[Federal Register Volume 81, Number 96 (Wednesday, May 18, 2016)]
[Proposed Rules]
[Pages 31344-31374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11265]



[[Page 31343]]

Vol. 81

Wednesday,

No. 96

May 18, 2016

Part III





Environmental Protection Agency





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





40 CFR Parts 122, 123, 124, et al.





National Pollutant Discharge Elimination System (NPDES): Applications 
and Program Updates; Proposed Rule

  Federal Register / Vol. 81 , No. 96 / Wednesday, May 18, 2016 / 
Proposed Rules  

[[Page 31344]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122, 123, 124 and 125

[EPA-HQ-OW-2016-0145; FRL 9936-62-OW]
RIN 2040-AF25


National Pollutant Discharge Elimination System (NPDES): 
Applications and Program Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) proposes revisions 
to the National Pollutant Discharge Elimination System regulations to 
eliminate regulatory and application form inconsistencies; improve 
permit documentation, transparency and oversight; clarify existing 
regulations; and remove outdated provisions. This proposal would make 
specific targeted changes to the existing regulations and would not 
reopen the regulations for other specific or comprehensive revision. 
These proposed regulatory changes cover 15 topics in the following 
major categories: permit applications; the water quality-based 
permitting process; permit objection, documentation and process 
efficiencies; the vessels exclusion; and the Clean Water Act (CWA) 
section 401 certification process. These revisions would further align 
NPDES regulations with statutory requirements from the 1987 CWA 
Amendments and more recent case law requirements. By modernizing the 
NPDES regulations, the proposed revisions would provide NPDES permit 
writers with improved tools to write well-documented permits to protect 
human health and the environment. The revisions would also provide the 
public with enhanced opportunities for public participation in 
permitting actions.

DATES: Comments must be received on or before July 18, 2016.

ADDRESSES: EPA has set up two Dockets for submitting comments. Submit 
your comments on the NPDES Application and Updates rule to Docket ID 
No. EPA-HQ-OW-2016-0145 at http://www.regulations.gov. Regarding 
potential future changes to application forms and information 
collection requirements, submit your comments to Docket ID No. EPA-HQ-
OW-2016-0146 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Erin Flannery-Keith, Water Permits 
Division, Office of Wastewater Management, Mail Code 4203M, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460; (202) 566-0689; [email protected].

SUPPLEMENTARY INFORMATION: EPA is proposing targeted revisions to the 
NPDES regulations. These revisions would make the regulations 
consistent with the 1987 CWA Amendments and with applicable judicial 
decisions. These revisions would delete certain regulatory provisions 
that are no longer in effect and clarify the level of documentation 
that permit writers must provide for permitting decisions. EPA is also 
asking for public comments on potential ways to enhance public notice 
and participation in the permitting process. CWA section 402 
established the NPDES permitting program and gives EPA authority to 
write regulations to implement the NPDES program. 33 U.S.C. 1342(a)(1), 
(2).

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What action is EPA taking?
    C. What is EPA's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
II. Background and Executive Summary
III. Proposed Revisions
    A. Proposed Revisions to Part 122
    B. Proposed Revisions and Request for Comments to Part 123
    C. Proposed Revisions to Part 124
    D. Proposed Revision to Part 125
    E. Request for Comments
IV. Impacts
V. Compliance Dates
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low Income 
Populations

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action are: EPA; authorized 
state, territorial, and tribal programs; and the regulated community. 
This table is not intended to be exhaustive; rather, it provides a 
guide for readers regarding entities that this action is likely to 
regulate.

     Table I-1--Entities Potentially Affected by This Proposed Rule
------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             entities
------------------------------------------------------------------------
State, Territorial, and Indian Tribal  States, Territories, and Indian
 Governments.                           Tribes authorized to administer
                                        the NPDES permitting program;
                                        States, Territories, and Indian
                                        Tribes that provide
                                        certification under section 401
                                        of the CWA; States, Territories,
                                        and Indian Tribes that own or
                                        operate treatment works.
Municipalities.......................  POTWs required to apply for or
                                        seek coverage under an NPDES
                                        individual or general permit and
                                        to perform routine monitoring as
                                        a condition of an NPDES permit.
Industry.............................  Facilities required to apply for
                                        or seek coverage under an NPDES
                                        individual or general permit and
                                        to perform routine monitoring as
                                        a condition of an NPDES permit.
------------------------------------------------------------------------


[[Page 31345]]

    If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. What action is EPA taking?

    EPA is proposing targeted revisions to the NPDES regulations. These 
revisions would make the regulations consistent with the 1987 CWA 
Amendments and with requirements established by judicial decisions. 
These revisions would delete certain regulatory provisions that are no 
longer in effect, and clarify the level of documentation that permit 
writers must provide for permitting decisions. These revisions would 
also allow permit writers to use more consistent data for permitting 
decisions and would modernize opportunities for public notice and 
participation in NPDES permitting actions.

C. What is EPA's authority for taking this action?

    CWA section 402 established the NPDES permitting program and gives 
EPA authority to write regulations to implement the NPDES program. 33 
U.S.C. 1342(a)(1), (2).

D. What are the incremental costs and benefits of this action?

    This proposal involves several revisions to the NPDES regulations. 
It is EPA's view that these revisions would generally not result in new 
or increased workload or information collection by authorized states or 
the regulated community. The proposed fact sheet documentation 
requirements may impose only a minimal burden for the permit writer to 
document permit development analyses that he or she has already 
conducted. The assessment of impacts is provided for each topic in 
section IV of this proposal.

II. Background and Executive Summary

    The Federal Water Pollution Control Act Amendments of 1972, 
commonly referred to as the Clean Water Act, were enacted to restore 
and maintain the chemical, physical, and biological integrity of the 
nation's waters. CWA section 301 prohibits the discharge of any 
pollutant to waters of the United States except in compliance with 
certain sections of the Act, including CWA section 402. Section 402 
established the NPDES permit program to be administered by EPA or 
authorized states, territories or eligible tribes.\1\ The NPDES permit 
program provides two types of permits, individual and general, that may 
be used to authorize point source discharges of pollutants to waters of 
the United States. Individual permits are issued by the state or EPA to 
a single facility and require submission of a permit application. 
General permits are developed by the state or EPA to cover classes or 
categories of dischargers under a single permit. General permits 
typically require facilities seeking permit coverage to submit a notice 
of intent (NOI) to be covered, the contents of which are described in 
the general permit. Both types of permits are issued for a fixed period 
of time not to exceed five years. CWA section 402(b)(1)(B) and 40 CFR 
122.46.
---------------------------------------------------------------------------

    \1\ Hereafter, the use of ``state'' includes states and 
territories unless otherwise noted. Tribes can apply to administer 
NPDES programs pursuant to 40 CFR 123.32 and 123.33. Because no 
tribe has yet applied under these sections, this preamble does not 
specifically discuss tribes. The proposed rule would apply, however, 
to any tribal NPDES program authorized by EPA in the future.
---------------------------------------------------------------------------

    Under the NPDES regulations, EPA has developed eight individual 
permit application forms for applicants seeking coverage under 
individual permits. 40 CFR 122.21. Each individual permit application 
form corresponds to a different category of dischargers subject to 
permitting.\2\ After receiving an application for an individual permit, 
the permit writer reviews the application for completeness and 
accuracy. Once the permit writer determines that the application is 
complete, the permit writer uses the application data to develop the 
draft permit and either the fact sheet or statement of basis that 
explains the rationale behind the draft permit provisions. 40 CFR 
122.21.
---------------------------------------------------------------------------

    \2\ The current suite of NPDES application forms can be found at 
http://www.epa.gov/npdes/npdes-applications-and-forms.
---------------------------------------------------------------------------

    The first major step in the permit development process is deriving 
technology-based effluent limits (TBELs). 40 CFR 122.44(a). The permit 
writer then determines whether, after application of the TBELs, the 
discharge will cause, have the reasonable potential to cause, or 
contribute to an excursion above a narrative or numeric criterion 
within a state water quality standard (WQS). If the permit writer 
determines that, notwithstanding application of technology-based 
limits, the discharge ``will cause, have the reasonable potential to 
cause, or contribute to an excursion above any [s]tate water quality 
standard,'' the permit writer derives effluent limitations necessary to 
meet state WQS (i.e., water quality-based effluent limits (WQBELs)). 40 
CFR 122.44(d)(1). The permit writer then includes final effluent 
limitations (TBELs and WQBELs) that implement all applicable technology 
and water quality standards in the permit. After developing the 
effluent limits, the permit writer develops and includes appropriate 
monitoring and reporting conditions and facility-specific special 
conditions. 40 CFR 122.43, 122.44(i), 122.44(k) and 122.48. The permit 
writer also includes the standard conditions that are required for all 
NPDES permits. 40 CFR 122.41 and 122.42. The permit's fact sheet or 
statement of basis documents the decision-making process for deriving 
the permit limits and establishing permit conditions. 40 CFR 124.7, 
124.8 and 124.56.
    After the draft permit is complete, the permitting authority 
provides an opportunity for public participation in the permitting 
process. A public notice announces the availability of the draft permit 
and administrative record and gives interested parties an opportunity 
to submit comments and request a public hearing. 40 CFR 124.10 and 
124.11. After taking into account all significant comments raised 
during the comment period, the permitting authority develops the final 
permit with careful attention to documenting the process and decisions 
for the administrative record. The permitting authority then issues the 
final permit to the facility. 40 CFR 124.10, 124.15, and CWA section 
402(b).
    Under CWA section 402(b), a state or eligible tribe \3\ may obtain 
authorization to administer the NPDES permit program. In order to 
obtain authorization, the state or eligible tribe must demonstrate to 
EPA that it has the authorities and resources necessary to implement 
the program as outlined in CWA section 402(b) and as specified in an 
EPA/state memorandum of agreement (MOA). When EPA revises the NPDES 
regulations, authorized states may need to amend their own regulations 
and legal authorities to ensure their programs continue to be as 
stringent as the federal program. To date, 46 states and the Virgin 
Islands have obtained authorization to administer the NPDES permit 
program.\4\ In general, once a state is authorized to administer the 
program, EPA no longer conducts these activities. CWA section 402(c) 
and 402(n). However, in accordance with CWA section 402(d), its 
implementing regulations at 40 CFR 123.44, and the EPA/state MOA, the 
state must provide EPA with an opportunity to review certain permits, 
and EPA may object based on one or more of the causes identified in 
these

[[Page 31346]]

regulations. If the state permitting agency does not satisfactorily 
address the points of objection within the applicable timeframe, 
exclusive authority to issue the permit passes to EPA. 40 CFR 
123.44(h)(3).
---------------------------------------------------------------------------

    \3\ A tribe found eligible pursuant to Sec.  123.32 to be 
treated in a manner similar to a state to administer the NPDES 
program.
    \4\ Authorized states are listed in http://www.epa.gov/npdes/npdes-state-program-information.
---------------------------------------------------------------------------

    If a state or tribe does not have an approved NPDES program, EPA 
administers the NPDES program. Under CWA section 401, a federal agency 
may not issue a permit or license for an activity that may result in a 
discharge to waters of the United States until the state or tribe \5\ 
where the discharge would originate has granted or waived section 401 
certification. The central feature of section 401 is the state or 
tribe's ability to either grant, grant with conditions, deny, or waive 
certification.
---------------------------------------------------------------------------

    \5\ Some tribes have EPA-approved water quality standards. See 
40 CFR 131.8.
---------------------------------------------------------------------------

    EPA regulations establish permit application requirements and 
corresponding forms for use by all applicants for EPA-issued permits. 
Where a state chooses not to use the EPA forms, the state is 
responsible for developing and using its own forms; however, the state 
forms must collect all of the data that the EPA regulations require.
    EPA has developed several guidance documents to help permitting 
authorities manage the quality and consistency of NPDES permits. The 
NPDES Permit Writers' Manual (NPDES PWM) \6\ provides a comprehensive 
overview of the framework of the NPDES program and provides basic 
training on the requirements for the development and issuance of a 
legally defensible and enforceable NPDES permit. The NPDES PWM is also 
a resource for other stakeholders interested in the NPDES permitting 
process.
---------------------------------------------------------------------------

    \6\ U.S. EPA NPDES Permit Writers' Manual; U.S. EPA, Office of 
Water, September 2010; EPA-833-K-10-001. (NPDES PWM) http://www.epa.gov/npdes/pubs/pwm_2010.pdf.
---------------------------------------------------------------------------

    The revised Technical Support Document for Water Quality-Based 
Toxics Control (TSD) \7\ provides states and EPA Regional offices with 
guidance on procedures for use in the water quality-based control of 
toxic pollutants. The document provides guidance for each step in the 
water quality-based toxics control process, from the technical and 
regulatory considerations for the application of WQS to NPDES 
compliance monitoring and enforcement.
---------------------------------------------------------------------------

    \7\ U.S. EPA Technical Support Document for Water Quality-based 
Toxics Control, Office of Water, March 1991; EPA-505-2-90-001. 
http://www.epa.gov/npdes/pubs/owm0264.pdf.
---------------------------------------------------------------------------

    This proposed rule addresses application, permitting, monitoring, 
and reporting requirements that have become obsolete or outdated due to 
programmatic and technical changes that have occurred over the past 35 
years. These topics were selected from previous NPDES regulatory 
streamlining efforts, recommendations from EPA Headquarters and 
Regional offices, and recommendations from state NPDES permitting 
agencies. With these proposed revisions and requests for public 
comment, EPA aims to allow easier determination of who is regulated, 
clarify applicable compliance requirements, and improve transparency by 
providing permitting authorities and the public with timely and quality 
access to information on regulated entities' activities. These 
revisions would make specific, targeted changes to several sections of 
the NPDES regulations, and are not intended to reopen the regulations 
for other revisions.
    EPA identified this proposal in response to Executive Order 13563 
Improving Regulation and Regulatory Review in the document Improving 
Our Regulations: Final Plan for Periodic Retrospective Reviews of 
Existing Regulations (section 2.1.8). This effort is a ``plan, 
consistent with law and its resources and regulatory priorities, under 
which the agency will periodically review its existing significant 
regulations to determine whether any such regulations should be 
modified, streamlined, expanded, or repealed so as to make the agency's 
regulatory program more effective or less burdensome in achieving the 
regulatory objectives.'' \8\ The issues being addressed in this 
rulemaking directly align with the goals established in Executive Order 
13563.
---------------------------------------------------------------------------

    \8\ Improving Our Regulations: Final Plan for Periodic 
Retrospective Reviews of Existing Regulations, August 2011, 
available at http://www2.epa.gov/sites/production/files/2015-09/documents/eparetroreviewplan-aug2011_0.pdf.
---------------------------------------------------------------------------

    The proposed rule covers 15 topics grouped into major categories of 
changes: Permit application requirements; the water quality-based 
permitting process; permit objection, documentation, and process 
efficiencies; vessels exclusion; and the CWA section 401 certification 
process. This is a table of the proposed or discussed changes in those 
categories.

       Table II-1--Proposed Topics for Revision and Public Comment
------------------------------------------------------------------------
           Category                   Proposed topic for revision
------------------------------------------------------------------------
Permit Application              Purpose and Scope (40 CFR
 Requirements.                  122.1).
                                NPDES Program Definition
                                including: Pesticide Applications to
                                Waters of the United States, Proposed
                                Permit, New Discharger and Whole
                                Effluent Toxicity Definition (40 CFR
                                122.2);
                                Changes to Existing Application
                                Requirements (40 CFR 122.21).
Water Quality-Based             Antidegradation Reference (40
 Permitting Process.            CFR 122.44(d));
                                Dilution Allowances (40 CFR
                                122.44(d));
                                Reasonable Potential
                                Determinations for New Discharges (40
                                CFR 122.44(d));
                                Best Management Practices (40
                                CFR 122.44(k);
                                Anti-backsliding (40 CFR
                                122.44(l));
                                Design Flow for Publicly Owned
                                Treatment Works (40 CFR 122.45(b)).
Permit Objection,               Objection to Administratively
 Documentation and Process      Continued Permits (40 CFR 123.44);
 Efficiencies.                  Public Notice Requirements (40
                                CFR 124.10(c));
                                Fact Sheet Requirements (40 CFR
                                124.56); and
                                Deletion of 40 CFR
                                125.3(a)(1)(ii).
Vessels Exclusion............   Vessels Exclusion (40 CFR
                                122.3(a)).
CWA section 401 Certification   CWA section 401 Certification
 Process.                       Process (40 CFR 124.55(b).
------------------------------------------------------------------------


[[Page 31347]]

III. Proposed Revisions

A. Proposed Revisions to Part 122

1. Purpose and Scope (40 CFR 122.1)
    (a) NPDES contact information.
    EPA is correcting contact information included in the Note to Sec.  
122.1 by deleting outdated references to program contact information 
that is no longer available to ``Information concerning the NPDES 
program and its regulations can be obtained by contacting the Water 
Permits Division (4203), Office of Wastewater Management, U.S.E.P.A., 
1200 Pennsylvania Avenue NW., Washington, DC 20460 and by visiting the 
homepage at http://www.epa.gov/npdes.''
2. NPDES Program Definitions (40 CFR 122.2)
(a) Pesticide Applications to Waters of the United States
    EPA proposes to add a definition of ``pesticide applications to 
waters of the United States.'' In 2009, the decision in National Cotton 
Council, et al. v. EPA, 553 F.3d 927 (6th Cir. 2009) found that point 
source discharges of biological pesticides and chemical pesticides that 
leave a residue to waters of the United States are pollutants under the 
CWA and therefore require NPDES permits. EPA, and subsequently 
authorized states, developed a Pesticide General Permit (PGP) \9\ to 
permit discharges for certain use patterns. EPA finalized its PGP in 
October 2011.
---------------------------------------------------------------------------

    \9\ U.S. Environmental Protection Agency National Pollutant 
Discharge Elimination System Pesticide General Permit (PGP) for 
Discharges from the Application of Pesticides, October 31, 2011. 
http://www3.epa.gov/npdes/pubs/final_pgp.pdf.
---------------------------------------------------------------------------

    This proposal defines the term ``pesticide applications to waters 
of the United States'' to mean point source discharges to waters of the 
United States resulting from the application of biological pesticides 
or chemical pesticides that leave a residue. This definition would 
clarify who is already regulated by ensuring that the NPDES regulations 
are consistent with the 6th Circuit decision. By defining ``pesticide 
applications to waters of the United States'' in its comprehensive 
NPDES definitions at 40 CFR 122.2 in the same way as the PGP defines 
covered activities, EPA would increase clarity and consistency. This 
definition would not in any way change which pesticide discharges are 
subject to NPDES permitting.
    EPA seeks comments on this proposed definition.
(b) Proposed Permit
    EPA proposes to revise the existing definition of ``proposed 
permit.'' The definition would be expanded to include a state-issued 
NPDES permit designated as a ``proposed permit'' under a new section of 
the regulations, Sec.  123.44(k).
    EPA seeks comments on this proposed definition, described below in 
the discussion of the proposed new Sec.  123.44(k). See preamble 
section III.B.1, ``Objection to Administratively Continued Permits (40 
CFR 123.44).''
(c) New Discharger
    EPA is correcting a typographical error in subsection (d) of this 
definition by changing ``NDPES'' to ``NPDES.''
(d) Whole Effluent Toxicity (WET)
    EPA proposes to revise the existing definition of WET to refer to 
both acute (lethal) and chronic (lethal and sublethal) WET test 
endpoints. The current WET definition in Sec.  122.2 states that WET is 
``the aggregate toxic effect of an effluent measured directly by a 
toxicity test.'' The proposed clarified definition would specify that 
toxicity can include both acute and chronic effects.
    This clarification would be consistent with EPA's interpretation of 
its existing WET regulations, as reflected in the preamble to the NPDES 
regulations establishing the existing WET definition, and in EPA's WET 
test methods. In the preamble to the regulations that established this 
definition, EPA stated, ``effluent limitations may be expressed as 
chronic toxicity or acute toxicity (or both),'' recognizing that 
toxicity can include both endpoints. 54 FR 23871 (June 2, 1989). 
Similarly, EPA's 2002 promulgated WET freshwater and saltwater test 
methods include definitions for both acute and chronic (sublethal) 
toxicity, and procedures for testing for both acute and chronic 
(sublethal) toxic effects, also demonstrating that WET encompasses both 
types of toxicity. 40 CFR 136.3; 67 FR 69952, November 19, 2002.\10\ In 
these test methods, EPA defines ``acute toxicity'' as a short-term 
observation (24 to 96 hours) including death (lethality). EPA defines 
``chronic toxicity'' as a longer-term observation (1 hour and up to 9 
days) for life-cycle endpoints which includes lethality (death) and 
other sublethal endpoints such as effects on growth, reproduction, and 
mobility.\11\ EPA's WET test methods, including the procedures for both 
acute and chronic (including sublethal endpoints) toxicity tests, were 
challenged and subsequently upheld in Edison Electric Inst. et al. v. 
EPA. 391 F.3d 1267 (D.C. Cir. 2004).
---------------------------------------------------------------------------

    \10\ 2002 ratified EPA WET Test Methods (Acute and Chronic 
freshwater and saltwater WET methods such as ``Short-term Methods 
for Estimating the Chronic Toxicity of Effluents and Receiving 
Waters to Marine and Estuarine Organisms [Third Edition/October 
2002]''--see introduction sections 2.1.1 and 2.1.2). See http://www.epa.gov/cwa-methods/whole-effluent-toxicity-methods.
    \11\ Id.
---------------------------------------------------------------------------

    This proposed clarification would also be consistent with WET 
program guidance documents \12\ and EPA's Great Lakes Initiative. See 
40 CFR 132.2; Appendix F to Part 132, Procedure 6. These documents 
include references to and discussion of both acute and chronic toxicity 
(including sublethal effects such as propagation) and acute and chronic 
WET test endpoints.
---------------------------------------------------------------------------

    \12\ Three examples of longstanding policies include: EPA NPDES 
guidance documents (including WET documents): 1991 EPA Technical 
Support Document (TSD) for Water Quality-based Toxics Control (March 
1991, EPA/505/2-90-001), EPA's Generalized Methodology for 
Conducting Industrial Toxicity Reduction Evaluations (TREs) guidance 
document (April 1989, EPA/600-2-88/070), and EPA's Toxicity 
Reduction Evaluation Guidance for Municipal Wastewater Treatment 
Plants (August 1999, EPA/833-B-99-002, revised edition from previous 
1989 edition). See additional documents at http://www.epa.gov/npdes/npdes-wet-programmatic-documents.
---------------------------------------------------------------------------

