[Federal Register Volume 65, Number 153 (Tuesday, August 8, 2000)]
[Notices]
[Pages 48501-48503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20018]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6843-1]


State Program Amendment; Addendum to EPA/LDEQ MOA for 
Administration of the National Pollutant Discharge Elimination System 
(NPDES) Program; Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Amendment to the Memorandum of Agreement.

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SUMMARY: A Court Order dated October 1, 1999, in the case Sierra Club 
et al. v. Clifford et al., No. 96-0527 (E.D. La. ), directs EPA to 
amend the Memorandum Of Agreement (MOA) for the Louisiana Pollutant 
Discharge Elimination System (LPDES) Program pursuant to section 402 of 
the Clean Water Act (CWA). By letter dated March 30, 2000, the 
Secretary for the Louisiana Department of Environmental Quality (LDEQ) 
agreed to amend the MOA to include an addendum addressing the Court's 
order. EPA is providing notice on the addendum to the LPDES program 
signed by Secretary Givens on March 31, 2000. Pursuant to the Court 
orders dated October 1, 1999, and June 21, 2000, EPA was ordered to 
sign and approve the MOA revisions. Acting EPA Regional Administrator, 
Sam Coleman, signed the MOA addendum approving the MOA revision on June 
28, 2000. The procedures for revising NPDES state programs are set 
forth in federal regulations found at 40 CFR 123.62. 40 CFR 
123.62(b)(4) and Section X of the MOA provide that LPDES program 
revisions become effective once the EPA Region 6 Administrator approves 
revisions submitted by the State. Approval of substantial revisions 
must be noticed in the Federal Register. Today, to satisfy its 
regulatory responsibilities and to allow for public participation, EPA 
provides notice of a comment period on its approval of such program 
revisions. Having approved LDEQ's program amendments, EPA now seeks 
public input on the amendment, and therefore, is providing opportunity 
for the public to provide comments on this action to determine if 
further action is appropriate. Upon consideration of information 
gathered under this comment period EPA may request the Court to allow 
EPA to make appropriate changes.

DATES: EPA Region 6 will accept written comments on the revisions to 
the MOA through September 7, 2000.

ADDRESSES: Written comments must be submitted to: Ms. Evelyn 
Rosborough; Customer Service Branch;Water Quality Protection Division; 
EPA Region 6; 1445 Ross Avenue; Dallas, Texas 75202; Mail Stop Code: 
(6WQ-CA); (214) 665-7515.

FOR FURTHER INFORMATION CONTACT: Ms. Evelyn Rosborough, Customer 
Service Branch; Water Quality Protection Division, EPA Region 6; 1445 
Ross Avenue; Dallas, TX 75202; telephone: (214) 665-7515. Copies of the 
amended MOA submitted to EPA by LDEQ, are available for review at EPA 
Region 6, Customer Service Branch, Water Quality Protection Division; 
1445 Ross Avenue, Dallas, TX 75202, between 8:00 a.m. and 4:30 p.m., 
Monday through Friday. EPA recommends that you write or call the 
contact above for an appointment, so the record(s) will be available at 
your convenience. The MOA signed August 27, 1996, and other pertinent 
regulations may be viewed at website http://yosemite.epa.gov/r6/genper.nsf/pages/npdespn.

PUBLIC HEARING PROCEDURES: EPA's comments and public hearing procedures 
may be found at 40 CFR 123.62(b)(2). The comment period during which 
written comments on the amended MOA may be submitted extends for thirty 
(30) days from the date of this Notice. During the comment period any 
interested person may request a public hearing by filing a written 
request which must state the issues to be raised. A public hearing will 
be held if there is significant public interest based on requests.

