FR 48062), EPA revised Sec. 122.21(g)(7) to add 
language which specifically addresses storm water application 
requirements. However, the addition of this language has made paragraph 
(g)(7) more difficult to read because there is a large amount of 
uninterrupted text and it is difficult to separate out requirements 
that are specific to storm water discharges. Today's proposal seeks to 
better clarify paragraph (g)(7) through the insertion of additional 
paragraph headings. No substantive changes to 40 CFR 122.21(g)(7) are 
intended by this revision. EPA also proposes to revise references to 
provisions in paragraph (g)(7) that are found elsewhere in the NPDES 
regulations (Secs. 122.21(g)(8); 122.21 notes 1, 2, and 3; 
122.26(c)(1)(i); and 122.26(d)(2)(iv)(C)(2)) to ensure those references 
reflect Sec. 122.21(g)(7)'s new structure.
6. Signatories (40 CFR 122.22)
    Section 122.22 requires that all permit applications for 
corporations shall be signed by a responsible corporate officer as 
defined in paragraphs (a)(1)(i) or (a)(1)(ii) of that section. 
Responsible corporate officer is defined at Sec. 122.22(a)(1)(i) as 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. Paragraph (a)(1)(ii) provides that a responsible corporate 
officer may be 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.
    These numeric criteria (250 individuals, 25 million in second 
quarter 1980 dollars) were added in 1983 (See 48 FR 39612 (Sept. 1, 
1983)) to ensure that facility managers who sign permit applications 
have high level corporate knowledge of a corporation's pollution 
control operations and are authorized to make management decisions 
which govern the operation of the regulated facility. EPA did not 
intend signatories to include field supervisors or facility operators 
because at the time that rule was established, we believed such 
individuals might not have the ability to direct the activities of the 
corporation so as to ensure that necessary procedures are established 
or actions taken to gather complete and accurate information. EPA now 
believes these criteria to be obsolete because they do not apply well 
to current corporate

[[Page 65271]]

structures and facility operations in light of emerging trends in 
automation and decentralization. The use of such rigid indicators may 
operate to disqualify individuals who are best able to undertake the 
responsibility of ensuring that permit applications are accurate and 
complete. Today's proposal seeks to revise Sec. 122.22(a)(1)(ii) to 
remove numerical criteria, and provide instead language which ensures 
that facility managers who sign permit applications have high level 
corporate knowledge of a corporation's pollution control operations and 
are authorized to make management decisions which govern the operation 
of the regulated facility including the ability to allocate resources, 
make major capital investments, and initiate and direct the development 
of other comprehensive measures to assure long term compliance with 
environmental laws and regulations.
    Instead of numeric criteria, today's proposal provides that 
signatories to permit applications may include the manager of one or 
more manufacturing, production, or operating facilities, provided, (1) 
the manager is authorized to make management decisions which govern the 
operation of the regulated facility including the ability to allocate 
resources, make major capital investments, and initiate and direct 
other comprehensive measures to assure long term environmental 
compliance with environmental laws and regulations; (2) the manager can 
ensure that the necessary systems are established or actions taken to 
gather complete and accurate information for permit application 
requirements; and (3) the manager has been assigned or delegated 
authority to sign documents in accordance with corporate procedures.
    EPA believes that today's proposed rule remains consistent with the 
intent of the September 1, 1983 rulemaking to ensure that permit 
application signatories are those who are best able to ensure that 
accurate, complete, and truthful permit applications are submitted, 
while allowing for greater flexibility in the use of signatories. 
However, EPA invites comment on whether other criteria would prove more 
appropriate in light of modern corporate management structures for 
determining signatories for permit applications under 
Sec. 122.22(a)(1)(ii).
7. Group Permit Applications (40 CFR 122.26(c)(2))
    The 1987 amendments to the Clean Water Act (CWA) added section 
402(p) which established a two phase approach for addressing point 
source discharges of storm water. Under Section 402(p), Congress 
identified five classes of point source storm water discharges that 
would be included in Phase I of the Storm water program and required to 
obtain NPDES permits. These are:
     A discharge for which a permit has already been issued 
under this section prior to February 4, 1987;
     A discharge associated with industrial activity;
     A discharge from a municipal separate storm sewer system 
serving a population of 250,000 or more;
     A discharge from a municipal separate storm sewer system 
serving a population of 100,000 or more but less than 250,000; and
     A discharge for which the Administrator or the State 
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 U.S.
    To implement the phase I provisions of Section 402(p) (1) through 
(5), EPA published final storm water permit application regulations on 
November 16, 1990 (55 FR 48063), as revised. For storm water discharges 
associated with industrial activity, EPA defined eleven categories 
comprising major groupings of industrial sectors that are identified 
either by standard industrial classification (SIC) code or through 
narrative descriptions. Industrial activities that fall within these 
eleven industrial categories and which have a point source discharge of 
storm water are required to seek a NPDES permit.
    EPA anticipated that the implementation of the Phase I industrial 
program would cover over 100,000 facilities. To ensure the timely 
issuance of NPDES permits, EPA sought in the final rule to offer 
several NPDES administrative approaches to facilitate extended permit 
coverage as cost effectively and as efficiently as possible to large 
numbers of permittees. In the November 16, 1990 final rule, EPA 
provided that storm water discharges associated with industrial 
activity could pursue one of three permit application options including 
the submission of:
     An individual permit application;
     A notice of intent to be covered under a general permit; 
or
     A group permit application.
    Today's revision focuses on group applications. This option allowed 
facilities with very similar activities to form groups to submit a 
joint application of which only ten percent of the group would have to 
submit monitoring information. EPA developed this option to accomplish 
the following goals:
     To establish a procedure where adequate information would 
be collected for developing permits for certain classes of storm water 
discharges;
     to reduce costs and administrative burdens on permit 
applicants;
     to reduce the amount of quantitative data by requiring 
such data from only selected facilities within a group; and
     to ease the burden on the permit issuing authority by 
consolidating information.
    In response to the group application option, EPA received over 1200 
group applications encompassing 65,000 industrial activities. Using the 
information provided by group applicants, EPA developed a multi-sector 
storm water general permit (MSGP) which was published on September 29, 
1995 (and revised on February 9, 1996). The MSGP includes baseline 
conditions applicable to all industrial activities within 29 industrial 
sectors and conditions that are specific to each sector. The MSGP is 
available in States where EPA is the permitting authority. Industrial 
facilities seeking coverage under the MSGP must submit a single page 
notice of intent (NOI) to receive coverage. Where States have NPDES 
authority, the MSGP is available as a model to assist those States in 
providing permit coverage for storm water discharges in their 
jurisdictions. While the MSGP was initially developed through the group 
application process, it has evolved into a general permit whose 
coverage is available to all facilities that meet its eligibility 
requirements. It has also led to the development of a substantial body 
of information regarding the permitting and control of storm water 
discharges from industrial activity.
    The group application process was designed to accommodate the 
initial influx of first-time permit applications from Phase I 
industrial activities and was based, in part, on the limited 
availability of storm water general permits in States. However, the 
deadlines for submitting group applications for Phase I facilities 
expired on October 1, 1992, and coverage under storm water general 
permits is now widely available. Forty States are authorized to issue 
storm water general permits. EPA issues storm water general permits for 
those States and jurisdictions that are without EPA authorization. 
Industrial facilities may readily obtain permit coverage by submitting 
a NOI to the appropriate permitting authority or through applying for 
an individual permit. Consequently, EPA believes the group

[[Page 65272]]

application option is no longer needed. General permits provide a more 
flexible approach to storm water coverage and can accomplish the goals 
of the group permit application process (i.e., more efficient 
monitoring, reduced application burdens) without requiring that 
applicants form into groups prior to applying for permit 
coverage.1 EPA also believes that storm water pollution prevention 
plans (a principal requirement of most storm water general permits) 
will ensure that permit conditions are appropriate and applicable for 
the industrial activities covered. Consequently, today's notice 
proposes to eliminate the group application option at 
Sec. 122.26(c)(2), and proposes conforming changes to paragraph (c)(1). 
The removal of the group application provisions will not impact EPA's 
ability to reissue the MSGP because it is a general permit.
---------------------------------------------------------------------------

    \1\  However, permittees may still be classified as belonging to 
specific sectors or categories for the purpose of coverage under a 
general permit. This may result in the imposition of sector or 
category-specific conditions.
---------------------------------------------------------------------------

8. General Permits (40 CFR 122.28)
    EPA's NPDES general permit program arose out of the broad grant of 
authority in section 402(a) of the CWA and the decision of NRDC v. 
Train, 396 F.Supp. 1393, 1402 (D.D.C. 1975), aff'd, NRDC v. Costle, 568 
F.2d 1369 (D.C. Cir. 1977) which recognized EPA's authority to employ 
administrative mechanisms, such as area (general) permits, to assist 
the Agency in the practical administration of the NPDES permit program. 
In 1979, EPA promulgated revisions to the NPDES regulations creating a 
class of permits referred to as ``general permits.'' 44 FR 32873 (June 
7, 1979). Under the general permit program, the permitting authority 
may issue a permit to cover a class of similar dischargers or treatment 
works treating domestic sewage in a defined geographic area with the 
same effluent limitations.2 General permits have proven to be a 
valuable tool by which to regulate classes of similar discharges. To 
improve administration and operation of the general permit program and 
to encourage more widespread use of general permits, the Agency is 
proposing to amend the general permit regulations to allow general 
permits to cover multiple categories of dischargers.
---------------------------------------------------------------------------

    \2\  The provision allowing general permits to address treatment 
works treating domestic sewage was added by EPA's sewage sludge 
permit regulations issued on May 2, 1989 (54 FR 18716).
---------------------------------------------------------------------------

    The current regulatory requirements for general permits are set out 
at 40 CFR 122.28, and allow the Director to issue a single permit 
covering more than one discharger (or treatment works treating domestic 
sewage) within a specific geographic area. Historically, certain 
regulatory restrictions have been applied to general permits. General 
permits have been limited to specific areas corresponding to certain 
geographic or political boundaries. 40 CFR 122.28(a)(1). Current 
regulations also provide that general permits may regulate storm water 
point sources, or a category of point sources other than storm water 
that involve substantially similar types of operations, discharge the 
same types of wastes or engage in the same types of sludge use or 
disposal practice, require the same effluent limitations, require the 
same or similar monitoring, and in the opinion of the permitting 
authority, are more appropriately controlled under a general permit 
than under individual permits. 40 CFR 122.28(a)(2). This provision has 
been generally interpreted as limiting coverage of non-storm water 
general permits to only a single category of point sources, such as a 
single industrial category covered under an effluent guideline. (EPA's 
regulations do allow general permits for storm water to regulate 
multiple categories of point sources.)
    In today's notice, EPA seeks to revise Sec. 122.28(a) (1) and (2) 
to clarify that a general permit for non-storm water dischargers may 
cover more than one category or subcategory of sources or treatment 
works treating domestic sewage. This revision will enable greater 
permit drafting flexibility and would allow the Director to write a 
general permit covering (as separate categories) permittees whose 
discharges or sludge use or disposal practices differ substantially, 
for example, regarding flow or pollutant load, as well as for those 
permittees with similar discharges or sludge use or disposal practices 
(a single category). In another case, the Director might designate 
different monitoring requirements for different categories based on 
discharge flow or frequency and provide for this without having to 
promulgate separate general permits for each group of dischargers or 
treatment works treating domestic sewage in the general category.
    The types of operations conducted or wastes discharged within each 
category or subcategory authorized by the general permit (except for 
general permits for storm water discharges) would still have to be 
substantially the same. Within each identified category or subcategory, 
limitations would have to be identical for all covered dischargers or 
treatment works treating domestic sewage. In today's notice, EPA 
proposes to revise Sec. 122.28 by adding a new paragraph, (a)(4), to 
require that general permits must clearly identify the applicable 
conditions for each category of dischargers or treatment works treating 
domestic sewage and provide that general permits may exclude specified 
sources or areas from coverage.
    Today's proposal would also revise Sec. 122.28 by adding a new 
paragraph, (a)(3), to provide that where dischargers (or treatment 
works treating domestic sewage) are subject to water quality-based 
limitations, the sources in that specific category or subcategory shall 
be subject to the same water quality-based effluent limitations. While 
this provision would appear at first to be redundant with existing 
provisions at Sec. 122.28(a)(2)(i)(C) which require that non-storm 
water sources covered under a general permit must require the same 
effluent limitations, operating conditions, or standards for sewage 
sludge or disposal, the restrictions contained in proposed paragraph 
(a)(3) apply to storm water and non-storm water sources where water 
quality-based limits are involved. EPA is proposing to add this 
paragraph in part to clarify that general permit categories can be used 
to impose water quality-based limitations as well as technology-based 
limitations. However, paragraph (a)(3)'s requirement that sources in 
categories or subcategories be subject to the same water quality-based 
limits reflects EPA's position that general permits should not be used 
to provide permit coverage to loosely grouped categories of dissimilar 
discharges. While EPA has decided not to require that each category or 
subcategory covered under a general permit discharge to waters that are 
subject to the same water quality standards, permit writers may wish to 
consider such a categorization particularly when calculating general 
permit discharges as part of a waste load allocation.
    Because the proposal would allow issuance of a single general 
permit to cover multiple categories of facilities, it would facilitate 
the use of general permits in areas with differing water quality 
requirements or standards. It may allow the permitting authority to 
issue general permits on a watershed or geographic basis to facilities 
with the same water quality requirements. The proposal would allow a 
permit drafted to cover a single category of dischargers or treatment 
works treating domestic sewage to cover different subcategories subject 
to different effluent limitations, standards, or conditions. This 
should reduce the burden on the permitting agency by decreasing the 
number of general permits issued. The proposal intends to provide 
flexibility to deal

[[Page 65273]]

with the variations between the different dischargers or treatment 
works treating domestic sewage (or water quality based stream segments) 
covered under a single general permit. General permits are still 
subject to the same reporting and monitoring requirements, limitations, 
enforcement provisions, penalties, and other substantive requirements 
as individual permits.
9. Monitoring (40 CFR 122.41(j), 122.41(l)(4), 122.44(i)(1)(iv), 
122.48)
    Monitoring requirements for NPDES permits are currently found in 
different locations in EPA's regulations. Section 122.41(j)(1) requires 
that monitoring be representative of the monitored activity. Paragraph 
(j)(2) imposes requirements relating to the retention of monitoring 
records. Paragraph (j)(3) places requirements on what information will 
be provided in monitoring records. Paragraph (j)(4) requires that 
monitoring be conducted according to part 136 testing procedures unless 
otherwise specified. Paragraph (j)(5) imposes penalties for any person 
who falsifies, tampers with, or knowingly renders inaccurate monitoring 
devices or methods. Section 122.41(l)(4) addresses the reporting of 
monitoring results and provides specific requirements relating to 
Discharge Monitoring Reports (DMRs). Section 122.44(i) imposes 
requirements on monitoring methodologies. Finally, Sec. 122.48 imposes 
requirements for recording and reporting of monitoring results.
    EPA believes this arrangement to be confusing. To provide better 
clarification, EPA proposes to consolidate the monitoring provisions 
found at Secs. 122.41 (j), (l)(4), and 122.44(i) and place them at 
Sec. 122.48. In addition, a cross reference to the new consolidated 
monitoring requirements will be placed at 122.41(j) to ensure 
monitoring remains a standard condition for all NPDES permits. This 
revision is not intended to result in any substantive changes to 
monitoring requirements. EPA notes that the penalty provisions of 40 
CFR 122.41(j)(5) (providing for penalties for falsifying, tampering or 
knowingly rendering inaccurate monitoring devices or methods) remain a 
standard condition of all EPA-issued NPDES permits. As described in 
more detail below, 40 CFR 122.41(j)(5) (proposed Sec. 122.48(d) in 
today's notice) is not required for authorized State programs. However, 
40 CFR 123.27 contains a similar prohibition against falsifying, 
tampering, or knowingly rendering inaccurate monitoring devices or 
methods which must be included in authorized State programs.
    As part of this consolidation, EPA is combining the provisions 
currently found at Secs. 122.41(j)(4) and 122.44(i)(1)(iv) at proposed 
Sec. 122.48(a)(3). Both of these provisions require that monitoring be 
conducted in accordance with test procedures approved under 40 CFR part 
136 unless an alternative test procedure has been approved under part 
136. For sludge use or disposal, monitoring must be conducted in 
accordance with test procedures approved under part 136 unless 
otherwise specified in 40 CFR part 503. Both Secs. 122.41(j)(4) and 
122.44(i)(1)(iv) were once promulgated as single provision (See 44 FR 
32910 (June 7, 1979) (codified then as 40 CFR 122.20 (a)-(c))) and were 
only broken out to conform to the organization of the consolidated 
permit regulations. See 45 FR 33340-4, 33355, 33357, 33448, and 33450 
(May 19, 1980). EPA is also clarifying that where no test procedure has 
been approved under 40 CFR part 136, the Director shall specify a test 
method in the permit. This reflects the current requirements found at 
Sec. 122.44(i)(1)(iv) and as also expressed in EPA's June 7, 1979 
rulemaking. EPA believes this revision does not result in any 
substantive changes to the monitoring requirements but only clarifies 
its existing interpretation of them.
10. Effluent Guideline Limits in Permits (40 CFR 122.44(a))
    Currently, Sec. 122.44(a) is interpreted to require that where a 
facility is covered by a particular effluent guideline, any permit 
issued to that facility must contain effluent limitations for every 
pollutant or parameter listed in the guideline (also known as 
``guideline-listed pollutants''). These limits would be required 
regardless of whether the facility would actually be discharging those 
parameters. Because permittees must also monitor for all parameters 
limited in a permit (see 40 CFR 122.44(i)(1)(i)), there are concerns 
that this requirement may subject many facilities to the unnecessary 
expense of monitoring for pollutants that they are not and will not be 
discharging.
    To provide permit writers with more flexibility in reducing the 
burdens associated with unnecessary monitoring, EPA is proposing to 
revise Sec. 122.44(a) so that it does not require limits for all 
guideline-listed pollutants under certain circumstances. Existing 
paragraph (a) would be redesignated as (a)(1). A new paragraph, (a)(2), 
would allow permit writers on a case-by-case basis not to include 
limits for guideline listed pollutants where a permit applicant 
certifies and provides supporting information that the facility does 
not discharge and will not discharge certain guideline-listed 
pollutants. In such cases, permit writers may decide not to include a 
limit for those parameters in the permit. However, it should be clearly 
understood that in such instances, the permit would not authorize any 
discharges of those excluded parameters in any amounts. For the 
exclusion to be valid, the permit would have to contain an express 
condition which notes that the permit does not authorize the discharge 
of those excluded pollutants. This exclusion is good only for the term 
of the permit. To receive an exclusion under proposed paragraph (a)(2), 
Permittees must submit certifications (along with supporting 
information) each time a permit is applied for (including permit 
reissuances). For such an exclusion to be valid, it must be included as 
an express condition each time a permit is issued.
    EPA believes that this approach provides permittees and permit 
writers with needed flexibility in reducing the burdens associated with 
conducting unnecessary monitoring while ensuring that permits are not 
interpreted as an authorization to discharge excluded pollutants in 
unlimited amounts. This revision is not intended to allow the exclusion 
of any pollutants that should be limited on the basis of water quality 
standards.
    Applicants should not pursue this approach if there is any 
possibility those excluded parameters might be discharged. Applicants 
may instead utilize the existing process of having limits placed on all 
guideline-listed pollutants and seek minimum monitoring for those 
parameters whose presence in the discharge is not expected. EPA 
solicits comments on this proposal and also invites public comment on 
other ways this process can be streamlined to remove any unnecessary 
burdens with respect to limiting and monitoring for pollutants.
11. Reopener Clauses (40 CFR 122.44(c))
    Section 122.44(c) provides for reopener clauses in permits. Section 
122.44(c)(1)(i) requires that any permit issued to a discharger in a 
primary industry category (listed in Appendix A of part 122) on or 
before June 30, 1981, must contain an reopener clause to allow for 
permit modification, revocation, or reissuance if an applicable 
standard or limitation is promulgated under sections 301(b)(2)(C) and 
(D), 304(b)(2), and 307(a)(2) of the CWA after such a permit was issued 
and the standard or limitation is more stringent than what is found in 
the

