[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Notices]
[Pages 19490-19491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10401]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5998-7]


Notice of Proposed Revisions to the Approved Program To 
Administer the National Pollutant Discharge Elimination System 
Permitting Program in New York Resulting in Part From Adoption of the 
Water Quality Guidance for the Great Lakes System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Environmental Protection 
Agency (EPA) has received for review and approval revisions to the 
National Pollutant Discharge Elimination System (NPDES) program in New 
York. Most of the proposed revisions were adopted to comply with 
section 118(c) of the Clean Water Act and 40 CFR 132.4, although in 
some cases, the State has also proposed revisions that are not related 
to those required by section 118(c) of the CWA and 40 CFR 132.4. EPA 
invites public comment on whether EPA should approve these revisions 
pursuant to 40 CFR 123.62 and 132.5.

DATES: Comments on whether EPA should approve the revisions to New 
York's NPDES program must be received in writing by May 20, 1998.

ADDRESSES: Written comments on these documents may be submitted to 
Kathleen C. Callahan, Director, Division of Environmental Planning and 
Protection, Attn: GLI Implementation Procedures, U.S. Environmental 
Protection Agency, 290 Broadway, New York, New York 10007. In the 
alternative, EPA will accept comments electronically. Comments should 
be sent to the following Internet E-mail address: 
[email protected]. Electronic comments must be submitted in 
an ASCII file avoiding the use of special characters and any form of 
encryption. EPA will print electronic comments in hard-copy paper form 
for the official administrative 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) May 20, 1998.
    Interested persons may request a public hearing regarding whether 
EPA should approve, pursuant to 40 CFR 123.62, and 132.5(g), those 
portions of the States' submissions that revise the States' approved 
National Pollutant Discharge Elimination System (NPDES) permitting 
program. EPA will determine based on requests received if there is 
significant interest to warrant a public hearing.

FOR FURTHER INFORMATION CONTACT: Wayne Jackson, Community and 
Ecosystems Protection Branch, Division of Environmental Planning and 
Protection, U.S. Environmental Protection Agency, 290 Broadway, New 
York, New York, 10007, or telephone him at (212) 637-3807.
    Copies of the rules adopted by New York, and other related 
materials submitted by the State in support of these revisions, are 
available for review at: EPA, Region 2, 290 Broadway, 24th Floor, New 
York, New York; and, NYSDEC, 50 Wolf Road, Room 310 C, Albany, New 
York. To access the docket material in New York, call Wayne Jackson at 
(212) 637-3807 between 8 a.m. and 4:30 p.m. (Eastern time) (Monday-
Friday); in Albany, New York, call Teresa Deihsner at 518-457-7937 
between 8 a.m. and 4:30 p.m. (Eastern time) (Monday-Friday).

SUPPLEMENTARY INFORMATION: On March 23, 1995, EPA published the Final 
Water Quality Guidance for the Great Lakes System (Guidance) pursuant 
to section 118(c)(2) of the Clean Water Act, 33 U.S.C. 1268(c)(2). 
(March 23, 1995, 60 FR 15366). The Guidance, which was codified at 40 
CFR Part 132, requires the Great Lakes States to adopt and submit to 
EPA for approval water quality criteria, methodologies, policies and 
procedures that are consistent with the Guidance. 40 CFR 132.4. & 
132.5. EPA is required to approve the State's submission within 90 days 
or notify the State that EPA has determined that all or part of the 
submission is inconsistent with the Clean Water Act or the Guidance and 
identify any necessary changes to obtain EPA approval. If the State 
fails to make the necessary changes within 90 days, EPA must publish a 
notice in the Federal Register identifying the approved and disapproved 
elements of the submission

