[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Rules and Regulations]
[Pages 50334-50340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24713]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 403

[FRL-7073-3]
RIN 2090-AA16


Pretreatment Program Reinvention Pilot Projects Under Project XL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule will change the National Pretreatment Program 
regulations to allow Publicly Owned Treatment Works (POTWs) that have 
completed the Project eXcellence and Leadership (Project XL) selection 
process, including Final Project Agreement (FPA) development, to modify 
their approved local Pretreatment Programs. These POTWs will be allowed 
to modify their programs, and implement the new local programs as 
described in their FPAs. In today's rule, EPA recognizes that many 
POTWs with approved Pretreatment Programs have mastered the 
administrative and procedural requirements of the National Pretreatment 
regulations. Several of these POTWs want the opportunity to implement 
local pretreatment programs with effectiveness measured against 
environmental results rather than strict adherence to programmatic and 
administrative measures. These POTWs have expressed an interest in 
Project XL to test new pilot ideas that focus resources on activities 
that they believe would provide greater environmental benefits than are 
achieved by complying with current regulatory requirements. This rule 
is intended to provide the regulatory flexibility that will enable 
these and other test programs to move forward. Currently, five POTWs 
are actively involved in this Project XL process. The flexibility 
provided by this rule revision is limited to fifteen POTWs that meet 
the Project XL criteria.

DATES: This final rule is effective October 3, 2001.

ADDRESSES: A docket containing the rule, Final Project Agreements, 
supporting materials, public comments and the official record is 
available for public inspection and copying at the EPA's Water Docket, 
EB-57 (East Tower Basement), 401 M Street, SW., Washington, DC 20460. 
The record for this rulemaking has been established under docket number 
W-00-30, and includes supporting documentation. The public may inspect 
the administrative record from 9 am to 4 pm Monday through Friday, 
excluding Federal holidays. The public is encouraged to phone in 
advance to review docket materials. Appointments can be scheduled by 
phoning the Docket Office at (202) 260-3027. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost 15 cents per page. Project materials are also 
available for review for today's action on the world wide web at http://www.epa.gov/projectxl/.
    Supporting materials are also available for inspection and copying 
at U.S. EPA, Headquarters, 401 M Street, SW., Room 1027 West Tower, 
Washington, DC 20460 during normal business hours. Persons wishing to 
view the materials at the Washington, DC location are encouraged to 
contact Mr. Chad Carbone in advance by telephoning (202) 260-4296.

FOR FURTHER INFORMATION CONTACT: Mr. Brian Frazer, (202) 564-0599, U.S. 
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania 
Avenue, NW., (MC 4203), Washington, DC 20460. Further information on 
today's action may also be viewed on the world wide web at http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are governmental 
entities responsible for implementation of the National Pretreatment 
Program and POTWs subject to Pretreatment Standards and requirements 
that have completed the Project eXcellence and Leadership (Project XL) 
selection process, including Final Project Agreement (FPA) development, 
to modify their approved local pretreatment programs. Regulated 
categories and entities include:

------------------------------------------------------------------------
                                                Examples of regulated
                 Category                             entities
------------------------------------------------------------------------
Local government..........................  Publicly Owned Treatment
                                             Works.
State and Tribal government...............  States and Tribes acting as
                                             Pretreatment Program
                                             Control Authorities or as
                                             Approval Authorities.
------------------------------------------------------------------------

    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. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person in the preceding FOR FURTHER INFORMATION CONTACT 
section.
    On October 6, 2000, the Environmental Protection Agency proposed a 
rule (65 FR 59791) that set forth the mechanism through which POTWs 
that complete the Project XL process can seek modification of their 
programs following the procedures in 40 CFR 403.18, and implement the 
new

[[Page 50335]]

local programs as described in their FPAs. Today's final rule 
promulgates regulations that are identical to the proposed rule.

Outline of Today's Rule

    The information presented in this preamble is organized as 
follows:
I. Authority
II. Background
    A. What is Project XL?
    B. What is EPA Announcing?
    C. Stakeholder Involvement in the Project XL Process
    D. Summary of Public Comments
    E. What is the National Pretreatment Program?
    F. What are the Current Pretreatment Program Requirements?
    G. How Do the Current Requirements Relate to Environmental 
Objectives?
    H. Why Is EPA Allowing POTW Local Pilot Pretreatment Programs at 
this Time?
    I. Are There Any POTWs Currently Going Through Project XL 
Approval Process?
    J. What Are the Environmental Benefits Anticipated through 
Project XL?
    K. What is the Project Duration and Completion Date?
    L. How Could the Project be Terminated?
III. Rule Description
IV. Additional Information
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Congressional Review Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    G. Executive Order 13132: Federalism
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. National Technology Transfer and Advancement Act
    J. Administrative Procedure Act
    K. Executive Order 13211

I. Authority

    This regulation is being promulgated under the authority of 
sections 307, 402 and 501 of the CWA.