[[Page 65274]]

permit or controls a pollutant not limited in the permit. Where 
applicable standards and limitations have already been promulgated, 
Sec. 122.44(c)(1)(ii) requires that subsequent permits include those 
limitations. Section 122.44(c)(3) imposes a duty on permitting 
authorities to promptly modify, revoke, and reissue permits to which 
Sec. 122.44(c)(1)(i) applies.
    These provisions were established to implement the requirements of 
a settlement agreement approved by the United States District Court for 
the District of Columbia issued on June 8, 1976 in Natural Resources 
Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976). See 43 FR 
22161 (May 23, 1978). This settlement agreement resulted in a new 
program for the establishment of effluent limitations guidelines, new 
source performance standards, and pretreatment standards for 21 major 
categories of industries as well as the incorporation of those limits 
in permits issued to dischargers from those categories. To meet that 
goal, the agreement resulted in the imposition of a number of 
deadlines. On May 19, 1980 (45 FR 33449), those deadlines were replaced 
with a single deadline, June 30, 1981, which is found at 
Sec. 122.44(c)(1).
    In today's notice, EPA proposes to remove paragraphs (c)(1), 
(c)(2), and (c)(3) of Sec. 122.44. Paragraphs (c)(1) and (c)(3) apply 
only to permits issued on or before June 30, 1981. These provisions are 
obsolete as more than 14 years have passed since that deadline and any 
permits issued on or before that date are either no longer in existence 
or in administrative continuance. EPA also proposes to remove paragraph 
(c)(2) and consolidate its requirements with those found at 
Sec. 122.44(a). Paragraph (c)(2) provides that any permit issued after 
the deadline provided by section 301(b)(2) (A), (C), and (E) 
(established as March 31 1989 by the 1987 amendments to the Clean Water 
Act), must meet BAT and BCT standards whether or not applicable 
effluent limits have been promulgated or approved. Paragraph (c)(2) 
further states that such permits need not incorporate the reopener 
clause found in section paragraph (c)(1). Paragraph (c)(2) largely 
reiterates requirements found at Section 122.44(a) because paragraph 
(a) already requires that permits must meet all technology-based 
effluent limitations and standards promulgated under section 301, all 
new source performance standards under section 306 of the CWA, and 
case-by-case effluent limitations determined under section 402(a)(1) of 
the CWA. EPA proposes in today's notice to consolidate the requirements 
of 40 CFR 122.44(a) and (c)(2) into a new paragraph, (a)(1). (As noted 
in greater detail above, EPA is also creating a new paragraph, (a)(2), 
which contains language concerning guideline listed pollutants.) 
Proposed paragraph (a)(1) requires that permits shall include 
technology-based effluent limitations and standards based on: Effluent 
limitations and standards promulgated under section 301(b)(1) or 
301(b)(2), as appropriate, new source performance standards promulgated 
under section 306 of CWA, case-by-case effluent limitations determined 
under section 402(a)(1) of CWA, or on a combination of the three, in 
accordance with Sec. 125.3. For new sources or new dischargers, 
paragraph (a)(2) also notes that these technology based limitations and 
standards are subject to the provisions of Sec. 122.29(d) (protection 
period).
    Paragraph (c)(4) covers reopeners of sludge conditions in NPDES 
permits. EPA is proposing to retain that provision and redesignate it 
as paragraph (c).
    By removing these provisions, EPA does not intend to limit the 
ability of permitting authorities to place reopener clauses in permits 
on a case-by-case basis particularly where reopeners may result in more 
environmentally protective permit limits, standards, or conditions.
12. Best Management Practices (40 CFR 122.44(k))
    As described in more detail below, EPA is proposing in today's 
notice a non-substantive revision to Sec. 122.44(k) which would provide 
a reference to available agency guidance on best management practices. 
The addition of this language is merely intended to assist readers in 
developing and implementing best management practices. It is not 
intended in anyway to change the requirements of Sec. 122.44(k).
13. Termination of Permits (40 CFR 122.64)
    Section 122.64 lists the causes for EPA termination of an NPDES 
permit during its term, or for denial of an application for permit 
renewal. If the Director decides to terminate a permit, he or she 
currently must follow the procedures at Sec. 124.5, or approved State 
procedures, which require preparation of a notice of intent to 
terminate (a type of draft permit) and public notice and comment. (As 
discussed in more detail in Section II.B below, EPA is proposing to 
substitute part 22 procedures for termination of permits other than at 
the request of the permittee, also known as ``termination for cause''.) 
These procedures are intended primarily to assure that the rights of 
the permittee are adequately considered. This is because permit 
termination has been considered as essentially an enforcement 
mechanism. See 45 FR 33316 (May 19, 1980); 44 FR 34249 (June 14, 1979). 
However, there may be situations outside of enforcement where 
termination is desirable because the permittee has discontinued 
operation or connected the discharge to a POTW. In those situations, 
EPA sees little benefit in requiring the procedures of Sec. 124.5 as 
currently written (or part 22 as proposed).
    EPA is proposing to revise Sec. 122.64 to allow the Director to 
terminate a permit by giving notice to the permittee and without 
following part 22 or 124 procedures where the permittee has permanently 
terminated its entire discharge (by elimination of its process flow or 
other discharge components) or has redirected that discharge into a 
POTW. However, where a permittee objects to the termination, this 
revision would require the Director to follow the existing part 124 
procedures to terminate the permit. (But as noted in more detail below 
at Section II.B, formal hearings under part 22 would not be necessary 
since the termination would not be one for cause and today's proposal 
would remove formal hearing requirements for permit terminations that 
are not for cause. EPA notes that these expedited permit termination 
procedures would not be allowed where a permittee is subject to pending 
State and/or Federal enforcement actions including citizen suits 
brought under State or Federal law. In such situations, the public has 
a strong interest in participating in any permit termination 
proceedings and permittees should not use expedited permit termination 
procedures as a way to avoid enforcement liability. Therefore, EPA is 
adding language in proposed Sec. 122.64 to state that expedited permit 
termination procedures are not available to permittees that are subject 
to pending State and/or Federal enforcement actions including citizen 
suits brought under State or Federal law. EPA will also require that 
permittees who request expedited permit termination procedures must 
certify that they are not subject to any pending State and/or Federal 
enforcement actions including citizen suits brought under State or 
Federal law. EPA specifically invites comment on how EPA and permitees 
may determine if there are pending State and/or Federal enforcement 
actions. One possible approach may be to deny the availability of 
expedited permit terminations where EPA, the

[[Page 65275]]

State, or any person has commenced an action against a permittee under 
State and/or Federal Law, or where a permittee, the Administrator, or 
the State has received notice of an intent to sue pursuant to 40 CFR 
Sec. 135 or State law. EPA invites comment on that approach.
    Also, EPA is not proposing to eliminate the requirement to follow 
part 124 termination procedures if the pollutants will be disposed of 
either in wells or by land application of effluent, even if the 
permittee requests termination. In such cases, it is important that the 
public be notified and able to pursue any concerns about such disposal 
methods under other appropriate Federal, State or local regulatory 
programs. EPA also notes that there are situations where permits are 
appropriate for no discharge facilities, particularly where there is 
the possibility of an inadvertent discharge into waters of the United 
States.
    This proposal would enable the Director to terminate permits when 
the discharger has eliminated its discharge without waiting for permit 
expiration. EPA notes that a permittee terminating its discharge due to 
connection to a POTW would be subject to applicable pretreatment 
requirements, including those in parts 403 and 405-471, along with any 
local requirements. An existing categorical industrial user initiating 
a discharge to a POTW must notify the POTW in accord with Sec. 403.12. 
EPA also notes that permittees should be very sure that they have, in 
fact, eliminated their discharge when requesting expedited permit 
termination procedures. This is because any pollutants discharged by 
the facility subsequent to permit termination could violate section 301 
of the CWA (prohibition against unpermitted discharges).
    This proposal would streamline the permit termination process 
without sacrificing any procedural safeguards. EPA specifically invites 
comment on whether members of the public, other than the permittee, 
would have a significant interest in such terminations such that public 
notice should continue to be required.
    EPA is also proposing conforming changes to Sec. 124.5 procedures 
to reflect abbreviated termination procedures proposed for the cases 
discussed in proposed Sec. 122.64(b). One pre-notice commenter has 
recommended that these expedited permit termination procedures be 
employed where an existing discharger seeks to terminate its individual 
permit coverage and obtain coverage under a general permit for the same 
discharge. EPA invites comment on whether expedited permit termination 
procedures should be employed for this and other situations.

B. Proposed Revisions to Part 123

1. Requirements for Permitting (40 CFR 123.25)
    EPA is today proposing revisions to 40 CFR 123.25(a) to clarify 
that certain provisions which detail penalty amounts in Sec. 122.41 
(a)(2), (a)(3), and (j)(5) are not required of State NPDES programs. 
Instead, the applicable penalty provisions for State NPDES programs are 
found at 40 CFR 123.27. This is consistent with EPA's long standing 
interpretation of the Clean Water Act and its regulations. See OGC 
Opinion dated May 31, 1973. However, EPA notes that while the penalty 
provisions of 122.41 (a)(2) and (a)(3) need not be included in State 
NPDES programs, Sec. 122.41(a)'s condition, ``a duty to comply'' does. 
With respect to existing Sec. 122.41(j) (proposed in today's notice as 
Sec. 122.48(d)), EPA notes that it does not have to be included in 
NPDES State Programs. However, EPA wishes it to be clear that it 
interprets Sec. 123.27(a)(3) to contain the same prohibitions as those 
found in paragraph Sec. 122.41(j). That is, a person who falsifies, 
tampers with, or knowingly renders inaccurate, any monitoring device or 
method required under a permit is subject to criminal fines and 
penalties as determined under Sec. 123.27. Finally, EPA notes that 
States are not prohibited from adopting penalty amounts that are the 
same as those found at Sec. 122.41 if they wish to do so.
2. Transmission of Information to EPA (40 CFR 123.44)
    EPA is today proposing revisions to 40 CFR 123.44 to remove 
references to the Office of Water Enforcement and Permits (OWEP) and 
its role in commenting on and objecting to State-issued general 
permits. At one time, OWEP (now known as the Office of Wastewater 
Management) was expected to play an active role in reviewing, 
commenting, and objecting to State-issued general permits. Under 
provisions once found at 40 CFR 123.43(b) and 124.58, authorized States 
were required to provide copies of draft general permits (other than 
those for separate storm sewers) to the Director of OWEP for review. 
Section 123.44(a)(2) of EPA's current regulations further provides that 
the Director of OWEP may comment upon, object to, or make 
recommendations with respect to proposed State-issued general permits 
(other than those for separate storm sewers) on EPA's behalf. The 
introductory text of Sec. 123.43(b)(2) also expressly provides OWEP 
with a role in objecting to State-issued general permits. Finally, 
Sec. 123.44(i) makes the role of the Director of OWEP coextensive with 
that of the Regional Administrator for the purposes of objecting to 
proposed State-issued general permits (other than those for separate 
storm sewers).
    The Office of Wastewater Management no longer plays an active role 
in reviewing State-issued general permits. The number of State general 
permit programs have increased with a corresponding increase in the 
number of State-issued general permits. This has resulted in the 
Regions assuming the primary role in reviewing State-issued general 
permits. Moreover, as States have gained more experience in running 
general permit programs, EPA believes that an extra level of EPA review 
is no longer warranted. On June 29, 1995, EPA removed Secs. 123.44(b) 
and 124.58 from the Code of Federal regulations as unnecessary in light 
of the Regions' primary role in reviewing State permits. See 60 FR 
33931. To conform to those earlier changes and to continue EPA's effort 
to streamline Federal oversight of State NPDES permit programs, EPA 
proposes in today's notice to revise Sec. 123.44 (a)(2) and (b)(2) to 
remove those references to OWEP and its role in reviewing State-issued 
general permits. EPA would also remove and reserve 40 CFR 123.44(i).

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

    EPA is today proposing substantial revisions to its existing 
procedural requirements for issuing NPDES permits in those States and 
territories (and in Indian Country) where EPA retains the authority to 
issue NPDES permits. EPA is proposing to eliminate as unnecessary the 
existing procedures for conducting formal evidentiary hearings on NPDES 
permit conditions contained in 40 CFR part 124, subpart E, and is 
further proposing to eliminate the alternative ``Non-Adversary Panel 
Procedures'' in part 124, subpart F. EPA is also proposing to eliminate 
Appendix A to part 124 (Guide to Decisionmaking under part 124) because 
its role in explaining subpart E and subpart F procedures would no 
longer be relevant in the absence of those subparts. EPA is also 
proposing to modify the procedures for terminating NPDES and RCRA 
permits. These revisions do not apply to authorized State NPDES 
Programs.