    Defining toxicity to include sublethal effects is consistent with 
the CWA, which establishes a national goal of ``water quality which 
provides for the protection and propagation of fish, shellfish and 
wildlife.'' CWA section 101(a)(2). CWA sections 301 and 302 contain 
various other references to the ``protection and propagation'' of 
aquatic organisms, evidencing an intent to protect against not only 
lethality but also sublethal effects on fish and wildlife. CWA sections 
301(h)(2), 301(g)(2)(C), 302(a), 304(a)(5)(B).
    EPA notes that this proposed clarification would not change any 
existing regulatory requirements with respect to inclusion of acute or 
chronic WET limits in permits. Specifically, it would not change the 
existing requirement that NPDES permits include WET limits where 
necessary to meet state numeric and narrative water quality criteria 
for aquatic life protection. 40 CFR 122.44(d)(1)(iv) and (v). Under 
this regulation, permit limits must be written to meet states' WET WQS. 
Thus, if a state's WET WQS require controls for both acute and chronic 
toxic effects, permit limits must be written to meet both WET test 
endpoints. If a state's WET WQS require controls only on either acute 
or chronic toxicity, then the permit WET limits would be written to 
meet protection of

[[Page 31348]]

only the applicable WET endpoints.\13\ The proposed clarification of 
the current definition would not change the current regulatory 
requirements for whether permits must control for acute or chronic 
toxicity--which is currently, and will continue to be, based on the 
level of protection against toxicity that the state's WQS provide. The 
proposed clarification would simply reflect what is already clear under 
EPA's promulgated WET test methods and other documents referenced 
above, and in state water quality criteria for WET: That WET can 
include both acute and chronic (sublethal) effects. Because permit 
limits would continue to be based on a state's applicable water quality 
criteria for toxicity, whether acute and/or chronic, the proposed 
clarification would not change current longstanding practice of 
implementing WET or increase any burden on permittees.
---------------------------------------------------------------------------

    \13\ All state water quality standards include criteria for 
aquatic life protection. In all but one state, the water quality 
standards contain provisions to protect against both acute and 
chronic toxicity including sublethal endpoints in their narrative 
and/or numeric aquatic life protection criteria. One state, Iowa, 
has been working to revise its standards to include chronic toxicity 
including chronic sublethal endpoints but to date has acute 
endpoints (lethality) only.
---------------------------------------------------------------------------

    EPA seeks comment on this proposed clarification of its current 
definition of WET.
3. Vessels Exclusion (40 CFR 122.3(a))
    EPA proposes to revise Sec.  122.3(a) to clarify which vessel 
discharges are excluded from the requirement to obtain NPDES permits.
    The exclusion for discharges incidental to the normal operation of 
a vessel at 40 CFR 122.3(a), as it currently appears in EPA's 
regulations, was challenged in Northwest Environmental Advocates et al. 
v. United States EPA, 2005 U.S. Dist. LEXIS 5373 (N.D. Cal. 2005). On 
March 30, 2005, the court determined that the exclusion exceeded the 
EPA's CWA authority. In September 2006, the court issued a final order 
vacating the exclusion. Northwest Environmental Advocates et al. v. 
United States EPA, 2006 U.S. Dist. LEXIS 69476 (N.D. Cal. 2006).
    EPA appealed the District Court's decision to the U.S. Court of 
Appeals for the Ninth Circuit, and on July 23, 2008, the Ninth Circuit 
upheld the decision. Northwest Environmental Advocates v. EPA, 537 F.3d 
1006 (9th Cir. 2008). Effective December 19, 2008, except for those 
vessel discharges exempted from NPDES permitting by Congressional 
legislation, discharges incidental to the normal operation of vessels 
which had previously been excluded from NPDES permitting by 40 CFR 
122.3(a) were subject to CWA section 301's prohibition against 
discharging, unless authorized by an NPDES permit. In response to the 
District and Court of Appeals decisions, EPA issued the Vessel General 
Permit (VGP) on December 19, 2008, which generally authorizes 
discharges incidental to the normal operation of commercial vessels 
that were no longer excluded from NPDES permitting as a result of the 
vacatur. In February 2013, EPA issued a new VGP, which replaced the 
2008 VGP upon its expiration in December 2013. The 2013 VGP is 
currently in effect to authorize these discharges incidental to the 
normal operation of commercial vessels.
    In late July 2008, Congress enacted two pieces of legislation to 
exempt discharges incidental to the normal operation of certain types 
of vessels from the need to obtain an NPDES permit. The Clean Boating 
Act of 2008 amended the CWA to provide that discharges incidental to 
the normal operation of recreational vessels are not subject to NPDES 
permitting, and are instead subject to a new regulatory regime to be 
implemented by EPA and the U.S. Coast Guard under a new section 312(o) 
of the CWA. S. 2766, Public Law 110-188 (July 29, 2008). As defined in 
section 3 of that law, which amends CWA section 502, ``recreational 
vessel'' means a vessel manufactured or used primarily for pleasure, or 
leased, rented or chartered to a person for the pleasure of that 
person. It does not include a vessel that is subject to Coast Guard 
inspection and is either engaged in commercial use or carries paying 
passengers. As a result of this legislation, discharges incidental to 
the normal operation of recreational vessels are not subject to NPDES 
permitting. EPA proposes adding a new subsection, 40 CFR 122.3(a)(2), 
to incorporate this statutory exemption.
    The second piece of legislation provides for a temporary moratorium 
on NPDES permitting for discharges incidental to the normal operation 
of a vessel from (1) commercial fishing vessels (as defined in 46 
U.S.C. 2101 and regardless of size) and (2) those other non-
recreational vessels less than 79 feet in length. S. 3298, Public Law 
110-299 (July 31, 2008). The statute's NPDES permitting moratorium ran 
for a two-year period beginning on its July 31, 2008 enactment date, 
during which time EPA studied the relevant discharges and prepared a 
report which was submitted to Congress in August 2010. Congress 
subsequently extended this moratorium to December 18, 2013 by Public 
Law 111-215. On December 18, 2014, President Obama signed into law the 
Howard Coble Coast Guard and Maritime Transportation Act of 2014, S. 
2444, which extended the moratorium for an additional three years until 
December 18, 2017. EPA proposes text in 40 CFR 122.3(a) to reflect this 
law. The new proposed text also reiterates that the statute's NPDES 
permitting moratorium does not extend to ballast water discharges, or 
to other discharges that the permitting authority determines contribute 
to a water quality standards violation or which pose an unacceptable 
risk to human health and the environment.
    EPA is also proposing an update to the existing exclusion to 
incorporate language regarding discharges incidental to the normal 
operation of vessels of the Armed Forces that was added to the CWA 
definition of ``pollutant'' after the promulgation of the original 
Sec.  122.3(a) vessel discharge exclusion. Section 301(a) of the CWA 
provides that ``the discharge of any pollutant by any person shall be 
unlawful'' unless the discharge is in compliance with certain other 
sections of the Act, including the section 402 NPDES program. 33 U.S.C. 
1311(a), 1342. Under CWA section 402(a), EPA may ``issue a permit for 
the discharge of any pollutant, or combination of pollutants, 
notwithstanding section 1311(a)'' subject to certain conditions 
required by the Act. The Act's definition of ``pollutant'' specifically 
excludes ``sewage from vessels or a discharge incidental to the normal 
operation of a vessel of the Armed Forces'' (emphasis added) within the 
meaning of CWA section 312. 33 U.S.C. 1362(6). The proposed change to 
Sec.  122.3(a) reflects the statutory exclusion for discharges 
incidental to the operation of a vessels of the Armed Forces.
    These changes would reduce confusion by accurately reflecting the 
current scope of the exclusion from NPDES permitting for discharges 
incidental to the normal operation of a vessel operating in a capacity 
as a means of transportation, which has narrowed since the exclusion 
was originally promulgated. These clarifications align with the 
decision in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 
(9th Cir. 2008), which vacated the Sec.  122.3(a) exclusion from NPDES 
permitting for discharges incidental to the normal operation of a 
vessel. In addition, these clarifications incorporate or otherwise 
address CWA provisions that were enacted by Congress after the current 
regulations were promulgated.
    EPA requests comments on whether the proposed changes to 40 CFR 
122.3(a)

[[Page 31349]]

accurately and clearly reflect the current law regarding which vessel 
discharges are subject to the NPDES permitting requirements. EPA does 
not seek and will not consider comments on aspects of 40 CFR 122.3(a) 
text that EPA does not propose to change, such as the discussion in the 
regulation of the types of vessel discharges that are not (and never 
have been) excluded from NPDES permitting under this regulation (e.g., 
seafood processing vessels).
4. Changes to Existing Application Requirements (40 CFR 122.21)
    EPA proposes to update and clarify the permit application 
requirements in 40 CFR 122.21. As the NPDES program has evolved, many 
existing application requirements and associated forms have become 
outdated with respect to current program practices. Therefore, 
revisions to the application requirements at 40 CFR 122.21 and to the 
accompanying application forms are needed to update and improve their 
consistency, accuracy, and usability.
    CWA section 304(i)(1) (previously section 304(h)(1)) required EPA 
to promulgate guidelines for ``establishing uniform application forms 
and other minimum requirements for the acquisition of information'' 
from point sources within 60 days after its enactment. In 1973, EPA 
promulgated short forms to meet these deadlines and standard forms to 
gather additional information from certain dischargers.
    Amendments to the CWA in 1977 refocused EPA priorities on 
regulating toxic pollutants. As a result, the NPDES program expanded 
beyond regulating conventional pollutants to regulating toxic 
pollutants including certain metals and organic chemicals, and 
nonconventional pollutants such as ammonia, chlorine, and nitrogen.
    To simplify permitting across several environmental programs, EPA 
published regulations on May 19, 1980 (45 FR 33290) to consolidate the 
requirements and procedures for five of the permit programs that EPA 
administers: The NPDES program, the Underground Injection Control (UIC) 
program under the Safe Drinking Water Act (SDWA), state ``dredge or 
fill'' programs under section 404 of the CWA, the Hazardous Waste 
Management program under the Resource Conservation and Recovery Act 
(RCRA), and the Prevention of Significant Deterioration (PSD) program 
under the Clean Air Act (CAA). This effort sought to eliminate gaps and 
overlaps and ensure consistency among the programs where appropriate.
    At the same time, EPA consolidated the requirements and procedures 
for the five permit programs, it revised the permit application 
regulations. EPA created three new application forms: Form 1, Form 2B, 
and Form 2C. Form 1 requires general information about permit 
applicants and is required to be completed by applicants for each of 
the five types of permits under the consolidated permit rule. Form 2B 
is specific to NPDES permit applications for CAFOs and aquatic animal 
production dischargers. Form 2C applies to NPDES permit applications 
for manufacturing, commercial, mining, and silvicultural operations. 
All three forms reflected EPA's emphasis on toxic pollutants and other 
modifications to the CWA and NPDES program regulations.
    Following promulgation of the consolidated permit regulations, 
interested parties commented that the consolidated format made the 
regulations unnecessarily difficult to use. They commented that 
dividing responsibilities among various entities at the state and 
federal levels caused additional problems. In practice, consolidated 
processing of multiple permits was rare because the various permit 
programs regulated different activities with different standards and 
thus imposed different types of requirements on permittees.
    In response to problems permit writers encountered, EPA 
deconsolidated the five permitting programs on April 1, 1983 (48 FR 
14146). The NPDES regulations remain in part 122 (substantive permit 
requirements) and part 123 (state program requirements). Part 124 
(common permitting procedures) remains applicable to all of the 
programs. On September 1, 1983, EPA promulgated additional revisions 
covering a number of issues affecting the consolidated permit program. 
48 FR 39611.
    The NPDES program continued to use these application forms \14\ 
(Form 1, Form 2B and Form 2C) after deconsolidation. In 1984, EPA 
amended Form 2C to include toxic pollutant sampling. In 1986, EPA 
promulgated two new NPDES forms: Form 2D for use by new manufacturing, 
commercial, mining, and silvicultural operations; and Form 2E for use 
by facilities that do not discharge process wastewater. 51 FR 26982.
---------------------------------------------------------------------------

    \14\ Forms 1, 2A, 2C, 2D, 2E, 2F, 2S (OMB Control No. 2040-
0086); Form 2B (OMB Control No. 2040-0250).
---------------------------------------------------------------------------

    In 1987, Congress made extensive revisions to the CWA. Water 
Quality Act (WQA), Public Law 100-4. A new provision, CWA section 
402(p), required EPA to establish NPDES requirements for stormwater 
discharges in two phases. To implement these requirements, EPA 
published the Stormwater Phase I Rule which established permit 
application requirements for certain categories of stormwater 
discharges associated with industrial activity (creating Form 2F) and 
discharges from large and medium municipal separate storm sewer systems 
(MS4s). 55 FR 47990. On December 8, 1999, EPA published the Stormwater 
Phase II Rule regulating stormwater discharges from small construction 
sites and from certain small MS4s. 64 FR 68722.
    In 1999, EPA also amended the permit application requirements and 
application forms for POTWs and treatment works treating domestic 
sewage (TWTDSs). 64 FR 42434. The new Form 2A for POTWs addressed a 
number of changes to the NPDES program that had occurred since 1973 
(e.g., toxics control, pretreatment programs, water quality-based 
permitting), and it streamlined the existing application requirements. 
The new Form 2S for TWTDSs addressed application requirements 
associated with new regulatory requirements for the generation, 
treatment, use and disposal of sewage sludge (biosolids). 58 FR 9248.
    In 2000, EPA issued amendments to streamline the NPDES program in 
response to a Presidential Directive to review regulatory programs to 
eliminate any obsolete, ineffective, or unduly burdensome regulations. 
65 FR 30886. As part of this streamlining effort, EPA revised several 
permit application provisions to reduce duplicative requirements and 
clarify certain application requirements.
    On February 12, 2003, EPA issued a final rule revising NPDES 
requirements for CAFOs. 68 FR 7176. This rule revised the information 
requirements for entities seeking coverage under an NPDES permit for 
CAFOs, and revised the NPDES individual permit application for CAFOs 
(Form 2B for CAFOs and aquatic animal production facilities). Further, 
in response to an order issued in Waterkeeper Alliance et al. v. EPA, 
399 F.3d 486 (2d Cir. 2005), EPA made several revisions to the CAFO 
regulations, including changes to the application requirements and Form 
2B. 73 FR 70418.
    On October 22, 2015, EPA's NPDES Electronic Reporting Rule went 
into effect, amending 40 CFR part 127. 80 FR 64063. This rule requires 
electronic submittal of NPDES permitting and compliance monitoring 
reporting information. This rulemaking changed

[[Page 31350]]

the method by which information is provided by permittees to permitting 
authorities, expediting the collection and processing of data to create 
a consistent and transparent NPDES data set.
    EPA is proposing specific, targeted changes to the current 
application requirements and is not proposing, or seeking comment on, 
other changes to the information or pollutant screening data required 
by the existing regulations and forms. Several revisions included in 
this proposal are necessary in order to ensure the information required 
by the application forms across the different categories of facilities 
submitting applications is consistent with EPA's current data standards 
\15\ and the NPDES Electronic Reporting Rule. EPA data standards 
promote efficient environmental information sharing among EPA, states, 
tribes, local governments, the private sector, and other information 
trading partners. These data standards are developed in collaboration 
with the Environmental Information Exchange Network (EIEN) and other 
federal agencies. Many of the application forms have not been updated 
in recent history to incorporate the data standards developed by this 
group.
---------------------------------------------------------------------------

    \15\ For more information about EPA's Data Standards Program see 
http://www.epa.gov/datastandards.
---------------------------------------------------------------------------

    EPA proposes updating the industrial code classification 
requirement to include the facility's North American Industry 
Classification System (NAICS) code, which is part of the established 
data standard.\16\ Also, EPA proposes updating the latitude and 
longitude requirement to include the method of data collection, which 
is a required element in the current standard \17\ and can be used to 
determine the reference datum that is in turn used in determining the 
latitude and longitude coordinates. In addition, EPA proposes revising 
the specificity of the latitude and longitude coordinates to provide 
consistency among forms in the level of information collected. 
Currently, some forms ask for latitude and longitude to the nearest 
second, and other forms ask more generally for just latitude and 
longitude. To ensure precision and improve consistency, EPA proposes 
revising the application forms and corresponding regulations in 40 CFR 
122.21 to ask for latitude and longitude to the nearest second for 
every facility and permitted feature, as well as the method of 
collection for this information.
---------------------------------------------------------------------------

    \16\ http://www.exchangenetwork.net/standards/Facility_Site_01_06_2006_Final.pdf.
    \17\ http://www.exchangenetwork.net/standards/Lat_Long_Standard_08_11_2006_Final.pdf.
---------------------------------------------------------------------------

    EPA proposes the following revisions to 40 CFR 122.21:
    a. NPDES Contact Information--EPA proposes to update contact 
information for those interested in obtaining application forms. 40 CFR 
122.21(a)(2) will be updated to: U.S. EPA, Mail Code 4203M, 1200 
Pennsylvania Ave. NW., Washington, DC 20460 or by visiting http://www.epa.gov/npdes.
    b. North American Industry Classification System (NAICS) Codes--For 
all applicants except publicly owned treatment works (POTWs) and 
treatment works treating domestic sewage (TWTDSs), EPA proposes to 
revise the requirements at 40 CFR 122.21(f)(3) to include NAICS codes, 
in addition to Standard Industrial Classification (SIC) codes, that 
reflect the products or services provided by the facility. This 
proposed revision would update the classification code requirement to 
be consistent with EPA's current data standard (NAICS) until EPA 
completely phases out the use of SIC codes in other program areas, such 
as the effluent guidelines program.
    c. Latitude and Longitude--To improve the consistency and precision 
of locational information required in permit applications, and to be 
consistent with EPA data standards, EPA proposes several revisions:
    i. For existing manufacturing, commercial, mining, and 
silvicultural dischargers, EPA proposes revising 40 CFR 122.21(g)(1) 
and 122.21(h)(1) to require outfall latitude and longitude to the 
nearest second, including the method of data collection (e.g., global 
positioning system (GPS) device, topographical map and scale) in 
accordance with EPA data standards.
    ii. EPA proposes revising 40 CFR 122.21(j)(1)(i) and 
122.21(j)(3)(i) for new and existing POTWs, and 40 CFR 122.21(k)(1) for 
new sources and new discharges, to require the latitude and longitude 
of the discharging facility to the nearest second, including the method 
of data collection.
    iii. For all applicants except POTWs and TWTDSs, EPA proposes to 
revise 40 CFR 122.21(f)(2) to require the latitude and longitude of the 
discharging facility to the nearest second, including the method of 
data collection. In addition, EPA is proposing to update the 
corresponding form (Form 1) to include a check box to indicate whether 
the location represents the primary entry point to the facility or the 
centroid of the facility site location.
    iv. For new and existing concentrated animal feeding operations 
(CAFOs) and concentrated aquatic animal production (CAAP) facilities, 
EPA proposes revising 40 CFR 122.21(i)(1)(iii) to require latitude and 
longitude to the nearest second and the method of data collection.
    v. For certain TWTDSs, EPA proposes revising the following 
paragraphs to require the site latitude and longitude to the nearest 
second including the method of data collection: 40 CFR 122.21(q)(1)(i), 
122.21(q)(8)(ii)(A), 122.21(q)(9)(iii)(B), 122.21(q)(10)(iii)(B), 
122.21(q)(11)(iii)(B) and 122.21(q)(12)(i).
    vi. For combined sewer systems, EPA proposes revising 40 CFR 
122.21(j)(8)(ii)(A)(3) to require the method of collection for the 
latitude and longitude of the combined sewer overflow (CSO) outfall.
    vii. For cooling water intake structures, EPA proposes revising 40 
CFR 122.21(r)(3)(ii) to require the intake structure latitude and 
longitude to the nearest second including the method of data 
collection.
    EPA seeks comments on the availability of longitude and latitude 
coordinates for the specific locations identified above as well as 
whether there are any other considerations it should consider relating 
to submitting these coordinates as part of the application 
requirements.
    EPA proposes revisions to the length of time given to new 
dischargers to submit effluent information. This revision would ensure 
that new dischargers submit effluent characterization data in a manner 
that is timely and consistent for both POTW and non-POTW dischargers. 
40 CFR 122.21(k) currently requires new non-POTW sources to submit data 
within two years of the commencement of discharge, while 40 CFR 
122.21(j) does not establish a timeframe for new POTWs to submit 
information. EPA's proposed revision would establish a new timeframe of 
18 months for both POTW and non-POTW dischargers to submit effluent 
information to the permitting authority. Specifying a time frame for a 
POTW to submit actual monitoring results and reducing the time frame 
(from two years to 18 months) required for a new industrial discharger 
to submit actual monitoring results would ensure that permitting 
authorities have more timely access to actual effluent data upon which 
to confirm or rebut the estimates provided by new dischargers on their 
initial permit applications. While the estimates provided in the 
initial applications are useful and appropriate for determining the 
need for effluent limits, the actual effluent data are vital to confirm 
that permit conditions developed based on the estimated pollutant 
concentrations

