[Federal Register Volume 65, Number 153 (Tuesday, August 8, 2000)]
[Notices]
[Pages 48501-48503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20018]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6843-1]
State Program Amendment; Addendum to EPA/LDEQ MOA for
Administration of the National Pollutant Discharge Elimination System
(NPDES) Program; Louisiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Amendment to the Memorandum of Agreement.
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SUMMARY: A Court Order dated October 1, 1999, in the case Sierra Club
et al. v. Clifford et al., No. 96-0527 (E.D. La. ), directs EPA to
amend the Memorandum Of Agreement (MOA) for the Louisiana Pollutant
Discharge Elimination System (LPDES) Program pursuant to section 402 of
the Clean Water Act (CWA). By letter dated March 30, 2000, the
Secretary for the Louisiana Department of Environmental Quality (LDEQ)
agreed to amend the MOA to include an addendum addressing the Court's
order. EPA is providing notice on the addendum to the LPDES program
signed by Secretary Givens on March 31, 2000. Pursuant to the Court
orders dated October 1, 1999, and June 21, 2000, EPA was ordered to
sign and approve the MOA revisions. Acting EPA Regional Administrator,
Sam Coleman, signed the MOA addendum approving the MOA revision on June
28, 2000. The procedures for revising NPDES state programs are set
forth in federal regulations found at 40 CFR 123.62. 40 CFR
123.62(b)(4) and Section X of the MOA provide that LPDES program
revisions become effective once the EPA Region 6 Administrator approves
revisions submitted by the State. Approval of substantial revisions
must be noticed in the Federal Register. Today, to satisfy its
regulatory responsibilities and to allow for public participation, EPA
provides notice of a comment period on its approval of such program
revisions. Having approved LDEQ's program amendments, EPA now seeks
public input on the amendment, and therefore, is providing opportunity
for the public to provide comments on this action to determine if
further action is appropriate. Upon consideration of information
gathered under this comment period EPA may request the Court to allow
EPA to make appropriate changes.
DATES: EPA Region 6 will accept written comments on the revisions to
the MOA through September 7, 2000.
ADDRESSES: Written comments must be submitted to: Ms. Evelyn
Rosborough; Customer Service Branch;Water Quality Protection Division;
EPA Region 6; 1445 Ross Avenue; Dallas, Texas 75202; Mail Stop Code:
(6WQ-CA); (214) 665-7515.
FOR FURTHER INFORMATION CONTACT: Ms. Evelyn Rosborough, Customer
Service Branch; Water Quality Protection Division, EPA Region 6; 1445
Ross Avenue; Dallas, TX 75202; telephone: (214) 665-7515. Copies of the
amended MOA submitted to EPA by LDEQ, are available for review at EPA
Region 6, Customer Service Branch, Water Quality Protection Division;
1445 Ross Avenue, Dallas, TX 75202, between 8:00 a.m. and 4:30 p.m.,
Monday through Friday. EPA recommends that you write or call the
contact above for an appointment, so the record(s) will be available at
your convenience. The MOA signed August 27, 1996, and other pertinent
regulations may be viewed at website http://yosemite.epa.gov/r6/genper.nsf/pages/npdespn.
PUBLIC HEARING PROCEDURES: EPA's comments and public hearing procedures
may be found at 40 CFR 123.62(b)(2). The comment period during which
written comments on the amended MOA may be submitted extends for thirty
(30) days from the date of this Notice. During the comment period any
interested person may request a public hearing by filing a written
request which must state the issues to be raised. A public hearing will
be held if there is significant public interest based on requests.
SUPPLEMENTARY INFORMATION: As a result of litigation in Sierra Club et
al. v. Clifford et al., No. 96-0527 (E.D. La.), the Court ordered,
among other things, that EPA Region VI amend its MOA with Louisiana.
The principal regulations governing the MOA are found in 40 CFR 123.24.
These regulations provide that, among other requirements, the MOA shall
be submitted to EPA by the state that seeks to administer the NPDES
program. The MOA specifies the responsibilities of EPA, and the state
and provides structure for the state's program management and EPA's
program oversight. The MOA provides that EPA will review certain
preliminary draft permits and permit modifications to ensure that
permits will comply with federal guidelines and requirements and may
review others.
The MOA provides provisions for modification as well. Section X of
the MOA (modification) provides that the MOA shall be reviewed and
revised appropriately at least within five years of the effective date.
Either EPA or LDEQ may initiate action to modify the MOA at any time.
Any substantial changes must be in writing and signed by the LDEQ
Secretary and the EPA Regional Administrator. The MOA addendum
submitted by the state of Louisiana was signed by the Secretary of LDEQ
on March 31, 2000, and by the Acting EPA Regional Administrator on June
28, 2000.