II. Background

A. What Is Project XL?

    Project XL, which stands for ``eXcellence and Leadership,'' is a 
national pilot program that tests innovative ways of achieving better 
and more cost-effective public health and environmental protection 
through site-specific agreements with project sponsors. Project XL was 
announced on March 16, 1995, as a central part of EPA's effort to 
reinvent environmental protection. See 60 FR 27282 (May 23, 1995) and 
60 FR 55569 (November 1, 1995). The intent of Project XL is to allow 
EPA and regulated entities to experiment with pragmatic, potentially 
promising regulatory approaches, both to assess whether they provide 
superior environmental performance and other benefits at the specific 
facility affected, and whether they should be considered for wider 
application. Such pilot projects are intended to allow EPA to collect 
more data on a more focused basis prior to national rulemaking. Today's 
regulation would enable implementation of five specific XL projects as 
well as future projects that successfully complete the Project XL 
process. These efforts are crucial to EPA's ability to test new 
strategies that reduce the regulatory burden and promote economic 
growth while achieving better environmental and public health 
protection. EPA intends to evaluate the results of this and other XL 
projects to determine which specific elements of the project(s), if 
any, should be more broadly applied to other regulated entities for the 
benefit of both the economy and the environment.

B. What Is EPA Announcing?

    In the June 23, 1998, Federal Register (63 FR 34170), EPA requested 
proposals for XL projects from 15 POTWs based on environmental 
performance measures for the pretreatment program. The process for 
reviewing and choosing acceptable pilot program candidates included 
input from POTWs, State and EPA Regional Pretreatment Coordinators, as 
well as opportunity for public participation. As discussed in more 
detail below, five POTWs have advanced to the final steps of the 
Project XL process. In today's rule, EPA announces revisions to the 
national pretreatment regulations at 40 CFR part 403 that will allow 
the current and future selected Local Pilot Pretreatment Programs to be 
implemented. The flexibility provided by this rule revision is limited 
to 15 POTWs that meet the Project XL criteria. POTWs must submit 
revised pretreatment programs for approval and obtain modified permits 
to authorize the POTW to implement its pilot program instead of its 
currently Approved POTW Pretreatment Program. However, please note that 
the affected States may first need to revise their own regulations or 
statutes to authorize the pilot programs for pretreatment XL project 
sponsors before this rule can be implemented in their jurisdictions.

C. Stakeholder Involvement in the Project XL Process

    EPA believes stakeholder involvement in developing Local Pilot 
Pretreatment Programs is crucial to the success of the programs; 
therefore, as part of the Project XL proposal, a POTW must clearly 
explain its process for involving stakeholders in the design of the 
pilot program. This process should be based upon the guidance entitled, 
Regulatory Reinvention (XL) Pilot Projects, set out in the April 23, 
1997, Federal Register notice (62 FR 19872). The support of parties 
that have a stake in the program is very important. Once EPA has 
accepted a candidate based on its detailed proposal, the POTW, EPA, the 
State and local stakeholders typically develop a Final Project 
Agreement (FPA). The FPA is a non-binding agreement that describes the 
intentions and commitments of the implementing parties. Stakeholders 
may include communities near the project, local or State governments, 
businesses, environmental and other public interest groups, or other 
similar entities. Stakeholders will also have formal opportunities to 
comment on provisions of the FPA that are incorporated in the POTW's 
revised pretreatment program under the procedures established at 40 CFR 
403.18 and this rule.