[[Page 65276]]

1. Background of the Current Rule
    Section 402(a) of the CWA authorizes the Administrator to issue an 
NPDES permit ``after opportunity for a hearing.'' In the late 1970's, 
three United States Circuit Courts of Appeals concluded that section 
402(a) of the CWA requires that NPDES permit adjudications be conducted 
according to formal adjudicatory procedures that meet the standards set 
forth in sections 554, 556 and 557 of the Administrative Procedure Act 
(``APA''). 5 U.S.C. 554, 556 & 557. These courts reasoned that the 
reference to a ``hearing'' in section 402(a), in light of the ``quasi-
judicial'' nature of the fact finding involved in NPDES permit 
proceedings, indicated Congressional intent to require formal 
adjudicatory procedures, notwithstanding the absence of an explicit 
requirement in the Act that such procedures be followed. Seacoast Anti-
Pollution League v. Costle, 572 F.2d 872, 877 (1st Cir. 1978); Marathon 
Oil Co. v. EPA, 564 F.2d 1253, 1264 (9th Cir. 1977); United States 
Steel Corp. v. Train, 556 F.2d 822, 833 (7th Cir. 1977).
    Largely because of the holdings in these cases, EPA promulgated the 
current part 124 regulations in 1979, which require formal evidentiary 
hearings of the type contemplated by section 554 of the APA. 44 FR 
32854, 32855 (June 7, 1979). These procedures apply to any NPDES permit 
decision (i.e., a decision to grant a permit, to deny a permit, or to 
terminate a permit for cause under 40 CFR 122.64), and to a decision to 
terminate a permit for a hazardous waste treatment, storage, or 
disposal facility issued under Section 3005 of RCRA. 40 CFR 124.71, 
270.43.
    Under part 124, when issuing, denying, or terminating an NPDES 
permit (or terminating a RCRA permit), EPA undergoes a complicated 3-
step administrative process. Step 1 begins when a discharger submits an 
application for a new or revised NPDES permit. Based on the 
application, the appropriate EPA Regional Office prepares a draft 
permit (or draft decision to deny) detailing the proposed conditions on 
the discharger. The EPA Region provides notice and an opportunity for 
public comment on draft permits (40 CFR 124.10) and provides a public 
hearing when there is a significant degree of public interest. 40 CFR 
124.12(c). Step 1 ends when the Regional Administrator (or his or her 
designee) issues a final permit decision, incorporating any changes in 
the draft permit occasioned by the public comments received.
    The permit takes effect 30 days after issuance unless the permittee 
or any other member of the public who commented on the draft permit 
initiates Step 2 (or if one of the other two exceptions at 40 CFR 
124.15(b) are met i.e., a later effective date is specified in the 
permit decision, or if no comments have requested a change in the draft 
permit, it becomes effective immediately upon issuance). In Step 2, a 
party appeals the permit decision by requesting an evidentiary hearing. 
40 CFR 124.15(b). To exhaust administrative remedies, the permittee (or 
the public) must request an evidentiary hearing on all contested issues 
(legal and factual). The EPA Regional Administrator must then decide 
whether to grant or deny the request for a hearing. The Regional 
Administrator shall grant a hearing on any issue for which there is a 
genuine dispute of material fact, and on any legal issue which is 
intertwined with such material factual issues. The Regional 
Administrator will deny a hearing on any other legal issues, or on any 
factual issues for which there is no material dispute. If a hearing is 
granted on any issue, an Administrative Law Judge presides over a 
formal evidentiary hearing following the procedures of 40 CFR part 124 
subpart E.
    As an alternative to the full adjudicatory proceeding, EPA 
regulations also provide that Steps 1 and 2 may be combined in a single 
semi-formal hearing process before a non-adversary panel of EPA experts 
(called a ``Non-Adversary Panel Procedure'' or ``NAPP''). 40 CFR part 
124 subpart F. These procedures apply only to NPDES permits which 
constitute an ``initial licensing'' proceeding under the Administrative 
Procedure Act, or if a party to the proceeding requests such a hearing. 
40 CFR 124.74(c)(8), 124.111(a)(1).
    For issues decided in an evidentiary hearing or Non-Adversary Panel 
Procedure (and for issues arising when a request for an evidentiary 
hearing is denied), a party may initiate Step 3 by appealing the 
Regional Administrator's decision to EPA's Environmental Appeals Board. 
40 CFR 124.91, 124.127. The appeal provides an opportunity to review 
any factual conclusions (under a ``clear error'' standard), policy 
decisions, or legal conclusions. The appeal is the final prerequisite 
to judicial review. The entire administrative process (that is, to 
comment at Step 1, to appeal at Step 2, and to further appeal at Step 
3) must be exhausted in order to obtain judicial review.
    By contrast, permits issued or denied under RCRA Subtitle C, the 
UIC program of the Safe Drinking Water Act, or the PSD program of the 
Clean Air Act, use Steps 1 and 3 of the above-described process, but 
not Step 2. In other words, a party may appeal from the Regional 
Administrator's permit decision directly to the Environmental Appeals 
Board. 40 CFR 124.19(a). There is no provision for formal adjudicatory 
hearings, unless the RCRA, UIC, or PSD permit has been consolidated for 
purposes of permit issuance with an NPDES permit for which a request 
for evidentiary hearing has been granted. 40 CFR 124.71(a).
    EPA's experience with the evidentiary hearing process suggests that 
it causes significant delays in NPDES permit issuance without causing 
noticeable improvements in the quality of the permit decisions made. As 
discussed in more detail below, EPA statistics suggest that at least 
80% of all requests for evidentiary hearing are resolved without a 
hearing taking place or any changes being made to the permit. 
Nonetheless, it takes an average of 18-21 months to complete the 2-part 
appeals process for such permits. EPA has maintained the process 
primarily due to concerns about the legality of adopting less formal 
procedures. As discussed below, however, these concerns no longer hold 
true.
2. Proposed Elimination
    In EPA's opinion, formal evidentiary hearings are not required by 
the CWA, nor are they necessary to protect the due process rights of 
permittees or other interested parties. EPA therefore proposes to 
eliminate the requirement for such hearings prior to EPA's issuance of 
NPDES permits.
    a. Legal Basis. (1) The Language of Section 402(a). EPA has 
concluded that due to the progress of the law in the Courts of Appeals, 
the Seacoast and Marathon decisions are no longer good law, and that 
the CWA may be interpreted not to impose a formal hearing requirement. 
As noted earlier, Section 402(a) does not explicitly state that public 
hearings on NPDES permits must be conducted ``on the record,'' the 
phrase normally associated with a requirement that hearings be 
conducted under section 554 of the APA. The absence of an explicit 
requirement in section 402(a) that formal APA procedures be used is 
significant in light of certain judicial decisions that followed the 
promulgation of the part 124 regulations. These decisions, which 
address procedural requirements under statutory provisions other than 
section 402(a) of the CWA, have abandoned the presumption that trial-
type hearings are required by the APA where a statute calls for an 
adjudicatory hearing

[[Page 65277]]

without explicitly requiring formal procedures. Chemical Waste 
Management v. EPA, 873 F.2d 1477 (D.C. Cir. 1989) (``CWM'') (RCRA 
section 3008(h)); Buttrey v. United States, 690 F.2d 1170 (5th Cir. 
1982) (CWA section 404).
    In CWM, the D.C. Circuit upheld RCRA regulations establishing 
informal procedures for adjudicating corrective action orders under 
RCRA section 3008(h). 873 F.2d at 1478. RCRA section 3008(h) does not 
specifically provide for hearings, but section 3008(b) provides that 
``[a]ny order issued under this section shall become final unless * * * 
the person or persons named therein request a public hearing. Upon such 
a request the Administrator shall promptly conduct a public hearing.'' 
42 U.S.C. section 6928(b). Under the RCRA corrective action hearing 
regulations at 40 CFR part 24, the operator of a hazardous waste 
facility may submit written information and arguments for inclusion in 
the record and may make an oral presentation at the hearing itself. 
Direct and cross-examination of witnesses is not permitted, but the 
Presiding Officer may direct questions to either party. The Presiding 
Officer is to be either the Regional Judicial Officer or an attorney 
employed by the Agency who has not had any prior connection with the 
case. The RCRA regulations contain detailed requirements for the 
establishment of the administrative record. The Presiding Officer must 
review the record and file a recommended decision with the Regional 
Administrator, who in turn renders a final decision that is judicially 
reviewable under the APA. These procedures closely parallel, of course, 
the procedures for processing a permit under part 124, subpart A.
    In Buttrey, the Fifth Circuit upheld the hearing regulations used 
by the Army Corps of Engineers to issue or deny CWA section 404 
permits. 690 F.2d at 1172. Section 404 provides that the Secretary may 
issue permits for the discharge of dredge or fill material ``after 
notice and opportunity for public hearings.'' 33 U.S.C. section 
1344(a). The Corps' section 404 procedures authorize a ``paper 
hearing,'' with public notice and comment on the proposed permit 
action. Corps procedures do not explicitly provide an opportunity for 
oral presentations.
    Both Buttrey and CWM seriously question the continuing validity of 
Seacoast and Marathon. CWM, in particular, notes that the cases were 
decided prior to the Supreme Court's decision in Chevron, U.S.A. v. 
NRDC, 467 U.S. 837, 843 (1984), which held that where Congress has 
failed to express a clear intent to the contrary, an agency charged 
with administering the statute may adopt any interpretation which is 
reasonable in light of the goals and purposes of the statute. Where a 
statute fails to use the term ``on the record,'' the court will 
evaluate whether the hearing procedures adopted by the agency are 
reasonable in light of the statute and also any due process 
considerations. CWM, 873 F.2d at 1482. The D.C. Circuit has also noted 
that even assuming formal hearings are required for issuance of NPDES 
permits, there is no absolute right to provide oral testimony or to 
cross examine witnesses in such hearings. NRDC v. EPA, 859 F.2d 156, 
193 (D.C. Cir. 1988) (upholding EPA's Non-Adversary Panel Procedures 
and distinguishing Seacoast).
    (2) Reasonableness of Interpretation. As with the 3008(h) rules and 
the procedures for issuance of RCRA or UIC permits, EPA believes that 
providing for informal hearings prior to issuance of NPDES permits is a 
reasonable interpretation of section 402(a).
    First and most important, EPA believes that formal hearings are not 
necessary to protect the due process rights of permittees or other 
interested parties. The leading Supreme Court case discussing due 
process requirements is Mathews v. Eldridge, 424 U.S. 319 (1976). 
Mathews establishes a 3-part analysis that balances the following 
factors in deciding what procedures are required by the Due Process 
clause: (1) The private interests at stake, (2) the risk of erroneous 
decision-making, and (3) the nature of the government interest. Due 
process generally requires, at a minimum, that EPA provide independent 
and objective fact-finding, see Wong Yang Sung v. McGrath, 339 U.S. 33, 
41 (1949), Morrisey v. Brewer, 408 U.S. 471, 489 (1972), as well as a 
complete administrative record containing the information upon which 
the Agency relies. See Camp v. Pitts, 411 U.S. 138, 139-142 (1973). Due 
process also requires that, prior to final agency action, EPA must 
provide to affected parties notice of what the Agency intends so that, 
should those parties disagree, they may submit contrary arguments or 
evidence. See Goss v. Lopez, 419 U.S. 565, 581 (1975). See generally, 
Kenneth C. Davis, Administrative Law Treatise, 10:3, 10:7, 13:1-2, 
13:7, & 18:2 (2d ed. 1980). The procedures for processing permits under 
part 124 subpart A meet all of these minimum requirements.
    In an NPDES permit proceeding, the private interests at stake are 
those of a potential discharger in obtaining a permit to conduct its 
economic activities in a lawful manner (and the interests of private 
individuals in challenging permits). Yet, no personal liberty interests 
are at stake, there is no ``right to pollute,'' and the granting of an 
NPDES permit does not convey a property right of any sort, or any 
exclusive privilege. See 40 CFR 122.25(b).
    EPA has previously concluded that, in general, due process 
considerations dictate that most administrative enforcement actions 
should proceed under formal hearing procedures. In such a proceeding, 
EPA is accusing respondents of violations of ``established legal 
standards,'' and the decision maker is called upon to adjudicate 
specific factual issues relating to the violations in question. See 45 
FR 24,360 (Apr. 9, 1980 (promulgating part 22)). The Agency concluded 
that, without full adjudicatory hearings, there was a significant risk 
that EPA might be vulnerable to arguments that the Agency lacked the 
means to properly resolve disputed factual matters upon which the 
alleged violator's interests were dependent.
    However, EPA believes that the nature of the typical hearing on an 
NPDES permit will differ significantly from the type of hearing held on 
a compliance or penalty order. Hearings on permits are less apt to 
present the kind of factual issues regarding the conduct of the 
discharger, which case law identifies as being uniquely susceptible to 
resolution in a formal evidentiary hearing. Rather, the issues posed in 
proceedings on permits will typically relate to legal, policy, or 
technical matters concerning the appropriate limitations on the 
pollutants in the discharge, which are most appropriately addressed in 
informal hearings. The primary factual issues in a hearing on an NPDES 
permit are likely to involve what technology-based and water quality-
based limitations are necessary for inclusion in the permit, and 
whether EPA has properly derived those limits. These kinds of issues 
are apt to involve wide-ranging and complex facts and are more 
susceptible to resolution through analysis of a full documentary record 
than through examination and cross-examination of witnesses. The goal 
should then be to compile a full and fair documentary record upon which 
EPA can base its decision. The procedures in subpart A allow the 
permittee, other interested parties, and the Agency every opportunity 
to develop just such a record. Where an issue is in dispute, the 
Regional Administrator can typically resolve the dispute through 
analysis of the written affidavits and arguments of

[[Page 65278]]

the parties' technical experts. The risk of an erroneous deprivation of 
the discharger's rights in deciding these issues is accordingly very 
low.
    By contrast, there is a significant public interest in an expedited 
process for issuing NPDES permits. EPA's experience since 1979 has been 
that the opportunity to request an evidentiary hearing has led to 
significant delays in permit issuance. EPA does not have complete data 
on evidentiary hearing process all the way back to 1979. However, EPA 
kept comprehensive statistics on the numbers of evidentiary hearing 
requested, resolved, and pending between 1990 and 1994. As of July 1, 
1994, the latest period for which data are available, 194 requests for 
evidentiary hearing were pending at EPA. That is, 194 requests were 
awaiting a decision by the Region on the request for evidentiary 
hearing, were waiting a hearing, or were awaiting action on appeal to 
the EAB.
    Between March, 1990, and July 1, 1994, 59 requests for a hearing 
were finally resolved, involving 55 different permits. Of those 59, 22 
requests for hearing were withdrawn, 26 were denied by the Regional 
Administrator (RA) or the EAB, and the remaining 11 were settled 
without hearing. Only four hearings were conducted during this period, 
and only one hearing resulted in EPA being ordered to make changes to 
the NPDES permit. Of the 194 pending hearing requests, 19 had been 
pending with the Agency for 5 years or more. For the 53 permits 
resolved during the period for which EPA has data, the average time 
between request and resolution was over 18 months; if one counts only 
the 33 proceedings which were resolved on the merits (i.e., other than 
by withdrawal of the administrative appeal), the average time increases 
to over 21 months. In contrast, EAB appeals for NPDES, RCRA, or UIC 
permits average under 9 months .
    These statistics suggest that evidentiary hearings themselves 
rarely result in changes in permits. In only 20% of the permits for 
which EPA has data did the appeal process result in modifications to 
the permit, and only one out of 55 of those as a direct result of a 
decision in an actual evidentiary hearing. Rather, any changes to the 
permits usually resulted from informal settlement discussions between 
the Region and the permittee (or occasionally by unilateral decision by 
the Region to change the permit). For the remainder of the requests, 
the decision of the Regional Administrator or the EAB was sufficient to 
resolve all issues, and the complete evidentiary hearing and appeal 
process resulted in no changes to the permits.
    Yet, the evidentiary hearing process clearly delays the time in 
which the permit becomes fully effective. Under current regulations 
(Sec. 124.60), contested permit conditions are not in effect pending 
the dual appeals process. The 18-21 month average appeal time means 
that many permit limits do not take effect until well into the 5-year 
permit term (the 5-year term generally begins when the RA issues the 
permit under Sec. 124.15). For new sources and NPDES dischargers 
without a prior NPDES permit, they cannot begin to discharge until the 
permit appeals are resolved. For existing sources, any new or modified 
permit limits to protect water quality which are contested cannot take 
effect. Thus, the long lag time in resolving permit appeals can affect 
all sectors of the public. In particular, the need to pursue multiple 
levels of administrative appeals imposes unnecessary costs on the 
regulated community or other parties participating in the permit 
processes.
    The lengthy appeals process also impacts those members of the 
public who have an interest in participating in the permit process. 
Citizen participation is a vital component of the NPDES program. 
Section 101(e) of the CWA explicitly requires EPA to provide for, 
encourage, and assist in the development of requirements under the CWA. 
As EPA has noted before, adequate public participation helps to ensure 
permits which are protective of the environment by giving permit 
writers the valuable insights of participants other than the permittee. 
61 FR 20973-74 (May 8, 1996). The lengthy formal hearing process 
effectively requires all interested parties to obtain legal counsel and 
spend a significant amount of time to request, prepare for, and conduct 
a trial-type hearing before an ALJ. Citizens groups interested in the 
content of an NPDES permit are likely to lack the same level of 
resources necessary to participate in such a proceeding that either the 
government or an NPDES permittee will possess. Thus, the formal process 
may pose a barrier to citizen involvement in the NPDES permit process.
    In addition to affecting the government and public interests in 
effective permits and effective public participation in permit 
proceedings, the evidentiary hearing process also represents a 
significant drain on Agency resources. EPA Regions utilized over 25 
work years of staff time between 1990 and 1994 on processing requests 
for evidentiary hearings, preparing for hearings, or defending before 
the EAB a permittee's appeal of decisions to deny requests for 
hearings. Only about 5 and \1/4\ of those work years were spent 
actually preparing for or conducting the hearings; the remainder of EPA 
staff time was used responding to (and usually denying) requests for a 
hearing and defending a permittee's appeal of those denials before the 
EAB.
    The evidentiary hearing process uses significant Agency resources 
with little or no apparent gain in the quality of the decision-making. 
Often, the key issue before the EAB involves whether the RA properly 
denied the request for evidentiary hearing, either because there was no 
genuine issue of material fact raised (see In re Mayaguez Regional 
Sewage Treatment Plant, Puerto Rico Aqueduct & Sewerage Authority, 
NPDES Appeal No. 92-23, at 11 (EAB, Aug. 23, 1993), aff'd, Puerto Rico 
Aqueduct & Sewer Auth. v. Browner, 35 F.3d 600 (1st Cir. 1994)), or 
because the only issues raised were legal issues for which no hearing 
is necessary (and which the EAB can resolve). EPA utilized 8 work years 
between 1990 and 1994 defending denials of evidentiary hearing 
requests, and very few of those decisions were reversed by the EAB. It 
seems particularly unnecessary for the RA to have to review a request 
for hearing, prepare a decision to deny the request on the grounds that 
the only issues are ones for which there is no genuine dispute of 
material fact, and then defend that decision to deny before the EAB. 
Rather, it would seem to make more sense to take the legal issues 
appropriate for EAB resolution straight to the EAB, and leave 
resolution of the factual issues for the informal hearing process under 
subpart A. In those instances where the EAB finds that the Region has 
made a clear error in resolving a factual issue, the EAB could, as it 
does for RCRA, UIC, or PSD permits, remand the permit decision for 
further consideration including further development of the 
administrative record using the informal hearing process. Furthermore, 
to the extent that informal settlement discussions are necessary to 
resolve outstanding issues, such discussions could and would take place 
during EAB review; the formal evidentiary hearing process is not 
necessary to provide an opportunity for such discussions.
    Balancing the private interests at stake in an NPDES permit 
proceeding with the public interest in ensuring that such permits 
control discharges (and ensure protection of the environment) in an 
expeditious and effective manner and the public interest in effective 
citizen participation in the permit process, and given that the 
availability of formal hearings do not appear to reduce