The language at issue in this approved MOA revision is found in
paragraphs 6, 7 and 9 of the Court's October 1, 1999, Order, which
state the following:
``(6) The defendants [EPA] shall implement the total maximum daily
loads in permits by amending the agreement with Louisiana under Section
402 of the Clean Water Act to require that the limits for point sources
established in total maximum daily loads be achieved:
(a) By any point source that discharges pursuant to a new permit
[[Page 48502]]
issued after the total maximum daily load has been established.
(b) By every point source discharging pursuant to an existing
permit within the earlier of six years from the date the total maximum
daily load is established or three years following the first expiration
of the permit after the total maximum daily load is established.
(7) The defendants [EPA] shall amend the agreement with Louisiana
under Section 402 of the Clean Water Act to require the state to
provide the EPA with a copy of every permit application (whether for a
new permit or renewal of an existing permit) if the application seeks a
discharge limit in excess of any limit established in a total maximum
daily load.
(9) The defendants [EPA] shall amend the agreement with Louisiana
under Section 402 of the Clean Water Act to require the state to
provide EPA with a copy of every application for a new permit that
proposes to allow the discharge of a pollutant with respect to which a
water does not meet water quality standards.''
Following several communications between LDEQ and EPA Region 6,
LDEQ submitted a signed MOA Addendum on March 31, 2000, that includes
language required by paragraphs 6, 7, and 9 of the Court's Order. In
addition, LDEQ submitted a cover letter signed March 30, 2000, which
addressed requirements for accomplishing an MOA revision under 40 CFR
123.62(b)(1). Pursuant to the Court's order dated June 21, 2000, EPA
signed the Addendum on June 28, 2000. Under 40 CFR 123.62(b)(2),
``[w]henever EPA determines that the program revision is substantial,
EPA shall issue public notice and provide an opportunity to comment for
a period of at least 30 days.'' Because the Court-ordered revisions
constitute substantial revisions to the LPDES program, EPA is providing
an opportunity for public comment in accordance with the regulations.
EPA will consider all comments and determine if further action is
appropriate. At that time, EPA may request the Court to allow EPA to
make appropriate changes as a result of the information provided under
the comment period and hearing process, if held.
EPA notes specifically that neither the EPA regulations, the
authorized LPDES program or the August 27, 1996 MOA contain
implementation requirements as restrictive as those found in paragraph
6 of the Court's Order.
1. The EPA/LDEQ MOA Amendments
The principal regulations governing MOAs are found at 40 CFR
123.24. An MOA is a document signed by each agency committing them to
specific responsibilities. An MOA specifies these responsibilities and
provides structure for the State's program management and EPA's program
oversight. The MOA Addendum submitted by the State of Louisiana has
been signed by the Secretary of the Department of Environmental Quality
March 31, 2000, and the Acting Regional Administrator of U.S. EPA
Region 6 June 28, 2000. The MOA amendment requested by EPA and
submitted by LDEQ includes the following:
Addendum
National Pollutant Discharge Elimination System Memorandum of
Agreement Between Louisiana Department of Environmental Quality and
the United States Environmental Protection Agency
Consistent with the October 1, 1999, Court Order in Sierra Club
v. Clifford, No. 96-0527 (E.D. La.), the Environmental Protection
Agency (``EPA''), Region 6 and Louisiana Department of Environmental
Quality (``LDEQ'') hereby revise the Louisiana Pollutant Discharge
Elimination System (``LPDES'') program. The revisions add the
following Sections and language to the August 27, 1996, Memorandum
of Agreement (``MOA'') between LDEQ and EPA Region 6:
III.C.2.a LDEQ shall implement the total maximum daily loads in
permits to require that the limits for point sources established in
total maximum daily loads be achieved:
(i) By any point source that discharges pursuant to a new permit
issued after the total maximum daily load has been established.
(ii) By every point source discharging pursuant to an existing
permit within the earlier of six years from the date the total
maximum daily load is established or three years following the first
expiration of the permit after the total maximum daily load is
established.
III.T. Permit Applications for water quality limited segments and
established TMDLs.
III.T.1 LDEQ shall provide EPA with a copy of every permit
application (whether for a new permit or renewal of an existing
permit) if the application seeks a discharge limit in excess of any
limit established in a total maximum daily load.
III.T.2 LDEQ shall provide EPA with a copy of every application
for a new permit that proposes to allow the discharge of a pollutant
with respect to which a water does not meet water quality standards.
The MOA also states: ``Nothing in this MOA Addendum shall be
construed to nullify the Modification (Section X) process described in
the August 27, 1996, MOA. In addition, this MOA Amendment Addendum
shall become effective when approved by both the EPA Regional
Administrator pursuant to 40 CFR 123.24(a) and the LDEQ Secretary.''
The MOA Addendum was signed by Dale Givens, Secretary of the
Environment for Louisiana on March 31, 2000, and by the Acting EPA
Regional Administrator on June 28, 2000.
2. Total Maximum Daily Loads Process as it Relates to the LPDES
Program
The Total Maximum Daily Load (TMDL) process is an important element
of the water quality-based approach. It identifies pollutant load
allocations necessary to meet water quality standards.