D. Summary of Public Comments

    EPA proposed this regulation on October 6, 2000 (65 FR 59791). The 
preamble to the proposed rule explains the changes in the regulations. 
The public comment period was open for a period of 30 days and closed 
on November 6, 2000.
    EPA received a total of three comments regarding this rule. The 
commenters included two States and a trade group that represents 
municipalities. Two of the commenters fully support the revised 
regulation which will allow the Project XL process to move forward and 
provide a means to test new ways to streamline the pretreatment program 
and provide greater environmental benefits. The other commenter 
believes that both major and minor modifications to expired NPDES 
permits are prohibited and requests that 40 CFR 403.20 be clarified to 
allow approved Pretreatment Program Modifications that may be processed 
as minor NPDES Permit modifications in accordance with 40 CFR 
122.63(g), to be also processed in cases when the associated NPDES 
Permits are expired. In response to this comment, EPA agrees that the 
Federal NPDES regulations do not contemplate modifications to expired 
NPDES permits and EPA understands that many States have permitting 
backlogs. However, EPA does not believe that an exception to the NPDES 
permitting regulations is appropriate in this narrowly tailored 
rulemaking amending the pretreatment regulations. Rather, EPA believes 
that States with NPDES permit backlogs would make POTWs that qualify 
under this rule a high priority and reissue those permits promptly so 
that those

[[Page 50336]]

facilities can implement the changes to their permits allowed under 
this rule.

E. What Is the National Pretreatment Program?

    The National Pretreatment Program is part of the Clean Water Act's 
(CWA's) water pollution control program. The program is a joint 
regulatory effort by local, State, and Federal authorities that 
requires the control of industrial and commercial sources of pollutants 
discharged to municipal wastewater plants (called ``publicly owned 
treatment works'' or ``POTWs''). Control of pollutants prior to 
discharge of wastewater to the municipal sewer system minimizes the 
possibility of pollutants interfering with the operation of the POTW 
and reduces the levels of toxic pollutants in wastewater discharges 
from the POTW and in the sludge resulting from municipal wastewater 
treatment.

F. What Are the Current Pretreatment Program Requirements?

    The minimum requirements for an approved POTW Pretreatment Program 
currently are published at 40 CFR 403.8(f). POTWs with approved 
Pretreatment Programs must maintain adequate legal authority, identify 
industrial users, designate which industrial users (IUs) are 
``Significant Industrial Users'' (SIUs) (under 40 CFR 403.3(t)) and 
perform required monitoring, permitting and enforcement. Other sections 
of part 403 require POTWs with Approved Pretreatment Programs to sample 
and apply nationally applicable pretreatment standards to the 
industrial users discharging pollutants to the POTW collection system. 
POTWs are also required to develop local limits in accordance with 40 
CFR 403.5. As announced today, EPA will allow Approval Authorities to 
require a POTW to meet requirements in an environmental performance-
based pilot program instead of certain administrative programmatic 
requirements currently required in a POTW's Approved Pretreatment 
Program under 40 CFR part 403.

G. How Do the Current Requirements Relate to Environmental Objectives?

    As described in 40 CFR 403.2, the general pretreatment regulations 
promote three objectives:
    (a) To prevent the introduction of pollutants into POTWs which will 
interfere with the operation of POTWs, including interference with the 
use or disposal of municipal sludge;
    (b) To prevent the introduction of pollutants into POTWs which will 
pass through the treatment works or otherwise be incompatible with such 
works; and
    (c) To improve opportunities to recycle and reclaim municipal and 
industrial wastewaters and sludges.
    These objectives require local programs to be designed so they are 
preventative in nature, and therefore, any pilot program also would 
need to maintain this preventative approach. The specific requirements 
for an Approved POTW Pretreatment Program are intended to achieve these 
objectives. Individual pretreatment programs, however, are not 
routinely required to report on the achievement of environmental 
measures.
    The 1991 National Pretreatment Program Report to Congress provides 
extensive data related to the sources and amounts of pollutants 
discharged to POTWs, the removal of pollutants by secondary treatment 
technology, and the general effectiveness of the pretreatment program. 
The 1991 Report did, however, point to a serious lack of comprehensive 
environmental data with which to fully assess the effectiveness of both 
the national and local pretreatment programs. These Project XL pilots 
will help to provide data for this purpose.