[[Page 19491]]

and a final rule identifying the provisions of Part 132 that shall 
apply for discharges within the State.
    The U.S. EPA received a submission from New York on February 27, 
1998. The bulk of this submission consists of new, revised or existing 
water quality standards which EPA is reviewing for consistency with the 
Guidance in accordance with 40 CFR 131 and 132.5. EPA is not soliciting 
comments on the following portions of this submission: water quality 
criteria and methodologies, use designations, antidegradation, and 40 
CFR Part 132, Appendix F: Implementation Procedures 1 (``Site Specific 
Modifications''); and 3 (``Addivity'') because those requirements 
constitute parts of the State's water quality standards, not its NPDES 
program. EPA also is not soliciting comment on the Guidance itself.
    Instead, EPA is only requesting comment on whether it should 
approve, pursuant to 40 CFR 123.62, and 132.5(g), those portions of 
this submission that revise the State's approved National Pollutant 
Discharge Elimination System (NPDES) permitting program. These 
revisions generally relate to the following provisions of 40 CFR Part 
132, Appendix F: Procedure 2 (``Variances''); Procedure 3 (``Total 
Maximum Daily Loads, Wasteload Allocations for Point Sources, Load 
Allocations for Nonpoint Sources, Wasteload Allocations in the Absence 
of a TMDL, and Preliminary Wasteload Allocations for Purposes of 
Determining the Need for Water Quality Based Effluent Limits''); 
Procedure 5 (``Reasonable Potential''); Procedure 6 (``Whole Effluent 
Toxicity''); Procedure 7 (``Loading Limits''); Procedure 8: (``Water 
Quality-based Effluent Limitations Below the Quantification Level''); 
and Procedure 9 (``Compliance Schedules'').
    The revisions are found in the following: Technical Operational 
Guidance Series (TOGS) 1.2.1: Industrial Permit Drafting; TOGS 1.3.1: 
Procedures for developing TMDLs and Water Quality-based Effluent 
Limits; and TOGS 1.3.2: Toxicity Testing in the SPDES Program, a 
supplemental analysis to support the State's toxicity testing program 
as being as protective as the Guidance, 6 NYCRR Sec. 702.17, and the 
Amended NPDES Memorandum of Agreement between NYSDEC and EPA Relating 
to the Implementation of the Requirements of the Great Lakes Water 
Quality Guidance in the Great Lakes Basin.
    Under 40 CFR 123.62(b)(2) and 132.5(e), whenever EPA determines 
that a proposed revision to a State NPDES program is substantial, EPA 
must provide notice and allow public comment on the proposed revisions. 
The extent to which the States have modified their NPDES programs to be 
consistent with the Guidance varies significantly, depending on the 
extent to which their existing programs already were ``as protective 
as'' the implementation procedures in the Guidance. EPA has not 
conducted a State-by-State review of the submissions to ascertain for 
each state individually whether their changes constitute substantial 
program modifications. However, in light of the fact that the states 
have modified these programs in response to the explicit statutory 
mandate contained in section 118(c) of the Clean Water Act, EPA 
believes that it is appropriate to consider the NPDES component of the 
States' submission to be substantial program modifications, and 
therefore has decided to solicit public comment regarding those 
provisions.
    Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has 
long considered a determination to approve or deny a State NPDES 
program submission to constitute an adjudication because an 
``approval'', within the meaning of the APA, constitutes a ``license'', 
which, in turn, is the product of an ``adjudication''. For this reason, 
the statutes and Executive Orders that apply to rulemaking action are 
not applicable here. Among these are provisions of the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a 
federal agency proposes or promulgates a rule under section 553 [of the 
Administrative Procedures Act (APA)], after being required by that 
section or any other law to publish a general notice of proposed 
rulemaking, the agency must prepare a regulatory flexibility analysis 
for the rule, unless the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
If the Agency does not certify the rule, the regulatory flexibility 
analysis must describe and assess the impact of a rule on small 
entities affected by the rule.
    Even if the NPDES program modification were a rule subject to the 
RFA, the Agency would certify that approval of the State's modified 
program would not have a significant economic impact on a substantial 
number of small entities. EPA's action to approve an NPDES program 
modification merely recognizes revisions to the program which have 
already been enacted as a matter of State law; it would, therefore, 
impose no additional obligations upon those subject to the State's 
program. Accordingly, the Regional Administrator would certify that 
this program modification, even if a rule, would not have a significant 
economic impact on a substantial number of small entities.
William Muszynski,
Acting Regional Administrator, Region II.
[FR Doc. 98-10401 Filed 4-17-98; 8:45 am]
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