[[Page 65279]]

significantly the already low risk of erroneous decision-making, EPA 
concludes that due process considerations do not mandate formal 
hearings.
    EPA also notes that the primary goal of the Clean Water Act is to 
ensure that waters of the United States obtain ``fishable/swimmable'' 
status as early as possible. CWA section 101(a). Section 301(b)(1)(C), 
in particular, requires that NPDES discharges do not cause or 
contribute to violations of State water quality standards. The long lag 
time between permit issuance and when effluent limitations take effect 
under the current proceedings impairs achievement of these goals.
    Finally, the number of States in which EPA is the permit issuing 
authority is small and getting smaller, and EPA anticipates that its 
role as a permit issuing authority will continue to diminish. Forty-two 
States or Territories have obtained authorization to issue NPDES 
permits; EPA retains permitting authority in only 15 States/Territories 
and in Indian Country. Many States do not provide for formal hearings 
prior to issuance of NPDES permits, and EPA is unaware that there have 
been significant problems with the content of such permits as a 
result.3 EPA sees no reason to retain formal hearings for a 
fraction of the NPDES permits issued nationwide.
---------------------------------------------------------------------------

    \3\ However, EPA believes that the ability to judicially 
challenge final permits is an essential element of public 
participation under the Clean Water Act. On May 1, 1996, EPA issued 
a final rule which will require that all States that administer or 
seek to administer the NPDES program shall provide an opportunity 
for judicial review in State court of the final approval or denial 
of permits by the State that is sufficient to provide for, 
encourage, and assist public participation in the NPDES permitting 
process. This rule does not, at this time, apply to Indian Tribes. 
See 61 FR 20972 (May 8, 1996).
---------------------------------------------------------------------------

    For all of these reasons, EPA believes that neither due process nor 
the Congressional goals for the NPDES program counsels in favor of 
maintaining the evidentiary hearing process, and that, consistent with 
the principles of Chevron, EPA may reasonably interpret Section 402(a) 
to authorize use of informal hearings when issuing NPDES permits.
    b. Proposed New System. (1) Permit Issuance. The existing process 
for RCRA, UIC, and PSD permits has proven effective in resolving all 
factual, legal, and policy issues, providing for adequate public 
participation, and ensuring that permit issues are resolved in a 
relatively short time frame. EPA therefore proposes to place NPDES 
permits under the same system.
    NPDES permits would therefore utilize Steps 1 and 3 of the existing 
process; Step 2 would be eliminated. The EPA Regional Office would 
continue to prepare a draft permit, provide notice and an opportunity 
for public comment on the draft permit and opportunity for a public 
hearing when there is a significant degree of public interest, and 
issue a final permit decision, incorporating any changes in the draft 
permit occasioned by the public comments received. After that initial 
decision, however, a party would appeal from the Regional 
Administrator's permit decision directly to the Environmental Appeals 
Board. As provided in Sec. 124.19, a party could appeal any factual or 
legal determination in the Regional Administrator's decision (if the 
issue were properly raised in public comments on the draft permit, as 
provided in 124.13).4 Subpart E would be eliminated in its 
entirety.
---------------------------------------------------------------------------

    \4\ The party need not, however, submit all supporting factual 
information during the comment period; rather the Regional 
Administrator may instruct the party to submit such information if 
desired. 40 CFR 124.13 (``Commenters shall make supporting materials 
not already included in the administrative record available to EPA 
as directed by the Regional Administrator'') (emphasis added); 49 FR 
38,042 (Sept. 26, 1984) (``Generally supporting information would 
not be required to be submitted during the comment period'').
---------------------------------------------------------------------------

    EPA also proposes to eliminate the NAPP procedure in subpart F. 
Subpart F was designed to be a less onerous alternative hearing 
procedure for NPDES permits, to substitute for subpart E when the 
parties so agreed. EPA has conducted no hearings under subpart F, and 
EPA is aware of only three permits where a party requested use of the 
proceeding. One of those involved a RCRA permit denial in EPA Region 
IX. The purpose of requesting the NAPP in that proceeding appears to 
have been solely to delay final issuance of the permit denial decision. 
(See the public docket for today's proposal for details.) With the 
elimination of subpart E, and given the fact that there has been so 
little interest in the use of subpart F, EPA sees no reason to retain 
it.
    (2) Termination of NPDES and RCRA Permits. EPA's regulations also 
currently provide for a formal hearing prior to terminating an NPDES or 
RCRA permit during its term. EPA regulations treat termination of a 
RCRA or NPDES permit in the same manner as the issuance or denial of an 
NPDES permit. That is, termination of a permit begins with preparation 
of a draft notice of intent to terminate. The notice of intent to 
terminate is subject to public comment and possibly an informal 
hearing. After the informal process, the Regional Administrator issues 
an initial decision, from which a party may request an evidentiary 
hearing under subpart E, and subsequently an appeal to the EAB.
    In developing today's proposal, EPA seriously considered proposing 
to eliminate all formal hearing procedures for RCRA and NPDES permit 
terminations and instead treat such terminations just like permit 
issuance or denial. EPA recognizes that due process considerations may 
not mandate such procedures. As noted above, issuance of an NPDES 
permit conveys no property right to the permittee. Thus, the only 
private interests at stake relate to the expectation of a permittee to 
continue discharging until the end of a permit term, which can be up to 
5 years at most. Otherwise, the permittee cannot presume it will be 
able to continue discharging beyond the end of the permit term, 
particularly if the permittee has violated the terms of the permit or 
misrepresented information on its permit application (the bases for 
terminating a permit). Thus, the private interests at stake in a permit 
termination are only marginally stronger than those at stake in a 
permit denial proceeding (which EPA has always conducted using informal 
hearing procedures except for NPDES). Yet, EPA also recognizes some 
differences between permit terminations and other permit proceedings. 
In contrast to the issuance of a permit, the decision to terminate a 
permit, other than at the request of the permittee, is more likely to 
involve factual issues for which formal hearings are appropriate. Under 
EPA regulations (40 CFR 122.64, 270.43), EPA may terminate a permit 
only for reasons such as the non-compliance with the permit or failure 
to have disclosed relevant information in the permit application. In 
other words, a permit termination is akin to an enforcement action (and 
indeed often accompanies an administrative enforcement action), where 
credibility of witnesses will be a more significant concern.
    On balance, EPA's preferred option is to maintain the formal 
hearing requirement for these type of proceedings. EPA solicits comment 
on whether the formal hearing requirement should be eliminated entirely 
for RCRA and NPDES permit terminations, and whether there is an 
adequate basis for doing so.
    Termination of NPDES and RCRA permits is a rare occurrence; EPA is 
aware of only one EPA-issued permit that has been terminated using 
these procedures since 1980 (the NPDES permit for Marine Shale 
Processors in Louisiana). EPA's ``Consolidated Rules

[[Page 65280]]

of Procedure'' at 40 CFR part 22 specify procedures for formal hearings 
in a variety of administrative enforcement actions, including civil 
compliance or penalty actions for violations of the CWA and RCRA. These 
regulations also cover the suspension/revocation of permits issued 
under the Marine Protection Research and Sanctuaries Act (Ocean Dumping 
Act). There is no significant difference between practice and the 
procedural guarantees under part 22 and under part 124 subpart E. The 
only difference is that a formal hearing under part 22 begins with 
EPA's issuance of a complaint against an alleged violator, whereas 
subpart E constitutes an appeal of an initial decision after a non-
formal public comment and hearing process. Since there are no 
significant differences between the two sets of rules, EPA sees no 
reason to leave subpart E in the Code of Federal Regulations solely to 
cover the very occasional involuntary NPDES or RCRA permit termination. 
Instead, EPA today proposes to amend part 22 to mandate use of its 
procedures for such terminations. Instead of the current three-part 
process under part 124, such permit terminations would occur in a two-
step process. Step 1 would be a hearing under part 22; the outcome of 
the hearing could then be appealed to the EAB under Sec. 22.30.
    For terminations at the request of the permittee, the part 124 
process, as modified under today's proposal, would be used. In other 
words, EPA would provide for an informal public comment and hearing 
under subpart A, with opportunity for appeal to the EAB. This will 
allow other interested parties to comment on the proposed termination. 
Also, as noted above, EPA is proposing in today's notice revisions to 
Sec. 122.64(b) which would allow Directors to terminate a permit by 
giving notice to the permittee and without following the part 22 or 124 
procedures (or State equivalent) where the permittee has permanently 
terminated its entire discharge (by elimination of its process flow or 
other discharge components) or has redirected that discharge into a 
POTW. EPA notes that NPDES-authorized States are not required to use 
part 22 procedures for permit terminations.
    EPA believes that the existing part 22 is generally adequate to 
cover involuntary permit terminations without substantive amendment. 
However, where permits are terminated for cause, existing part 124 
treats the proceeding the same as for the issuance or denial of a 
permit. EPA is proposing to incorporate relevant provisions of part 124 
into such a permit termination proceeding, i.e., consideration of the 
administrative record and provision for informal public comment on the 
proposed permit termination. EPA is also proposing one minor 
clarification to part 22. Part 22 refers to involuntary removal of a 
permit as ``revocation[s].'' Since the existing NPDES and RCRA 
regulations use the term ``revocation'' to refer to permits which are 
to be reissued (see 40 CFR 122.62, 124.5), EPA is proposing to add the 
term ``termination'' of permits to the appropriate references in part 
22. EPA solicits comment on using the part 22 procedures to cover 
termination of NPDES and RCRA permits, and whether further amendments 
to part 22 would be necessary to make the regulations effective for 
this purpose.
    Today's proposal is based on the current version of part 22. 
However, EPA will soon propose more comprehensive revisions to part 22 
designed to make the regulations more readable and thus easier for the 
public to use. The changes proposed today will be harmonized with that 
proposal before final rules are issued.
    (3) Stays of Contested Permit Conditions. Existing EPA regulations 
at Sec. 124.15 specify that NPDES, RCRA, and UIC permits take effect 30 
days after the Regional Administrator issues an initial permit 
decision, unless the permit is appealed (or if one of the other 
exceptions at 40 CFR 124.15(b) are met). Section 124.16(a) further 
provides that if an initial permit decision is appealed by requesting 
EAB review (for RCRA and UIC permits) or appealed by filing a request 
for evidentiary hearing (for NPDES permits) and the request is granted, 
the contested conditions of the permit (and any uncontested conditions 
which are not severable from the contested ones) are stayed (i.e., they 
do not take effect) pending the outcome of the appeal/evidentiary 
hearing. Existing regulations at Sec. 124.60 supplement Sec. 124.16 for 
purposes of NPDES permits. Section 124.60(a)(2) authorizes the Regional 
Administrator to issue an order to a new source or new discharger for 
whom an evidentiary hearing request has been granted authorizing the 
source to begin discharging pending the outcome of the hearing process. 
Section 124.60(c)(7) authorizes the Regional Administrator to impose 
interim permit requirements for offshore oil rigs that do not have an 
existing permit, but only when necessary to avoid ``irreparable 
environmental harm.'' The provisions of Secs. 124.60(c)(1)-(c)(6) 
provide detailed rules for determining what constitutes ``contested 
conditions'' stayed pending an evidentiary hearing. Section 124.60(f) 
specifies that the date of compliance with permit conditions which have 
been stayed pending the outcome of an evidentiary hearing generally 
shall be extended for the period of the stay. Other provisions of 
Sec. 124.60 parallel provisions contained in Secs. 124.15, 124.16, or 
124.19.
    EPA today proposes substantial revisions to Sec. 124.60 consistent 
with the proposal to eliminate evidentiary hearings. Sections 
124.60(a)(2) and 124.60(f) grant certain relief to the regulated 
community to reflect the long lag time between when a permit is issued 
and when it becomes effective if an evidentiary hearing takes place. By 
eliminating the evidentiary hearing step, today's proposal would 
dramatically shorten that lag time. EPA believes that these provisions 
would no longer be necessary and proposes to delete them. The existing 
Sec. 124.60(c)(7) also provides for temporary authorization pending the 
outcome of administrative review, but only for a very limited number of 
facilities and only as necessary to prevent environmental damage. EPA 
is unaware that this provision has ever been invoked, but is proposing 
today to retain it (recodified at Sec. 124.60(a)) in case the need 
arises.
    The existing Secs. 124.60(a)(1), 124.60(c)(1), and 124.60(e) 
generally clarify that only uncontested permit conditions take effect 
pending appeal, and that the prior existing permit (if any) remains in 
effect (to the extent they match the contested conditions in the new 
permit). As noted above, EPA is today proposing to provide for a direct 
appeal of the Regional Administrator's initial permit decision to the 
EAB. The existing regulations at Sec. 124.16 contain virtually the same 
requirements regarding contested permit conditions when a RCRA or UIC 
permit is appealed to the EAB. Compare Sec. 124.60(a)(1) with 
Sec. 124.16(a)(1); Sec. 124.60(c)(1) with Sec. 124.16(a)(2); 124.60(e) 
with 124.16(c)(2). EPA proposes to eliminate the redundant portions of 
Sec. 124.60 in favor of the generally applicable provisions in 
Sec. 124.16. However, EPA proposes to retain the NPDES-specific 
provisions of existing Sec. 124.60(c) (2)-(6) concerning what 
constitutes a ``contested condition;'' these would be recodified at 
Sec. 124.60(b)(2)-(6). EPA also proposes to retain the specific 
language of 124.60(e) as recodified at 124.60(c).
    EPA also proposes to make a more general change to its practice 
surrounding effective dates, contested permit conditions, and stays. In 
the past, there has been significant confusion surrounding when a RCRA, 
UIC, or PSD permit takes effect if appealed to the EAB, and somewhat 
less

[[Page 65281]]

confusion with respect to the same issue for NPDES permits. Section 
124.15(b) specifies that permits generally take effect 30 days after 
issuance by the Regional Administrator unless EAB review is requested 
under Sec. 124.19 (for RCRA, UIC, or PSD) or an evidentiary hearing is 
requested (for NPDES) (or if one of the other exceptions at 40 CFR 
124.15(b) are met). Existing Secs. 124.16(a) (for non-NPDES) and 
124.60(c)(1) clarify that, once the EAB grants review or the RA grants 
the evidentiary hearing request, contested conditions are stayed but 
uncontested conditions take effect. Both sections require that the 
Regional Administrator identify the uncontested provisions. Section 
124.60(c)(1) explicitly requires the Regional Administrator to notify 
all interested parties. The regulations are not clear, however, as to 
whether any conditions of the permit are in effect during the period 
between filing of the request for review and the decision to grant or 
deny review. EPA has, in the past, interpreted Sec. 124.16(a)(2) to 
apply during this period as well. In other words, the uncontested 
conditions take effect even prior to a decision to grant or deny review 
under 40 CFR 124.19. See Memorandum from Lisa K. Friedman, ``Stays of 
Contested Permit Conditions,'' Mar. 22, 1988 (in the docket for today's 
proposal).
    EPA today proposes to amend Sec. 124.16 to clearly reflect the 
Agency's interpretation. Section 124.16(a)(1) would clarify that 
contested permit conditions are stayed as of the date of filing a 
request for review with the EAB under Sec. 124.19, and any contested 
conditions will remain stayed until EPA takes final action (either a 
decision of the EAB or a decision of the Regional Administrator on 
remand) under Sec. 124.19(f). Uncontested permit conditions would also 
be stayed upon filing of a request for review, but only for a temporary 
period. Importing language from the existing Sec. 124.60(c)(1), the new 
Sec. 124.16(a)(2) would clarify that the uncontested conditions take 
effect 30 days after the Regional Administrator notifies the EAB, the 
permit applicant, and other interested parties as to which conditions 
are uncontested. Since EPA is proposing to use the same appeals process 
for NPDES permits as for other permits, the new Sec. 124.16 would apply 
to NPDES permits as well.
    The language of the existing Sec. 124.60(b) specifies that the 
Regional Administrator may, at any time prior to the Administrative Law 
Judge's (ALJ) decision in an evidentiary hearing, withdraw contested 
conditions of an NPDES permit and reissue them in accordance with the 
procedures of subpart A. In practice, EPA has withdrawn and reissued 
permits under all statutes prior to decisions of the EAB as well as 
prior to ALJ decisions. EPA therefore proposes to clarify that the 
Regional Administrator may withdraw and reissue any NPDES, RCRA, UIC, 
or PSD permit (or a contested condition thereof) prior to a decision of 
the EAB to grant or deny review under Sec. 124.19(c). To make this 
change, the existing Sec. 124.60(b), as slightly modified, would be 
recodified as Sec. 124.19(d).
    This proposal, once finalized, will serve the public interest by 
shortening the time for appeals that may be brought by interested 
citizens, allowing for the more timely resolution of these appeals, 
with a shorter stay of conditions.
    Finally, Sec. 124.60(f) specifies that exhaustion of the 
evidentiary hearing process is a prerequisite to judicial review of an 
NPDES permit. EPA proposes to eliminate this language in favor of the 
general exhaustion provision at Sec. 124.19(e).
    (4) Procedures for Variances and New Source Determinations. EPA 
also proposes changes in various NPDES permit-related administrative 
procedures. Existing regulations at Sec. 122.21(m) specify that 
applications for a ``fundamentally different factors'' variance must be 
filed within 180 days of promulgation of the applicable effluent 
limitations guideline. Section 125.32(a) contemplates that the 
application for a variance be submitted in accordance with part 124, 
subpart F. (However, subpart F does not appear to have ever been used.) 
All other effluent limitation variances under Sec. 122.21(m) are 
processed as part of the underlying permit application in accordance 
with the procedures of part 124, subpart A. EPA sees no continuing 
reason to treat Fundamentally Different Factors (FDF) variances 
differently. EPA therefore proposes to amend Sec. 125.32 to require an 
applicant for an FDF variance to submit an application under the 
procedures of part 124, subpart A. EPA will process the request for a 
variance as if it were an application for an NPDES permit.
    Existing Sec. 122.21(l)(2) requires EPA to make an initial 
determination of whether an applicant for an NPDES permit constitutes a 
``new source'' subject to the additional requirements of Sec. 122.29. 
Section 122.21(l)(4) allows for appeal of that initial determination by 
requesting an evidentiary hearing. Consistent with its proposal to 
eliminate evidentiary hearings for NPDES permits themselves, EPA 
proposes to modify this section to allow instead for an appeal of a new 
source determination to the EAB. Similar to the existing language, the 
proposed amendment would allow the EAB, with consent of the parties, to 
defer review of the determination until a decision is made on the 
permit for the source, and to consolidate review of the new source 
determination with any review of the permit decision.
    (5) Transition to New Procedural Requirements. If EPA decides to 
issue the final rule as proposed today, there will be no further 
opportunity to request an evidentiary hearing and the existing 
procedural rules will be deleted from the CFR. The question arises, 
however, how today's proposal will affect ongoing NPDES permit 
issuance/denial or termination proceedings or RCRA permit termination 
proceedings. EPA proposes largely to ``grandfather'' such proceedings 
under the prior rules.
    Under today's proposal, contained in Sec. 124.21, ongoing 
proceedings would be treated as follows: For any NPDES permit for which 
a request for evidentiary hearing was granted or denied as of the date 
of the final rule, but for which a hearing had not yet been completed, 
the permit process would continue under the procedures of the prior 
part 124. Similarly, appeals pending before the EAB would be reviewed 
under the procedures of prior part 124. In other words, the evidentiary 
hearing would be conducted under the old subpart E; an appeal from the 
evidentiary hearing decision (or an appeal from the denial of a request 
for an evidentiary hearing) would proceed under the prior Sec. 124.91; 
and any further proceedings conducted pursuant to a remand from the EAB 
would proceed under the appropriate provisions of the old part 124. 
Ongoing proceedings to terminate an NPDES or RCRA permit similarly 
would continue under the prior rules.
    EPA is proposing to grandfather these proceedings in the interests 
of efficiency, fairness and minimizing the confusion to the regulated 
community. As of July 1, 1994, there were two NPDES permits for which 
an evidentiary hearing had been granted but the proceedings had not yet 
concluded, and 17 for which an appeal was pending before the EAB. 
Interested parties involved in an ongoing evidentiary hearing process 
may have invested significant resources to prepare or conduct the 
hearing to date, as would have EPA. It could prove to be a waste of all 
parties' resources to suspend such proceedings in mid-stream. Such 
preparation may have taken place even if the hearing itself has not 
begun. For ongoing proceedings before the EAB, all