[[Page 31351]]

in fact protective of water quality. It is EPA's view that 18 months 
would provide a reasonable time period for a new discharge to collect 
representative effluent data and submit the data to the permitting 
authority. This 18 month timeframe would provide a new discharger with 
up to a three month time period to ensure that the treatment system is 
operating efficiently, collect data over a full calendar year, and have 
three months remaining to submit the data to the permitting authority. 
These revisions would not alter the type or quantity of information 
required from a new discharger, and impose no new burden.
    EPA proposes the following revisions to 40 CFR 122.21:
    d. New Discharger Data Submission--EPA proposes making the time 
provided for effluent data submission for new POTWs consistent with the 
requirement for new industrial dischargers. EPA also proposes to reduce 
the time period that is provided for new non-POTW dischargers to submit 
effluent data. Specifically, the proposed revisions to application 
requirements for new sources and new discharges at 40 CFR 
122.21(k)(5)(vi) would require applicants to submit items V and VI of 
Form 2C no later than 18 months after the commencement of discharge. 
The current requirement for submission is two years. The proposed 
revisions to application requirements for new POTWs at 40 CFR 
122.21(j)(4)(i) and 122.21(j)(5)(i) would require submission of data no 
later than 18 months after the commencement of discharge.
    EPA specifically seeks comments on whether 18 months is an adequate 
period of time for new dischargers to submit effluent data.
    EPA proposes revisions to the effluent data submission requirements 
for non-POTWs to be consistent with those for POTWs. The instructions 
for Form 2C currently direct applicants to provide all representative 
data where the applicant has multiple results for a particular 
parameter. The Form 2C instructions also indicate that data from the 
past three years should be included. These requirements are not 
specifically identified in the current regulations and the instructions 
are not consistent with the requirements for POTWs. When applying for 
an NPDES permit, an existing POTW must provide effluent data from the 
previous 4.5 years. The 4.5-year requirement for Form 2A was 
established to ensure the permittee summarizes all the data collected 
during its existing five-year permit term with consideration that the 
application would be submitted six months prior to the end of the 
permit term (i.e., 4.5 years). It is EPA's view that summarizing the 
data from the previous permit term is equally as important for non-POTW 
dischargers. Accordingly, EPA proposes to revise the application Form 
2C instructions as well as to include a new paragraph 40 CFR 
122.21(g)(7)(ix) in the regulations to require the submission of 
effluent data representing the previous 4.5 years. These revisions 
would not alter the type or quantity of information required from a 
discharger, and impose no new burden.
    EPA proposes the following revisions to 40 CFR 122.21:
    e. Data Age for Permit Renewal--EPA proposes adding 40 CFR 
122.21(g)(7)(ix) to ensure that the effluent data submission 
requirements for non-POTWs are consistent with those for POTWs. EPA 
proposes to revise the application Form 2C instructions and include a 
new paragraph in the regulations at Sec.  122.21(g)(7)(ix) to require 
the submission of effluent data representing the previous 4.5 years for 
non-POTW facilities.
    f. Reporting Electronic Mail Address--EPA proposes revising the 
following paragraphs in 40 CFR 122.21 to request the applicant's 
electronic mailing address (email): Sec.  122.21(c)(2)(ii)(B), Sec.  
122.21(f)(4), Sec.  122.21(j)(1)(ii), Sec.  122.21(j)(1)(viii)(2) and 
(3), Sec.  122.21(j)(9), Sec.  122.21(q)(1)(i), Sec.  122.21(q)(2)(i), 
Sec.  122.21(q)(8)(vi)(A), Sec.  122.21(q)(9)(iii)(D) and (E), Sec.  
122.21(q)(9)(iv)(A), Sec.  122.21(q)(10)(ii)(A), Sec.  
122.21(q)(10)(iii)(K)(1), Sec.  122.21(q)(11)(ii)(A), Sec.  
122.21(q)(12)(i), and Sec.  122.21(q)(13).
    EPA proposes specific targeted changes to the NPDES application 
requirements for POTWs that would bring the NPDES regulations in 
concert with changes to the general pretreatment regulations at 40 CFR 
403.3(v). Application requirements at 40 CFR 122.21(j) ensure that 
POTWs submit information for both significant industrial users (SIUs) 
and categorical industrial users (CIUs), including industrial waste 
trucked or hauled to the POTW, in order to properly identify types of 
industries and characterize the wastewater discharged to the POTW. This 
application information is used by the pretreatment control authority 
to determine whether a pretreatment program must be developed. Control 
authorities are POTWs with an approved POTW pretreatment program, an 
authorized state pretreatment program, or EPA where there is no 
authorized state pretreatment program.
    Prior to the 2005 national pretreatment program regulations 
revisions, all CIUs were considered a subset of the broader term 
``significant industrial users.'' In 2005, the general pretreatment 
regulation at 40 CFR 403.3(v) was revised to allow a control authority 
to designate certain CIUs, after qualifying and demonstrating continued 
compliance with categorical standards, as a non-significant CIU 
(NSCIU). 40 CFR 403.3(v)(ii). Users categorized as NSCIUs must submit 
an annual certification to maintain their ``non-significant'' status, 
but are no longer subject to annual sampling, inspections or permitting 
requirements such as local limits, which are required for significant 
users. This resulted in a reporting and permitting burden reduction on 
these CIUs and the control authorities. However, all CIUs (both those 
classified as SIUs and NSCIUs) are still subject to industrial sector-
specific national categorical standards established in 40 CFR chapter 
I, subchapter N.
    The proposed language at 40 CFR 122.21(j)(6) will clarify that 
POTWs are required to submit, as part of their application, relevant 
information from all industrial users (SIUs and NSCIUs). The proposed 
revision would align the NPDES application requirements with the 
existing pretreatment regulations at 40 CFR 403.3(v), and would impose 
no new burden.
    EPA proposes the following revisions to 40 CFR 122.21:
    g. Reporting Numbers of Significant Industrial Users (SIUs) and 
Non-Significant Categorical Industrial Users (NSCIUs)--EPA proposes 
revising 40 CFR 122.21(j)(6)(i) and (ii) to clarify that the reporting 
requirements under these sections apply to both SIUs and NSCIUs, 
including trucked or hauled waste, that discharge to a POTW.
    EPA is also proposing to revise 40 CFR 122.21(f) to require 
applicants to indicate whether their facility uses cooling water and to 
identify the source of that cooling water. This would clarify the need 
for and ensure the permitting authority receives all of the necessary 
information required under existing 40 CFR 122.21(r) for the facility. 
This proposal will not alter any of the existing requirements under 40 
CFR 122.21(r), and imposes no new burden.
    EPA proposes the following revisions to 40 CFR 122.21:
    h. Cooling Water Intake Structure Indication--EPA proposes adding a 
new paragraph 40 CFR 122.21(f)(9) to require the applicant to indicate 
whether the facility uses cooling water and to specify the source of 
the cooling water and to remind applicants they must comply with any 
applicable requirements at 40 CFR 122.21(r).

[[Page 31352]]

    Finally, EPA proposes to revise Sec. Sec.  122.21(f) and 122.21(j) 
to require applicants to indicate whether they are requesting any of 
the variances permitted under 40 CFR 122.21(m) (for non-POTWs) and (n) 
(for POTWs). This would ensure the permitting authority is aware of the 
request at the time of permit application and could better determine 
whether the facility has submitted all of the required information. 
This proposal would not alter any of the existing requirements of 40 
CFR 122.21(m) and (n), and imposes no new burden.
    EPA proposes the following revisions to 40 CFR 122.21:
    i. Request for Variance Indication--EPA proposes adding a new 
paragraph 40 CFR 122.21(f)(10) to require the applicant to indicate 
whether he or she is requesting any of the variances under Sec.  
122.21(m). EPA also proposes adding 40 CFR 122.21(j)(1)(ix) to require 
the applicant to indicate whether he or she is operating under the 
variance for POTWs provided in Sec.  122.21(n).
    In this rulemaking, EPA is seeking comment only on these specific 
proposed targeted changes to the current application requirements. EPA 
is not proposing or seeking comment on other changes to the information 
or pollutant screening data that the existing regulations and forms 
require and will not respond to any such comments as part of this 
rulemaking. However, in the future, EPA may examine all the application 
forms to determine whether they should be revised further, for example, 
to address any potentially obsolete elements or information requests 
inconsistent with regulatory requirements at 40 CFR 122.21. If you 
would like to address changes to current application requirements other 
than those raised by this rulemaking, please submit those comments to 
Docket ID No. EPA-HQ-OW-2016-0146 at http://www.regulations.gov.
5. Antidegradation Reference (40 CFR 122.44(d))
    EPA proposes to revise 40 CFR 122.44(d) to include a reference to 
40 CFR 131.12 in order to ensure consistency with the state 
antidegradation requirements established under that section. CWA 
section 301(b)(1)(C) requires that NPDES permit limits be as stringent 
as necessary to meet water quality standards. Consistent with this 
requirement, the NPDES regulations at 40 CFR 122.44(d)(1) provide that 
NPDES permits shall include ``any requirements in addition to or more 
stringent than promulgated effluent limitations guidelines or standards 
. . . necessary to: (1) Achieve water quality standards established 
under CWA section 303, including state narrative criteria for water 
quality.'' Water quality standards consist principally of three 
elements: Designated uses, water quality criteria and antidegradation 
policies. 40 CFR 131.6, 131.10-12. Pursuant to EPA's regulations at 40 
CFR 131.12, states must adopt antidegradation policies. An 
antidegradation policy ``specifies the framework to be used in making 
decisions about proposed activities that will result in changes in 
water quality'' and ``can play a critical role in helping states 
protect the public resource of water whose quality is better than 
established criteria levels and ensure that decisions to allow 
reductions in water quality are made in a public manner and serve the 
public good.'' NPDES PWM, 6.1.1.3. EPA expects permitting authorities 
to develop NPDES permit terms and conditions consistent with and in 
consideration of applicable state antidegradation policies and/or 
requirements. However, this interpretation has not explicitly been 
included in the NPDES regulations. The federal antidegradation policy 
has a long legislative history. The Secretary of the Interior 
established the basic federal antidegradation policy on February 8, 
1968. When the CWA was enacted in 1972, the WQS of all 50 states 
included antidegradation provisions. By providing in 1972 that existing 
state WQS would remain in force until revised, the CWA ensured that 
states would continue their antidegradation programs. EPA's first WQS 
regulation, promulgated on November 28, 1975, included a similar 
antidegradation policy at 40 CFR 130.17. 40 FR 55,340-41.
    Section 101(a) of the CWA emphasizes the prevention of water 
pollution and expressly includes the objective ``to restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters'' (33 U.S.C. 1251(a)) (emphasis added). The 
antidegradation requirements that EPA incorporated by regulation in 
1983 into 40 CFR 131.12 implement the maintenance aspect of this CWA 
section 101(a) goal and are an essential component of the overall WQS 
program.
    The CWA section 101(a)(2) goals call for the protection and 
propagation of fish, shellfish and wildlife, and recreation in and on 
waters. Although designated uses and criteria are the primary tools 
states use to achieve this goal, antidegradation complements these by, 
in part, providing a framework for maintaining and protecting waters 
that are of higher quality than necessary to support the CWA section 
101(a)(2) goals, or are Outstanding National Resource Waters (ONRWs). 
Antidegradation plays a critical role in allowing states and tribes to 
maintain and protect the valuable resource of high quality water by 
ensuring that decisions to allow a lowering of high quality water are 
made in a transparent and public manner and are based on a sound 
technical record.
    In the 1987 WQA, Congress expressly affirmed CWA section 101's 
antidegradation principle and referenced antidegradation policies in 
section 303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4)(B)), 
simultaneously confirming that antidegradation policies are an integral 
part of the CWA and explaining the relationship of antidegradation 
policies to other CWA regulatory programs:

    Standard Attained--For waters identified under paragraph (1)(A) 
where the quality of such waters equals or exceeds levels necessary 
to protect the designated use for such waters or otherwise required 
by applicable WQS, any effluent limitation based on a total maximum 
daily load or other waste load allocation established under this 
section, or any WQS established under this section, or any 
permitting standard may be revised only if such revision is subject 
to and consistent with the antidegradation policy established under 
this section.

    As the Supreme Court stated in PUD No. 1 of Jefferson County v. 
Washington Department of Ecology, 511 U.S. 700, 705 (1994):

    A 1987 amendment to the Clean Water Act makes clear that section 
303 also contains an `antidegradation policy' . . . Specifically, 
the Act permits the revision of certain effluent limitations . . . 
only if such revision is subject to and consistent with the 
antidegradation policy established under CWA section 303, 33 
U.S.C.1313(d)(4)(B)).

    The court also acknowledged the long-standing federal 
antidegradation policy and EPA's authority to promulgate 
antidegradation requirements. Id. 704-05, 718.
    Based on this authority, EPA promulgated its current 
antidegradation regulation at 40 CFR 131.12 on August 21, 2015. 80 FR 
51020. Section 131.12 requires states to develop and adopt a statewide 
antidegradation policy and develop methods for implementing that 
policy. It built upon and refined the pre-existing 1983 regulation 
which EPA had promulgated at 40 CFR 131.12 on November 8, 1983. 48 FR 
51400. Consistent with the Supreme Court decision, PUD No. 1 of 
Jefferson County v. Washington Department of Ecology, and the 
requirements of 40 CFR 131.12, WQBELs must be derived consistent with 
applicable state antidegradation policies. This is EPA's longstanding

[[Page 31353]]

interpretation of the CWA. NPDES PWM, 6.1.1.3 and 7.2.1.4.
    This interpretation is not expressly included in the existing 
regulations at 40 CFR 122.44(d)(1); thus, EPA now proposes to revise 40 
CFR 122.44(d)(1) to expressly include a reference to 40 CFR 131.12, in 
order to ensure consistency with the antidegradation provisions in that 
section. Similar to the existing provision at 40 CFR 122.44(d)(1) 
noting that ``narrative criteria for water quality'' are components of 
water quality standards, including the reference to 40 CFR 131.12 
serves notice that antidegradation policies are also components of 
state water quality standards and must be considered in in permitting 
decisions where applicable. EPA proposes revising 40 CFR 122.44(d)(1) 
to include, explicitly, ``the state antidegradation requirement'' as 
one of the elements of state WQS that must be applied when deriving 
WQBELs.
    As noted above, because antidegradation is an existing component of 
all state WQS, the existing regulations at 40 CFR 122.44(d) require 
state and EPA permitting authorities to ensure that effluent limits 
derive from and comply with antidegradation requirements. EPA does not 
propose to change any of its existing interpretations of WQS, 
antidegradation or any related existing EPA interpretations of state 
implementation responsibilities. This proposed revision is intended 
solely as a clarification, and imposes no new burden. The only burden 
related to this new reference would be where state permitting 
authorities are not currently implementing elements of their EPA-
approved WQS. It is EPA's view that currently, permit writers consider 
antidegradation, although NPDES permit records might not necessarily 
currently reflect this analysis.
    EPA seeks comments on this proposed revision to 40 CFR 
122.44(d)(1).
6. Dilution Allowances (40 CFR 122.44(d))
    EPA proposes to revise 40 CFR 122.44(d) to specify that any 
allowance for dilution provided under this paragraph must comply with 
applicable dilution and mixing zone requirements and low flows 
established in state WQS \18\ and be supported by data or analyses 
quantifying or accounting for the presence of each assessed pollutant 
or pollutant parameter in the receiving water.
---------------------------------------------------------------------------

    \18\ See 40 CFR 131.13 (``States may, at their discretion, 
include in their State Standards, policies generally affecting their 
application and implementation, such as mixing zones, low flows and 
variances.'').
---------------------------------------------------------------------------

    The CWA and its implementing regulations require that NPDES permits 
include limitations as stringent as necessary to meet applicable WQS. 
CWA 301(b)(1)(C); 40 CFR 122.44(d)(1). When determining the need for 
conditions necessary to meet WQS, 40 CFR 122.44(d)(1)(ii) indicates 
that the permitting authority shall consider, ``where appropriate, the 
dilution of the effluent in the receiving water.'' When developing WQS 
pursuant to CWA section 303(c), EPA regulations at 40 CFR 131.13 
provide that states may include in the state standards ``general 
policies'' affecting the application of WQS such as mixing zones, low 
flows and variances. Alternatively, states may address dilution and 
mixing considerations through implementation policies and guidance. 
Consistent with these provisions, many state WQS and implementation 
procedures allow some consideration of dilution and mixing when 
determining the need for and calculating WQBELs.
    The ambient environment mitigates the impact of an effluent 
discharge on a receiving water in a number of ways, generally related 
to the nature of the discharged pollutant and the physical, chemical 
and biological characteristics of the effluent and receiving water. For 
many toxic pollutants, dilution is the primary mitigation mechanism. 
For oxygen-demanding pollutants, such as biochemical oxygen demand 
(BOD), mitigation may be achieved through both dilution and 
biodegradation. For other pollutants, mitigation may be achieved 
through multiple processes, including dilution, biodegradation, 
chemical reactivity and volatilization. The concentration or mass of a 
pollutant or pollutant parameter that can be safely mitigated by these 
various processes in the receiving water without exceeding any 
applicable WQS and without causing adverse effects is commonly referred 
to as the ``assimilative capacity'' of the receiving water.
    For any consideration of the dilution of an effluent in a receiving 
water, modelers must account for the level of the pollutant already 
present in the receiving water prior to the introduction of the 
effluent. This is often referred to as the ``background'' pollutant 
concentration. The background pollutant concentration can be based on 
measurements from the receiving water, or where data are unavailable, 
can be assumed. Where data are available, modelers assess the data and 
select a value that is considered representative of the site. The 
selection of the background value might be based on an average of the 
data, or on an upper or lower statistical boundary, and is generally a 
matter of state policy or procedure. In any case, modeling requires 
that the modeler select some background pollutant value.
    Where no measured data are available, the modeler could either 
postpone the analysis to obtain data, or could instead assume a 
background concentration. For NPDES permitting purposes, the assumed 
background value could range from zero to a value at or above the 
applicable water quality criteria. An assumption of zero indicates that 
the full assimilative capacity of the water is available, while an 
assumption that the background concentration is at or above the 
applicable water quality criteria indicates that there is no remaining 
assimilative capacity. As noted above, the selection of one of the end 
point values, or some value between these two extremes, is typically a 
matter of state policy.
    As discussed above, granting any dilution allowance requires the 
consideration of the background pollutant concentration. NPDES permit 
reviews have shown that in many instances permitting authorities grant 
dilution allowances for pollutants assuming the complete absence of the 
pollutant in the upstream receiving waters. An assumption of ``zero 
background'' levels of a pollutant in an upstream water, in the absence 
of data or analyses to validate such an assumption, results in permit 
conditions that use as much as 100 percent of the receiving water's 
dilution capacity to the discharging facility. Thus, in situations 
where some of the pollutant is actually present in the upstream waters, 
an assumption of ``zero background'' concentration overestimates the 
available assimilative capacity of the receiving water and could result 
in limits that are not protective of applicable WQS. EPA has long 
intended that permit writers should consider information regarding the 
actual assimilative capacity of the receiving waters and the amount of 
the pollutant already present in the receiving water when determining 
dilution allowances and mixing zones.
    The current regulations allow consideration of dilution ``. . . 
where appropriate.'' However, the current provision does not indicate 
what is meant by ``appropriate.'' EPA proposes to update its NPDES 
regulations concerning dilution allowances to clarify that while 
existing regulations allow consideration of dilution ``where 
appropriate,'' any allowance for dilution and mixing must be applied in 
a manner

[[Page 31354]]

that will ensure that NPDES permits contain limits necessary to achieve 
WQS, as required by CWA 301(b)(1)(C) and 40 CFR 122.44(d)(1). This 
proposal is consistent with EPA's longstanding guidance \19\ that 
assumptions regarding dilution and mixing are appropriate only where 
relevant data or information are available to substantiate the 
assumption.
---------------------------------------------------------------------------

    \19\ TSD Section 4 and Responsiveness Summary. See also EPA 
NPDES Permit Writers Manual (2010) Section 6.2 and EPA Water Quality 
Standards Handbook, Chapter 5 (General Policies).
---------------------------------------------------------------------------

    EPA proposes clarifying 40 CFR 122.44(d)(1) to specify that the 
appropriateness of any consideration of dilution or mixing must derive 
from the applicable state WQS, including any general policies related 
to dilution and mixing. Further, the proposed revision to 40 CFR 
122.44(d)(1) would require that decisions regarding the assimilative 
capacity of the receiving water, for the purpose of determining a 
dilution allowance, must be supported by data or analyses quantifying 
or accounting for the presence or absence of each assessed pollutant or 
pollutant parameter in the receiving water. Conducting a basic 
background inquiry into a receiving water's assimilative capacity would 
be necessary to grant the dilution allowance. Where the actual 
assimilative capacity of the receiving water cannot be accurately 
determined or predicted (e.g., by using data, models, or analyses), the 
permitting authority would be expected to establish effluent limits 
based on the application of applicable water quality criteria at the 
point of discharge (often referred to as ``criteria end-of-pipe'') in 
order to ensure that the limits comply with CWA section 301(b)(1)(C).
    This revision would ensure that the permitting authority considers 
data or other available and applicable information before granting a 
dilution allowance for either rapid and complete or incomplete mixing. 
Under the proposed revisions, every time a dilution allowance is 
granted, assuming either rapid and complete or incomplete mixing, the 
permitting authority would be required to include a basis grounded in 
analyses of available information. This revision would not require the 
collection of new data and will not impose a new burden; it is intended 
to ensure that the permitting authority considers existing valid and 
representative ambient water quality data and to enhance decision-
making transparency when permitting authorities consider a dilution 
allowance. States also may choose to collect data and information on 
the receiving water from the applicants, either prior to issuance of 
the permit or as a condition of the permit. Potential sources of data 
and information on ambient water quality and flow are maintained by 
regulatory agencies such as EPA, the United States Geological Survey 
(USGS) and state-level authorities. Dischargers, monitoring consortia, 
or non-governmental organizations may also provide ambient monitoring 
data for these analyses, although permitting authorities should ensure 
that all data used in any dilution analysis are subject to quality 
assurance and quality control. In limited circumstances (e.g., where 
ambient data are unavailable), permitting authorities may satisfy this 
requirement by conducting a qualitative analysis of the ambient level 
of a pollutant of concern; however, the analysis must be pollutant- and 
site-specific, supported by the available information and documented in 
the record consistent with the revised provisions at 40 CFR 
124.56(a)(1)(iv).
    EPA seeks comments on this proposed revision to 40 CFR 122.44(d).
7. Reasonable Potential Determinations for New Discharges (40 CFR 
122.44(d))
    EPA proposes to revise 40 CFR 122.44(d) to specify that a 
``reasonable potential'' determination (explained below) must consider 
relevant qualitative or quantitative data, analyses, or other valid and 
representative information for pollutants or pollutant parameters that 
could support the need for effluent limitations for new discharges.
    Where TBELs are not sufficient to attain applicable WQS, CWA 
section 301(b)(1)(C) requires that permits include any more stringent 
limits necessary to meet such standards. 40 CFR 122.44(d)(1). These 
limits are known as water quality-based effluent limits, or WQBELs. EPA 
regulations state that ``[l]imitations must control all pollutants or 
pollutant parameters (either conventional, nonconventional, or toxic 
pollutants) which the Director determines are or may be discharged at a 
level that will cause, have the reasonable potential to cause, or 
contribute to an excursion above any [s]tate water quality standard, 
including [s]tate narrative criteria for water quality.'' 40 CFR 
122.44(d)(1)(i). Based on this language, EPA refers to the process that 
a permit writer uses to determine whether a WQBEL is required in an 
NPDES permit as a reasonable potential analysis. NPDES PWM, 6.3.1. 
However, the current regulatory language is unclear regarding the types 
and quantities of data and information (including qualitative 
information) permitting authorities must consider when conducting a 
reasonable potential analysis. Because of this lack of clarity in the 
regulations, EPA has found that permitting authorities often defer the 
reasonable potential determination and development of WQBELs until a 
minimum data set has been collected. Permit reviews have also revealed 
a lack of reasonable potential determinations where quantitative data 
was not yet available, despite the availability of studies and effluent 
analyses for facilities with similar operations and effluent 
characteristics.
    Permit writers must determine whether the limits and conditions of 
an NPDES permit are as stringent as necessary to attain any applicable 
WQS. CWA section 301(b)(1)(C). Once the permitting authority determines 
that a discharge causes, has the reasonable potential to cause, or 
contributes to an excursion above water quality criteria, 40 CFR 
122.44(d)(1) requires the permitting authority to develop effluent 
limits to control the discharge of such pollutant(s). The cumulative 
impact of point and nonpoint sources on a water body may cause an 
excursion. In determining the need for a permit limit, the permitting 
authority must, at a minimum, consider existing controls on both point 
and nonpoint sources of pollution, the variability of the pollutant or 
pollutant parameter in the effluent, the sensitivity of the involved 
species to toxicity testing (when evaluating WET), and where 
appropriate, the effluent dilution in the receiving water. 40 CFR 
122.44(d)(1)(ii). EPA's TSD specifically discusses conducting a 
reasonable potential evaluation in the ``absence of effluent data.'' 
These factors include the type of discharge, the available dilution, 
the type of receiving water and designated use, existing data on toxic 
pollutants and the history of compliance problems and toxic impact. TSD 
3.2. The NPDES PWM similarly suggests that permit writers use ``any 
available effluent and receiving water data as well as other 
information pertaining to the discharge and receiving water,'' 
including type of industry, existing TBELs, compliance history and 
stream surveys. NPDES PWM, 6.3.2.
    Consistent with this existing guidance and policy, this proposal 
would require the Director to make a reasonable potential determination 
based on relevant qualitative or quantitative data, analyses or other 
valid and representative information for pollutants or pollutant 
parameters that could support the need for effluent limitations. When 
determining effluent limitations for new dischargers where effluent 
data is not yet available,