H. Why Is EPA Allowing POTW Local Pilot Pretreatment Programs at this 
Time?

    Some POTWs have mastered the administrative aspects of the 
pretreatment program (identifying industrial users, permitting, 
monitoring, etc.) and want to move into more environmental performance-
based processes. These POTWs have expressed an interest in focusing 
their resources on activities that they believe would provide greater 
environmental benefit than is achieved by complying with the current 
requirements. Some POTWs want to be able to make decisions on 
allocating resources based on the risk associated with the industrial 
contributions they receive or other factors. Others want to be able to 
focus more resources on ambient monitoring in their receiving waters 
and/or to integrate their pretreatment programs with their storm water 
monitoring programs. In general, these POTWs want the opportunity to 
redirect limited resources away from currently required activities that 
they do not believe are benefitting the environment and toward 
activities that may achieve measurable improvements in the environment.
    EPA developed the Project XL program to provide regulated entities 
the flexibility to conduct innovative pilot projects. Today's rule 
represents an attempt to spur innovation in the pretreatment program, 
to increase environmental benefits and, in conjunction with the 
streamlining proposal (see 64 FR 39564), to determine, if further 
streamlining of the program is needed, how streamlining can achieve 
environmental improvements and in what direction those future 
streamlining efforts should be directed.

I. Are There Any POTWs Currently Going Through Project XL Approval 
Process?

    In order to implement the pretreatment XL projects, EPA is 
promulgating this rule to provide regulatory flexibility under the 
Clean Water Act. Currently, five (5) POTWs have requested flexibility 
through the Project XL FPA approval process. The POTWs are: The 
Narragansett Bay Commission (NBC) in Rhode Island; the Jeffersontown 
Wastewater Treatment Plant (WWTP), owned and operated by the Louisville 
and Jefferson County Metropolitan Sewer District (MSD) in Kentucky; the 
Metropolitan Water Reclamation District of Greater Chicago (Chicago) in 
Illinois; the City of Albuquerque (Albuquerque), New Mexico; and the 
City of Denton (Denton), Texas. The FPA for NBC lays out the following 
flexibilities: (1) Reduced self-monitoring requirements for ten (10) 
categorical industrial users (CIUs) for tier 1 facilities, (2) reduced 
inspection frequency for ten (10) CIUs tier 1 facilities from once 
every year to once every two years, and (3) allow participating CIUs 
tier 1 facilities to not sample for pollutants not expected to be 
present. Under the FPA for MSD, the POTW is requesting flexibility to 
(1) use an alternative definition for significant industrial user 
(SIU), (2) allow participating CIUs to not sample for pollutants not 
expected to be present and (3) use an alternative definition of 
significant noncompliance (SNC). The Chicago FPA describes flexibility 
that includes (1) use of an alternative definition for de minimis 
categorical industrial user (CIU), and (2) reduced self-monitoring and 
self-reporting requirements for participating CIUs and (3) use of 
alternative monitoring methods. The Albuquerque FPA lays out 
flexibility to (1) use an alternative definition of SIU, (2) use an 
alternative definition of SNC, (3) reduce permitting requirements for 
participating IUs, (4) use alternative monitoring methods and (5) 
reduce reporting requirements for participating IUs. The Denton FPA 
lays out flexibility to (1) reduce its monitoring of participating IUs 
and (2) reduce its inspection of participating

[[Page 50337]]

IUs. In exchange for these flexibilities, each individual POTW has 
committed to produce certain proportional amounts of superior 
environment performance as laid out in the FPA and maintain all legal 
and preventative environmental health and safety standards. Complete 
project site-specific descriptions can be found on the web at: http://www.epa.gov/projectxl/.

J. What Are the Environmental Benefits Anticipated Through Project XL?

    These XL projects are expected to achieve superior environmental 
performance beyond that which is achieved under the current CWA 
regulatory system by allowing POTWs the ability to identify 
environmental goals and allocate the necessary resources on a site 
specific basis. Specifically, these projects are expected to produce 
additional benefits by (i) reducing pollutant loadings to the 
environment or some other environmental benefit beyond that currently 
achieved through the existing pretreatment program (including 
collecting environmental performance data and data related to 
environmental impacts in order to measure the environmental benefit), 
(ii) reducing or optimizing costs related to implementation of the 
pretreatment program with the savings used to attain environmental 
benefits elsewhere in the watershed in any media, and (iii) providing 
EPA with information on how the pretreatment program might be better 
oriented towards the achievement of measures of environmental 
performance.
    EPA's intent is to allow Local Pilot Pretreatment Programs to be 
administered by those POTWs that best further those objectives. Each 
pilot program's method of achieving the environmental benefit should be 
transferable so that other POTWs may be able to implement the method 
and also achieve increased environmental benefits.