[[Page 65282]]

parties may have invested resources in a prior evidentiary hearing or 
in briefing before the EAB. Rather than try to separate out on a case-
by-case basis which proceedings are sufficiently advanced to justify 
continuing under the old rules, EPA proposes to let them all continue 
if the parties wish. (Today's proposal would allow an ongoing 
evidentiary hearing proceeding to be terminated with right of appeal to 
the EAB if all parties agree.) EPA solicits comment on whether it is 
appropriate to have these permits proceed under the prior rules or 
whether EPA should suspend all current proceedings and provide instead 
for an appeal to the EAB.
    For any NPDES permit decision for which a request for evidentiary 
hearing remains pending, considerations of efficiency and fairness are 
less significant. Neither the parties nor EPA are likely to have 
invested any significant resources yet. Therefore, EPA is proposing not 
to grandfather these permits. Rather, EPA proposes to let interested 
parties refile an appeal directly to the EAB. For such permits, the EPA 
Region would, within 30 days after the final rule takes effect, notify 
the requester that the request for evidentiary hearing is being 
returned without prejudice. Notwithstanding the time limit in 
Sec. 124.19(a), the requester would be allowed to file an appeal with 
the Board, in accordance with the other requirements of Sec. 124.19(a), 
within 30 days.
    (6) Miscellaneous Changes. EPA proposes a conforming change to part 
117, which establishes regulations concerning the reporting of releases 
of hazardous substances under section 311 of the CWA. The reporting 
obligation does not cover discharges of hazardous substances 
``resulting from circumstances identified, reviewed, and made a part of 
the public record with respect to a[n NPDES] permit.'' 40 CFR 
117.12(a)(2). Section 117.1 defines the ``public record'' to include 
the permit itself and the record prepared during a NAPP proceeding 
under (now) subpart F. Since EPA is today proposing to eliminate 
subpart F, EPA proposes to modify this definition to refer instead to 
the administrative record required for all permits under Sec. 124.18.
    Finally, today's proposal would amend various sections of parts 
122, 124, 144, 270, and 271 to eliminate obsolete references to 
subparts E or F of part 124. Many of these references authorize RCRA, 
UIC, or PSD permits to be processed under subparts E or F if 
consolidated with an NPDES permit undergoing an evidentiary hearing or 
NAPP. As reflected by the proposed language in Sec. 124.1(d), today's 
proposal would continue to authorize permits to be processed in 
consolidated fashion under subpart A.
    (7) Effect on State Programs. Under EPA's current regulations (40 
CFR 123.25), EPA does not require States and Indian Tribes wishing to 
obtain authorization to issue NPDES permits to provide for formal 
evidentiary hearings, either under part 124 or part 22. Instead, EPA 
requires States and Tribes to provide for the informal process outlined 
in subpart A of part 124 and requires States to provide an opportunity 
for judicial review in State court of the final approval or denial of 
permits by the State that is sufficient to provide for, encourage, and 
assist public participation in the NPDES permitting process. EPA also 
does not require States nor Tribes to provide for formal hearings prior 
to termination of NPDES or RCRA permits. This proposed revision 
concerning permit appeal and termination procedures does not change the 
requirements of State programs. However, as described in more detail 
above, another revision proposed in today's package for 40 CFR 
122.64(b) would allow States to terminate NPDES permits without 
following part 124 procedures (or their State equivalent) under certain 
circumstances. Of course, States and Tribes may continue to provide for 
formal evidentiary hearings on such permit decisions if they wish, 
under section 510 of the CWA and section 3009 of RCRA.

D. Proposed Removal and Reservation of Part 125, Subpart K

1. 40 CFR Part 125, Subpart K
    In today's notice, EPA proposes to remove and reserve part 125, 
subpart K (40 CFR 125.100-104) titled ``Criteria and Standards for Best 
Management Practices Authorized Under Section 304(e) of the Act''. This 
provision was originally promulgated on June 7, 1979 (44 FR 32954) and 
would have established criteria and standards for imposing best 
management practices (BMPs) in NPDES permits under the authority 
provided in sections 304(e) and 402(a)(1) of the CWA. However, for 
reasons set forth in more detail below, subpart K has never been 
activated and its original purpose is now better served by EPA's 
existing BMP provisions at 40 CFR 122.44(k) and accompanying guidance 
for developing and implementing BMPS.
    BMPs are schedules of activities, prohibitions of practices, 
maintenance procedures, and other management practices to prevent or 
reduce the pollution of ``waters of the United States.'' BMPs include 
treatment requirements, operating procedures, and practices to control 
plant site runoff, spillage or leaks, sludge or waste disposal, or 
drainage from raw material storage. BMPs are authorized under two 
provisions of the CWA, sections 304(e) and 402(a)(1). Section 304(e) of 
the Act authorizes the Administrator to publish regulations which are 
supplemental to effluent limitation guidelines, for a class or category 
of point sources, for any toxic or hazardous pollutant regulated under 
sections 307(a)(1) or 311 of the CWA, in order to control plant site 
runoff, spillage or leaks, sludge or waste disposal, and drainage from 
raw material storage, which the Administrator determines are associated 
with or ancillary to the industrial manufacturing or treatment process 
within such class or category of point sources and which may contribute 
significant amounts of toxic or hazardous pollutants to the waters of 
the United States. In addition, section 402(a)(1) of the Act authorizes 
permitting authorities to include BMPs in permits using Best 
Professional Judgment (BPJ). EPA's authority to impose BMPS under 
section 402(a)(1) was recognized by the D.C. Circuit in NRDC v. Costle, 
568 F.2d 1369 (D.C. Cir. 1977).
    In addition to these statutory authorities for BMPs, EPA's 
regulations at 40 CFR 122.44(k) specifically authorize EPA to require 
BMPs in NPDES permits to control or abate the discharge of pollutants 
where: (1) Authorized under section 304(e) of the CWA for the control 
of toxic pollutants and hazardous substances, (2) numeric effluent 
limitations are infeasible, or (3) the practices are reasonably 
necessary to achieve effluent limitations and standards or to carry out 
the purposes and intent of the CWA. EPA has used Sec. 122.44(k) to 
require specific BMPs in permits and has required, as a permit 
condition, that permittees develop and implement BMP plans. These are 
also known as storm water pollution prevention plans (SWPPPs) in 
certain storm water general permits). See EPA's ``Storm Water 
Multisector General Permit for Industrial Activities finalized on 
September 29, 1995 (50 FR 50804) as well as EPA's baseline storm water 
general permits finalized on September 9, 1992 (57 FR 41175) and 
September 25, 1992 (57 FR 44412).
    The regulatory history covering the development of part 125, 
subpart K is lengthy. On August 21, 1978, EPA proposed regulations (43 
FR 37089) that provided a definition of ``Best Management Practices'' 
(``BMPs''). In addition, subpart L--``Criteria and

[[Page 65283]]

Standards for Best Management Practices Authorized Under Section 304(e) 
of the Act'', was created under part 125 and was reserved for later 
rulemaking.
    On September 1, 1978, EPA proposed a rule to revise the existing 
regulations governing the NPDES program in order to reflect new 
controls on toxic and hazardous pollutants under the 1977 amendments to 
the CWA. The proposed rule indicated how BMPs for on-site industrial 
activities (such as materials storage and waste disposal) may be 
required in NPDES permits to prevent the release of toxic and hazardous 
pollutants to surface waters. This regulation was proposed under part 
125, subpart L--Criteria and Standards for Imposing Best Management 
Practices Under Section 304(e) of the Act (43 FR 39282).
    After evaluating the comments received on the proposed regulation, 
EPA promulgated the BMP regulation in part 125, subpart K on June 7, 
1979 (44 FR 32954). The revised regulation described how BMPs for 
control of toxic or hazardous pollutants that are ancillary to 
industrial activities under section 304(e) of the Act shall be 
reflected in permits, including BMPs promulgated in effluent 
limitations guidelines under section 304, and BMPs established on a 
case-by-case basis in permits under sections 301(b) and 402(a) of the 
Act.
    In addition to the regulation, EPA had intended to publish 
technical information supporting the development of BMP programs in a 
guidance document. However, on August 10, 1979, three days before the 
regulations were to become effective, the Agency announced that the 
guidance document had been unavoidably delayed and that the Agency was 
deferring the effective date of the BMP regulation until 60 days after 
EPA published a Federal Register notice of the availability of the BMP 
program guidance document (44 FR 47063).
    On March 20, 1980, EPA announced the availability of the draft 
guidance document and provided a 45-day comment period (45 FR 17997). 
EPA noted that after reviewing the comments on the guidance document, 
the document would be finalized and a notice would be published in the 
Federal Register announcing the effective date of the BMP regulations. 
In response to public comment on the guidance document, the comment 
period was extended twice, resulting in a 120-day comment period. After 
evaluating the comments on the guidance document, the Agency made 
revisions and in June 1981 published ``NPDES Best Management Practices 
Guidance Document.'' (The BMP Guidance Document has since been revised. 
The revised guidance was published in October 1993.) However, the 
effective date of the regulation was never announced and subpart K 
never became effective.
    The continued inactive status of the subpart K has not hindered 
EPA's ability to require BMPs in permits because Sec. 122.44(k) 
remained effective. Moreover, a number of guidance documents have since 
become available to assist permit issuing authorities and permittees in 
developing and implementing BMPs and BMP plans. While part 125, subpart 
K has remained in the Code of Federal Regulations as an inactive 
regulation, it has nonetheless been valuable as a model for imposing 
BMPS under 40 CFR 122.44(k). This was particularly true when there was 
less guidance available on how to develop and implement BMPs.
    At present, requirements for the preparation and implementation of 
BMPs (and BMP plans) are commonly found in NPDES permits as permit 
conditions under 40 CFR 122.44(k). EPA has continued to work with 
industry to identify the generic BMPs that most well-operated 
facilities use for pollution control, fire prevention, occupational 
safety and health, or product loss prevention. Experience has shown 
that BMPs can be appropriately used and that permits containing BMP 
programs can effectively reduce pollutant discharges in a cost-
effective manner. BMPs are also an effective mechanism for promoting 
the goals of pollution prevention. There are now a number of EPA 
guidance documents available to assist permit issuing authorities and 
the regulated community in developing and implementing BMPs and BMP 
plans. Moreover, the BMP provisions of EPA's baseline and multisector 
storm water general permits also provide guidance on how to implement 
BMPs.
    Given these events and the continued successful use of BMPs for 
NPDES permits under existing Sec. 122.44(k) and its associated 
guidance, EPA now believes that there is no longer a reason to activate 
part 125, subpart K. Because BMPs are often best tailored for specific 
industries, EPA believes that the use of existing Sec. 122.44(k) in 
combination with guidance provides a more flexible and effective 
approach in developing and implementing BMPs than that found under part 
125, subpart K. Finally, the provisions of subpart K are now over 16 
years old and are antiquated on a number of fronts particularly with 
respect storm water discharges which form the bulk of BMP applications. 
For those reasons, EPA is proposing to remove the provisions of part 
125, subpart K.
2. 40 CFR 122.44(k)
    In today's notice, EPA proposes to add a note to 40 CFR 
Sec. 122.44(k) which lists the various EPA BMP guidance documents. This 
will assist readers in developing and implementing BMPs and BMP plans.

E. Miscellaneous Corrections

    EPA also proposes in today's notice a number of minor non-
substantive revisions to its regulations that would correct 
typographical or drafting errors, and misplaced or obsolete references. 
EPA wishes to be clear that these corrections and not intended in 
anyway to result in substantive changes to its programs. In proposing 
these corrections, EPA does not solicit, and will not respond to, 
comments on the existing regulatory provisions which underlie those 
corrections. Furthermore, by including these corrections in the 
proposed rule, EPA is not conceding that any or all such changes 
require notice and comment. However, these errors were discovered while 
developing this proposed rule and EPA believes it is more cost 
effective to correct them in this rulemaking than in a separate Federal 
Register notice. EPA proposes the following corrections:
    1. Section 122.1(b)(4) contains an erroneous cite to Sec. 122.1. 
EPA proposes to amend Sec. 122.1(b)(4) to add the correct cite which is 
Sec. 122.2.
    2. In Sec. 122.21(l)(1), EPA proposes to replace the term 
``paragaraph'' with its correct spelling, ``paragraph''.
    3. The current heading for Sec. 122.24(b) is written incorrectly as 
``Defintion''. EPA proposes to correct that error by inserting the 
correct term ``Definition''.
    4. Section 40 CFR 122.21(l)(2)(ii) incorrectly refers to paragraph 
``(k)(2)(i)''. EPA proposes to insert the correct reference, paragraph 
``(l)(2)''.
    5. Section 40 CFR 122.21(l)(3) incorrectly refers to paragraph 
``(k)(2)''. EPA proposes to insert the correct reference ``paragraph 
(l)(2)''.
    6. In Sec. 122.26(b)(15), EPA proposes to replace the term 
``landill'' with its correct spelling, ``landfill''.
    7. In Sec. 122.26(d)(1)(iii)(D)(1), EPA proposes to replace the 
term ``overlayed'' with its correct spelling, ``overlaid''.
    8. EPA proposes to remove an obsolete reference to Sec. 124.58 
found in the last sentence of Sec. 122.28(b)(1). Section 124.58 was 
removed from the EPA's regulations on June 29, 1995. See 60 FR 33927.