[[Page 31355]]

permitting authorities can use existing monitoring data and other 
studies that have been conducted at similar facilities. The existing 
application form(s) for new dischargers specifically require applicants 
to describe their planned flows, sources of pollution, and treatment 
technologies for each proposed outfall and to provide estimates of the 
concentrations of pollutants expected to be present in the effluent 
upon commencement of discharge. Applicants must also provide the name 
and location of any existing plant(s) which resemble the proposed 
facility with respect to production processes, wastewater constituents, 
or wastewater treatments. In addition, if an applicant is in an 
industrial category for which EPA has developed effluent limitations 
guidelines (ELGs), EPA has published development documents for every 
approved guideline \20\ that provides detailed effluent 
characterization data that can be used to estimate the types and 
quantities of pollutants that might be discharged.
---------------------------------------------------------------------------

    \20\ http://www.epa.gov/eg/industrial-effluent-guidelines.
---------------------------------------------------------------------------

    This proposed revision would codify EPA's long-standing policy that 
the permitting authority should consider available and relevant data 
and information (as described above) pertaining to the discharge in 
order to make an informed judgment.\21\ This proposed change would 
ensure that permitting authorities consider a wide range of available 
information to characterize new and existing discharges to determine 
the need for permit limits that adequately protect WQS. This revision 
would not require collecting new data beyond that already required 
through permit applications and would ensure that the permitting 
authority is transparent in its decision-making process when 
determining the need for an effluent limit, even for applicants that 
have yet to commence discharge. This proposal would not require 
collecting new data. However, this proposed revision would codify EPA's 
long-standing policy and guidance that, while the permitting authority 
has the discretion to prioritize the importance of available and 
relevant data and information used in making a determination on a case-
by-case basis, it may not disregard valid information that is useful in 
conducting a reasonable potential analysis.
---------------------------------------------------------------------------

    \21\ TSD section 3.2. See also Final Guidance on Appalachian 
Surface Coal Mining, 2011: ``[i]n conducting a reasonable potential 
analysis, all valid representative qualitative and quantitative 
information regarding the effluent and receiving water should be 
used.''.
---------------------------------------------------------------------------

    EPA seeks comments on this proposed revision to 40 CFR 122.44(d).
8. Best Management Practices (BMPs) (40 CFR 122.44(k)(4)
(a) Contact Information
    EPA is correcting publication contact information included in the 
Note to Sec.  122.44(k)(4) by deleting outdated references to 
information sources that are no longer available to read: ``Additional 
technical information on BMPs and the elements of BMPs 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. EPA guidance 
documents can be obtained through the National Service Center for 
Environmental Publications (NSCEP) at http://www.epa.gov/nscep. In 
addition, States may have BMP guidance documents.''
9. Anti-Backsliding (40 CFR 122.44(l))
    EPA proposes to revise 40 CFR 122.44(l) to incorporate the anti-
backsliding provisions that are currently in the CWA and have not yet 
been incorporated into the NPDES regulations. As a general matter, the 
anti-backsliding provisions prohibit the renewal, modification or 
reissuance of an NPDES permit with effluent limitations that are less 
stringent than the effluent limitations that existed in the prior 
permit. Anti-backsliding requirements are found in the CWA in sections 
402(o) and 303(d)(4) and in the NPDES regulations at 40 CFR 122.44(l).
    EPA revised the existing regulatory language at 40 CFR 122.44(l) in 
January 1989 under the 1987 WQA. 54 FR 245. The WQA amended the CWA to 
include sections 402(o) and 303(d)(4). EPA's 1989 regulatory revision 
did not, however, incorporate the entirety of the WQA's provisions on 
anti-backsliding. The proposed revision would incorporate into the 
NPDES regulations the omitted WQA anti-backsliding provisions 
applicable to effluent limitation.
    The following is a list of the anti-backsliding sections and where 
EPA proposes to incorporate them into the regulation: The second 
sentence of CWA section 402(o)(1) would be incorporated into 40 CFR 
122.44(l) as a new section 122.44(l)(2); the second sentence of CWA 
section 402(o)(2)(E) would be incorporated into 40 CFR 122.44(l) as a 
note at the end of Sec.  122.44(l)(2); and CWA sections 303(d)(4)(A) 
and 303(d)(4)(B) would be incorporated into 40 CFR 122.44(l) as new 
Sec. Sec.  122.44(l)(3)(i) and 122.44(l)(3)(ii), respectively. In each 
case, EPA is incorporating statutory language verbatim.
    Since EPA is including anti-backsliding statutory language 
verbatim, EPA is not seeking comments on the added language or on the 
existing regulation.
10. Design Flow for POTWs (40 CFR 122.45(b))
    EPA proposes revisions to 40 CFR 122.45(b) to clarify that permit 
writers would be required to calculate permit effluent limits for POTWs 
using design flow only where the limits are based on technology 
standards. The revisions would provide permit writers with additional 
flow options for calculating WQBELs. The existing regulation applies to 
production-based limits and currently states that POTW permit effluent 
limitations, standards or prohibitions shall be calculated based on 
design flow. The current regulation at 40 CFR 122.45(b)(2)(i) provides 
that for dischargers other than POTWs, permit effluent limitations, 
standards or prohibitions shall be based upon ``a reasonable measure of 
actual production of the facility.'' This has led to some confusion as 
to whether the requirement for POTW ``production-based'' limits should 
be applied to the calculation of WQBELs. This requirement pre-dates 
EPA's current WQBEL regulations developed to address the 1987 WQA. The 
administrative record for the existing regulations provides no 
indication that the production-based requirement was intended to apply 
to the calculation of WQBELs.
    The CWA does not provide any indication that WQBELs for POTWs 
should be derived in a manner that is distinct from other categories of 
dischargers. When determining the need

[[Page 31356]]

for WQBELs or calculating WQBELs for any type of discharger, permitting 
authorities generally use data and analyses to predict the impact of a 
discharge on a receiving water. In conducting these analyses, 
permitting authorities use data (including effluent flow values) that 
most accurately reflect the conditions in the discharge and the 
receiving water. Because there is no inherent difference in the 
validity and process for modeling POTW versus non-POTW discharges, EPA 
has concluded that the option to use effluent flows other than design 
flow should be made available to permit writers when calculating WQBELs 
for POTWs.
    Where the POTW limits are water quality-based, such limits could be 
based on effluent flows other than design flow (e.g., actual flow, 
estimated flow). Therefore, EPA proposes to clarify that permitting 
authorities developing WQBELs for POTWs have the same flexibility to 
base calculations on effluent flows as they do for the development of 
WQBELs for all other dischargers.
    This option would be appropriate when modeling the impact of any 
type of pollutant, including when BOD and suspended solids are used as 
surrogate parameters for applicable WQS. Although this proposal would 
clarify this flexibility for POTWs, it is not intended to preclude or 
restrict a permitting authority from using the POTW design flow for the 
purpose of developing WQBELs. In many cases, the POTW design flow is a 
reasonable and appropriate value for use in water quality modeling, and 
this proposed clarification is not intended to discourage permitting 
authorities from current practices under which design flow is used for 
WQBEL development. This proposed revision provides additional 
flexibility for permit writers in calculating effluent limitations and 
will not impose new burden.
    EPA seeks comments on this proposed revision.

B. Proposed Revisions to Part 123

1. Objection to Administratively Continued Permits (40 CFR 123.44)
    EPA proposes revising 40 CFR 123.44 to allow EPA to designate 
certain administratively continued permits as ``proposed permits.''
    Section 402(d) of the CWA generally provides that authorized state 
NPDES permitting authorities should submit proposed state permits to 
the EPA Administrator for review and objection, where deemed 
appropriate. 40 CFR 123.44. MOAs between EPA and the authorized state 
provide the timeframe within which each EPA Regional Administrator 
(RA), to whom the review and objection duties have been delegated, may 
comment on or object to a proposed permit, up to 90 days from receipt 
of the proposed permit. Within this time period, the RA must submit to 
the State Director a statement of the reasons for any objection, and 
the effluent limitations and conditions that such permit would include 
if it were issued by the RA.
    When a permittee has submitted a timely and complete renewal 
application but the State Director has not acted on the permittee's 
application before the existing permit expires, state laws often 
provide that the existing permit continues in effect by operation of 
law until the state takes final action on the permittee's application 
(that is, until the state makes a final decision to issue or not issue 
the new permit). This is often referred to as ``administrative 
continuance.'' These state laws, like the corresponding federal 
provisions in 40 CFR 122.6 and the federal Administrative Procedure Act 
(APA) at 5 U.S.C. 558(c), aim to protect a permittee that has submitted 
a timely and complete application for renewal from losing its 
authorization to discharge simply because the permitting authority did 
not issue a new permit before the existing permit expired.\22\
---------------------------------------------------------------------------

    \22\ 40 CFR 122.21(d)(2) requires that an existing permittee 
submit a new permit application 180 days before an existing permit 
expires.
---------------------------------------------------------------------------

    In some cases, administratively continuing expired permits provides 
states with flexibility to prioritize their action without significant 
adverse impacts on receiving waters. However, administrative 
continuance also can lead to inappropriate delays in reissuing permits 
that need revision to comply with current regulatory and statutory 
requirements and policy practices. State administrative continuance 
laws typically allow an expired permit to remain administratively 
continued indefinitely, which can significantly delay the 
implementation of revised or new effluent limitations (both technology-
based and water-quality based). Under EPA's existing regulations, there 
is no mechanism by which to invoke EPA's permit review and objection 
authority to avoid indefinite delays in permit reissuance. A lengthy 
administrative continuance of a permit can significantly delay 
implementation of new effluent guidelines, WQS or TMDLs, and such a 
delay can affect a permitting authority's ability to protect water 
quality. As of September 2015, there were approximately 17,000 
facilities covered by expired non-tribal and tribal permits (both state 
and EPA-issued, not including facilities covered by non-major 
stormwater permits).
    Under this proposed revision, expired permits that have been 
administratively continued and are considered environmentally 
significant may be subject to objections by EPA regional offices. EPA 
would expect to exercise this authority only in very limited 
circumstances, such as for permits involving environmental and public 
health issues, where other means of working with the state to reissue 
an updated permit have failed. Under the current regulations, the RA 
may review and object to an NPDES permit that an authorized state 
proposes to issue. 40 CFR 123.44. EPA proposes adding a new mechanism 
that grants the RA discretion to initiate these procedures where the 
state has not reissued an expired, administratively continued permit. 
The RA would have discretion to exercise this authority if a state does 
not produce a draft permit within a certain period of time, as 
described below. If a state has not reissued an expired, 
administratively continued permit, the state would be encouraged to 
explain to EPA the reasons for not reissuing the expired permit and EPA 
would carefully consider any such explanation before proceeding with an 
objection, as further described below.
    Consistent with 40 CFR 122.6(d), which currently addresses 
administratively continued permits, the proposed regulation would apply 
to only those expired state-issued permits for which state law has 
provided for continuation of the expired permit. The new provision 
would not apply to expired permits that have not been administratively 
continued, nor would it apply to other unpermitted discharges. A 
similar regulatory change allowing for EPA objection to 
administratively continued permits, under certain conditions, was 
previously proposed, commented on and finalized as a part of EPA's July 
2000 Total Maximum Daily Load (TMDL) Rule. 68 FR 13608. However, the 
final rule was withdrawn in March 2003 as a result of widespread 
controversy and disagreement over the rule and its legal authority, 
including a case filed in the D.C. Circuit Court.\23\ It is important 
to note, however, that the TMDL rule and disagreement over its legal 
authority were not based on concerns regarding the proposed section on 
administratively continued permits.

[[Page 31357]]

In fact, many of the comments received by EPA expressed support for 
this proposed revision. EPA received a number of comments stating that 
EPA has an obligation under the CWA to ensure that all state programs 
and state-issued permits comply with the requirements of the Act. Some 
expressed the view that the language proposed in the 2000 rule was 
unduly limited, because it would have limited EPA's review of expired 
permits to only those expired permits authorizing discharges to waters 
that do not attain and maintain WQS, and that EPA should be allowed 
instead to review and potentially object to, if necessary, all 
administratively continued permits, not just those permits for which 
WQS and TMDLs are of concern.
---------------------------------------------------------------------------

    \23\ See, American Farm Bureau Federation v. Whitman (D.C. Cir. 
No. 00-1320 and consolidated cases).
---------------------------------------------------------------------------

    Given the current backlog of administratively continued state 
permits, EPA views this proposed revision as providing an important 
potential mechanism through which to carry out its authorities under 
the CWA. 33 U.S.C. 1361(a). Under CWA section 402(c)(2), authorized 
state programs must comply with the requirements of the Act including 
CWA section 402(b)(1)(B), which provides that NPDES permits may not be 
issued for periods exceeding five years. The purpose of this statutory 
limitation is to ensure that permits be reviewed and revised regularly 
by the state, and by EPA in its CWA 402(d) oversight role, to ensure 
compliance with the Act and its implementing regulations, including 
those pertaining to both TBELs and WQBELs.\24\ The proposed revision 
would provide EPA with the ability to further this Congressional intent 
to protect water quality by ensuring that permitting authorities 
consider effluent guidelines, WQS, and TMDLs that have been promulgated 
since the existing administratively continued permit was issued.
---------------------------------------------------------------------------

    \24\ See 33 U.S.C. 1311(b)(1)(C) (requiring that ``there shall 
be achieved . . . any more stringent limitation, including those 
necessary to meet water quality standards, treatment standards, or 
schedule of compliance, established pursuant to any State law or 
regulations . . . or any other federal law or regulation, or 
required to implement any applicable water quality standard 
established pursuant to this Act'').
---------------------------------------------------------------------------

    EPA currently addresses expired, administratively continued permits 
through its ``priority permits'' measure. Priority permits are those 
permits that have been expired longer than two years, and which EPA has 
asked the permitting authority to target for reissuance. EPA's general 
trigger for identifying priority permits is when a permit is expired 
two years (outlined in a 2004 memorandum from the Director of EPA's 
Office of Wastewater Management to EPA's Regional Water Division 
Directors on the topic of permit issuance, priority permits and 
permitting backlog).\25\
---------------------------------------------------------------------------

    \25\ Jim Hanlon, ``Permitting for Environmental Results: Permit 
Issuance and Priority Permits,'' March 5, 2004, available at http://www3.epa.gov/npdes/pubs/prioritization_memo3-5-04.pdf.
---------------------------------------------------------------------------

    EPA proposes that an administratively continued permit could be 
designated as ``proposed'' after either a two-year or five-year period 
following the initial five-year permit term, and is seeking comment on 
which time frame is appropriate. A two-year period after which an 
administratively continued permit could be designated by EPA as 
``proposed'' would be consistent with EPA's general trigger for 
identifying priority permits. EPA's view is that it is reasonable to 
consider a two-year delay as an indication that the state is unable to 
take action on the permit. A five-year period after which an 
administratively continued permit could be designated as ``proposed'' 
would allow for EPA to first address the administratively continued 
permit through the priority permits measure. A five-year expired permit 
would be designated as a priority permit after being expired for two 
years, and the state would have had at least three additional years to 
work on and reissue the permit. Additionally, a five-year expired 
permit would have been expired for an entire permit cycle. EPA's view 
is that it is reasonable for a state to take action to reissue a permit 
that has been expired and administratively continued for five years.
    EPA expects to exercise its discretion to use this authority only 
in very limited circumstances, such as for particularly environmentally 
significant permits, to ensure that these expired permits may be 
reissued in a timelier manner and, when reissued, reflect the most 
current statutory and regulatory requirements. EPA has used the 
priority permits measure since 2004 to target administratively 
continued permits which should be a priority for reissuance. The 
parameters by which permits generally may be designated as priority 
permits were identified in the above referenced 2004 memorandum, which 
is included in this rule's docket. EPA is considering using similar 
parameters to identify permits for candidates for administratively 
continued permit objections. Under this approach, permits with the 
following significant adverse impacts, changes or issues could be 
potential candidates for the new objection process:
     New or revised water quality standards;
     New or revised effluent limitations guidelines;
     Potentially significant impacts to an impaired or 
threatened waterbody;
     Potentially significant impacts to a drinking water 
resource;
     National program priorities (e.g., Combined Sewer 
Overflow, Concentrated Animal Feeding Operations);
     Protection of threatened or endangered species;
     Significant changes to a facility's operations, treatment, 
or effluent characteristics; or
     Public concerns or environmental justice issues.\26\
---------------------------------------------------------------------------

    \26\ Id.
---------------------------------------------------------------------------

    Under the proposed provision, EPA would be required to give the 
state and the permittee notice of its intent to designate the 
administratively continued permit as a proposed permit submitted to EPA 
for review under 40 CFR 123.44. EPA proposes to give the state and the 
permittee 180 days' notice of its intent to designate an 
administratively continued permit as a proposed permit, and is 
requesting comment on whether this time frame is appropriate. This 
proposed provision would not create a new mechanism for EPA to take 
over a state's NPDES permit. During EPA's review of the ``designated'' 
proposed permit, the state permitting authority may decide to proceed 
with the development of its own draft or proposed permit. EPA would 
encourage this effort, as the intent is always to have a state 
permitting authority reissue an administratively continued permit 
incorporating all of the appropriate terms and conditions. For this 
reason, the proposed amendment provides that if the state, under 40 CFR 
123.43(a), submits a draft or proposed permit for EPA review at any 
time before authority to issue the permit would pass to EPA under 40 
CFR 123.44(h), EPA would withdraw its designation of the 
administratively continued permit as a proposed permit. EPA would then 
review the state's draft or proposed permit in accordance with the 40 
CFR 123.44 procedures. If, after EPA reviews the permit under 40 CFR 
123.44, the state does not proceed with the timely issuance of the 
final permit (within 180 days of the completion of EPA's review), EPA 
may again determine that the state does not intend to reissue the 
permit and may reassert its previous determination that the 
administratively continued permit is to be designated as a proposed 
permit. EPA would then proceed with the review of the designated 
``proposed'' permit at the

[[Page 31358]]

point in the process where the state submitted its draft or proposed 
permit.
    EPA is seeking comments on whether to make this proposed regulatory 
change. Specifically, EPA seeks comments on whether considering 
administratively continued permits as ``proposed permits'' under CWA 
section 402(d) would effectively achieve EPA's goal of more timely 
reissuance of state NPDES permits, or whether EPA should consider other 
regulatory mechanisms to achieve this goal. EPA is also seeking comment 
on the potential parameters or criteria that EPA could use to more 
clearly define or limit the scope of this administratively continued 
permit objection process, including but not limited to those described 
in the memorandum referenced above, and whether any such parameters or 
criteria should be included in regulatory language. Additionally, EPA 
seeks comments on whether two years, or five years, or some other time 
period is the appropriate threshold at which EPA may designate an 
administratively continued permit as a proposed permit for the purposes 
of exercising its objection authority, and whether the proposed 180 
days or some other period of time is an appropriate notice period for 
EPA to notify the state and permittee of its intent to designate the 
administratively continued permit as a proposed permit. Specifically, 
if commenters believe other time periods for designating proposed 
permits and providing notice would be appropriate, EPA requests 
comments describing the reasoning for such time frames.