SUPPLEMENTARY INFORMATION: As a result of litigation in Sierra Club et 
al. v. Clifford et al., No. 96-0527 (E.D. La.), the Court ordered, 
among other things, that EPA Region VI amend its MOA with Louisiana. 
The principal regulations governing the MOA are found in 40 CFR 123.24. 
These regulations provide that, among other requirements, the MOA shall 
be submitted to EPA by the state that seeks to administer the NPDES 
program. The MOA specifies the responsibilities of EPA, and the state 
and provides structure for the state's program management and EPA's 
program oversight. The MOA provides that EPA will review certain 
preliminary draft permits and permit modifications to ensure that 
permits will comply with federal guidelines and requirements and may 
review others.
    The MOA provides provisions for modification as well. Section X of 
the MOA (modification) provides that the MOA shall be reviewed and 
revised appropriately at least within five years of the effective date. 
Either EPA or LDEQ may initiate action to modify the MOA at any time. 
Any substantial changes must be in writing and signed by the LDEQ 
Secretary and the EPA Regional Administrator. The MOA addendum 
submitted by the state of Louisiana was signed by the Secretary of LDEQ 
on March 31, 2000, and by the Acting EPA Regional Administrator on June 
28, 2000.
    The language at issue in this approved MOA revision is found in 
paragraphs 6, 7 and 9 of the Court's October 1, 1999, Order, which 
state the following:
    ``(6) The defendants [EPA] shall implement the total maximum daily 
loads in permits by amending the agreement with Louisiana under Section 
402 of the Clean Water Act to require that the limits for point sources 
established in total maximum daily loads be achieved:
    (a) By any point source that discharges pursuant to a new permit

[[Page 48502]]

issued after the total maximum daily load has been established.
    (b) By every point source discharging pursuant to an existing 
permit within the earlier of six years from the date the total maximum 
daily load is established or three years following the first expiration 
of the permit after the total maximum daily load is established.
    (7) The defendants [EPA] shall amend the agreement with Louisiana 
under Section 402 of the Clean Water Act to require the state to 
provide the EPA with a copy of every permit application (whether for a 
new permit or renewal of an existing permit) if the application seeks a 
discharge limit in excess of any limit established in a total maximum 
daily load.
    (9) The defendants [EPA] shall amend the agreement with Louisiana 
under Section 402 of the Clean Water Act to require the state to 
provide EPA with a copy of every application for a new permit that 
proposes to allow the discharge of a pollutant with respect to which a 
water does not meet water quality standards.''
    Following several communications between LDEQ and EPA Region 6, 
LDEQ submitted a signed MOA Addendum on March 31, 2000, that includes 
language required by paragraphs 6, 7, and 9 of the Court's Order. In 
addition, LDEQ submitted a cover letter signed March 30, 2000, which 
addressed requirements for accomplishing an MOA revision under 40 CFR 
123.62(b)(1). Pursuant to the Court's order dated June 21, 2000, EPA 
signed the Addendum on June 28, 2000. Under 40 CFR 123.62(b)(2), 
``[w]henever EPA determines that the program revision is substantial, 
EPA shall issue public notice and provide an opportunity to comment for 
a period of at least 30 days.'' Because the Court-ordered revisions 
constitute substantial revisions to the LPDES program, EPA is providing 
an opportunity for public comment in accordance with the regulations. 
EPA will consider all comments and determine if further action is 
appropriate. At that time, EPA may request the Court to allow EPA to 
make appropriate changes as a result of the information provided under 
the comment period and hearing process, if held.
    EPA notes specifically that neither the EPA regulations, the 
authorized LPDES program or the August 27, 1996 MOA contain 
implementation requirements as restrictive as those found in paragraph 
6 of the Court's Order.