[[Page 65284]]

    9. Section 122.29(c)(1)(i) incorrectly refers to 
``Sec. 122.21(k)''. EPA proposes to provide the correct reference, 
``Sec. 122.21(l)''.
    10. In Sec. 122.41(l)(6)(i), EPA proposes to replace the term 
``becames'' with the correct term, ``becomes''.
    11. In Sec. 122.43(b)(1), EPA proposes to replace the term 
``additonal'' with its correct spelling, ``additional''.
    12. EPA proposes to correct two inaccurate cites currently found at 
Sec. 122.44(i)(1)(iii). Paragraph (iii) incorrectly refers to internal 
waste stream provisions as occurring at Sec. 122.45(i). The correct 
cite is Sec. 122.45(h). Paragraph (iii) also incorrectly refers to 
intake credit as being located at Sec. 122.45(f). The correct cite is 
Sec. 122.45(g).
    13. The language in paragraph Sec. 122.44(e)(1) contains a 
reference to Sec. 122.21(g)(10). That cite is no longer current because 
Sec. 122.21(g)(10) is reserved. EPA proposes to remove that reference.
    14. In section 122.44(k), EPA proposes to amend paragraph (k)(2) to 
replace the comma after with word ``infeasible'' with a semicolon. This 
provision was originally promulgated with a semicolon on June 7, 1979 
(44 FR 32907). However, when these provisions were combined with other 
EPA permit regulations as part of the June 14, 1979 permit 
consolidation proposed rulemaking (44 FR 38244), a comma was wrongly 
inserted in place of the semicolon. EPA proposes to correct that 
typographical error in today's notice.
    15. Section 122.44(q) incorrectly refers to Sec. 124.58 in support 
of the requirement that NPDES permits must include, where applicable, 
conditions that the Secretary of the Army considers necessary to ensure 
that navigation and anchorage will not be substantially impaired. The 
correct cite is Sec. 124.59. EPA proposes to revise this paragraph to 
include the correct cite.
    16. In the introductory text of Sec. 122.47(b), EPA proposes to 
replace the term ``requriements'' with the correct spelling, 
``requirements''.
    17. Section 122.62(a)(8) contains two references that are 
incorrect. Paragraph (a)(8)(i) allows a permit to be modified upon 
request of a permittee who qualifies for a net basis under 
Sec. 122.45(h). Net basis and net limitations pertain to pollutants in 
intake waters which are found at Sec. 122.45(g) and not at 
Sec. 122.45(h). Paragraph (a)(ii) would allow permit modification when 
a discharger is no longer eligible for net limitations, as provided in 
Sec. 122.45(h)(1)(ii)(B). Net limitations are actually found at 
Sec. 122.45(g)(1)(ii). EPA proposes insert the correct references in 
today's notice.
    18. 40 CFR 123.25(a)(36) requires that authorized States must have 
legal authority to implement the provisions of part 125, subparts A, B, 
C, D, H, I, J, K, L. However, subparts C, I, J, and L are currently 
reserved and subpart K is proposed to be reserved in today's notice. 
EPA proposes to revise 40 CFR 123.25(a)(36) to remove the references to 
subparts C, I, J, K, and L.
    19. In 40 CFR 123.25(b), EPA proposes to replace the citation, 40 
CFR 35.1500, with the correct citation, 40 CFR 130.5. This error 
occurred in 1985, when part 130 was created from former subparts of 
part 35.
    20. Language which is the same as that found in the definition of 
``State Director'' is incorrectly inserted into the definition of 
``State'' at Sec. 124.2. EPA proposes to remove that language.
    21. EPA proposes to remove the term ``consultation with the 
Regional Administrator'' from Sec. 124.2 because it is obsolete. This 
term applies specifically to 301(k) compliance extensions which have 
not been available since March 31, 1991. On June 29, 1995, EPA removed 
regulatory provisions which implement Sec. 301(k). See 60 FR 33926, 
June 29, 1995.
    22. EPA proposes to correct two references in Sec. 124.55. Each 
refers to ``certification conditions'' specified in Sec. 124.53(d); the 
correct citation is to 124.53(e).

III. Administrative Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.''
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. The Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
EPA must prepare a Regulatory Flexibility Analysis for all regulations 
that have a significant impact on a substantial number of small 
entities. The RFA recognizes three kinds of small entities and defines 
them as follows:

--Small governmental jurisdictions--any government of a district with a 
population of less than 50,000.
--Small business--any business which is independently owned and 
operated and not dominant in its field as defined by Small Business 
Administration regulations under section 3 of the Small Business Act.
--Small organization--any not-for-profit enterprise that is 
independently owned and operated and not dominant in its field (e.g., 
private hospitals and educational institutions).

    Under section 605(b) of the Act, an agency may, in lieu of 
preparing an initial regulatory flexibility analysis, certify that a 
rule will not have a ``significant impact on a substantial number of 
small entities.'' Then no further analysis is required.
    Most of the changes in today's proposal are purely technical and 
will have no effect on compliance costs for NPDES permittees. Also, to 
the extent these technical changes clarify and simplify the 
regulations, they will make them easier to understand and comply with, 
reducing the burden on small entities. The other changes will reduce 
the costs of obtaining and complying with NPDES permits. For instance, 
the proposal would make it easier for facilities to obtain coverage 
under general permits, rather than go through the more complicated and 
expensive individual permit procedure. EPA also proposes to minimize 
monitoring and recordkeeping for permittees subject to effluent 
limitation guidelines, and streamline permit application requirements 
for storm water dischargers and new sources/new dischargers. EPA is 
also proposing to streamline the permit appeals and permit termination 
processes, which should further reduce the costs of obtaining (or 
modifying) or terminating an individual permit. None of these proposed 
changes are expected to

[[Page 65285]]

increase, and most of the changes will actually decrease, the costs of 
compliance for NPDES dischargers, including small entities (if any). 
Therefore, I certify that the proposed rule will not have a significant 
impact on a substantial number of small entities.

C. Paperwork Reduction Act

    The proposed regulations are designed specifically to streamline 
the regulatory process and will not impose any additional information 
collection requirements on either the regulated community or permit 
issuing authorities. Therefore, EPA did not prepare an Information 
Request document for approval by the Office of Management and Budget.
    Should any reviewer feel that the proposed rulemaking will require 
additional information collection activities, they should send their 
comments regarding the burden estimate or any other aspect pertaining 
to collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch; EPA; 401 M St., S.W. (Mail 
Code 2136); 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 OMB or public comments on any information collection 
requirements generated by this proposal.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Under section 204 of the UMRA, EPA generally must develop a process 
to permit elected officials of State, local and Tribal governments (or 
their designated employees with authority to act on their behalf) to 
provide meaningful and timely input in the development of regulatory 
proposals containing significant Federal intergovernmental mandates. 
These consultation requirements build on those of Executive Order 12875 
(``Enhancing the Intergovernmental Partnership'').
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or Tribal 
governments or the private sector. The proposed rulemaking is basically 
``deregulatory'' in nature and does not impose any enforceable duties 
on any of these governmental entities or the private sector.
    In any event, EPA has determined that this rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and Tribal governments, in the aggregate, or the 
private sector in anyone year. This rule is intended to streamline 
NPDES permitting requirements and should result in resource savings to 
Federal and State permitting authorities as well as to the regulated 
community. Thus, today's rule is not subject to the requirements of 
sections 202, 204 and 205 of UMRA.
    With respect to section 203 of UMRA, EPA has determined that this 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. As previously stated, EPA believes 
that the rule will reduce the regulatory burden on Federal and State 
NPDES Permitting authorities as well as on the regulated community. 
This overall reduction will be applied across the board to all 
permitting authorities and the regulated community. While, EPA cannot 
document the effects of these streamlining measures on each affected 
entity, those smaller governments that are NPDES permittees are 
expected to benefit from the proposed modifications.

List of Subjects

40 CFR Part 22

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

40 CFR Part 117

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

40 CFR Part 122

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

40 CFR Part 123

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

40 CFR Part 124

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

40 CFR Part 125

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

40 CFR Part 144

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

40 CFR Part 270

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation,

[[Page 65286]]

Hazardous waste, Reporting and recordkeeping requirements, Water 
pollution control, Water supply.

40 CFR Part 271

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

    Dated: November 21, 1996.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR parts 22, 117, 122, 123, 124, and 125, 144, 270, and 271 as 
follows:

PART 22--[AMENDED]

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

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

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

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

    3. Section 22.01 is amended by revising paragraphs (a)(4) and 
(a)(6) to read as follows:


Sec. 22.01  Scope of these rules.

    (a) * * *
    (4) The issuance of a compliance order or the issuance of a 
corrective action order, the termination of a permit pursuant to 
section 3005(d), the suspension or revocation of authority to operate 
pursuant to section 3005(e), or the assessment of any civil penalty 
under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act, 
as amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and 6992d)), 
except as provided in 40 CFR part 24;
* * * * *
    (6) The assessment of any Class II penalty under section 309(g), or 
the termination of any permit issued pursuant to section 402(a) of the 
Clean Water Act, as amended (33 U.S.C. 1319(g), 1342(a));
* * * * *
    4. Section 22.03 is amended by revising the definition for 
``Consent Agreement'' to read as follows:


Sec. 22.03  Definitions.

* * * * *
    Consent Agreement means any written document, signed by the 
parties, containing stipulations or conclusions of fact or law and a 
proposed penalty or proposed revocation/termination or suspension 
acceptable to both complainant and respondent.
* * * * *
    5. Section 22.13 is amended by revising paragraph (c) to read as 
follows:


Sec. 22.13  Issuance of complaint.

* * * * *
    (c) Other good cause exists for such action, he may institute a 
proceeding for the revocation/termination or suspension of a permit by 
issuing a complaint under the Act and these rules of practice. A 
complaint may be for the suspension or revocation/termination of a 
permit in addition to the assessment of a civil penalty.
    6. Section 22.14 is amended by revising paragraph (b) introductory 
text and paragraphs (b)(4), (b)(5), and (b)(6) to read as follows:


Sec. 22.14  Content and amendment of the complaint.

* * * * *
    (b) Complaint for the revocation/termination, or suspension of a 
permit. Each complaint for the revocation/termination or suspension of 
a permit shall include:
* * * * *
    (4) A request for an order either to revoke/terminate or suspend 
the permit and a statement of the terms and conditions or any proposed 
partial suspension or revocation/termination;
    (5) A statement indicating the basis for recommending the 
revocation/termination, rather than the suspension, of the permit, or 
vice versa, as the case may be;
    (6) Notice of the respondent's right to request a hearing on any 
material fact contained in the complaint, or on the appropriateness of 
the proposed revocation/termination or suspension.
* * * * *
    7. Section 22.15 is amended by revising (a)(2) to read as follows:


Sec. 22.15  Answer to the complaint.

    (a) * * *
    (2) Contends that the amount of the penalty proposed in the 
complaint or the proposed revocation/termination or suspension, as the 
case may be, is inappropriate; or * * *
* * * * *
    8. Section 22.17 is amended by revising the second-to-last sentence 
of paragraph (a) and by revising paragraph (c) to read as follows:


Sec. 22.17  Default order.

    (a) * * * If the complaint is for the revocation or suspension of a 
permit, the conditions of revocation or suspension proposed in the 
complaint shall become effective without further proceedings on the 
date designated by the Administrator in his final order issued upon 
default. * * *
* * * * *
    (c) Contents of a default order. A default order shall include 
findings of fact showing the grounds for the order, conclusions 
regarding all material issues of law or discretion, and the penalty 
which is recommended to be assessed or the terms and conditions of 
permit revocation/termination or suspension, as appropriate.
* * * * *
    9. Section 22.18 is amended by revising paragraph (b)(3) to read as 
follows:


Sec. 22.18  Informal settlement; consent agreement and order.

* * * * *
    (b) * * *
    (3) consents to the assessment of a stated civil penalty or to the 
stated permit revocation/termination or suspension, as the case may be. 
* * *
* * * * *
    10. Section 22.24 is amended by revising the first sentence to read 
as follows:


Sec. 22.24  Burden of presentation; burden of persuasion.

    The complainant has the burden of going forward with and of proving 
that the violation occurred as set forth in the complaint and that the 
proposed civil penalty, revocation/termination, or suspension, as the 
case may be, is appropriate. * * *
    11. Section 22.44 is added to subpart H to read as follows:


Sec. 22.44  Supplemental rules of practice governing the termination of 
permits under section 402(a) of the Clean Water Act or under section 
3005(d) of the Resource Conservation and Recovery Act.

    (a) Scope of these Supplemental Rules. These supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), administrative proceedings for the 
termination of permits under section 402(a) of the Clean Water Act or 
under section 3005(d) of the Resource Conservation and Recovery Act. 
Where

[[Page 65287]]

inconsistencies exist between these supplemental rules and the 
Consolidated Rules, these Supplemental Rules shall apply.
    (b) In any proceeding to terminate a permit for cause under 40 CFR 
122.64 or 270.42 during the term of the permit:
    (1) The complaint shall, in addition to the requirements of 
Sec. 22.14(b), contain any additional information specified in 40 CFR 
124.8;
    (2) The Director (as defined in 40 CFR 124.2) shall provide public 
notice of the complaint in accordance with 40 CFR 124.10, and allow for 
public comment in accordance with 40 CFR 124.11; and
    (3) The Presiding Officer shall admit into evidence the contents of 
the Administrative Record described in 40 CFR 124.9, and any public 
comments received.

PART 117--DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS 
SUBSTANCES

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

    Authority: Secs. 311 and 501(a), Federal Water Pollution Control 
Act (33 U.S.C. 1251 et. seq.), (``the Act'') and Executive Order 
11735, superseded by Executive Order 12177, 56 FR 54757.

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


Sec. 117.1   Definitions.

* * * * *
    (d) Public record means the NPDES permit application or the NPDES 
permit itself and the materials comprising the administrative record 
for the permit decision specified in 40 CFR 124.18.
* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

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

    2. Section 122.1 is revised to read as follows:


Sec. 122.1   Purpose and scope.

    (a) Coverage. (1) The regulatory provisions contained in 40 CFR 
parts 122, 123, and 124 implement the National Pollutant Discharge 
Elimination System (NPDES) Program under sections 318, 402, and 405 of 
the Clean Water Act (CWA) (Pub. L. 92-500, as amended, 33 U.S.C. 1251 
et seq.)
    (2) These provisions cover basic EPA permitting requirements (part 
122), what a State must do to obtain approval to operate its program in 
lieu of a Federal program and minimum requirements for administering 
the approved State program (part 123), and procedures for EPA 
processing of permit applications and appeals (part 124).
    (3) These provisions also establish the requirements for public 
participation in EPA and State permit issuance and enforcement and 
related variance proceedings, and in the approval of State NPDES 
programs. These provisions carry out the purposes of the public 
participation requirements of 40 CFR part 25, and supersede the 
requirements of that part as they apply to actions covered under parts 
122, 123, and 124.
    (4) The NPDES permit program has separate additional provisions 
that are used by permit issuing authorities to determine what 
requirements must be placed in permits if issued. These provisions are 
located at 40 CFR parts 125, 129, 133, 136, 40 CFR subchapter N (parts 
400 through 460), and 40 CFR part 503.
    (5) Certain requirements set forth in parts 122 and 124 are made 
applicable to approved State programs by reference in part 123. These 
references are set forth in Sec. 123.25. If a section or paragraph of 
part 122 or 124 is applicable to States, through reference in 
Sec. 123.25, that fact is signaled by the following words at the end of 
the section or paragraph heading: (Applicable to State programs, see 
Sec. 123.25). If these words are absent, the section (or paragraph) 
applies only to EPA administered permits. Nothing in parts 122, 123, or 
124 precludes more stringent State regulation of any activity covered 
by these regulations, whether or not under an approved State program.
    (b) Scope of the NPDES permit requirement. (1) The NPDES program 
requires permits for the discharge of ``pollutants'' from any ``point 
source'' into ``waters of the United States.'' The terms ``pollutant'', 
``point source'' and ``waters of the United States'' are defined at 
Sec. 122.2.
    (2) The permit program established under this part also applies to 
owners or operators of any treatment works treating domestic sewage, 
whether or not the treatment works is otherwise required to obtain an 
NPDES permit, unless all requirements implementing section 405(d) of 
the CWA applicable to the treatment works treating domestic sewage are 
included in a permit issued under the appropriate provisions of 
subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking 
Water Act, the Marine Protection, Research, and Sanctuaries Act of 
1972, or the Clean Air Act, or under State permit programs approved by 
the Administrator as adequate to assure compliance with section 405 of 
the CWA.
    (3) The Regional Administrator may designate any person subject to 
the standards for sewage sludge use and disposal as a ``treatment works 
treating domestic sewage'' as defined in Sec. 122.2, where he or she 
finds that a permit is necessary to protect public health and the 
environment from the adverse effects of sewage sludge or to ensure 
compliance with the technical standards for sludge use and disposal 
developed under CWA section 405(d). Any person designated as a 
``treatment works treating domestic sewage'' shall submit an 
application for a permit under Sec. 122.21 within 180 days of being 
notified by the Regional Administrator that a permit is required. The 
Regional Administrator's decision to designate a person as a 
``treatment works treating domestic sewage'' under this paragraph shall 
be stated in the fact sheet or statement of basis for the permit.

[Note: Information concerning the NPDES program and its regulations 
can be obtained by contacting the Permits Division (4203), Office of 
Wastewater Management, U.S.E.P.A., 401 M Street, SW., Washington, DC 
20460 at (202) 260-9545.]

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


Sec. 122.2   Definitions.