C. Proposed Revisions to Part 124

1. Public Notice Requirements (40 CFR 124.10(c))
    EPA proposes revising 40 CFR 124.10(c) to allow permitting 
authorities to provide public notice of permitting actions for NPDES 
major individual and general permits on the permitting authority's 
publicly available Web site in lieu of the newspaper publication 
requirement.
    CWA section 402(b)(3) requires that notice be provided to the 
public, as well as any other state whose waters may be affected, of 
each NPDES permit application and that an opportunity be provided for a 
public hearing before ruling on each permit application. 33 U.S.C. 
1342(a)(1). In addition, the statute provides that ``public 
participation in the development, revision and enforcement of standard, 
effluent limitation, plan, or program established by the Administrator 
or any State under [the CWA] shall be provided for, encouraged, and 
assisted by the Administrator and the States.'' 33 U.S.C. 1251(e). 
EPA's regulations also address the issue of public participation in its 
programs. 40 CFR 124.10. 40 CFR part 25 sets forth minimum requirements 
for public participation under the CWA, RCRA and SDWA. 40 CFR 25.4(b) 
explains that ``providing information to the public is a necessary 
prerequisite to meaningful, active public involvement. Agencies shall 
design informational activities to encourage and facilitate the 
public's participation in all significant decisions . . . particularly 
where alternative courses of action are proposed.'' These minimum 
requirements are intended to be met not only by EPA but also by 
authorized states and state agencies. In clarifying the minimum 
requirements for public participation, 40 CFR part 25 highlights that 
the requirements for public information, public notification and public 
consultation are ``intended to foster public awareness and open 
processes of government decision making and are applicable to all 
covered activities and programs.'' 40 CFR 25.3(c)(7) specifically 
emphasizes that agencies should ``use all feasible means to create 
opportunities for public participation, and to stimulate and support 
participation.'' Neither the CWA nor its implementing regulations 
specify the best or preferred method for providing notice to the 
public.
    Currently, 40 CFR 124.10(c)(2)(i) requires notice of specified 
NPDES permitting activities, such as preparation of a draft permit, 
through publication ``in a daily or weekly newspaper within the area 
affected by the facility or activity.'' Indeed, publication of public 
notice in newspapers was appropriate when 40 CFR 124.10(c)(2)(i) was 
promulgated in 1982, 12 years before the internet became widely 
available for public and commercial use. Web sites are often more 
appropriate avenues for widely disseminating information to the public 
and many states currently supplement the required newspaper publication 
by posting draft and final permits on their state Web sites.
    EPA proposes revising 40 CFR 124.10(c) to allow permitting 
authorities (EPA, state, tribe and territories) to provide public 
notice for activities listed under 124.10(a) on the permitting 
authority's publicly available Web site in lieu of the newspaper 
publication requirement. If a permitting authority exercises this 
option, the permitting authority would be required to meet all of the 
required elements of Sec.  124.10(c) and also post all draft permits 
and fact sheets on the Web site during the public comment period and 
post all final permits, fact sheets and response to comments on the Web 
site for the entire term of the permit. The purpose of this revision 
would be to provide states and EPA with an alternative method of 
providing notice of permit applications and hearings, and affirm 
flexibility in reaching the public through a variety of methods that 
would greatly expand public access to the draft and final permits and 
fact sheets.
    This option would not in any way affect the requirements of 40 CFR 
124.10(c)(1)(ix) which state that a copy of the notice must be mailed 
directly to persons who have joined the appropriate mailing list. This 
option also would not alter the original requirements of 40 CFR 
124.10(c)(2)(i) if a permitting authority chooses to continue the 
traditional method of providing notice of an NPDES permit action in a 
newspaper publication. Also, this option would not alter the existing 
requirements for other types of permits covered in this section (i.e. 
RCRA, UIC, section 404). In addition, none of the other existing public 
notice regulatory requirements would be affected by this proposed 
revision to 40 CFR 124.10(c). The proposed revision is intended to 
supplement and expand EPA's efforts to reach communities through a 
variety of methods. By allowing each permitting authority to determine 
whether newspaper publication, internet notice, or a combination of 
these methods is the most effective method for its communities, EPA 
expects an increase in effective dissemination of information to 
communities and transparency.
    Finally, nothing in the proposed revisions to 40 CFR 124.10(c) is 
intended to alter or affect the notice requirements for issuance of a 
final permit decision in 40 CFR 124.15. Section 124.10(a) establishes 
notice requirements as to certain enumerated actions, but those actions 
do not include ``issuance'' of a final permit decision, the 
requirements for which are established in 40 CFR 124.15. The inclusion 
in the proposed revision to 40 CFR 124.10(c) of an internet posting 
requirement in certain circumstances for final permits is not intended 
to imply that internet posting fulfills the final permit decision 
notice requirements of 40 CFR 124.15.
    EPA is seeking comment on an alternative option for revising 40 CFR 
124.10(c) that would require NPDES permitting authorities to public 
notice all NPDES permits and hearings on the permitting authority's 
publicly available Web site. This option could be implemented over a 
period of time (e.g., within five years), and states would

[[Page 31359]]

continue to have the flexibility to use print media and other methods 
in addition to the publicly available Web site. It could include a 
provision allowing NPDES permitting authorities the flexibility to 
solely use newspapers and other print media under certain circumstances 
such as in areas with limited broadband internet access, in areas with 
NPDES-regulated entities owned or operated by identifiable populations 
(e.g., Amish, Mennonite, and Hutterite) who do not use certain 
technologies (e.g., computers or electricity), and during large-scale 
disasters (e.g., hurricanes) or prolonged electrical system outrages. 
Providing the permitting authority with the flexibility to phase in use 
of their public Web sites, as well as the ability to opt out of its use 
under certain circumstances, would be consistent with EPA's approach to 
required electronic reporting of NPDES information in its NPDES 
Electronic Reporting Rule in Part 127. Requiring permitting authorities 
to use their publicly available Web site to post all NPDES permit and 
hearing information could help advance EPA's commitment in its 2009 
Clean Water Act Enforcement Action Plan and in its NPDES Electronic 
Reporting Rule to improve and enhance public access to information.
    EPA is also seeking comment on whether proposed revisions to public 
notice requirements in 40 CFR 124.10(c) should be expanded to include 
NPDES non-major individual and general permits. This would increase 
public access to permit and hearing information on the entire NPDES-
permitted universe.
    In addition, EPA is seeking comments on ways in which NPDES permits 
and fact sheets could be posted electronically to make it easier for 
EPA's Enforcement and Compliance History Online (ECHO) information 
system to link to the permit fact sheets (e.g., one state posts NPDES 
permits on its Web site by embedding the NPDES identification number 
into the URL).
    Given the wide availability of the internet, it is EPA's view that 
publication through such means would be effective in informing the 
public of all such permit applications and hearings.\27\ EPA is 
proposing that where the permitting authority opts to post this 
information on the Web site in lieu of newspaper publication, it must 
post all notices to its Web site to maintain one repository of public 
notice documents. EPA seeks comment on its proposal to require a 
permitting authority to post all notices on its Web site if it seeks to 
use its Web site in lieu of a newspaper notice for permit-related 
information.
---------------------------------------------------------------------------

    \27\ Courts have consistently recognized that the critical 
aspect of public notice is not the particular means of giving 
notice, but rather that the selected method is reasonably calculated 
to provide that notice. In discussing service of process by email, 
the 9th Circuit Court has described in broad language a court's 
authority to adapt its procedures to meet technological advances as 
follows: ``In proper circumstances, this broad constitutional 
principle [i.e., that the selected method of service must be 
reasonably calculated to provide notice and an opportunity to 
respond] unshackles the Federal courts from anachronistic methods of 
service and permits them entry into the technological renaissance.'' 
Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007, 
1017 (9th Cir. 2002).
---------------------------------------------------------------------------

    A permitting authority that uses the web in lieu of a newspaper to 
post notices could realize significant financial savings and post more 
information over a longer period of time, fostering greater public 
access to information and greatly reducing state burden with regard to 
public notice. Providing the draft permit and fact sheet during the 
full public comment period and making the final permit electronically 
available over the lifetime of the permit can significantly increase 
the public's access to permitting information compared to the single-
day newspaper notice and access to paper copies of the permit at the 
agency's office.
    EPA has carefully evaluated the potential effect of this proposed 
revision on underserved communities with environmental justice (EJ) 
concerns. EPA consulted a recent study conducted by Native Public Media 
that found that the primary source for national and international news 
among Native American tribes is the internet.\28\ Newspapers were 
listed as only the third most commonly used source for news. EPA also 
consulted the recently finalized National Environmental Justice 
Advisory Council (NEJAC), EJ in Permitting Subgroup Report.\29\ The 
report states that ``[n]otification of the public by publishing in the 
legal section of regional newspapers is antiquated and ineffective. 
This method should not be counted on to communicate, even if legally 
required.'' \30\ The NEJAC specifically listed Web site postings as a 
method to ensure meaningful public participation. Thus, based on the EJ 
in Permitting Subgroup Report's results, EPA concludes that notice via 
the internet would be a viable and effective means of making 
information widely available to the public. Permitting authorities are 
encouraged to provide additional notice where the Director determines 
that a specific jurisdiction or population would be better served with 
notice by means of the internet or a newspaper.
---------------------------------------------------------------------------

    \28\ Morris, Traci L, and Sascha D. Meinrath. ``New Media, 
Technology and Internet Use in Indian Country'' Native Public Media, 
available at http://www.atalm.org/sites/default/files/NPM-NAF_New_Media_Study_2009_small.pdf.
    \29\ See, ``Enhancing Environmental Justice in EPA Permitting 
Program.'' National Environmental Justice Advisory Council. April, 
2011, available at http://www3.epa.gov/environmentaljustice/resources/publications/nejac/ej-in-permitting-report-2011.pdf
    \30\ Id., p.20.
---------------------------------------------------------------------------

    EPA seeks comments on both the proposed revision and on the 
possible alternative option described.
2. CWA Section 401 Certification Process (40 CFR 124.55(b))
    40 CFR 124.55(b) addresses the circumstances under which a state 
may issue a modified CWA section 401 certification in connection with 
an EPA-issued NPDES permit and the effect of a modified section 401 
certification on such a permit. Pursuant to this regulation, if a court 
of competent jurisdiction or an appropriate state board or agency 
invalidates a certification condition after final agency action on the 
permit, EPA can modify such permits only to delete state certification 
conditions upon request of the permittee. Under the current rule, EPA 
cannot modify already-issued permits to reflect state court, board or 
agency decisions that would require the state certifications (and 
arguably the federal permits subject to that certification) to include 
more stringent provisions.
    The proposed revisions to 40 CFR 124.55(b) would broaden the 
circumstances under which federal NPDES permits can be modified after 
issuance to include the addition of permit conditions based on more 
stringent section 401 certification provisions that result from state 
administrative or judicial decisions.
    Such permit modifications may be requested by anyone and not just 
the permittee. This change would recognize the importance of state 
administrative and judicial review process for CWA section 401 
certifications by allowing decisions made by state administrative 
bodies and courts regarding challenges to state certification 
conditions to be fully reflected in the federal permit, even after the 
permit is issued. If, upon review, a state administrative body or court 
determines that more stringent section 401 certification conditions are 
necessary to adequately protect water quality or to be consistent with 
state laws, EPA would have the discretion to modify already-issued 
federal permits to include those more stringent conditions. It is EPA's 
view that its current ability to only delete section 401 certification-
based permit conditions hinders its

[[Page 31360]]

ability to ensure that permits are environmentally protective and that 
they reflect the most up-to-date state administrative and judicial 
determinations. EPA is not able to estimate the number of state 
administrative or judicial determinations there may be that determine 
that more stringent conditions are necessary. EPA therefore cannot 
predict how often this proposed provision may be used. However, it is 
EPA's view that even if used rarely, this provision would be an 
important tool for EPA to be able to modify its permits in order to 
implement limits that better protect water quality.
    EPA seeks comments on this proposed revision, including comments 
that estimate how often this provision may be used and on any 
anticipated impacts.
3. Fact Sheet Requirements (40 CFR 124.56)
    EPA proposes to revise 40 CFR 124.56 to require specific 
documentation in the fact sheet developed to support an individual or 
general permit. Fact sheets, required for major NPDES permits and 
general permits per 40 CFR 124.8, ``sets forth the principal facts and 
the significant factual, legal, methodological, and policy questions 
considered in preparing the draft permit.'' NPDES PWM, 11.2.2. The 
existing regulations at 40 CFR 124.56 contain basic requirements for 
information that must be presented in a fact sheet. It is EPA's view 
that more precisely outlining the required fact sheet information would 
result in more comprehensive and focused fact sheets, and 
correspondingly, would facilitate more efficient, transparent and 
effective documentation of permitting decisions.
    The proposed revisions to 40 CFR 124.56(a) are in two parts--one 
part for individual permits and one part for general permits. This 
accommodates differences in the information that permit writers use to 
develop effluent limits and conditions for individual facilities versus 
the information used to develop effluent limits and conditions for 
multiple facilities covered under one general permit.
    EPA specifically seeks comments on proposed revisions to fact sheet 
requirements, as described below.
(a) 40 CFR 124.56 Revisions to Fact Sheet Contents
40 CFR 124.56(a)
    An NPDES permit is developed based on careful consideration of 
existing data and available information relevant to the potential 
discharge. While the permit itself contains the terms and conditions 
required of the permittee, the rationale and basis for the decisions 
made in developing those terms and conditions are contained within the 
fact sheet and administrative record for that permit. The existing 
regulations at 40 CFR 124.56 contain basic requirements for information 
that must be presented in a fact sheet.
    However, EPA reviews of state-issued NPDES permits within the past 
ten years have identified widespread deficiencies in state fact sheet 
quality. Many fact sheets do not meet the requirements of the existing 
regulations. Currently, many fact sheets omit critical information 
regarding limitation development, such as available water quality data, 
impairment status, existence and implementation of TMDLs and 
implementation of antidegradation policies. Furthermore, while the 
existing regulation at 40 CFR 124.56(a) requires fact sheets to 
generally include ``calculations and other necessary explanation,'' it 
does not explicitly identify what is required in terms of 
``calculations'' or ``other necessary explanation.'' Fact sheet quality 
and clarity affects permittees' and the public's ability to 
meaningfully participate in the permitting process. It is EPA's view 
that the public and permit applicants should have access to a clear and 
transparent record of the permit decision making process. By clearly 
explaining what the 40 CFR 124.56(a) ``calculations and other necessary 
explanations'' requirement means, this proposed revision would enable 
all NPDES permitting authorities to know precisely the kind of thorough 
and transparent explanations fact sheets should contain to create this 
clear record. EPA also expects that these clarifications will enable 
permittees and other members of the public to more easily understand 
the permit limit development record.
    Where the proposed regulation requires an ``explanation,'' 
``information sufficient,'' ``discussion'' or a ``description,'' the 
proposed language in 40 CFR 124.56(a) allows the fact sheet to include 
a brief summary of the required information along with a specific 
reference to the source document in the administrative record. This 
would relieve the permitting authority from repeatedly providing this 
information. EPA is clarifying, however, that where the proposed 
regulations require a ``citation'' or ``identification,'' a summary 
would be inappropriate and the fact sheet would need to provide the 
specific information required. It is EPA's view that this would 
eliminate redundancy, reduce permit writer workload in fact sheet 
development, and ensure that the permitting authority is clearly 
demonstrating and making available all required information. The 
proposed changes to the regulations would address observed deficiencies 
and explicitly require fact sheets to include the information necessary 
to understand the rationale behind permit development.
(b) Fact Sheet Requirements for Individual NPDES Permits
    The existing regulations at 40 CFR 124.56 provide basic fact sheet 
requirements for NPDES permits. While the regulations provide the 
requirements for content of these fact sheets, they lack specificity, 
which has led to fact sheets with very little or inconsistent 
justification of the permit terms and conditions. The proposed 
regulations would provide specific requirements for both individual and 
general permits, to provide permit writers with more detail on what 
information to include in fact sheets.
i. 40 CFR 124.56(a)(1)(i)
    The current fact sheet regulation at 40 CFR 124.56(a) requires ``a 
citation to the applicable effluent limitation guideline (ELG), 
performance standard, or standard for sewage sludge use or disposal as 
required by 40 CFR 122.44.'' EPA proposes to redesignate this provision 
for citations from the existing paragraph (a) as proposed paragraph 
(a)(1)(i) to allow the inclusion of additional provisions in paragraph 
(a) in a logical manner.
ii. 40 CFR 124.56(a)(1)(ii)
    40 CFR 124.56(a) currently requires fact sheets to include ``any 
calculations or other necessary explanation of the derivation of 
specific effluent limitations and conditions or standards.'' The 
current regulations do not provide any further clarification regarding 
what constitutes ``calculations or other necessary explanation.''
    The proposed paragraphs (ii)(A) and (ii)(B) would require the fact 
sheet to contain the name of the receiving water and include explicit 
reference to the applicable state WQS. EPA intends to provide 
information to the public and the permittee on designated uses of the 
receiving water(s) and to provide a clear reference to the applicable 
numeric and narrative criteria for the specific receiving water 
segment. In order to write WQBELs, permit writers must already consider 
the receiving water and applicable state WQS, and already has this 
information available. Explicitly documenting this known information in 
a fact sheet would add only a minimal

[[Page 31361]]

burden, and the permit writer would not have any additional burden of 
obtaining new information.
    The proposed paragraphs (ii)(C) and (ii)(D) would require the fact 
sheet to include information regarding the condition of the receiving 
water(s), including whether the water body has been listed as impaired 
or threatened for any uses. Where the water body is impaired, the fact 
sheet must indicate whether EPA has approved or established a TMDL for 
any of the impairing pollutants or pollutant parameters. This 
requirement is intended to ensure that the permitting authority has 
considered the condition of the receiving water as part of the permit 
development process and provides additional transparency regarding the 
rationale for permit conditions. When developing WQBELs, permit writers 
are already required to consider the condition of the receiving 
water(s), any impairments, and whether there is a TMDL for the 
receiving water. Because the permit writer already has this information 
available, it should add only a minimal burden to document this 
information in a permit fact sheet.
iii. 40 CFR 124.56(a)(1)(iii)
    The proposed paragraph (iii) would require the fact sheet to 
include the rationale for TBELs developed pursuant to 40 CFR 122.44(a), 
and an explanation of any best management practices (BMPs) required 
pursuant to 40 CFR 122.44(k). This explanation should include a 
discussion of whether any ELGs apply to the facility, and if so, which 
performance standard(s) (e.g., best practicable control technology 
currently available (BPT), best available technology economically 
achievable (BAT), best conventional pollutant control technology (BCT), 
or new source performance standard (NSPS)) apply to the facility's 
discharge. The permit writer would already have all of the required 
information regarding ELGs, performance standards, technology, and BMPs 
that he or she used to develop TBELs. There would be no additional 
burden to obtain any new information, and only a minimal burden to 
document the analyses that the permit writer has already conducted.
iv. 40 CFR 124.56(a)(1)(iv)
    The proposed paragraph (iv) would require documentation of the 
reasonable potential determination, and, where necessary, the 
development of WQBELs pursuant to 40 CFR 122.44(d).
    The proposed paragraph (iv)(A) would require the fact sheet to 
describe the pollutants or pollutant parameters analyzed in order to 
determine a need for WQBELs. EPA's review of state-issued permits has 
found that even where fact sheets contained reasonable potential 
determinations and WQBEL calculations, they frequently contain little 
discussion or demonstration regarding how the permitting authority 
established the ``pollutants of concern'' list. EPA is proposing this 
new paragraph to ensure that the permitting authority considers and 
clearly identifies ``pollutants of concern'' for the purposes of water 
quality analyses, and provides a rationale for the decision reached. 
Permit writers already have the information that they use to identify 
pollutants of concern, complete a reasonable potential analysis and 
develop WQBELs, so this proposed revision would not impose any 
additional burden of collecting new information. It should be only a 
minimal additional burden for a permit writer to document the 
calculations and analyses that he or she has already conducted.
    The proposed paragraph (iv)(B) would require the fact sheet to 
provide the ambient (receiving water) pollutant concentration data, or 
an explanation of why such data is not applicable or available, for 
pollutants granted a dilution or mixing allowance pursuant to 40 CFR 
122.44(d)(1)(ii). The ``background'' concentration of a pollutant in 
the receiving water is a critical factor in determining the 
assimilative capacity of the receiving water. EPA's review of state-
issued permits conducted over the past ten years found that fact sheets 
contained little information regarding background pollutant data, and 
little explanation regarding how permitting authorities used or did not 
use background data in limit calculations. This proposed requirement is 
intended to provide additional transparency with respect to the use of 
ambient pollutant concentration data in water quality assessments, 
reasonable potential determinations and permit limit calculations. In 
order to write permit limits, the permit writer would have already 
considered background pollutant data, so this proposed revision would 
not impose any additional information collection burden, and would only 
impose a minimal burden for documenting analyses that the permit writer 
has already conducted.
    The proposed paragraph (iv)(C) would require that the fact sheet 
discuss any dilution or mixing considered in water quality evaluations 
or permit limit development, and where dilution or mixing were 
considered, how ambient (background) pollutant concentrations were 
considered in the water quality assessment. This requirement relates to 
the proposed requirement in paragraph (iv)(B) and is intended to ensure 
that the permitting authority has considered and justified the 
appropriateness of any dilution or mixing allowance consistent with 
provisions of state WQSs. In order to determine a mixing zone or 
dilution analysis, the permit writer would have already considered 
background pollutant data. This proposed revision would not impose any 
additional information collection burden, and would only impose a 
minimal burden for documenting analyses that the permit writer has 
already conducted.
    The proposed paragraph (iv)(D) would require that where an EPA-
approved or established TMDL has assigned a WLA to the point source, 
the fact sheet must describe how the permit incorporates limits and 
permit conditions consistent with the assumptions of any WLA assigned 
to the applicant/permittee discharge. This requirement is based on 
findings from both EPA's review of state-issued permits and a 2007 
Office of Inspector General (OIG) report \31\ that found limited 
documentation in permits to demonstrate the implementation of WLAs from 
approved TMDLs. In order to write permit limits that comply with 40 CFR 
122.44(d)(1)(vii)(B), permit writers should already have considered 
information from applicable TMDLs and the assumptions of any WLAs. This 
proposed revision would not impose any burden on the permit writer to 
obtain new information and may impose only a minimal burden for 
documenting the analysis the permit writer would have already 
conducted.
---------------------------------------------------------------------------