1. The EPA/LDEQ MOA Amendments

    The principal regulations governing MOAs are found at 40 CFR 
123.24. An MOA is a document signed by each agency committing them to 
specific responsibilities. An MOA specifies these responsibilities and 
provides structure for the State's program management and EPA's program 
oversight. The MOA Addendum submitted by the State of Louisiana has 
been signed by the Secretary of the Department of Environmental Quality 
March 31, 2000, and the Acting Regional Administrator of U.S. EPA 
Region 6 June 28, 2000. The MOA amendment requested by EPA and 
submitted by LDEQ includes the following:

Addendum

National Pollutant Discharge Elimination System Memorandum of 
Agreement Between Louisiana Department of Environmental Quality and 
the United States Environmental Protection Agency

    Consistent with the October 1, 1999, Court Order in Sierra Club 
v. Clifford, No. 96-0527 (E.D. La.), the Environmental Protection 
Agency (``EPA''), Region 6 and Louisiana Department of Environmental 
Quality (``LDEQ'') hereby revise the Louisiana Pollutant Discharge 
Elimination System (``LPDES'') program. The revisions add the 
following Sections and language to the August 27, 1996, Memorandum 
of Agreement (``MOA'') between LDEQ and EPA Region 6:
    III.C.2.a  LDEQ shall implement the total maximum daily loads in 
permits to require that the limits for point sources established in 
total maximum daily loads be achieved:
    (i) By any point source that discharges pursuant to a new permit 
issued after the total maximum daily load has been established.
    (ii) By every point source discharging pursuant to an existing 
permit within the earlier of six years from the date the total 
maximum daily load is established or three years following the first 
expiration of the permit after the total maximum daily load is 
established.

III.T. Permit Applications for water quality limited segments and 
established TMDLs.

    III.T.1 LDEQ shall provide EPA with a copy of every permit 
application (whether for a new permit or renewal of an existing 
permit) if the application seeks a discharge limit in excess of any 
limit established in a total maximum daily load.
    III.T.2 LDEQ shall provide EPA with a copy of every application 
for a new permit that proposes to allow the discharge of a pollutant 
with respect to which a water does not meet water quality standards.

    The MOA also states: ``Nothing in this MOA Addendum shall be 
construed to nullify the Modification (Section X) process described in 
the August 27, 1996, MOA. In addition, this MOA Amendment Addendum 
shall become effective when approved by both the EPA Regional 
Administrator pursuant to 40 CFR 123.24(a) and the LDEQ Secretary.'' 
The MOA Addendum was signed by Dale Givens, Secretary of the 
Environment for Louisiana on March 31, 2000, and by the Acting EPA 
Regional Administrator on June 28, 2000.

2. Total Maximum Daily Loads Process as it Relates to the LPDES 
Program

    The Total Maximum Daily Load (TMDL) process is an important element 
of the water quality-based approach. It identifies pollutant load 
allocations necessary to meet water quality standards.
    A TMDL must be developed for each waterbody and pollutant 
combination on a State's CWA Section 303(d) list. The objective of a 
TMDL is to allocate allowable loads among different pollutant sources 
so that the appropriate control actions/management measures can be 
taken and water quality standards will be achieved. A TMDL includes 
consideration of existing pollutant loads from all sources. The TMDL 
process distributes portions of the waterbody's assimilative capacity 
for a pollutant to various pollution sources--including load 
allocations (LAs) to nonpoint sources and natural background, wasteload 
allocations (WLAs) to point sources, and a margin of safety to account 
for any lack of knowledge concerning the relationship between effluent 
limitations and water quality--so that the waterbody achieves its water 
quality standards. The TMDL establishes allowable loads and helps 
provide the basis for establishing or modifying controls or management 
measures on pollutant sources. Wasteload allocations established in 
TMDLs provide basis for effluent limitations necessary to protect water 
quality in the receiving water and ensure attainment of water quality 
standards.
    Once allowable loadings have been developed through WLAs for 
specific pollutant sources, limits are incorporated into NPDES/LPDES 
permits. A current version of the Court ordered Section 303(d) list for 
Louisiana along with EPA established TMDLs in the Mermentau and 
Vermilion/Teche watersheds may be viewed and downloaded from the Region 
6 TMDL website at www.epa.gov/region6/water/tmdl.htm.