K. What Is the Project Duration and Completion Date?

    Under Project XL, local Pilot Pretreatment Programs may be approved 
to operate for the term expressed in the FPA. Prior to the end of the 
FPA approval period (at least 180 days), the POTW may apply for a 
renewal or extension of the project period in accordance with the terms 
of the FPA. If a POTW is not able to meet the performance goals of its 
Local Pilot Pretreatment Program, the Pretreatment Approval Authority 
(either EPA or the authorized State) could allow the performance 
measures to be adjusted if the primary objectives of the Local Pilot 
Pretreatment Program would be met. The revised Local Pilot Pretreatment 
Program would need to be approved in accordance with the FPA and the 
procedures in 40 CFR 403.18.
    If the primary objectives of the proposal are not being met, the 
Approval Authority would direct the POTW to discontinue implementing 
the Local Pilot Pretreatment Program and resume implementation of its 
previously approved pretreatment program. The Pretreatment 
ApprovalAuthority would need to ensure that the POTW's NPDES permit 
includes a ``reopener'' clause to implement this procedure.
    The results of the pilots, including recommendations in POTW 
reports, may be used to determine the direction of future Pretreatment 
Program streamlining and/or reinvention.

L. How Could the Project Be Terminated?

    Either the Approval Authority or the POTW may terminate a project 
earlier than the final project agreement's (FPA) anticipated end date. 
Parties will follow procedures for termination set out in the FPA. The 
implementing permits will also reflect the possibility of early 
termination. When the NPDES permitting agency modifies the POTW's NPDES 
permit to incorporate the flexibility allowed by today's rule, it must 
include a ``reopener'' provision that requires the POTW to return to 
compliance with previously approved pretreatment program requirements 
at the expiration or termination of the FPA, including an interim 
compliance period, if needed. Additional details are available in the 
site-specific FPAs.

III. Rule Description

    Today's rule modifies 40 CFR part 403 to allow Pretreatment 
Approval Authorities (EPA or State) to grant regulatory flexibility to 
Project XL POTWs with approved FPAs. The regulatory flexibility would 
allow such POTWs to implementPretreatment Programs that include legal 
authorities and requirements that are different than the administrative 
requirements in 40 CFR part 403. The POTW would need to submit any such 
alternative requirements as a substantial program modification in 
accordance with the procedures outlined in 40 CFR 403.18. The approved 
modified program would need to be incorporated as an enforceable part 
of the POTW's NPDES permit. The Approval Authority would approve or 
disapprove the pilot program using the procedures in 40 CFR 403.18.
    For example, the POTW would work through the Project XL process as 
described above. The POTW either would or has already developed the 
necessary FPA with stakeholder participation (local interest groups, 
State representatives, EPA, any other interested parties). The POTW 
would use the FPA as the blueprint when developing a revision of the 
POTW's approved local pretreatment program. The POTW would submit the 
revised program to its Approval Authority (State or EPA region) 
requesting a substantial program modification using the procedures 
outlined in 40 CFR 403.18. The Approval Authority would review the 
program modification request to determine that it contains the 
provisions of the blue-print FPA and make a determination to approve or 
deny the request. The proposal for modification would be publicly 
noticed following the procedures in 40 CFR 403.11 and 40 CFR 403.18. 
After the close of the public comment period, the Approval Authority 
would consider and respond to public comments and revise the POTW's 
pretreatment program accordingly. Then the POTWs NPDES permit would be 
modified by adding the modified pretreatment program as an enforceable 
part of the permit.

IV. Additional Information

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 Office of Management and Budget (OMB) review 
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.

[[Page 50338]]

B. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. This rule reduces the regulatory costs to 
POTWs of complying with the pretreatment requirements and affects only 
a small number of POTWs. It only affects those POTWs that elect to 
participate in the voluntary Project XL Program. Therefore, I certify 
that this action will not have a significant economic impact on a 
substantial number of small entities.

C. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
Sec. 804(2). This rule will be effective on October 3, 2001.