    \31\ Office of Inspector General, ``Total Maximum Daily Load 
Program Needs Better Data and Measures to Demonstrate Environmental 
Results.'' September 19, 2007, available at http://www.epa.gov/sites/production/files/2015-11/documents/20070919-2007-p-00036.pdf.
---------------------------------------------------------------------------

    The proposed paragraph (iv)(E) would require the fact sheet to 
provide a description of how the permit ensures compliance with 
applicable state narrative water quality criteria and standards, where 
a reasonable potential determination has been made for an excursion of 
narrative water quality criterion. The regulations at 40 CFR 
122.44(d)(1) specifically require permits to include limits and 
conditions that achieve WQS, including any state narrative criteria for 
water quality. EPA's review of state-issued permits related to the 
surface coal mining sector as well as other reviews of state-issued 
permits informed EPA that fact sheets rarely discuss whether or how the 
permitting authority has assessed the need for, or developed, WQBELs or 
other permit conditions to ensure

[[Page 31362]]

compliance with narrative criteria. Permit administrative records are 
also unclear regarding how narrative criteria related to nutrients are 
assessed and implemented. EPA is proposing this new requirement to 
ensure that permitting authorities have considered narrative criteria 
during the permit development process and have documented how these 
criteria are implemented in the NPDES permit. In order to develop 
WQBELs, permit writers are already required to consider state narrative 
water quality criteria and standards and to conduct a reasonable 
potential analysis. This proposed revision would not impose any 
additional burden on the permit writer to obtain new information, and 
may impose only a minimal burden for documenting analyses that the 
permit writer has already conducted.
v. 40 CFR 124.56(a)(1)(v)
    Fact sheets frequently do not adequately document the 
antidegradation analysis to ensure that the permitting authority is 
meeting requirements to protect existing uses and high quality waters 
(where applicable). In particular, fact sheets often omit information 
regarding whether the permitting authority conducted a ``Tier 2'' 
review consistent with the state's antidegradation requirements in 
order to demonstrate that allowing a lowering of water quality was 
consistent with the state's antidegradation requirements. Numerous 
state NPDES permit challenges have raised this issue. The proposed 
language would ensure that the permitting authority has considered the 
applicable antidegradation requirements and has documented that the 
state's antidegradation requirements are met (e.g., by documenting a 
Tier 2 review, if applicable). The proposed paragraph (v) would require 
that the fact sheet contain sufficient information to demonstrate that 
the proposed discharge is consistent with the state's antidegradation 
requirements. In order to develop WQBELs, permit writers must already 
take state WQS into account. State antidegradation policies and 
requirements are a component of state WQS. This proposed revision would 
not impose any additional requirements on permit writers to collect new 
information or conduct new analyses. It may impose only a minimal 
burden for documenting analyses that permit writers have already 
conducted.
vi. 40 CFR 124.56(a)(1)(vi)
    (c) EPA's review of state practices and policy has shown that the 
determination of monitoring location(s), the frequency at which the 
permit requires the permittee to sample and analyze each regulated 
pollutant, the sampling technique (e.g., grab, composite, continuous), 
and the required analytical methods are all often carried forward from 
permit to permit with little or no explanation as to their basis or 
appropriateness. Further, the NPDES permitting regulations at 40 CFR 
122.44(i) were revised in 2014 and now require permitting authorities 
to prescribe (where necessary) an analytical method that is 
``sufficiently sensitive'' to assess compliance with applicable 
effluent limitations. The proposed paragraph (vi) would require the 
fact sheet to discuss the proposed monitoring and reporting conditions 
of a draft NPDES permit that current fact sheet regulations do not 
currently specifically address, including assurance that the prescribed 
analytical methods meet the requirements of 40 CFR 122.44(i). Permit 
writers already have the data that they use to establish monitoring and 
reporting requirements and ensure that they are prescribing 
sufficiently sensitive methods are prescribed. This proposed revision 
would not impose any additional burden on permit writers to collect new 
information or conduct new analyses. It may impose only a minimal 
burden for documenting analyses that permit writers have already 
conducted.
(d) Fact Sheet Requirements for NPDES General Permits
    While current fact sheet regulations at 40 CFR 124.8(a) require 
development of fact sheets for draft NPDES general permits, the 
regulations at 40 CFR 124.56 do not include requirements specific to 
the contents of fact sheets for these permits. General permits are 
``umbrella'' permits that cover classes or categories of dischargers, 
and are usually used when there are multiple facilities that have very 
similar discharges. General permits are an efficient tool used by 
permitting authorities to provide permit coverage for many facilities 
under just one permit. Fact sheets for general permits are especially 
essential in providing the rationale for the development of terms and 
conditions for general permits and provide applicants and the public 
with background and information on how the limits, terms and conditions 
in the permit were developed. Because of the unique nature of general 
permits, EPA believes that the regulations should describe the specific 
fact sheet requirements that more accurately describe and document the 
development of the terms and conditions of general permits.
    EPA proposes the following new 40 CFR 124.56(a)(2) to address the 
specific information necessary to document permitting decisions for 
NPDES general permits. The proposed general permit fact sheet 
requirements closely track the general permit structure in 40 CFR 
122.28.
i. 40 CFR 124.56(a)(2)(i)
    Proposed paragraph (a)(2)(i) would require the fact sheet for a 
general permit to contain a description of how the issuance of the 
general permit meets the requirements of 40 CFR 122.28, including the 
geographic area of coverage: The types, classes or categories of waters 
to which the general permit authorizes discharge and the sources that 
the general permit would cover. This information would ensure that the 
permitting authority provides a transparent record of the types of 
facilities covered under the general permit and the criteria under 
which categories or classes of facilities were identified. Furthermore, 
the fact sheet would be specifically required to provide a record of 
decision for selecting the geographic area of coverage, including any 
areas or water bodies where general permit coverage is not available. 
In order to develop a general permit, permit writers will have already 
considered all of the relevant data regarding the geographic area of 
coverage and the kinds of facilities and discharges that the general 
permit covers. This proposed revision would impose no new burden on 
permit writers to obtain new information or conduct new analyses. It 
may impose only a minimal burden to document the analyses that permit 
writers have already conducted.
ii. 40 CFR 124.56(a)(2)(ii)
    The current fact sheet regulation requires ``a citation to the 
applicable effluent limitation guideline, performance standard, or 
standard for sewage sludge use or disposal as required by Sec.  
122.44.'' The proposed paragraph moves the original language into 
paragraph 124.56(a)(2)(ii) and would not substantively change the 
existing requirement.
iii. 40 CFR 124.56(a)(2)(iii)
    The proposed paragraph (iii) requires that the fact sheet provide 
the rationale for TBELs developed pursuant to 40 CFR 122.44(a), and an 
explanation of any BMPs required pursuant to 40 CFR 122.44(k). This 
explanation would include a discussion of whether any ELGs apply to the 
facility, and if so, which performance standard(s) (e.g., BPT, BAT, 
BCT, NSPS) apply to the

[[Page 31363]]

facility's discharge. The permit writer would already have all of the 
required information regarding ELGs, performance standards, technology, 
and BMPs that he or she used to develop TBELs. There would be no 
additional burden to obtain any new information, and only a minimal 
burden to document the analyses that the permit writer has already 
conducted.
iv. 40 CFR 124.56(a)(2)(iv)
    The proposed paragraph (iv) deals with documentation of the 
reasonable potential determination and, where necessary, the 
development of WQBELs or conditions. Because general permits cover 
facilities that may be widely dispersed across multiple water bodies 
and watersheds, the water quality analysis would likely differ 
significantly from the site-specific type of analysis performed for an 
individual discharger. Therefore, fact sheet requirements must account 
for the unique approaches taken in general permits to ensure compliance 
with state WQS. However, while the approaches and rationales may 
differ, paragraph (iv) would require that the fact sheet provide a 
rationale that describes how the permit will ensure compliance with 
state WQS, which includes consideration of applicable state 
antidegradation policies and applicable WLAs from EPA-approved or 
established TMDLs. In order to develop WQBELs for general permits that 
ensure compliance with state WQS, permit writers will have already 
considered relevant analytical data pertaining to WQS (including 
antidegradation policies and requirements) and TMDLs. This proposed 
revision would not impose an additional burden on permit writers to 
collect any new data or perform additional analyses, and may impose 
only a minimal burden for the permit writer to document the analyses he 
or she has already conducted.
v. 40 CFR 124.56(a)(2)(v)
    The proposed paragraph (v) addresses documentation of monitoring 
and reporting provisions of a draft NPDES general permit that current 
fact sheet regulations do not currently specifically address. Based on 
past practices and state policy, determination of monitoring 
location(s), the frequency at which the permit requires the permittee 
to sample and analyze each regulated pollutant, the sampling technique 
(e.g., grab, composite, continuous) and the required analytical methods 
are all often carried forward from permit to permit. Further, the NPDES 
permitting regulations at 40 CFR 122.44(i) were revised in 2014 and now 
require permitting authorities to prescribe (where necessary) an 
analytical method that is ``sufficiently sensitive'' to assess 
compliance with applicable effluent limitations. The proposed paragraph 
(v) would require that the fact sheet provide a discussion of proposed 
monitoring and reporting conditions, including assurance that 
prescribed analytical methods meet the requirements of 40 CFR 
122.44(i). Permit writers already have the data that they use to 
establish monitoring and reporting requirements and ensure that they 
are prescribing sufficiently sensitive methods are prescribed. This 
proposed revision would not impose any additional burden on permit 
writers to collect new information or conduct new analyses. It may 
impose only a minimal burden for documenting analyses that permit 
writers have already conducted.
vi. 40 CFR 124.56(a)(2)(vi)
    The proposed paragraph (vi) would require that the fact sheet 
provide an explanation of the administrative elements of the general 
permit, including the process by which a facility would seek and be 
granted coverage under the general permit. Where the general permit 
does not require a NOI, the fact sheet must also provide a description 
of why the NOI process is inappropriate in accordance with the criteria 
established in 40 CFR 122.28(b)(2)(v). Permit writers already include 
NOI provisions in general permits, so documenting these processes in 
fact sheets would not impose an additional burden on permit writers to 
develop a new process, and may impose only a minimal burden to document 
this process in the fact sheet.
    EPA Requests comments on the proposed revisions to Sec.  124.56(a).
(e) Other Revisions to 40 CFR 124.56
i. 40 CFR 124.56(b)(1)(vii)
    40 CFR 124.56(b)(1) mandates an explanation of why a draft permit 
includes particular conditions. The proposed rule would include a 
requirement to provide a rationale for the use of compliance schedules 
in fact sheets for draft NPDES permits. In 2007, EPA addressed concerns 
over the use of compliance schedules in draft permits through a 
memorandum titled, ``Compliance Schedules for Water Quality-Based 
Effluent Limitations in NPDES Permits'' from James A. Hanlon, Director 
of EPA's Office of Wastewater Management, to Alexis Strauss, Water 
Division Director of EPA Region 9.\32\ The memorandum clarifies, 
``[w]hat principles are applicable to assessing whether a compliance 
schedule for achieving a water quality-based effluent limitation is 
consistent with the CWA and its implementing regulations.'' Paragraph 
(b)(1)(vii) of the proposed regulatory revision requires the draft 
permit fact sheet to contain an explanation and justification for the 
use of a compliance schedule in any draft NPDES permit. The 
appropriateness of a compliance schedule is a permit-specific 
determination. The NPDES regulations at 40 CFR 122.47 contain 
requirements for compliance schedules. The intent of this new provision 
is to ensure that the permitting authority has considered the 
appropriateness of the compliance schedule in light of the criteria 
established in the regulations at 40 CFR 122.47 and described in the 
2007 EPA memorandum, and has documented these decisions in the fact 
sheet. If a permit contains a compliance schedule, permit writers 
should have already considered whether the compliance schedule meets 
the requirements of 40 CFR 122.47. This proposed revision would not 
impose a new burden on permit writers to collect new data or perform 
new analyses, and may impose only minimal burden on permit writers to 
document analyses that they have already conducted.
---------------------------------------------------------------------------

    \32\ James Hanlon. ``Compliance Schedules for Water Quality-
Based Effluent Limitations in NPDES Permits'' May 10, 2007, 
available at http://www3.epa.gov/npdes/pubs/memo_complianceschedules_may07.pdf.
---------------------------------------------------------------------------

ii. 40 CFR 124.56(c)
    The current provisions of paragraph (c) require, when appropriate, 
a sketch or detailed description of the location of the discharge or 
regulated activity. The proposed rule would add to this paragraph a 
requirement that the fact sheet provide geographic coordinates (e.g., 
latitude and longitude) for each discharge or regulated activity. This 
locational information is already required to be provided by the 
applicant for an NPDES permit through its individual permit 
application. 40 CFR 122.21. Including this information as part of the 
fact sheet would provide the public with better information regarding 
the precise location of the regulated activity and would facilitate the 
use of internet-based geo-locational tools.
    With respect to NPDES general permits, locational information is 
generally provided through the Notice of Intent (NOI) submitted by a 
facility after issuance of the general permit. The fact sheet for the 
general permit would include a description of the geographic area 
within which facilities may seek coverage under the general permit. 
This is consistent with the existing

[[Page 31364]]

requirement in 40 CFR 122.28(a)(1) which requires the general permit to 
establish the geographical ``area'' within which coverage under the 
general permit may be sought.
    This revision would not increase the level of effort for permittees 
and would not alter the requirements for data submission as part of the 
permit application process. The changes also would not alter the 
current substantive requirements for developing NPDES permits, but 
rather would more clearly specify the information required for the 
documentation of how those requirements were developed.
    EPA seeks comments on the proposed revisions to 40 CFR 124.56(b) 
and (c).

D. Proposed Revision to 40 CFR Part 125

1. Deletion of 40 CFR 125.3(a)(1)(ii)
    EPA proposes to delete 40 CFR 125.3(a)(1)(ii) from the NPDES 
regulations. The statutory authority supporting this provision was 
repealed in 1981 making this requirement no longer applicable to POTWs 
covered under NPDES permits. Public Law 97-117. Therefore, EPA proposes 
to remove this provision from the regulations in order to avoid 
confusion regarding its applicability.
    Since EPA is removing language to be consistent with repealed 
statutory language, EPA is not seeking comments on the proposed removal 
or on the existing regulation.

IV. Impacts

    This proposal involves numerous revisions to the NPDES regulations. 
It is EPA's view that these revisions would generally not result in a 
new or increased impacts or information collection by authorized states 
or the regulated community. EPA expects that any additional effort for 
documenting existing analyses and calculations would be minimal. It is 
also EPA's view that in some cases, these proposed revisions could 
reduce burden: Deleting outdated information and requirements could 
make it easier for the public to understand which NPDES regulations 
apply. The impacts assessment is provided for each topic. EPA 
specifically requests comments on the impacts and estimated level of 
effort resulting from the totality of this proposal as well as the 
individual requirements of the proposal.
    In general, revisions may result in a state having to make 
statutory or regulatory revisions in order to maintain a program that 
is at least as stringent as the federal program. Existing Information 
Collection Requests (ICRs) related to the NPDES regulations account for 
program revisions where they are necessary because the controlling 
federal statutes or regulations were modified. This proposal does not 
impose any changes to the procedures for revising state programs at 40 
CFR 123.62 and it would not result in a new or increased effort beyond 
what has already been accounted for in the existing ICRs.
Purpose and Scope of the NPDES Program (40 CFR 122.1)
    The revision to this note is being made to inform the public of 
ways to contact the NPDES program and would not result in changes to 
the existing program or program requirements. The note in the existing 
regulation contains an outdated address and telephone number for the 
Office of Water. Providing updated information will save the permitting 
authorities and the public time when they seek to contact EPA about 
these regulations.
NPDES Program Definitions: Pesticide Applications to Waters of the 
United States, New Discharger, Proposed Permit, and Whole Effluent 
Toxicity Definition (40 CFR 122.2)
    The proposed revisions to the NPDES program definitions at 40 CFR 
122.2 for ``pesticide applications to waters of the United States,'' 
``new discharger,'' ``proposed permit'' and ``whole effluent toxicity'' 
would not result in an increase in effort or information collection. 
These revisions are being made to improve programmatic clarity and 
would not result in substantive changes to the existing program or 
program requirements.
    Adding a definition of ``pesticide applications to waters of the 
United States'' brings the NPDES definitions into concert with the way 
the PGP has been interpreting and regulating such applications since 
2011. This definition would not increase burden and would not expand 
the universe of permittees and activities that the PGP covers.
    EPA proposes correcting a typographical error in subsection (d) of 
this definition by changing ``NDPES'' to ``NPDES.'' This will not 
increase burden and will enable the public to clearly understand EPA's 
regulations.
    It is EPA's view that the revised definition of ``proposed permit'' 
also would not add any burden. This definition would correlate with the 
changes EPA proposes regarding objection to administratively continued 
permits. EPA proposes that an administratively continued permit could 
be designated as ``proposed'' after either a two-year or five-year 
period following the initial five-year permit term. Under the proposed 
revisions, EPA could then object to these proposed permits according to 
the existing permit objection regulations at 40 CFR 123.44. Although 
this revised definition could increase the number of permits to which 
EPA could object, EPA does not anticipate that this revised definition 
would increase burden for states, permittees, or any other 
stakeholders. Permittees will have already submitted the required 
permit renewal applications in a timely manner. After EPA designates an 
expired, administratively continued permit as a ``proposed permit,'' 
the state NPDES permitting authority can choose to issue its own new 
draft permit based on the permittee's timely application, and the state 
permitting process would proceed as usual. If the state permitting 
authority were to choose not to issue its own new draft permit, EPA 
could issue the permit and would assume any additional workload.
    The revised definition of WET would reflect current implementation 
practice and would impose no additional burden. The revised definition 
would clarify that WET includes both acute (lethal) and chronic (lethal 
and sublethal) WET test endpoints. As discussed in section III of this 
preamble, this clarification would be consistent with EPA's existing 
WET interpretation and implementation. Clarifying this definition would 
not change the existing requirement that NPDES permits include WET 
limits where necessary to meet state numeric and narrative water 
quality aquatic life protection criteria. 40 CFR 122.44(d)(1)(iv) and 
(v).
Vessels Exclusion (40 CFR 122.3(a))
    The proposed revision to 40 CFR 122.3(a) to remove an outdated 
provision related to vessel discharges would not result in an increase 
in effort or information collection. This proposed revision would 
incorporate or otherwise address CWA provisions that were enacted after 
the current regulations were promulgated as well as a judicial decision 
vacating the 40 CFR 122.3(a) exclusion for discharges incidental to the 
normal operation of a vessel from NPDES permitting. As a result, this 
proposed revision would not result in a new or increased effort and 
would not change the universe of permittees covered by the existing 
VGP.
Application Requirements (40 CFR 122.21)
    The proposed revision to 40 CFR 122.21 related to updates and 
clarifications to the existing application requirements and 
corresponding forms would not result in an increase in effort

[[Page 31365]]

or information collection. EPA is revising several data fields to 
refine the content and improve the consistency among the forms, to 
improve the consistency with EPA's current data standards, and improve 
the clarity and usability of the forms. It is EPA's view that the new 
application forms would be easier to use and understand, and may result 
in a decrease in effort for permittees applying for coverage. EPA also 
expects that the revisions would improve the quality of information 
being collected, which may reduce the need for follow-up questions and 
data requests, and the time necessary for the state to develop a 
permit.
    In 2008, EPA submitted an ICR to the Office of Management and 
Budget (OMB) that, in part, updated EPA's estimates for applicants to 
complete Forms 1, 2A, 2C-2F, and 2S and for permitting authorities to 
review applications for point source and sewage sludge management 
permits.\33\ The renewal ICR did not include updated estimates for Form 
2B or for forms associated with cooling water intake structures (item 8 
in table IV-1). Updated estimates to complete those forms were 
contained in separate ICRs.\34\ The existing ICRs include annual 
estimates for completing NPDES permit applications and for conducting 
ongoing compliance monitoring for both new and existing NPDES 
permittees.
---------------------------------------------------------------------------

    \33\ USEPA. ``Information Collection Request (ICR) for National 
Pollutant Discharge Elimination System (NPDES) Program (Renewal),'' 
OMB Control No. 2040-0004, EPA ICR No. 0229.19, December 2008.
    \34\ USEPA. ``Supporting Statement for the Information 
Collection Request for the NPDES Regulation and Effluent Limitation 
Guidelines and Standards for Concentrated Animal Feeding 
Operations,'' OMB Control No. 2040-0250, EPA ICR No. 1989.04, June 
2006.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures at Phase III Facilities (Final Rule),'' OMB 
Control No. 2040-0268, EPA ICR No. 2169.02, February 2009.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures Phase II Existing Facilities (Renewal),'' OMB 
Control No. 2040-0257, EPA ICR No. 2060.03, May 2007.
    USEPA, ``Information Collection Request (ICR) for Cooling Water 
Intake Structures New Facility Rule (Renewal),'' OMB Control No. 
2040-0241, EPA ICR No. 1973.04, June 2008.
---------------------------------------------------------------------------