* * * * *
    Animal feeding operation is defined at Sec. 122.23 of this part.
* * * * *
    Aquaculture project is defined at Sec. 122.25 of this part.
* * * * *
    Bypass is defined at Sec. 122.41(m) of this part.
* * * * *
    Concentrated animal feeding operation is defined at Sec. 122.23 of 
this part.
    Concentrated aquatic animal feeding operation is defined at 
Sec. 122.24 of this part.
* * * * *
    Individual control strategy is defined at 40 CFR 123.46(c).
* * * * *
    Municipal separate storm sewer system is defined at Sec. 122.26 
(b)(4) and (b)(7) of this part.
* * * * *
    Silvicultural point source is defined at Sec. 122.27 of this part.
* * * * *

[[Page 65288]]

    Sludge-only facility means any ``treatment works treating domestic 
sewage'' whose methods of sewage sludge use or disposal are subject to 
regulations promulgated pursuant to section 405(d) of the CWA, and is 
required to obtain a permit under Sec. 122.1(b)(2) of this part.
* * * * *
    Storm water is defined at Sec. 122.26(b)(13) of this part.
    Storm water discharge associated with industrial activity is 
defined at Sec. 122.26(b)(14) of this part.
* * * * *
    Upset is defined at Sec. 122.41(n) of this part.
    4. Section 122.4 is amended by revising paragraph (i)(2) to read as 
follows:


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

* * * * *
    (i) * * *
    (2) The existing dischargers into that segment are subject to 
compliance schedules designed to bring the segment into compliance with 
applicable water quality standards. The Director may waive the 
submission of information by the new source or new discharger required 
by paragraph (i) of this section if the Director determines that the 
Director already has adequate information to evaluate the request. An 
explanation of the development of limitations to meet the criteria of 
this paragraph is to be included in the fact sheet to the permit under 
Sec. 124.56(b)(1).
    5. Section 122.21 is amended by revising paragraphs (a), (c)(2)(i), 
(c)(2)(ii), (g)(7), (g)(8), (l)(1), (l)(2)(ii), (l)(3), (l)(4), and 
notes 1, and the introductory text of notes 2, and 3; and by removing 
and reserving paragraph (d)(3) to read as follows:


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

    (a) Duty to apply. (1) Any person who discharges or proposes to 
discharge pollutants or who owns or operates a ``sludge-only facility'' 
and who does not have an effective permit, except persons covered by 
general permits under Sec. 122.28, excluded under Sec. 122.3, or a user 
of a privately owned treatment works unless the Director requires 
otherwise under Sec. 122.44(m), shall submit a complete application to 
the Director in accordance with this section and part 124.
    (2) Application Forms: (i) All applicants for EPA-issued permits 
must submit applications on EPA permit application forms. More than one 
application form may be required from a facility depending on the 
number and types of discharges or outfalls found there. Applications 
for EPA-issued permits shall be submitted as follows:
    (A) All applicants must submit Form 1 containing general 
information except as otherwise provided in another EPA application 
form.
    (B) Applicants for new and existing POTWs must submit the 
information contained in Sec. 122.21 (f) and (j).
    (C) Applicants for concentrated animal feeding operations or 
aquatic animal production facilities must submit Form 2B.
    (D) Applicants for existing industrial facilities (including 
manufacturing facilities, commercial facilities, mining activities, 
silvicultural activities, privately owned waste treatment facilities, 
and water treatment facilities plants whether publicly or privately 
owned that discharge process wastewater must submit Form 2C.
    (E) Applicants for new industrial facilities that discharge process 
wastewater must submit Form 2D.
    (F) Applicants for new and existing industrial facilities that 
discharge only nonprocess wastewater must submit Form 2E.
    (G) Applicants for new and existing industrial facilities that 
whose discharge is composed entirely of storm water must submit Form 
2F. If the discharge is composed of storm water and non-storm water, 
the applicant must also submit, Forms 2C, 2D, and/or 2E, as appropriate 
(in addition to Form 2F).
    (H) In addition to any other applicable requirements in this part, 
all POTWs and other ``treatment works treating domestic sewage,'' 
including ``sludge-only facilities,'' must submit with their 
applications the information listed at 40 CFR 501.15(a)(2) within the 
timeframes established in paragraph (c)(2) of this section.
    (ii) The application information required by Sec. 122.21(a)(2)(i) 
may be electronically submitted if such method of submittal is approved 
by EPA or authorized NPDES State Director.
    (iii) Applicants can obtain copies of these forms by contacting the 
Water Management Divisions (or equivalent division which contains the 
NPDES permitting function) of the EPA Regional Offices. The Regional 
Offices' addresses can be found at Sec. 1.7 of this title.
    (iv) Applicants for State-issued permits must use State forms which 
must require at a minimum the information required for permit 
applications in this paragraph(a).
* * * * *
    (c) * * *
    (2) * * *
    (i) Any existing ``treatment works treating domestic sewage'' 
required to have, or requesting site-specific pollutant limits as 
provided in 40 CFR part 503, must submit the permit application 
information required by paragraph(a)(2) of this section within 180 days 
after publication of a standard applicable to its sewage sludge use or 
disposal practice(s). After this 180 day period, ``treatment works 
treating domestic sewage'' may only apply for site-specific pollutant 
limits for good cause and such requests must be made within 180 days of 
becoming aware that good cause exists.
    (ii) Any ``treatment works treating domestic sewage'' with a 
currently effective NPDES permit, not addressed under paragraph 
(c)(2)(i) of this section, must submit the application information 
required by paragraph (a)(2) of this section at the time of its next 
NPDES permit renewal application. Such information must be submitted in 
accordance with paragraph (d) of this section.
* * * * *
    (g) * * *
    (7) Effluent characteristics. (i) Information on the discharge of 
pollutants specified in this paragraph (g)(7) of this section (except 
information on storm water discharges which is to be provided as 
specified in Sec. 122.26). When ``quantitative data'' for a pollutant 
are required, the applicant must collect a sample of effluent and 
analyze it for the pollutant in accordance with analytical methods 
approved under 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 outfall. 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 pH, temperature, cyanide, total phenols, 
residual chlorine, oil and grease, fecal coliform and fecal 
streptococcus. For all other pollutants, 24-hour composite samples must 
be used. However, a minimum of one grab sample may be taken for 
effluents from holding ponds or other impoundments with a retention

[[Page 65289]]

period greater than 24 hours. In addition, for discharges other than 
storm water discharges, the Director may waive composite sampling for 
any outfall for which the applicant demonstrates that the use of an 
automatic sampler is infeasible and that the minimum of four (4) grab 
samples will be a representative sample of the effluent being 
discharged.
    (ii) For storm water discharges, all samples shall be collected 
from the discharge resulting from a storm event that is greater than 
0.1 inch and at least 72 hours from the previously measurable (greater 
than 0.1 inch rainfall) storm event. Where feasible, the variance in 
the duration of the event and the total rainfall of the event should 
not exceed 50 percent from the average or median rainfall event in that 
area. For all applicants, a flow-weighted composite shall be taken for 
either the entire discharge or for the first three hours of the 
discharge. The flow-weighted composite sample for a storm water 
discharge may be taken with a continuous sampler or as a combination of 
a minimum of three sample aliquots taken in each hour of discharge for 
the entire discharge or for the first three hours of the discharge, 
with each aliquot being separated by a minimum period of fifteen 
minutes (applicants submitting permit applications for storm water 
discharges under Sec. 122.26(d) may collect flow-weighted composite 
samples using different protocols with respect to the time duration 
between the collection of sample aliquots, subject to the approval of 
the Director). However, a minimum of one grab sample may be taken for 
storm water discharges from holding ponds or other impoundments with a 
retention period greater than 24 hours. For a flow-weighted composite 
sample, only one analysis of the composite of aliquots is required. For 
storm water discharge samples taken from discharges associated with 
industrial activities, quantitative data must be reported for the grab 
sample taken during the first thirty minutes (or as soon thereafter as 
practicable) of the discharge for all pollutants specified in 
Sec. 122.26(c)(1). For all storm water permit applicants taking flow-
weighted composites, quantitative data must be reported for all 
pollutants specified in Sec. 122.26 except pH, temperature, cyanide, 
total phenols, residual chlorine, oil and grease, fecal coliform, and 
fecal streptococcus. The Director may allow or establish appropriate 
site-specific sampling procedures or requirements, including sampling 
locations, the season in which the sampling takes place, the minimum 
duration between the previous measurable storm event and the storm 
event sampled, the minimum or maximum level of precipitation required 
for an appropriate storm event, the form of precipitation sampled (snow 
melt or rain fall), protocols for collecting samples under 40 CFR part 
136, and additional time for submitting data on a case-by-case basis. 
An applicant is expected to ``know or have reason to believe'' that a 
pollutant is present in an effluent based on an evaluation of the 
expected use, production, or storage of the pollutant, or on any 
previous analyses for the pollutant. (For example, any pesticide 
manufactured by a facility may be expected to be present in 
contaminated storm water runoff from the facility.)
    (iii) Every applicant must report quantitative data for every 
outfall for the following pollutants:

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

    (iv) The Director may waive the reporting requirements for 
individual point sources or for a particular industry category for one 
or more of the pollutants listed in paragraph (g)(7)(iii) of this 
section if the applicant has demonstrated that such a waiver is 
appropriate because information adequate to support issuance of a 
permit can be obtained with less stringent requirements.
    (v) Each applicant with processes in one or more primary industry 
category (see appendix A to part 122) contributing to a discharge must 
report quantitative data for the following pollutants in each outfall 
containing process wastewater:
    (A) The organic toxic pollutants in the fractions designated in 
table I of appendix D of this part for the applicant's industrial 
category or categories unless the applicant qualifies as a small 
business under paragraph (g)(8) of this section. Table II of appendix D 
of this part lists the organic toxic pollutants in each fraction. The 
fractions result from the sample preparation required by the analytical 
procedure which uses gas chromatography/mass spectrometry. A 
determination that an applicant falls within a particular industrial 
category for the purposes of selecting fractions for testing is not 
conclusive as to the applicant's inclusion in that category for any 
other purposes. [See Notes 2, 3, and 4 of this section.]
    (B) The pollutants listed in table III of appendix D of this part 
(the toxic metals, cyanide, and total phenols).
    (vi)(A) Each applicant must indicate whether it knows or has reason 
to believe that any of the pollutants in table IV of appendix D of this 
part (certain conventional and nonconventional pollutants) is 
discharged from each outfall. If an applicable effluent limitations 
guideline either directly limits the pollutant or, by its express 
terms, indirectly limits the pollutant through limitations on an 
indicator, the applicant must report quantitative data. For every 
pollutant discharged which is not so limited in an effluent limitations 
guideline, the applicant must either report quantitative data or 
briefly describe the reasons the pollutant is expected to be 
discharged.
    (B) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants listed in table II or table III of 
appendix D of this part (the toxic pollutants and total phenols) for 
which quantitative data are not otherwise required under paragraph 
(g)(7)(v) of this section, is discharged from each outfall. For every 
pollutant expected to be discharged in concentrations of 10 ppb or 
greater the applicant must report quantitative data. For acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, where 
any of these four pollutants are expected to be discharged in 
concentrations of 100 ppb or greater the applicant must report 
quantitative data. For every pollutant expected to be discharged in 
concentrations less than 10 ppb, or in the case of acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in 
concentrations less than 100 ppb, the applicant must either submit 
quantitative data or briefly describe the reasons the pollutant is 
expected to be discharged. An applicant qualifying as a small business 
under paragraph (g)(8) of this section is not required to analyze for 
pollutants listed in table II of appendix D of this part (the organic 
toxic pollutants).
    (vii) Each applicant must indicate whether it knows or has reason 
to believe that any of the pollutants in table V of appendix D of this 
part (certain hazardous substances and asbestos) are discharged from 
each outfall. For every pollutant expected to be discharged, the 
applicant must briefly describe the reasons the pollutant is expected 
to be discharged, and report any quantitative data it has for any 
pollutant.
    (viii) Each applicant must report qualitative data, generated using 
a screening procedure not calibrated with

[[Page 65290]]

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

    [Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental 
Protection Agency suspended until further notice 
Sec. 122.21(g)(7)(v)(A) and the corresponding portions of Item V-C 
of the NPDES application Form 2C as they apply to:
* * * * *
    [Note 3: At 46 FR 35090, July 1, 1981, the Environmental 
Protection Agency suspended until further notice 
Sec. 122.21(g)(7)(v)(A) and the corresponding portions of Item V-C 
of the NPDES application Form 2C as they apply to:
* * * * *
    6. Section 122.22 is amended by revising paragraph (a)(1)(ii) to 
read as follows:


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

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

    Note: * * *
* * * * *


Sec. 122.24  [Amended]

    7. The paragraph heading for Sec. 122.24(b) (known as 
``Defintion'') is revised to read ``Definition''.
    8. Section 122.26 is amended by revising paragraphs (b)(15), (c)(1) 
introductory text, (c)(1)(i)(E)(4), (c)(1)(i)(F), (d)(1)(iii)(D)(1), 
and (d)(2)(iv)(C)(2), and by removing and reserving paragraph (c)(2), 
to read as follows:


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

* * * * *
    (b) * * *
    (15) Uncontrolled sanitary landfill means a landfill or open dump, 
whether in operation or closed, that does not meet the requirements for 
runon or runoff controls established pursuant to subtitle D of the 
Solid Waste Disposal Act.
* * * * *
    (c) * * *
    (1) Individual application. Dischargers of storm water associated 
with industrial activity are required to apply for an individual permit 
or seek coverage under a promulgated storm water general permit. 
Facilities that are required to obtain an individual permit, or any 
discharge of storm water which the Director is evaluating for 
designation (see 40 CFR 124.52(c)) under paragraph (a)(1)(v) of this 
section and is not a municipal storm sewer, shall submit an NPDES 
application in accordance with the requirements of Sec. 122.21 as 
modified and supplemented by the provisions of this paragraph (c).
    (i) * * *
    (E) * * *
    (4) Any information on the discharge required under paragraph 
Sec. 122.21(g)(7) (vi) and (vii) of this part;
* * * * *
    (F) Operators of a discharge which is composed entirely of storm 
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3), 
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii); 
and * * *
* * * * *
    (d) * * *
    (1) * * *
    (iii) * * *
    (D) * * *
    (1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ mile apart shall be overlaid on a map of the 
municipal storm sewer system, creating a series of cells;
* * * * *
    (2) * * *
    (iv) * * *
    (C) * * *
    (2) Describe a monitoring program for storm water discharges 
associated with the industrial facilities identified in paragraph 
(d)(2)(iv)(C) of this section, to be implemented during the term of the 
permit, including the submission of quantitative data on the following 
constituents: Any pollutants limited in effluent guidelines 
subcategories, where applicable; any pollutant listed in an existing 
NPDES permit for a facility; oil and grease, COD, pH, BOD5, TSS, total 
phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and 
any

[[Page 65291]]

information on discharges required under 40 CFR 122.21(g)(7) (vi) and 
(vii).
* * * * *
    9. Section 122.28 is amended by revising paragraphs (a)(1) 
introductory text and (a)(2), adding paragraphs (a)(3) and (a)(4), and 
revising paragraph (b)(1) to read as follows:


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

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


Sec. 122.29  [Amended]

    10. Section 122.29(c)(1)(i) is amended by revising the reference to 
``Sec. 122.21(k)'' to read ``Sec. 122.21(l)''.
    11. Section 122.41 is amended by revising paragraphs (j), (l)(4), 
and the second sentence in paragraph (l)(6)(i) to read as follows:


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

* * * * *
    (j) Monitoring and records. All permits must monitor and maintain 
records in accordance with Sec. 122.48 of this part.
* * * * *
    (l) * * *
    (4) Monitoring reports. Monitoring results shall be reported in 
accordance with Sec. 122.48 of this part.
* * * * *
    (6) Twenty-four hour reporting.
    (i) * * * Any information shall be provided orally within 24 hours 
from the time the permittee becomes aware of the circumstances. * * *
* * * * *


Sec. 122.43  [Amended]

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


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

* * * * *
    (a)(1) Any permit issued shall include technology-based effluent 
limitations and standards based on: Effluent limitations and standards 
promulgated under section 301(b)(1) or 301(b)(2), as appropriate, new 
source performance standards promulgated under section 306 of CWA, 
case-by-case effluent limitations determined under section 402(a)(1) of 
CWA, or on a combination of the three, in accordance with Sec. 125.3. 
For new sources or new dischargers, these technology based limitations 
and standards are subject to the provisions of Sec. 122.29(d) 
(protection period).
    (2) Permits need not include technology-based effluent limitations 
and standards for every pollutant or parameter listed in applicable 
effluent guidelines and standards found at 40 CFR Subchapter N if in 
the judgment of the Director, a permittee adequately demonstrates and 
certifies when applying for the permit that it will not discharge those 
pollutants. In such cases, the permit will be deemed not to authorize 
the discharge of those excluded pollutants in any amounts, and for this 
exclusion of limitations to be valid, the permit must contain an 
express condition to that effect. This exclusion is good only for the 
term of the permit. Certifications along with any supporting 
information must be submitted each time a permit is applied for.
* * * * *
    (c) Reopener clause: For any permit issued to a treatment works 
treating domestic sewage (including ``sludge-only facilities''), the 
Director shall include a reopener clause to incorporate any applicable 
standard for sewage sludge use or disposal promulgated under section 
405(d) of the CWA. The Director may promptly modify or revoke and 
reissue any permit containing the reopener clause required by this 
paragraph if the standard for sewage sludge use or disposal is more 
stringent than any requirements for sludge use or disposal in the 
permit, or controls a pollutant or practice not limited in the permit.
* * * * *
    (e) * * *
    (1) Limitations must control all toxic pollutants which the 
Director determines (based on information reported in a permit 
application under Sec. 122.21(g)(7) or in a notification under 
Sec. 122.42(a)(1) or on other information) are or may be discharged at 
a level greater than the level which can be achieved by the technology-
based treatment requirements appropriate to the permittee under 
Sec. 125.3(c); or
* * * * *
    (k) Best management practices (BMPs) to control or abate the 
discharge of pollutants when:
    (1) Authorized under section 304(e) of the CWA for the control of 
toxic

[[Page 65292]]

pollutants and hazardous substances from ancillary industrial 
activities;
    (2) Numeric effluent limitations are infeasible; or
    (3) The practices are reasonably necessary to achieve effluent 
limitations and standards or to carry out the purposes and intent of 
the CWA.

    [Note: Additional technical information on BMPs and the elements 
of BMP Plans is contained in the following documents: Guidance 
Manual for Developing Best Management Practices (BMPs), October 
1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); 
Storm Water Management for Construction Activities: Developing 
Pollution Prevention Plans and Best Management Practices, September 
1992, EPA No. 832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); 
Storm Water Management for Construction Activities, Developing 
Pollution Prevention Plans and Best Management Practices: Summary 
Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC No. 
W139; Storm Water Management for Industrial Activities, Developing 
Pollution Prevention Plans and Best Management Practices, September 
1992; EPA 832/R-92-006, NTIS No. PB 92-235969, ERIC No. N477; Storm 
Water Management for Industrial Activities, Developing Pollution 
Prevention Plans and Best Management Practices: Summary Guidance, 
EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492. Copies of 
those documents (or directions on how to obtain them) can be 
obtained by contacting either the Office of Water Resource Center 
(using the EPA document number as a reference) at (202) 260-7786; 
the National Technical Information Service (NTIS) (using the NTIS 
number as a reference) at (800) 553-NTIS or (703) 487-4650, or (3) 
the Educational Resources Information Center (ERIC) (using the ERIC 
number as a reference) at (800) 276-0462. Updates of these documents 
or additional BMP documents may also be available.]
* * * * *
    (q) Navigation. Any conditions that the Secretary of the Army 
considers necessary to ensure that navigation and anchorage will not be 
substantially impaired, in accordance with Sec. 124.59.
* * * * *
    14. Section 122.45 is amended by revising paragraph (h)(1) to read 
as follows:


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

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


Sec. 122.47   [Amended]

    15. Section 122.47(b) introductory text is amended by removing the 
term ``requriements'' and replacing it with the correct spelling, 
``requirements''.
    16. Section 122.48 is revised to read as follows:


Sec. 122.48   Requirements for monitoring, recording and reporting of 
monitoring results (applicable to State programs, see Sec. 123.25).