D. Paperwork Reduction Act

    This rule does not impose any new information collection burden. 
This rule merely changes the National Pretreatment Program regulations 
to provide flexibility to allow POTWs that have completed the Project 
XL selection process, including FPA development, to modify their 
approved local Pretreatment Programs. The POTW must submit any such 
alternative requirements as a substantial program modification in 
accordance with the procedures outlined in 40 CFR 403.18. The Office of 
Management and Budget (OMB) has previously approved the information 
collection requirements for 40 CFR 403.18 under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control numbers 2040-0009 (EPAICR No. 0002.09) and 2040-0170 (EPA ICR 
No. 1680.02). In addition, OMB has approved the ICR entitled 
``Regulatory Reinvention Pilot Projects Under Project XL: Pre-treatment 
Program,'' and assigned OMB control number 2010-0026 (EPA ICR No. 
1755.05).
    Copies of the ICR document(s) may be obtained from Sandy Farmer, by 
mail at the Office of Environmental Information Collection Strategies 
Division; U.S. Environmental Protection Agency (2822); 1200 
Pennsylvania Ave., NW., Washington, DC 20460, by email at 
[email protected], or by calling (202) 260-2740. A copy may also be 
downloaded off the internet at http://www.epa.gov/icr. Include the ICR 
and/or OMB control number in any correspondence.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

E. 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 of why that 
alternative was not adopted. 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 rule imposes no enforceable duty 
on any State, local or tribal governments or the private sector. 
Further, UMRA generally excludes from the definition of ``Federal 
intergovernmental mandate'' duties that arise from participation in a 
voluntary Federal program. The Project XL Program is a voluntary 
Federal program. Thus, today's rule is not subject to the requirements 
of sections 202 and 205 of the UMRA. For the same reasons, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments. Thus, today's 
rule is not subject to UMRA section 203.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 
23,1997) applies to any rule that: (1) Is determined to be 
``economically significant,'' as defined under Executive Order 12866; 
and (2) concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria,

[[Page 50339]]

the Agency must evaluate the environmental health or safety effects of 
the planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule, as defined by Executive Order 12866, 
and because it does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children.

G. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132 because it provides flexibility 
to participate in a voluntary program designed to reduce administrative 
requirements for facilities that have negotiated agreements with, among 
other parties, their State and local governments. Thus, Executive Order 
13132 does not apply to this rule.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, or on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This rule provided flexibility to participate in a voluntary program 
designed to reduce administrative requirements and provide superior 
environmental performance for facilities that have negotiated 
agreements with, among other parties, their State and local 
governments. Thus Executive order 13175 does not apply to this rule.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use 
voluntary consensus standards in its regulatory activities unless to do 
so would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standard. This rulemaking does not 
involve technical standards. Therefore, EPA did not consider the use of 
any voluntary consensus standards. EPA requested comment on this aspect 
of the rulemaking, but did not receive any such comments.

J. Administrative Procedure Act

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 553, 
generally requires that an Agency publish a rule at least 30 days prior 
to its effective date. However, this requirement does not apply to 
rules which grant an exemption from existing requirements or rules for 
which the Agency finds ``good cause'' to make the rule effective within 
30 days of publication. Because today's rule essentially provides a 
variance procedure from existing administrative requirements for 
certain POTWs, today's rule grants an exemption and is not subject to 
the requirement to publish 30 days prior to the effective date of the 
rule. EPA also believes that it is important to make this rule 
effective as soon as possible so that the affected POTWs and their 
State and local governments can begin to make the changes to permits 
and undertake other necessary measures to allow the FPAs to be 
implemented. As a result, this rule is effective on the date of 
publication.

K. Executive Order 13211

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 403

  

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

    Dated: September 27, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, part 403, title 40, 
chapter I of the Code of Federal Regulations is amended as follows:

PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW 
SOURCES OF POLLUTION

    1. The authority for Part 403 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.


    2. Section 403.20 is added to read as follows:


Sec. 403.20  Pretreatment Program Reinvention Pilot Projects Under 
Project XL.

    The Approval Authority may allow any publicly owned treatment works 
(POTW) that has a final ``Project XL'' agreement to implement a 
Pretreatment Program that includes legal authorities and requirements 
that are different than the administrative requirements otherwise 
applicable under this part. The POTW must submit any such alternative 
requirements as a substantial program modification in accordance with 
the procedures outlined in Sec. 403.18. The approved modified program 
must be incorporated as an enforceable part of the POTW's NPDES permit. 
The Approval Authority must include a reopener clause in the POTW's 
NPDES permit that directs the POTW to discontinue implementing the 
approved alternative requirements and

[[Page 50340]]

resume implementation of its previously approved pretreatment program 
if the Approval Authority determines that the primary objectives of the 
Local Pilot Pretreatment Program are not being met or the ``Project 
XL'' agreement expires or is otherwise terminated.
[FR Doc. 01-24713 Filed 10-2-01; 8:45 am]
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