    In the final rule, EPA will submit to OMB an updated ICR that 
describes the estimated effort associated with the proposed revisions 
made to the application regulations and forms. The changes proposed in 
this rule are minor, and do not change the estimated burden for 
completing the forms established in the existing ICRs.
Antidegradation Reference (40 CFR 122.44(d))
    The proposed revision to 40 CFR 122.44(d) would include a reference 
to 40 CFR 131.12 in order to ensure consistency with the state 
antidegradation requirements established under that section and would 
not result in an increase in level of effort or information collection. 
This addition clarifies that permitting authorities should use 
applicable antidegradation requirements when deriving WQBELs. All state 
water quality standards include antidegradation policies. EPA's 
longstanding policy has been that permitting authorities should develop 
NPDES permit terms and conditions consistent with, and in consideration 
of applicable state antidegradation requirements. NPDES permit writers 
are already required to consider how the final WQBELs established in 
the permit not only derive from the numeric and narrative water quality 
criteria, but also how they satisfy the antidegradation elements of 
state WQS. This would remain the case regardless of whether EPA 
includes this provision as a reminder. Because the NPDES regulations do 
not presently explicitly include this requirement, this proposal would 
revise the regulations at 40 CFR 122.44(d)(1) to explicitly clarify 
this existing assumption. This proposed revision would not result in a 
new or increased effort.
Dilution Allowances (40 CFR 122.44(d))
    The proposed revisions to 40 CFR 122.44(d) specify that a dilution 
allowance under this paragraph must comply with applicable dilution and 
mixing zone requirements and low flows established in state WQS and be 
supported by data or analyses quantifying or accounting for the 
presence of each assessed pollutant or pollutant parameter in the 
receiving water. This proposal would not require collecting new 
information or conducting any new calculations, but rather is intended 
to ensure transparency in the permitting authority's decision to grant 
a dilution allowance. The information necessary to support a dilution 
allowance may be based on existing information, or the permitting 
authority may choose to ask the applicant seeking coverage for more 
information. This proposed revision would not require new or increased 
effort or costs.
Reasonable Potential Determinations for New Discharges (40 CFR 
122.44(d))
    The proposed revision to 40 CFR 122.44(d) specifies that a 
reasonable potential determination must consider applicable qualitative 
or quantitative data, analyses or other valid and representative 
information for pollutants or pollutant parameters to support the need 
for effluent limitations, conditions or standards. This proposal does 
not require collecting new information, but rather is intended to 
ensure that the permitting authority uses all available information 
when determining the need for an effluent limitation for a new 
discharge. In addition, the revision ensures that the permitting 
authority is transparent regarding the process used to make the 
determination by including documentation in the permit fact sheet. This 
proposed revision would not result in a new or increased effort.
Anti-Backsliding (40 CFR 122.44(l))
    The proposed revision to 40 CFR 122.44(l) to be consistent with CWA 
section 402(o) provisions regarding ``anti-backsliding'' from permit 
limitations would not result in an increase in effort or information 
collection. This revision would incorporate the existing statutory 
requirement into the regulations verbatim and would not create any new 
requirements or information collection burdens.
Design Flow for POTWs (40 CFR 122.45(b))
    The proposed revision to 40 CFR 122.45(b) would clarify that permit 
effluent limitations based on technology standards for POTWs must be 
calculated using design flow. This revision also clarifies that the 
permitting authority has the flexibility to use other appropriate 
measures of a representative critical condition when developing 
effluent limitations based on WQS for a POTW. A WQBEL for a POTW could 
instead be based on effluent flows other than design flow (e.g., actual 
flow, estimated flow). EPA proposes to clarify that permitting 
authorities developing WQBELs for POTWs have the same flexibility to 
base calculations on effluent flows as they do for the development of 
WQBELs for all other dischargers. This proposal would not impose any 
additional burden or require any additional calculations.
Objection to Administratively Continued Permits (40 CFR 123.44)
    The proposed revision to 40 CFR 123.44 to allow EPA to review an 
administratively continued permit as a

[[Page 31366]]

proposed permit for the purposes of making an objection determination 
would not result in an increase in effort or information collection. 
The proposal would not change the existing timeframes established in 
the permit objection regulations and would not require any new 
information to be submitted to EPA as a part of the process. It also 
would not impose additional burdens on authorized state NPDES programs, 
who have the responsibility to timely issue NPDES permits. If EPA were 
to invoke the authority in this proposed provision, the responsibility 
to issue the permit could potentially shift to EPA. This proposed 
revision would not result in a new or increased effort for states. See 
impacts explanation for ``proposed permit'' in ``Definitions (40 CFR 
122.2)'' above.
Public Notice Requirements (40 CFR 124.10(c))
    The proposal to revise 40 CFR 124.10(c) to allow permitting 
authorities to provide public notice of NPDES major individual and 
general permits on the permitting authority's publicly available Web 
site in lieu of the newspaper publication requirement would not result 
in an increase in effort or information collection. EPA is not 
proposing to alter the existing requirement related to newspaper 
publication, but is providing an optional provision that the permitting 
authority may choose at its discretion. However, to qualify for this 
provision, the permitting authority would be required to post the draft 
permit and fact sheet on the Web site during the public comment period 
and post the final permit and fact sheet for the entire term of the 
permit. The purpose of this proposed revision is to provide the 
permitting authority with an alternative method of providing notice of 
permit applications and hearings and provide flexibility to reach 
communities in a variety of methods. It is EPA's understanding that the 
traditional approach to newspaper publication has become costly for 
permitting authorities to implement. EPA's proposal intends to 
alleviate those costs by allowing the permitting authority to use its 
publicly available Web site in lieu of the traditional publication.
    EPA estimates that public notice of draft permits in newspapers for 
NPDES major facilities, sewage sludge facilities and general permits 
currently costs approximately $1.6 million per year, nationally.\35\ 
This estimate excludes the costs of preparing the content of the NPDES 
public notice, and the costs of the other methods to provide notice 
besides newspaper publication, such as direct mailing. Any costs from 
EPA's proposed rule, however, are likely to be less than this amount. 
For example, EPA expects that the cost of posting a PDF copy of a 
public notice on a state's pre-existing NPDES Web site could be less 
than the cost of publishing such notices in a newspaper. Although EPA 
does not currently have estimates of those costs, this revision would 
be a significant decrease in burden for public notice requirements for 
permitting authorities. The rule would allow but not require state and 
federal permitting authorities to use electronic public notice instead 
of newspaper publication. Some states would continue to publish at 
least some notifications in newspapers.
---------------------------------------------------------------------------

    \35\ EPA used $1,000 (in 2010$) as the publication cost for a 
public notice in a newspaper and assumed that there are 1,600 NPDES 
permit actions that require public notice via newspaper publication 
each year; thus, we arrive at the $1.6 million per year estimate.
---------------------------------------------------------------------------

    This proposed revision would not result in an increase in effort or 
information collection. EPA specifically seeks comments on the 
potential cost savings for the public notice of NPDES major individual 
and general permits on a publicly available Web site in lieu of the 
newspaper publication requirement.
CWA Section 401 Certification Process (40 CFR 124.55(a)(2))
    The proposal to revise 40 CFR 124.55(a)(2) would broaden the 
circumstances under which federal NPDES permits could be modified after 
issuance to include conditions necessary to reflect more stringent 
section 401 certification provisions that result from state 
administrative or judicial decisions. EPA cannot predict how often this 
proposed provision would cause a permit to be modified. Any 
modifications resulting from requirements in state administrative or 
judicial decisions would follow EPA's existing permit modification 
regulations at 40 CFR 122.62. Any new permit requirements would be the 
result of an administrative or judicial decision and would not result 
directly from this proposed revision. Therefore, this proposed revision 
would not result in an increase in effort or information collection.
Fact Sheet Requirements (40 CFR 124.56)
    The proposal to revise 40 CFR 124.56 to require specific 
documentation within the fact sheet content of the individual and 
general permit development would not result in an increase in effort or 
information collection. The proposed changes to the fact sheet content 
requirements do not establish any permit conditions or technical or 
administrative analyses that are not already required by the existing 
regulations. The revised regulations would require the permitting 
authority to document NPDES permit development work that the existing 
regulations already require. These proposed revisions would not impose 
any additional burdens for collecting new data or conducting new 
analyses, and may impose only a minimal burden for permit writers to 
document analyses that have already been conducted.
Deletion of 40 CFR 125.3(a)(1)(ii)
    The proposed deletion of 40 CFR 125.3(a)(1)(ii) from the NPDES 
regulations would not result in an increase in effort or information 
collection. By deleting this outdated provision, EPA would clarify that 
this provision no longer applies to regulated entities.

V. Compliance Dates

    Following issuance of this rule, authorized states have up to one 
year to revise, as necessary, their NPDES regulations to adopt the 
requirements of this rule, or two years if statutory changes are 
needed, as provided at 40 CFR 123.62.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it raises novel 
legal and policy issues. Accordingly, EPA submitted this action to the 
OMB for review under Executive Orders 12866 and 13563 (76 FR 3821, 
January 21, 2011) and any changes made in response to OMB 
recommendations have been documented in the docket for this action. 
Information regarding all statutes and executive orders discussed in 
this document can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

B. Paperwork Reduction Act (PRA)

    The changes being proposed to the applications and forms as well as 
all other information collection activities in this proposed rule will 
be submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2529.01. You can find 
a copy of the ICR in the

[[Page 31367]]

docket for this rule, and it is briefly summarized here.
    The ICR will describe the burden and costs associated with 
revisions made to regulations and forms related to preparing and 
reviewing applications for individual NPDES permits for point source 
and sewage sludge management permits. These revisions were necessary to 
clarify NPDES definitions and application requirements, increase fact 
sheet and permit transparency, timeliness and environmental 
effectiveness, and modernize public notice methods.
    The proposed revisions to 40 CFR 122.21 related to clarifications 
of NPDES definitions and application requirements would not result in 
an increase in level of effort or information collection. EPA is making 
revisions to several data fields on the forms to refine the content and 
to improve consistency with EPA's current data standards. The 
application forms is available in the docket for this rule. EPA 
estimates that the burden associated with these proposed changes would 
not change from the burden estimates contained in existing ICRs. This 
action does not impose any new information collection burden under the 
PRA. OMB has previously approved the information collection activities 
contained in the existing regulations and has assigned OMB OMB Control 
No. 2040-0004, EPA ICR No. 0229.21.
    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 the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    EPA requests comment on the impact of the specific changes set out 
in this proposal on NPDES application requirements, forms and other 
information collections. EPA also requests comment on whether and how a 
separate future action should address the utility and clarity of the 
information requests and on how to minimize the information collection 
burden on respondents, including the use of appropriate automated, 
electronic, mechanical, or other forms of information technology. 
Comments relating to this separate future action should be submitted to 
Docket ID No. EPA-HQ-OW-2016-0146 at http://www.regulations.gov.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (RFA). In making this determination, the impact of 
concern is any significant adverse economic impact on small entities. 
An agency may certify that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, has no net burden or otherwise has a positive 
economic effect on the small entities subject to the rule. This 
proposal would eliminate inconsistencies between regulations and 
application forms, improve permit documentation, transparency and 
oversight, provide clarifications to existing regulations and delete 
outdated provisions. We have therefore concluded that this action would 
have no net regulatory burden for directly regulated small entities.
    EPA continues to be interested in the potential impacts of the 
proposed rule on small entities and welcomes comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This proposal would 
eliminate inconsistencies between regulations and application forms, 
improve permit documentation, transparency and oversight, provide 
clarifications to existing regulations and delete outdated provisions. 
This proposed action will not impose significant burden on EPA, states 
or the regulated community, or specifically, any significant burden on 
any small entity. With respect to any impacts on authorized state 
programs, the costs involved in this action are imposed only by 
participation in a voluntary federal program. UMRA generally excludes 
from the definition of ``federal intergovernmental mandate'' duties 
that arise from participation in a voluntary federal program. Thus, 
this proposed rule is not subject to the requirements of section 202 
and 205 of the UMRA. For the same reason, EPA has determined that this 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. Thus, this proposed rule is not 
subject to the requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

    This action 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.

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

    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175. EPA considered the potential impacts on 
tribes, and concluded that there would be no substantial direct 
compliance costs or impact on tribes. Because the purpose of the 
proposed rule is to eliminate inconsistencies between regulations and 
application forms, improve permit documentation, transparency and 
oversight, provide clarifications to existing regulations, and delete 
outdated provisions, it is not expected to have substantial direct 
effects on tribal governments, 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. Executive Order 13175 does not 
apply to this action and EPA determined that tribal consultation is not 
necessary for this action.
    EPA specifically solicits input on this proposed action from tribal 
officials.

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

    The proposed rule is not subject to Executive Order 13045 because 
it is not economically significant as defined in Executive Order 12866 
and because EPA does not believe that the environmental health and 
safety risks addressed by this action present a disproportionate risk 
to children. This proposed rule would eliminate inconsistencies between 
regulations and application forms, improve permit documentation, 
transparency and oversight, provide clarifications to existing 
regulations, and delete outdated provisions.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rulemaking is not a ``significant energy action'' because it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This proposed rule would eliminate 
inconsistencies between regulations and application forms, improve 
permit documentation, transparency and oversight, provide 
clarifications to existing regulations, and delete outdated provisions.

[[Page 31368]]

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    The EPA believes the human health or environmental risk addressed 
by this action will not have potential disproportionately high and 
adverse human health or environmental effects on minority, low-income 
or indigenous populations. This proposed rule would eliminate 
inconsistencies between regulations and application forms, improve 
permit documentation, transparency and oversight, provide 
clarifications to existing regulations and delete outdated provisions.

List of Subjects

40 CFR Part 122

    Administrative practice and procedure, Confidential business 
information, Environmental protection, 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

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

40 CFR Part 125

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

    Dated: May 5, 2016.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, the EPA proposes to amend 
Chapter I of Title 40 of the Code of Federal Regulations as follows:

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

0
1. The authority citation for part 122 continues to read as follows:

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

Subpart A--Definitions and General Program Requirements

0
2. Section 122.1 is amended by revising the note to Sec.  122.1 to read 
as follows:


Sec.  122.1  Purpose and scope.

* * * * *
    [Note to Sec.  122.1: Information concerning the NPDES program 
and its regulations can be obtained by contacting the Water Permits 
Division (4203), Office of Wastewater Management, U.S. EPA, 1200 
Pennsylvania Avenue NW., Washington, DC 20460 and by visiting the 
homepage at http://www.epa.gov/npdes/.]

0
3. Section 122.2 is amended by:
0
a. Revising the definitions for ``new discharger,'' ``proposed 
permit,'' and ``whole effluent toxicity'' in paragraph (d); and
0
b. Adding the definition, in alphabetical order, ``pesticide 
applications to waters of the United States.''
    The revisions and additions read as follows:


Sec.  122.2  Definitions.

    New discharger means any building, structure, facility, or 
installation:
* * * * *
    (d) Which has never received a finally effective NPDES permit for 
discharges at that ``site.''
* * * * *
    Pesticide applications to waters of the United States means the 
application of biological pesticides, and the application of chemical 
pesticides that leave a residue, from point sources to waters of the 
United States. In the context of this definition of pesticide 
applications to waters of the U.S., this does not include agricultural 
stormwater discharges and return flows from irrigated agriculture, 
which are excluded by law (33 U.S.C. 1342(l)).
* * * * *
    Proposed permit means a State NPDES ``permit'' prepared after the 
close of the public comment period (and, when applicable, any public 
hearing and administrative appeals) which is sent to EPA for review 
before final issuance by the State, or a State NPDES permit designated 
as a proposed permit under Sec.  123.44(k). A ``proposed permit'' is 
not a ``draft permit.''
* * * * *
    Whole effluent toxicity (WET) means the aggregate toxic effect of 
an effluent measured directly by a toxicity test where the test results 
are based on acute (lethal) and/or chronic (lethal and sublethal) 
endpoints.
0
3. Section 122.3 is amended by revising paragraph (a) to read as 
follows:


Sec.  122.3  Exclusions.

* * * * *
    (a) Any discharge of sewage from vessels and any effluent from 
properly functioning marine engines, laundry, shower, and galley sink 
wastes, or any other discharge incidental to the normal operation of:
    (1) A vessel of the Armed Forces within the meaning of section 312 
of the CWA; and
    (2) A recreational vessel within the meaning of section 502(25) of 
the CWA. Until December 18, 2017, an NPDES permit is not required for a 
vessel that is less than 79 feet in length or a fishing vessel as 
defined in 46 U.S.C. 2101 except for any discharge of ballast water or 
any discharge in a case in which the Administrator or State, as 
appropriate, determines that the discharge either contributes to a 
violation of a water quality standard or poses an unacceptable risk to 
human health or the environment. None of these exclusions apply to 
rubbish, trash, garbage, or other such materials discharged overboard; 
nor to other discharges when the vessel is operating in a capacity 
other than as a means of transportation such as when used as an energy 
or mining facility, a storage facility or a seafood processing 
facility, or when secured to a storage facility or a seafood processing 
facility, or when secured to the bed of the ocean, contiguous zone or 
waters of the United States for the purpose of mineral or oil 
exploration or development.
* * * * *

Subpart B--Permit Application and Special NPDES Program 
Requirements

0
4. Section 122.21 is amended by:
0
a. Revising paragraph (a)(2)(i) introductory text;
0
b. Revising paragraph (a)(2)(i)(A);
0
c. Revising paragraph (c)(2)(ii)(B);
0
d. Revising paragraphs (f) introductory text and (f)(2) through (4);
0
e. Adding paragraphs (f)(9) and (10);
0
f. Revising paragraphs (g) introductory text and (g)(1);
0
g. Adding paragraph (g)(7)(ix);
0
h. Revising paragraph (h)(1);
0
i. Revising paragraph (i)(1)(iii);
0
j. Revising paragraphs (j)(1)(i), (j)(1)(ii), and (j)(1)(viii)(D)(2) 
and (3);
0
k. Adding paragraph (j)(1)(ix);
0
l. Revising paragraphs (j)(3)(i)(C), (j)(4)(i), (j)(5)(i), (j)(6)(i), 
(j)(6)(ii) introductory text, (j)(6)(ii)(B), (C), (E) and (G), 
(j)(8)(ii)(A)(3) and (j)(9);
0
m. Revising paragraphs (k) introductory text, (k)(1), and (k)(5)(vi);

[[Page 31369]]

0
n. Revising paragraphs (q)(1)(i), (q)(2)(i), (q)(8)(ii)(A), (q)(8)(vi) 
introductory text and (q)(8)(vi)(A), (q)(9)(iii)(B), (D), and (E), 
(q)(9)(iv)(A), (q)(10)(ii)(A), (q)(10)(iii)(B) and (q)(10)(iii)(K)(1), 
(q)(11)(ii)(A) and (q)(11)(iii)(B), (q)(12)(i), and (q)(13); and,
0
o. Revising paragraph (r)(3)(ii).
    The additions and revisions read as follows:


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

    (a) * * *
    (2) * * *
    (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. Application forms may be obtained 
by contacting: U.S. EPA, Mail Code 4203M, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460 or by visiting http://www.epa.gov/npdes. 
Applications for EPA-issued permits must be submitted as follows:
    (A) All applicants, other than POTWs, TWTDS, vessels, and pesticide 
applicators must submit Form 1.
* * * * *
    (c) * * *
    (2) * * *
    (ii) * * *
    (B) The applicant's name, address, telephone number, electronic 
mail address and ownership status;
* * * * *
    (f) Information requirements. All applicants for NPDES permits, 
other than POTWs, other TWTDS, vessels, and pesticide applicators, must 
provide the information in paragraphs (f)(1) through (10) of this 
section to the Director, using the application form provided by the 
Director. Additional information required of applicants is set forth in 
paragraphs (g) through (k) and (q) through (r) of this section.
* * * * *
    (2) Name, mailing address, and location, including latitude and 
longitude to the nearest second and method of collection, of the 
facility for which the application is submitted.
    (3) Up to four SIC and NAICS codes that best reflect the principal 
products or services provided by the facility.
    (4) The operator's name, address, telephone number, electronic mail 
address, ownership status, and status as Federal, State, private, 
public, or other entity.
* * * * *
    (9) An indication of whether the facility uses cooling water and 
the source of the cooling water. (Facilities that use a cooling water 
intake structure as described at 40 CFR 125.91 must comply with 
requirements at 40 CFR 122.21(r)).
    (10) An indication of whether the facility is requesting any of the 
variances at 40 CFR 122.21(m).
    (g) Application requirements for existing manufacturing, 
commercial, mining, and silvicultural dischargers. Existing 
manufacturing, commercial, mining, and silvicultural dischargers 
applying for NPDES permits, except for those facilities subject to the 
requirements of Sec.  122.21(h), shall provide the following 
information to the Director, using application forms provided by the 
Director.
    (1) Outfall location. The latitude and longitude to the nearest 
second, including method of collection, and the name of the receiving 
water.
* * * * *
    (7) * * *
    (ix) Existing data may be used, if available, in lieu of sampling 
done solely for the purpose of this application. All existing data for 
pollutants specified in paragraphs (g)(7)(i) through (viii) of this 
section that is collected within four and one-half years of the 
application must be included in the pollutant data summary submitted by 
the applicant. If, however, the applicant samples for a specific 
pollutant on a monthly or more frequent basis, it is only necessary, 
for such pollutant, to summarize all data collected within one year of 
the application.
* * * * *
    (h) * * *
    (1) Outfall location. Outfall number, latitude and longitude to the 
nearest second, including the method of collection, and the name of the 
receiving water.
* * * * *
    (i) * * *
    (1) * * *
    (iii) Latitude and longitude of the production area (entrance to 
production area) to the nearest second, including method of collection;
* * * * *
    (j) * * *
    (1) * * *
    (i) Facility information. Name, mailing address, and location of 
the facility, including the latitude and longitude to the nearest 
second and method of collection, for which the application is 
submitted;
    (ii) Applicant information. Name, mailing address, telephone 
number, and electronic mail address of the applicant, and indication as 
to whether the applicant is the facility's owner, operator, or both;
* * * * *
    (viii) * * *
    (D) * * *
    (2) The name, mailing address, contact person, phone number, and 
electronic mail address of the organization transporting the discharge, 
if the transport is provided by a party other than the applicant;
    (3) The name, mailing address, contact person, phone number, 
electronic mail address and NPDES permit number (if any) of the 
receiving facility; and
* * * * *
    (ix) An indication of whether applicant is operating under or 
requesting to operate under a variance as specified at 40 CFR 
122.21(n).
* * * * *
    (3) * * *
    (i) * * *
    (C) Latitude and longitude, to the nearest second, including the 
method of collection;
    (4) * * *. (i) As provided in paragraphs (j)(4)(ii) through (x) of 
this section, all applicants must submit to the Director effluent 
monitoring information for samples taken from each outfall through 
which effluent is discharged to waters of the United States, except for 
CSOs. The Director may allow applicants to submit sampling data for 
only one outfall on a case-by-case basis, where the applicant has two 
or more outfalls with substantially identical effluent. The Director 
may also allow applicants to composite samples from one or more 
outfalls that discharge into the same mixing zone. For POTWs applying 
prior to commencement of discharge, data shall be submitted no later 
than 18 months after the commencement of discharge;
* * * * *
    (5) * * *. (i) All applicants must provide an identification of any 
whole effluent toxicity tests conducted during the four and one-half 
years prior to the date of the application on any of the applicant's 
discharges or on any receiving water near the discharge. For POTWs 
applying prior to commencement of discharge, data shall be submitted no 
later than 18 months after the commencement of discharge.
* * * * *
    (6) * * *
    (i) Number of significant industrial users (SIUs) and non-
significant categorical industrial users (NSCIUs), as defined at 40 CFR 
403.3(v), including trucked or hauled waste, discharging to the POTW; 
and