    (a) Monitoring requirements. All permits must contain monitoring 
requirements to assure compliance with permit terms and conditions.
    (1) Permittees must monitor:
    (i) The mass (or other measurement specified in the permit) for 
each pollutant limited in the permit;
    (ii) The volume of effluent discharged from each outfall; and
    (iii) Other measurements as appropriate including:
    (A) Pollutants in internal waste streams under Sec. 122.45(h);
    (B) Pollutants in intake water for net limitations under 
Sec. 122.45(g);
    (C) Frequency, rate of discharge, etc., for noncontinuous 
discharges under Sec. 122.45(e);
    (D) Pollutants subject to notification requirements under 
Sec. 122.42(a); and
    (E) Pollutants in sewage sludge or other monitoring as specified in 
40 CFR part 503; or
    (F) As determined to be necessary on a case-by-case basis pursuant 
to section 405(d)(4) of the CWA.
    (2) Samples and measurements taken for the purpose of monitoring 
shall be representative of the monitored activity.
    (3) Monitoring will be conducted according to test procedures 
approved under 40 CFR part 136, unless an alternative test procedure 
has been approved under Sec. 136.5. For sludge use or disposal, 
monitoring will be conducted in accordance with test procedures 
approved under part 136 unless otherwise specified in 40 CFR part 503. 
Where no test procedure has been approved under 40 CFR part 136, the 
Director shall specify a test method in the Permit.
    (4) All permits shall specify:
    (i) Requirements concerning the proper use, maintenance, and 
installation, when appropriate, of monitoring equipment or methods 
(including biological monitoring methods when appropriate);
    (ii) Required monitoring including type, intervals, and frequency 
sufficient to yield data which are representative of the monitored 
activity including, when appropriate, continuous monitoring;
    (iii) Applicable reporting requirements based upon the impact of 
the regulated activity and as specified in Sec. 122.44; and
    (iv) Calculations for all limitations which require averaging of 
measurements shall utilize an arithmetic mean unless otherwise 
specified by the Director in the permit.
    (b) Reporting monitoring results. (1) Monitoring results must be 
reported on a Discharge Monitoring Report (DMR) or forms provided or 
specified by the Director for reporting results of monitoring of sludge 
use or disposal practices.
    (2) Except as provided in paragraphs (b)(5) and (b)(6) of this 
section, requirements to report monitoring results 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.
    (3) For sewage sludge use or disposal practices, requirements to 
monitor and report results shall be established on a case-by-case basis 
with a frequency dependent on the nature and effect of the sewage 
sludge use or disposal practice; minimally this shall be as specified 
in 40 CFR part 503 (where applicable), but in no case less than once a 
year.
    (4) 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.
    (5) Requirements to report monitoring results for storm water 
discharges associated with industrial activity (other than those 
addressed in paragraph (b)(4) of this section) shall be established on 
a case-by-case basis with a frequency dependent on the nature and 
effect of the discharge. At a minimum, a permit for such a discharge 
must require:
    (i) The discharger to conduct an annual inspection of the facility 
site to identify areas contributing to a storm water discharge 
associated with industrial activity and evaluate whether measures to 
reduce pollutant loadings identified in a storm water pollution 
prevention plan are adequate and properly implemented in accordance 
with the terms of the permit or whether additional control measures are 
needed;
    (ii) The discharger to maintain for a period of three years a 
record summarizing the results of the

[[Page 65293]]

inspection and a certification that the facility is in compliance with 
the plan and the permit, and identifying any incidents of non-
compliance;
    (iii) Such report and certification be signed in accordance with 
Sec. 122.22; and
    (iv) Permits for storm water discharges associated with industrial 
activity from inactive mining operations may, where annual inspections 
are impracticable, require certification once every three years by a 
Registered Professional Engineer that the facility is in compliance 
with the permit, or alternative requirements.
    (6) Permits which do not require the submittal of monitoring result 
reports at least annually shall require that the permittee report all 
instances of noncompliance not reported under Sec. 122.41(l) (1), (5), 
and (6) at least annually.
    (7) If the permittee monitors any pollutant more frequently than 
required by the permit using test procedures approved under 40 CFR part 
136 or, in the case of sludge use or disposal, approved under 40 CFR 
part 136 unless otherwise specified in 40 CFR part 503, or as specified 
in the permit, the results of this monitoring shall be included in the 
calculation and reporting of the data submitted in the DMR or sludge 
reporting form specified by the Director.
    (c) Records of monitoring information. (1) Except for records of 
monitoring information required by this permit related to the 
permittee's sewage sludge use and disposal activities, which shall be 
retained for a period of at least five years (or longer as required by 
40 CFR part 503), 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 
request of the Director at any time.
    (2) Records of monitoring information shall include:
    (i) The date, exact place, and time of sampling or measurements;
    (ii) The individual(s) who performed the sampling or measurements;
    (iii) The date(s) analyses were performed;
    (iv) The individual(s) who performed the analyses;
    (v) The analytical techniques or methods used; and
    (vi) The results of such analyses.
    (d) Penalties for falsification and tampering: (1) 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, or by imprisonment for not more than 2 
years, or both.
    (2) If a conviction of a person is for a violation committed after 
a first conviction of such person under this paragraph (d), punishment 
is a fine of not more than $20,000 per day of violation, or by 
imprisonment of not more than 4 years, or both.
    17. Section 122.62 is amended by revising paragraph (a)(8) to read 
as follows:


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

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


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

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

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

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

    2. Section 123.25 is amended by revising paragraphs (a)(12), 
(a)(19), (a)(36) and paragraph (b) to read as follows:


Sec. 123.25  Requirements for permitting.

    (a) * * *
* * * * *
    (12) Sec. 122.41 (a)(1) and (b) through (n)--(Applicable permit 
conditions) (Indian Tribes can satisfy enforcement authority 
requirements under Sec. 123.34);
* * * * *
    (19) Sec. 122.48 (a) through (c)--(Monitoring requirements);
* * * * *
    (36) Subparts A, B, D, and H of part 125;
* * * * *
    (b) State NPDES programs shall have an approved continuing planning 
process under 40 CFR 130.5 and shall assure that the approved planning 
process is at all times consistent with the CWA.
* * * * *
    3. Section 123.44 is amended by revising paragraph (a)(2) and the 
introductory text of paragraph (b)(2), and by removing and reserving 
paragraph (i) to read as follows:


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

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

[[Page 65294]]

PART 124--PROCEDURES FOR DECISIONMAKING

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

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

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


Sec. 124.1  Purpose and scope.

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


Sec. 124.2  [Amended]

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


Sec. 124.3  [Amended]

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


Sec. 124.4  [Amended]

    5. Section 124.4 is amended by removing and reserving paragraph (d) 
and by removing the phrase ``or process a PSD permit under subpart F as 
provided in paragraph (d) of this section'' in paragraph (e).
    6. Section 124.5 is to be amended by revising paragraph (d) to read 
as follows:


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

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


Sec. 124.6  Draft permits.

* * * * *
    (e) * * * For all permits issued pursuant to this part, an appeal 
may be taken under Sec. 124.19. * * *


Sec. 124.10  [Amended]

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


Sec. 124.12  [Amended]

    9. Section 124.12(e) is removed.


Sec. 124.14  [Amended]

    10. Section 124.14(d) is removed and reserved.
    11. Section 124.15 is amended by revising the third sentence of 
paragraph (a) and by revising paragraph (b)(2) to read as follows:


Sec. 124.15   Issuance and effective date of permit.

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


Sec. 124.16   Stays of contested permit conditions.

    (a) Stays. (1) If a request for review of a RCRA, UIC, or NPDES 
permit under Sec. 124.19 is filed, the effect of the contested permit 
conditions shall be stayed and shall not be subject to judicial review 
pending final agency action. Uncontested permit conditions shall be 
stayed only until the date specified in paragraph (a)(2)(i) of this 
section. (No stay of a PSD permit is available under this section.) If 
the permit involves a new facility or new injection well, new source, 
new discharger or a recommencing discharger, the applicant shall be 
without a permit for the proposed new facility, injection well, source 
or discharger pending final agency action. See also Sec. 124.60.
    (2)(i) Uncontested conditions which are not severable from those 
contested shall be stayed together with the contested conditions. The 
Regional Administrator shall identify the stayed provisions of permits 
for existing facilities, injection wells, and sources. All other 
provisions of the permit for the existing facility, injection well, or 
source become fully effective and enforceable 30 days after the date of 
the

[[Page 65295]]

notification required in paragraph (a)(2)(ii) of this section.
    (ii) The Regional Administrator shall, as soon as possible after 
receiving notification from the EAB of the filing of a petition for 
review, notify the EAB, the applicant, and all other interested parties 
of the uncontested (and severable) conditions of the final permit that 
will become fully effective enforceable obligations of the permit as of 
the date specified in paragraph (a)(2)(i). For NPDES permits only, the 
notice shall comply with the requirements of Sec. 124.60(b).
* * * * *
    13. Section 124.19 is amended by revising the section heading, 
revising the first sentence of paragraph (a) introductory text, 
revising the first sentence of paragraph (b), revising paragraph (d), 
and revising the first sentence of paragraph (f)(1) introductory text 
to read as follows:


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

    (a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit 
decision (or a decision under 40 CFR 270.29 to deny a permit for the 
active life of a RCRA hazardous waste management facility or unit) has 
been issued under Sec. 124.15, any person who filed comments on that 
draft permit or participated in the public hearing may petition the 
Environmental Appeals Board to review any condition of the permit 
decision. * * *
* * * * *
    (b) The Environmental Appeals Board may also decide on its own 
initiative to review any condition of any RCRA, UIC, NPDES, or PSD 
permit decision issued under this part. * * *
 * * * * *
    (d) The Regional Administrator, at any time prior to the rendering 
of a decision under paragraph (c) of this section to grant or deny 
review of a permit decision, may, upon notification to the Board and 
any interested parties, withdraw the permit and prepare a new draft 
permit under Sec. 124.6 addressing the portions so withdrawn. The new 
draft permit shall proceed through the same process of public comment 
and opportunity for a public hearing as would apply to any other draft 
permit subject to this part. Any portions of the permit which are not 
withdrawn and which are not stayed under Sec. 124.16(a) shall remain in 
effect.
 * * * * *
    (f)(1) For purposes of judicial review under the appropriate Act, 
final agency action occurs when a final RCRA, UIC, NPDES, or PSD permit 
decision is issued by EPA and agency review procedures under this 
section are exhausted. * * *
* * * * *
    14. Section 124.21 is revised to read as follows:


Sec. 124.21   Effective date of part 124.

    (a) Part 124 became effective for all permits except for RCRA 
permits on July 18, 1980. Part 124 became effective for RCRA permits on 
November 19, 1980.
    (b) EPA eliminated the previous requirement for NPDES permits to 
undergo an evidentiary hearing after permit issuance, and modified the 
procedures for termination of NPDES and RCRA permits, on [date 30 days 
after publication of final rule].
    (c)(1) For any NPDES permit decision for which a request for 
evidentiary hearing was granted on or prior to [date 29 days after 
publication of final rule], the hearing and any subsequent proceedings 
(including any appeal to the Environmental Appeals Board) shall proceed 
pursuant to the procedures of this part as in effect on [date 29 days 
after publication of final rule].
    (2) For any NPDES permit decision for which a request for 
evidentiary hearing was denied on or prior to [date 29 days after 
publication of final rule], but for which the Board has not yet 
completed proceedings under Sec. 124.91, the appeal, and any hearing or 
other proceedings on remand if the Board so orders, shall proceed 
pursuant to the procedures of this part as in effect on [date 29 days 
after publication of final rule].
    (3) For any NPDES permit decision for which a request for 
evidentiary hearing was filed on or prior to [date 29 days after 
publication of final rule] but was neither granted nor denied prior to 
that date, the Regional Administrator shall, no later than [date 60 
days after publication of the final rule], notify the requester that 
the request for evidentiary hearing is being returned without 
prejudice. Notwithstanding the time limit in Sec. 124.19(a), the 
requester may file an appeal with the Board, in accordance with the 
other requirements of Sec. 124.19(a), no later than [date 90 days after 
publication of the final rule].
    (4) A party to a proceeding otherwise subject to paragraphs (c) (1) 
or (2) of this section may, no later than [date 30 days after 
publication of this rule], request that the evidentiary hearing process 
be suspended. The Regional Administrator shall inquire of all other 
parties whether they desire the evidentiary hearing to continue. If no 
party desires the hearing to continue, the Regional Administrator shall 
return the request for evidentiary hearing in the manner specified in 
paragraph (c)(3) of this section.
    (d) For any proceeding to terminate an NPDES or RCRA permit 
commenced on or prior to [date 29 days after publication of the final 
rule], the Regional Administrator shall follow the procedures of 
Sec. 124.5(d) as in effect on [date 29 days after publication of the 
final rule], and any formal hearing shall follow the procedures of 
subpart E of this part as in effect on the same date.


Sec. 124.52  [Amended]

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


Sec. 124.55  [Amended]

    16. Section 124.55 is amended by revising the reference 
``Sec. 124.53(d) (1) and (2)'' in paragraph (a)(2) to read 
``Sec. 124.53(e)'' and by revising the reference ``Sec. 124.53(d)'' in 
paragraph (d) to read ``Sec. 124.53(e)''.
    17. Section 124.56 is amended by revising (b)(1) to read as 
follows:


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

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


Sec. 124.57  [Amended]

    18. Section 124.57 is amended by removing and reserving paragraph 
(b) and by removing paragraph (c).
    19. Section 124.60 is revised to read as follows:


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

    In addition to the requirements of Secs. 124.15, 124.16, and 
124.19, the following provisions apply to NPDES permits:
    (a) Notwithstanding the provisions of Sec. 124.16(a)(1), if, for 
any offshore or coastal mobile exploratory drilling rig or coastal 
mobile developmental drilling rig which has never received a final 
effective permit to discharge at a ``site,'' but which is not a ``new 
discharger'' or a ``new source,'' the Regional

[[Page 65296]]

Administrator finds that compliance with certain permit conditions may 
be necessary to avoid irreparable environmental harm during the 
administrative review, he or she may specify in the statement of basis 
or fact sheet that those conditions, even if contested, shall remain 
enforceable obligations of the discharger during administrative review.
    (b)(1) As provided in Sec. 124.16(a), if an appeal of an initial 
permit decision is filed under Sec. 124.19, the force and effect of the 
contested conditions of the final permit shall be stayed until final 
agency action under Sec. 124.19(f). The Regional Administrator shall 
notify, in accordance with Sec. 124.16(a)(2)(ii), the discharger and 
all interested parties of the uncontested conditions of the final 
permit that are enforceable obligations of the discharger.
    (2) When effluent limitations are contested, but the underlying 
control technology is not, the notice shall identify the installation 
of the technology in accordance with the permit compliance schedules 
(if uncontested) as an uncontested, enforceable obligation of the 
permit.
    (3) When a combination of technologies is contested, but a portion 
of the combination is not contested, that portion shall be identified 
as uncontested if compatible with the combination of technologies 
proposed by the requester.
    (4) Uncontested conditions, if inseverable from a contested 
condition, shall be considered contested.
    (5) Uncontested conditions shall become enforceable 30 days after 
the date of notice under paragraph (b)(1) of this section.
    (6) Uncontested conditions shall include:
    (i) Preliminary design and engineering studies or other 
requirements necessary to achieve the final permit conditions which do 
not entail substantial expenditures;
    (ii) Permit conditions which will have to be met regardless of the 
outcome of the appeal under Sec. 124.19;
    (iii) When the discharger proposed a less stringent level of 
treatment than that contained in the final permit, any permit 
conditions appropriate to meet the levels proposed by the discharger, 
if the measures required to attain that less stringent level of 
treatment are consistent with the measures required to attain the 
limits proposed by any other party; and
    (iv) Construction activities, such as segregation of waste streams 
or installation of equipment, which would partially meet the final 
permit conditions and could also be used to achieve the discharger's 
proposed alternative conditions.
    (c) In addition to the requirements of Sec. 124.16(c)(2), when an 
appeal is filed under Sec. 124.19 on an application for a renewal of an 
existing permit and upon written request from the applicant, the 
Regional Administrator may delete requirements from the existing permit 
which unnecessarily duplicate uncontested provisions of the new permit.
    20. Section 124.64 is amended by revising paragraph (b), paragraph 
(c) introductory text, and paragraph (d) to read as follows:


Sec. 124.64  Appeals of variances.

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


Sec. 124.66  [Amended]

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

Subpart E to Part 124 [Removed]

    22. Subpart E is removed.

Subpart F to Part 124 [Removed]

    23. Subpart F is removed.

Appendix A to Part 124 [Removed]

    24. Appendix A to Part 124 is removed.

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

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

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

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


Sec. 125.32  Method of application.

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


Sec. 125.72  [Amended]

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

Subpart K to Part 125 [Removed and Reserved]

    4. Subpart K is removed and reserved.

PART 144--UNDERGROUND INJECTION CONTROL PROGRAM

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

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


Sec. 144.52  [Amended]

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

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

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

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


Sec. 270.32  [Amended]

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


Sec. 270.43  [Amended]

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

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

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

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


Sec. 271.19  [Amended]

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

[FR Doc. 96-30466 Filed 12-10-96; 8:45 am]
BILLING CODE 6560-50-P