3. Effects of This Action

    The Court Order appears to restrict flexibility provided by federal 
and state regulations for EPA and Louisiana under the NPDES program 
which allow construction schedules for existing facilities which may 
need to install or construct additional treatment to meet effluent 
limitations. The Court's order, and the Addendum likely will affect 
some point source dischargers to

[[Page 48503]]

Louisiana stream segments for pollutants identified on the State's 
Section 303(d) list of impaired waters. This action may change the 
flexibility of the State to provide compliance schedules for 
dischargers in these cases. Once a TMDL for a particular stream segment 
is established or approved by EPA, the court-ordered MOA Addendum 
amendments provides existing dischargers on these segments with as 
little as 3 to 6 years to achieve the limitations based on the TMDL's 
wasteload allocations. Federal regulations at 40 CFR 122.47 and 
corresponding Louisiana regulations provide for compliance schedules of 
up to 3 years in permits where necessary to comply with more stringent 
limitations. Due to the five year permit cycle under the CWA, some 
permits may not come up for renewal until four or five years after a 
TMDL has been finalized. EPA Region VI believes a significant number of 
LPDES permits fall within this category. In these specific cases, 
permit construction/compliance schedule may be further limited by time 
frames set out in the Court order for achievement of TMDL allocations.
    Burdens associated with the shortened time frames may be off-set if 
dischargers are aware of TMDL allocations for their point source 
discharges and plan ahead for the additional limitations that will be 
forthcoming in the next cycle of their LPDES permit. While EPA and the 
State believe the above described situations can be avoided by 
dischargers planning ahead, or the State modifying or reopening permits 
to include new TMDL-based limits, some permits may have to be issued 
with shortened or no compliance schedules. In such cases, compliance 
with TMDL based limits could be addressed through a Compliance or 
Administrative Order.
    In addition, the MOA modifications may change the permit issuance 
priority for the State and increase the number and type of draft 
permits that the State will send to EPA. Prioritizing State permit 
issuance based on the approval date of a TMDL and requiring the State 
to submit all draft permits for TMDL segments to EPA has several 
potential impacts on the regulated community, the State, and EPA. To 
accommodate the court-ordered changes in the LPDES program, the State 
may need to defer action on new discharge permits or reissuance of 
major permits in order to work on minor permits in a TMDL waterbody. 
New dischargers needing permits or facilities needing permit 
modification to legally discharge into non-TMDL waterbodies may 
experience delays in permitting due to the priority given to TMDL 
waterbody permits.
    EPA and LDEQ want to encourage public participation on this 
revision of the MOA so that the citizens of Louisiana will understand 
more fully and be able to comment on their state's program. Therefore, 
EPA requests that the public review the MOA Addendum and provide any 
comments they feel are appropriate. EPA and the State want the public 
to be able to effectively coordinate with LDEQ on LPDES permitting and 
enforcement actions. EPA will consider all comments on the LPDES 
program amendments and determine if EPA should request the court to 
allow EPA and LDEQ to make appropriate changes.
    EPA considers a determination to approve or deny a State NPDES 
program submission an adjudication within the meaning of the 
Administrative Procedure Act (APA), 5 U.S.C. 551 and 554. An approval 
of a State NPDES program revision constitutes an order under the APA 
and is the product of an adjudication. Therefore, this revision of the 
LPDES program is an adjudication.
    EPA is not requesting comment concerning the overall LPDES program, 
however, EPA is requesting comment on the revisions identified in this 
public notice (e.g. the MOA Addendum and related documents), and as set 
forth in the October 1, 1999, Court Order. EPA also requests that the 
public provide any significant data and information, including economic 
impacts, concerning this LPDES program revision.

    Dated: July 7, 2000.
Jerry Clifford,
Acting Regional Administrator, Region 6.
[FR Doc. 00-20018 Filed 8-7-00; 8:45 am]
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