A TMDL must be developed for each waterbody and pollutant
combination on a State's CWA Section 303(d) list. The objective of a
TMDL is to allocate allowable loads among different pollutant sources
so that the appropriate control actions/management measures can be
taken and water quality standards will be achieved. A TMDL includes
consideration of existing pollutant loads from all sources. The TMDL
process distributes portions of the waterbody's assimilative capacity
for a pollutant to various pollution sources--including load
allocations (LAs) to nonpoint sources and natural background, wasteload
allocations (WLAs) to point sources, and a margin of safety to account
for any lack of knowledge concerning the relationship between effluent
limitations and water quality--so that the waterbody achieves its water
quality standards. The TMDL establishes allowable loads and helps
provide the basis for establishing or modifying controls or management
measures on pollutant sources. Wasteload allocations established in
TMDLs provide basis for effluent limitations necessary to protect water
quality in the receiving water and ensure attainment of water quality
standards.
Once allowable loadings have been developed through WLAs for
specific pollutant sources, limits are incorporated into NPDES/LPDES
permits. A current version of the Court ordered Section 303(d) list for
Louisiana along with EPA established TMDLs in the Mermentau and
Vermilion/Teche watersheds may be viewed and downloaded from the Region
6 TMDL website at www.epa.gov/region6/water/tmdl.htm.
3. Effects of This Action
The Court Order appears to restrict flexibility provided by federal
and state regulations for EPA and Louisiana under the NPDES program
which allow construction schedules for existing facilities which may
need to install or construct additional treatment to meet effluent
limitations. The Court's order, and the Addendum likely will affect
some point source dischargers to
[[Page 48503]]
Louisiana stream segments for pollutants identified on the State's
Section 303(d) list of impaired waters. This action may change the
flexibility of the State to provide compliance schedules for
dischargers in these cases. Once a TMDL for a particular stream segment
is established or approved by EPA, the court-ordered MOA Addendum
amendments provides existing dischargers on these segments with as
little as 3 to 6 years to achieve the limitations based on the TMDL's
wasteload allocations. Federal regulations at 40 CFR 122.47 and
corresponding Louisiana regulations provide for compliance schedules of
up to 3 years in permits where necessary to comply with more stringent
limitations. Due to the five year permit cycle under the CWA, some
permits may not come up for renewal until four or five years after a
TMDL has been finalized. EPA Region VI believes a significant number of
LPDES permits fall within this category. In these specific cases,
permit construction/compliance schedule may be further limited by time
frames set out in the Court order for achievement of TMDL allocations.
Burdens associated with the shortened time frames may be off-set if
dischargers are aware of TMDL allocations for their point source
discharges and plan ahead for the additional limitations that will be
forthcoming in the next cycle of their LPDES permit. While EPA and the
State believe the above described situations can be avoided by
dischargers planning ahead, or the State modifying or reopening permits
to include new TMDL-based limits, some permits may have to be issued
with shortened or no compliance schedules. In such cases, compliance
with TMDL based limits could be addressed through a Compliance or
Administrative Order.
In addition, the MOA modifications may change the permit issuance
priority for the State and increase the number and type of draft
permits that the State will send to EPA. Prioritizing State permit
issuance based on the approval date of a TMDL and requiring the State
to submit all draft permits for TMDL segments to EPA has several
potential impacts on the regulated community, the State, and EPA. To
accommodate the court-ordered changes in the LPDES program, the State
may need to defer action on new discharge permits or reissuance of
major permits in order to work on minor permits in a TMDL waterbody.
New dischargers needing permits or facilities needing permit
modification to legally discharge into non-TMDL waterbodies may
experience delays in permitting due to the priority given to TMDL
waterbody permits.
EPA and LDEQ want to encourage public participation on this
revision of the MOA so that the citizens of Louisiana will understand
more fully and be able to comment on their state's program. Therefore,
EPA requests that the public review the MOA Addendum and provide any
comments they feel are appropriate. EPA and the State want the public
to be able to effectively coordinate with LDEQ on LPDES permitting and
enforcement actions. EPA will consider all comments on the LPDES
program amendments and determine if EPA should request the court to
allow EPA and LDEQ to make appropriate changes.
EPA considers a determination to approve or deny a State NPDES
program submission an adjudication within the meaning of the
Administrative Procedure Act (APA), 5 U.S.C. 551 and 554. An approval
of a State NPDES program revision constitutes an order under the APA
and is the product of an adjudication. Therefore, this revision of the
LPDES program is an adjudication.
EPA is not requesting comment concerning the overall LPDES program,
however, EPA is requesting comment on the revisions identified in this
public notice (e.g. the MOA Addendum and related documents), and as set
forth in the October 1, 1999, Court Order. EPA also requests that the
public provide any significant data and information, including economic
impacts, concerning this LPDES program revision.
Dated: July 7, 2000.
Jerry Clifford,
Acting Regional Administrator, Region 6.
[FR Doc. 00-20018 Filed 8-7-00; 8:45 am]
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