[[Page 31370]]

    (ii) POTWs with one or more SIUs or NSCIUs shall provide the 
following information for each SIU and NSCIU that discharges to the 
POTW:
* * * * *
    (B) Description of all industrial processes that affect or 
contribute to the SIU's or NSCIU's discharge;
    (C) Principal products and raw materials of the SIU that affect or 
contribute to the SIU's or NSCIU's discharge;
* * * * *
    (E) Whether the SIU or NSCIU is subject to local limits;
* * * * *
    (G) Whether any problems at the POTW (e.g., upsets, pass through, 
interference) have been attributed to the SIU or NSCIU in the past four 
and one-half years.
* * * * *
    (8) * * *
    (ii) * * *
    (A) * * *
    (3) Latitude and longitude, to the nearest second, including the 
method of collection; and
* * * * *
    (9) Contractors. All applicants must provide the name, mailing 
address, telephone number, electronic mail address and responsibilities 
of all contractors responsible for any operational or maintenance 
aspects of the facility; and
* * * * *
    (k) Application requirements for new sources and new discharges. 
New manufacturing, commercial, mining and silvicultural dischargers 
applying for NPDES permits (except for new discharges of facilities 
subject to the requirements of paragraph (h) of this section or new 
discharges of storm water associated with industrial activity which are 
subject to the requirements of Sec.  122.26(c)(1) and this section 
(except as provided by Sec.  122.26(c)(1)(ii)) shall provide the 
following information to the Director, using the application forms 
provided by the Director:
    (1) Expected outfall location. The latitude and longitude to the 
nearest second, including the method of collection, and the name of the 
receiving water.
* * * * *
    (5) * * *
    (vi) No later than 18 months after the commencement of discharge 
from the proposed facility, the applicant is required to complete and 
submit items V and VI of NPDES application Form 2C (see Sec.  
122.21(g)). However, the applicant need not complete those portions of 
Item V requiring tests which have already been performed and reported 
under the discharge monitoring requirements of the NPDES permit.
* * * * *
    (q) * * *
    (1) * * *
    (i) The name, mailing address, and location, including latitude and 
longitude to the nearest second and method of collection, of the TWTDS 
for which the application is submitted;
* * * * *
    (2) * * *
    (i) The name, mailing address, telephone number, and electronic 
mail address,
* * * * *
    (8) * * *
    (ii) * * *
    (A) The name, mailing address, and location, including the latitude 
and longitude to the nearest second and the method of collection, of 
the other facility;
* * * * *
    (vi) If sewage sludge from the applicant's facility is provided to 
another ``person who prepares,'' as defined at 40 CFR 503.9(r), and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information for each facility 
receiving the sewage sludge:
    (A) The name, mailing address, and electronic mail address of the 
receiving facility;
* * * * *
    (9) * * *
    (iii) * * *
    (B) The site's latitude and longitude to the nearest second and 
method of collection;
* * * * *
    (D) The name, mailing address, telephone number, and electronic 
mail address of the site owner, if different from the applicant;
    (E) The name, mailing address, telephone number, and electronic 
mail address of the person who applies sewage sludge to the site, if 
different from the applicant;
* * * * *
    (iv) * * *
    (A) Whether the applicant has contacted the permitting authority in 
the State where the bulk sewage sludge subject to Sec.  503.13(b)(2) 
will be applied, to ascertain whether bulk sewage sludge subject to 
Sec.  503.13(b)(2) has been applied to the site on or since July 20, 
1993, and if so, the name of the permitting authority and the name, 
phone number, and electronic mail address if available, of a contact 
person at the permitting authority;
* * * * *
    (10) * * *
    (ii) * * *
    (A) The site name or number, contact person, mailing address, 
telephone number, and electronic mail address for the surface disposal 
site; and
* * * * *
    (iii) * * *
    (B) The unit's latitude and longitude to the nearest second and 
method of collection;
* * * * *
    (K) * * *
    (1) The name, contact person, mailing address, and electronic mail 
address of the facility; and
* * * * *
    (11) * * *
    (ii) * * *
    (A) The name and/or number, contact person, mailing address, 
telephone number, and electronic mail address of the sewage sludge 
incinerator; and
* * * * *
    (iii) * * *
    (B) The incinerator's latitude and longitude to the nearest second 
and method of collection;
* * * * *
    (12) * * *
    (i) The name, contact person, mailing address, electronic mail 
address, location (including latitude and longitude to the nearest 
second and the method of collection), and all applicable permit numbers 
of the MSWLF;
* * * * *
    (13) Contractors. All applicants must provide the name, mailing 
address, telephone number, electronic mail address and responsibilities 
of all contractors responsible for any operational or maintenance 
aspects of the facility related to sewage sludge generation, treatment, 
use, or disposal;
* * * * *
    (r) * * *
    (3) * * *
    (ii) Latitude and longitude to the nearest second and the method of 
collection for each cooling water intake structure;
* * * * *

Subpart C--Permit Conditions

0
4. Section 122.44 is amended by:
0
a. Revising paragraphs (d)(1) introductory text and (d)(1)(ii);
0
b. Adding paragraph (d)(1)(vii)(C);
0
c. Revising the note to paragraph (k)(4);
0
d. Revising paragraph (l)(2); and,
0
e. Adding paragraph (l)(3).
    The additions and revisions read as follows:

[[Page 31371]]

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

* * * * *
    (d) * * *
    (1) Achieve water quality standards established under section 303 
of the CWA, including State narrative criteria for water quality, and 
ensure consistency with the State antidegradation policy established 
under Sec.  131.12.
* * * * *
    (ii) When determining whether a discharge causes, has the 
reasonable potential to cause, or contributes to an in-stream excursion 
above a narrative or numeric criteria within a State water quality 
standard, the permitting authority shall use procedures which account 
for existing controls on point and nonpoint sources of pollution, the 
variability of the pollutant or pollutant parameter in the effluent, 
the sensitivity of the species to toxicity testing (when evaluating 
whole effluent toxicity), the use of relevant qualitative or 
quantitative data, analyses, or other information on pollutants or 
pollutant parameters to assess the need for a water quality-based 
effluent limitation, and where appropriate, the dilution of the 
effluent in the receiving water. A dilution allowance under this 
paragraph must comply with applicable dilution and mixing zone 
requirements and low flows established in State water quality standards 
and must be supported by data or analyses that account for the presence 
of each assessed pollutant or pollutant parameter in the receiving 
water (see fact sheet requirements at Sec.  124.56(a)).
* * * * *
    (vii) * * *
    (C) Any dilution allowance complies with applicable dilution and 
mixing zone requirements and low flows established in State water 
quality standards and must be supported by data or analyses quantifying 
or accounting for the presence of each limited pollutant or pollutant 
parameter in the receiving water (see fact sheet requirements at Sec.  
124.56(a)).
* * * * *
    (k) * * *
    (4) * * *

    Note to Paragraph (k)(4):  Additional technical information on 
BMPs and the elements of BMPs 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. 
EPA guidance documents can be obtained through the National Service 
Center for Environmental Publications (NSCEP) at http://www.epa.gov/nscep. In addition, States may have BMP guidance documents.

* * * * *
    (l) * * *
    (2)(i) In the case of effluent limitations established on the basis 
of section 402(a)(1)(B) of the CWA, a permit may not be renewed, 
reissued, or modified on the basis of effluent guidelines promulgated 
under section 304(b) subsequent to the original issuance of such 
permit, to contain effluent limitations which are less stringent than 
the comparable effluent limitations in the previous permit.
    (ii) In the case of effluent limitations established on the basis 
of section 301(b)(1)(C) or section 303(d) or (e) of the CWA, a permit 
may not be renewed, reissued, or modified to contain effluent 
limitations that are less stringent than the comparable effluent 
limitations in the previous permit except in compliance with paragraph 
(l)(3) of this section.
    (iii) Exceptions. A permit with respect to which paragraph (l)(2) 
of this section applies may be renewed, reissued, or modified to 
contain a less stringent effluent limitation applicable to a pollutant, 
if:
    (A) Material and substantial alterations or additions to the 
permitted facility occurred after permit issuance which justify the 
application of a less stringent effluent limitation;
    (B)(1) Information is available which was not available at the time 
of permit issuance (other than revised regulations, guidance, or test 
methods) and which would have justified the application of a less 
stringent effluent limitation at the time of permit issuance; or
    (2) The Administrator determines that technical mistakes or 
mistaken interpretations of law were made in issuing the permit under 
section 402(a)(1)(b);
    (C) A less stringent effluent limitation is necessary because of 
events over which the permittee has no control and for which there is 
no reasonably available remedy;
    (D) The permittee has received a permit modification under section 
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
    (E) The permittee has installed the treatment facilities required 
to meet the effluent limitations in the previous permit and has 
properly operated and maintained the facilities but has nevertheless 
been unable to achieve the previous effluent limitations, in which case 
the limitations in the reviewed, reissued, or modified permit may 
reflect the level of pollutant control actually achieved (but shall not 
be less stringent than required by effluent guidelines in effect at the 
time of permit renewal, reissuance, or modification).
    (iv) Limitations. In no event may a permit with respect to which 
paragraph (l)(2) of this section applies be renewed, reissued, or 
modified to contain an effluent limitation which is less stringent than 
required by effluent guidelines in effect at the time the permit is 
renewed, reissued, or modified. In no event may such a permit to 
discharge into waters be renewed, issued, or modified to contain a less 
stringent effluent limitation if the implementation of such limitation 
would result in a violation of a water quality standard under section 
303 applicable to such waters.

    Note to paragraph (l)(2). Paragraph (2)(iii)(B)(1) of this 
section shall not apply to any revised waste load allocations or any 
alternative grounds for translating water quality standards into 
effluent limitations, except where the cumulative effect of such 
revised allocations results in a decrease in the amount of 
pollutants discharged into the concerned waters, and such revised 
allocations are not the result of a discharger eliminating or 
substantially reducing its discharge of pollutants due to complying 
with the requirements of this chapter or for reasons otherwise 
unrelated to water quality.

    (3)(i) Standard Not Attained. For waters identified under section 
303(1)(A) of the Act where the applicable water quality standard has 
not yet been attained, any effluent limitation based on a total maximum 
daily load or other waste load allocation established under this 
section may be revised only if: (A) The cumulative effect of all such 
revised effluent limitations based on such total maximum daily load or 
waste load allocation will assure the attainment of such water quality 
standard, or (B) the designated use which is not being attained is 
removed in accordance with regulations established under this section.

[[Page 31372]]

    (ii) Standard Attained. Any effluent limitation based on a total 
maximum daily load or other waste load allocation established under 
this section, or any water quality standard established under this 
section, or any other permitting standard may be revised only if such 
revision is subject to and consistent with the antidegradation 
requirements established under this section.
0
5. Section 122.45 is amended by revising the section heading and 
paragraph (b)(1) to read as follows:


Sec.  122.45  Calculating NPDES permit conditions (applicable to State 
NPDES programs, see 40 CFR 123.25).

* * * * *
    (b) Production-based limitations. (1) In the case of POTWs, permit 
effluent limitations, standards, or prohibitions derived from 
technology-based requirements pursuant to Sec.  125.3(a)(1) shall be 
calculated based on design flow.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

0
6. The authority citation for part 123 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1252 et seq.

Subpart C--Transfer of Information and Permit Review

0
7. Section 123.44 is amended by adding paragraph (k) to read as 
follows:


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

* * * * *

Option 1 for Paragraph (k)(1)

    (k)(1) Where a State does not submit a proposed permit (or draft 
permit, if applicable under paragraph (j) of this section) to EPA 
within two years, after the expiration of the existing permit, and the 
permit is administratively continued under state law in accordance with 
Sec.  122.6(d), EPA may, in its discretion, review the administratively 
continued permit as a proposed permit, in accordance with the 
procedures in paragraphs (a)(1) through (h)(3) of this section.

Option 2 for Paragraph (k)(1)

    (k)(1) Where a State does not submit a proposed permit (or draft 
permit, if applicable under paragraph (j) of this section) to EPA 
within five years, after the expiration of the existing permit, and the 
permit is administratively continued under state law in accordance with 
Sec.  122.6(d), EPA may, in its discretion, review the administratively 
continued permit as a proposed permit, in accordance with the 
procedures in paragraphs (a)(1) through (h)(3) of this section.

Option 1 for Paragraph (k)(2)

    (2) To review an expired and administratively continued permit 
under this paragraph, EPA must provide the State and the permittee with 
written notice stating that if a proposed permit (or draft permit, if 
applicable under paragraph (j) of this section) is not provided within 
180 days, the Regional Administrator will designate the expired permit 
as a proposed permit submitted to EPA for review under this section. 
EPA may submit this notice any time beginning two years after permit 
expiration.

Option 2 for Paragraph (k)(2)

    (2) To review an expired and administratively continued permit 
under this paragraph, EPA must provide the State and the permittee with 
written notice stating that if a proposed permit (or draft permit, if 
applicable under paragraph (j) of this section) is not provided within 
180 days, the Regional Administrator will designate the expired permit 
as a proposed permit submitted to EPA for review under this section. 
EPA may submit this notice any time beginning five years after permit 
expiration.
    (3) If the State submits a draft or proposed permit for EPA review 
at any time before exclusive authority to issue the permit passes to 
EPA under paragraph (h) of this section, EPA will suspend its 
designation of the administratively continued permit as a proposed 
permit under this paragraph and will evaluate the proposed permit (or 
draft permit, if applicable under paragraph (j) of this section) 
submitted by the State in accordance with the procedures described in 
paragraphs (a)(1) through (h)(3) of this section.
    (i) If the State does not reissue the permit within 180 days 
following completion of EPA's review of the draft or proposed permit 
submitted by the State in accordance with paragraph (k)(3) of this 
section, EPA may reinstate its designation of the administratively 
continued permit as the proposed permit, and the procedures and 
timelines established in paragraphs (a)(1) through (h)(3) of this 
section will proceed from the point of the suspension. EPA must provide 
the State and permittee written notice of this decision to reinstate 
the designation.
    (ii) [Reserved]

PART 124--PROCEDURES FOR DECISIONMAKING

0
8. The authority citation for part 124 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1253 et seq.

Subpart A--General Program Requirements

0
9. Section 124.10 is amended by revising (c) introductory text and 
adding paragraph (c)(2)(iv) to read as follows:


Sec.  124.10  Public notice of permit actions and public comment 
period.

* * * * *
    (c) Methods (applicable to State programs, see 40 CFR 123.25 
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). Public notice 
of activities described in paragraph (a)(1) of this section shall be 
given by the following methods:
* * * * *
    (2) * * *
    (iv) For NPDES major permits and NPDES general permits, in lieu of 
the requirement to post a notice in a daily or weekly newspaper, as 
described in paragraph (2)(i) of this section, the Director may post 
all notices required by this paragraph to the permitting authority's 
public Web site. If the Director selects this option, in addition to 
meeting the requirements in Sec.  124.10(d), the Director must post the 
draft permit and fact sheet on the Web site during the public comment 
period, and must post the final permit, fact sheet and response to 
comments (if any) on the Web site from the date of issuance of the 
permit until the permit is reissued or terminated.

    Note to paragraph (c)(2)(iv): The Director is encouraged to 
ensure that the method(s) of public notice effectively informs all 
interested communities and allows access to the permitting process 
for those seeking to participate.

Subpart D--Specific Procedures Applicable to NPDES Permits

0
10. Section 124.55 is amended by revising paragraph (b) to read as 
follows:


Sec.  124.55  Effect of State certification.

* * * * *
    (b) If there is a change in the State law or regulation upon which 
a certification is based, or if a court of competent jurisdiction or 
appropriate State board or agency stays, vacates, or remands a 
certification, a State which has issued a certification under Sec.  
124.53 may issue a modified certification or notice of waiver and 
forward it to EPA. If the modified certification or notice of

[[Page 31373]]

waiver is received before final agency action on the permit, the permit 
shall be consistent with the more stringent conditions which are based 
upon State law identified in such certification. If the modified 
certification or notice of waiver is received after final agency action 
on the permit, the Regional Administrator may modify the permit to be 
consistent with any more stringent conditions added to the 
certification following resolution of an administrative or judicial 
challenge to the certification. In all other instances where the 
certification or notice of waiver is received after final agency action 
on the permit, the Regional Administrator may modify the permit on 
request of the permittee only to the extent necessary to delete any 
conditions based on a condition in a certification invalidated by a 
court of competent jurisdiction or by an appropriate State board or 
agency.
* * * * *
0
11. Section 124.56 is amended by:
0
a. Revising paragraphs (a), (b)(1)(vi), and (c); and
0
b. Adding paragraph (b)(1)(vii).
    The additions and revision read as follows:


Sec.  124.56  Fact sheets.

* * * * *
    (a) Any calculations or other necessary explanation of the 
derivation of all effluent limitations, standards and other permit 
conditions specific to the permitted discharge, including sewage sludge 
use or disposal conditions. Where effluent limitations and conditions 
are carried forward from a previous permit, explanation of the basis of 
the existing limitations and conditions must be included in the fact 
sheet or administrative record for the draft permit. Where the 
information in paragraphs (a)(1) and (2) of this section is contained 
in other documents that are part of the administrative record, the fact 
sheet may provide a brief summary of the required information and a 
specific reference to the source document within the administrative 
record, rather than repeating the information. Where applicable, fact 
sheets must contain:
    (1) For NPDES individual permits:
    (i) A citation to the specific federal or state effluent limitation 
guideline, performance standard, or standard for sewage sludge use or 
disposal as required by Sec.  122.44 from which effluent limitations 
and conditions are derived;
    (ii) An identification of:
    (A) The receiving water(s);
    (B) The State water quality standards that apply to the receiving 
water(s);
    (C) The CWA section 303(d)/305(b) assessment status of the 
receiving water(s), and;
    (D) Whether a total maximum daily load has been established for any 
pollutant or pollutant parameter for which the receiving water(s) is 
listed as impaired;
    (iii) An explanation and calculations for effluent limits or 
conditions necessary to achieve technology-based standards required by 
Sec.  122.44(a) and best management practices required pursuant to 
Sec.  122.44(k);
    (iv) An explanation of the basis for the inclusion of requirements 
in addition to, or more stringent than, promulgated effluent 
limitations guidelines or standards consistent with Sec.  122.44(d), 
including, but not limited to, a description of:
    (A) How pollutants and pollutant parameters were selected for 
analysis for the need for effluent limitations under Sec.  122.44(d) to 
achieve water quality standards, including a summary of effluent 
characteristics;
    (B) The receiving water ambient pollutant concentration data for 
all pollutants for which a dilution or mixing allowance is granted 
pursuant to Sec.  122.44(d)(1)(ii), or an explanation of why such data 
are not applicable or available;
    (C) For any proposed water quality-based effluent limitation or 
condition required by Sec.  122.44(d), any dilution or mixing 
allowance, including a discussion of how ambient pollutant 
concentrations were considered in the water quality analysis;
    (D) If an EPA-approved or established total maximum daily load has 
assigned a waste load allocation to the proposed discharge, how permit 
effluent limitations and conditions were developed consistent with the 
assumptions of the waste load allocation, and; where the permitting 
authority determines that a discharge will cause, have a reasonable 
potential to cause, or contribute to an excursion above any State 
narrative water quality criterion, how the permit ensures compliance 
with applicable State narrative water quality criteria consistent with 
Sec.  122.44(d)(1)(v) and (vi);
    (v) For any proposed effluent limitation or condition required by 
Sec.  122.44, information sufficient to ensure that the discharge is 
consistent with the State's antidegradation requirements; and
    (vi) a discussion of the permit's monitoring and reporting 
requirements, including an assurance that the prescribed analytical 
methods meet the requirements of Sec.  122.44(i).
    (2) For NPDES general permits:
    (i) A description of how the issuance of the general permit 
conforms with the requirements of Sec.  122.28, including the 
geographic area of coverage, the types, classes, or categories of 
waters to which the general permit authorizes discharge, and the 
sources that will be covered by the general permit;
    (ii) A citation to the specific federal or State effluent 
limitation guideline, performance standard, or standard for sewage 
sludge use or disposal as required by Sec.  122.44 from which effluent 
limitations and conditions are derived;
    (iii) A description and rationale for other requirements included 
in the general permit, including effluent limits or conditions 
necessary to achieve technology-based standards required by Sec.  
122.44(a) and best management practices required pursuant to Sec.  
122.44(k);
    (iv) A description of how the general permit ensures that 
discharges are controlled as necessary to meet applicable State water 
quality standards, including consideration of State antidegradation 
policies and applicable waste load allocations from EPA approved or 
established total maximum daily loads, in accordance with the 
requirements of Sec.  122.44(d);
    (v) A discussion of proposed monitoring and reporting conditions, 
including assurance that prescribed analytical methods meet the 
requirements of Sec.  122.44(i); and
    (vi) A description of the Notice of Intent information and 
submission requirements, and the process by which the permit provides 
authorization to discharge or authorization to engage in sludge use and 
disposal practices. Where the general permit does not require a Notice 
of Intent, a description of why the Notice of Intent process is 
inappropriate in accordance with the criteria established in Sec.  
122.28(b)(2)(v).
    (b)(1) * * *
    (vi) Waivers from monitoring requirements granted under Sec.  
122.44(a) of this chapter; or
    (vii) Compliance schedules granted under Sec.  122.47 of this 
chapter.
* * * * *
    (c) When appropriate, a sketch or detailed description of the 
location of each discharge or regulated activity, including the 
geographic coordinates, described in the application; and
* * * * *

[[Page 31374]]

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

0
12. Revise the authority citation for part 125 to read as follows:

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

Subpart A--Criteria and Standards for Imposing Technology-Based 
Treatment Requirements Under Sections 301(b) and 402 of the Act


Sec.  125.3  [Amended]

0
13. Section 125.3 is amended by removing and reserving paragraph 
(a)(1)(ii).

[FR Doc. 2016-11265 Filed 5-17-16; 8:45 am]
 BILLING CODE 6560-50-P