[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Rules and Regulations]
[Pages 50334-50340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24713]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 403
[FRL-7073-3]
RIN 2090-AA16
Pretreatment Program Reinvention Pilot Projects Under Project XL
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule will change the National Pretreatment Program
regulations to allow Publicly Owned Treatment Works (POTWs) that have
completed the Project eXcellence and Leadership (Project XL) selection
process, including Final Project Agreement (FPA) development, to modify
their approved local Pretreatment Programs. These POTWs will be allowed
to modify their programs, and implement the new local programs as
described in their FPAs. In today's rule, EPA recognizes that many
POTWs with approved Pretreatment Programs have mastered the
administrative and procedural requirements of the National Pretreatment
regulations. Several of these POTWs want the opportunity to implement
local pretreatment programs with effectiveness measured against
environmental results rather than strict adherence to programmatic and
administrative measures. These POTWs have expressed an interest in
Project XL to test new pilot ideas that focus resources on activities
that they believe would provide greater environmental benefits than are
achieved by complying with current regulatory requirements. This rule
is intended to provide the regulatory flexibility that will enable
these and other test programs to move forward. Currently, five POTWs
are actively involved in this Project XL process. The flexibility
provided by this rule revision is limited to fifteen POTWs that meet
the Project XL criteria.
DATES: This final rule is effective October 3, 2001.
ADDRESSES: A docket containing the rule, Final Project Agreements,
supporting materials, public comments and the official record is
available for public inspection and copying at the EPA's Water Docket,
EB-57 (East Tower Basement), 401 M Street, SW., Washington, DC 20460.
The record for this rulemaking has been established under docket number
W-00-30, and includes supporting documentation. The public may inspect
the administrative record from 9 am to 4 pm Monday through Friday,
excluding Federal holidays. The public is encouraged to phone in
advance to review docket materials. Appointments can be scheduled by
phoning the Docket Office at (202) 260-3027. The public may copy a
maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost 15 cents per page. Project materials are also
available for review for today's action on the world wide web at http://www.epa.gov/projectxl/.
Supporting materials are also available for inspection and copying
at U.S. EPA, Headquarters, 401 M Street, SW., Room 1027 West Tower,
Washington, DC 20460 during normal business hours. Persons wishing to
view the materials at the Washington, DC location are encouraged to
contact Mr. Chad Carbone in advance by telephoning (202) 260-4296.
FOR FURTHER INFORMATION CONTACT: Mr. Brian Frazer, (202) 564-0599, U.S.
Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania
Avenue, NW., (MC 4203), Washington, DC 20460. Further information on
today's action may also be viewed on the world wide web at http://www.epa.gov/projectxl/.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially regulated by this action are governmental
entities responsible for implementation of the National Pretreatment
Program and POTWs subject to Pretreatment Standards and requirements
that have completed the Project eXcellence and Leadership (Project XL)
selection process, including Final Project Agreement (FPA) development,
to modify their approved local pretreatment programs. Regulated
categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Local government.......................... Publicly Owned Treatment
Works.
State and Tribal government............... States and Tribes acting as
Pretreatment Program
Control Authorities or as
Approval Authorities.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. If you have questions
regarding the applicability of this action to a particular entity,
consult the person in the preceding FOR FURTHER INFORMATION CONTACT
section.
On October 6, 2000, the Environmental Protection Agency proposed a
rule (65 FR 59791) that set forth the mechanism through which POTWs
that complete the Project XL process can seek modification of their
programs following the procedures in 40 CFR 403.18, and implement the
new
[[Page 50335]]
local programs as described in their FPAs. Today's final rule
promulgates regulations that are identical to the proposed rule.
Outline of Today's Rule
The information presented in this preamble is organized as
follows:
I. Authority
II. Background
A. What is Project XL?
B. What is EPA Announcing?
C. Stakeholder Involvement in the Project XL Process
D. Summary of Public Comments
E. What is the National Pretreatment Program?
F. What are the Current Pretreatment Program Requirements?
G. How Do the Current Requirements Relate to Environmental
Objectives?
H. Why Is EPA Allowing POTW Local Pilot Pretreatment Programs at
this Time?
I. Are There Any POTWs Currently Going Through Project XL
Approval Process?
J. What Are the Environmental Benefits Anticipated through
Project XL?
K. What is the Project Duration and Completion Date?
L. How Could the Project be Terminated?
III. Rule Description
IV. Additional Information
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
F. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
G. Executive Order 13132: Federalism
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. National Technology Transfer and Advancement Act
J. Administrative Procedure Act
K. Executive Order 13211
I. Authority
This regulation is being promulgated under the authority of
sections 307, 402 and 501 of the CWA.
II. Background
A. What Is Project XL?
Project XL, which stands for ``eXcellence and Leadership,'' is a
national pilot program that tests innovative ways of achieving better
and more cost-effective public health and environmental protection
through site-specific agreements with project sponsors. Project XL was
announced on March 16, 1995, as a central part of EPA's effort to
reinvent environmental protection. See 60 FR 27282 (May 23, 1995) and
60 FR 55569 (November 1, 1995). The intent of Project XL is to allow
EPA and regulated entities to experiment with pragmatic, potentially
promising regulatory approaches, both to assess whether they provide
superior environmental performance and other benefits at the specific
facility affected, and whether they should be considered for wider
application. Such pilot projects are intended to allow EPA to collect
more data on a more focused basis prior to national rulemaking. Today's
regulation would enable implementation of five specific XL projects as
well as future projects that successfully complete the Project XL
process. These efforts are crucial to EPA's ability to test new
strategies that reduce the regulatory burden and promote economic
growth while achieving better environmental and public health
protection. EPA intends to evaluate the results of this and other XL
projects to determine which specific elements of the project(s), if
any, should be more broadly applied to other regulated entities for the
benefit of both the economy and the environment.
B. What Is EPA Announcing?
In the June 23, 1998, Federal Register (63 FR 34170), EPA requested
proposals for XL projects from 15 POTWs based on environmental
performance measures for the pretreatment program. The process for
reviewing and choosing acceptable pilot program candidates included
input from POTWs, State and EPA Regional Pretreatment Coordinators, as
well as opportunity for public participation. As discussed in more
detail below, five POTWs have advanced to the final steps of the
Project XL process. In today's rule, EPA announces revisions to the
national pretreatment regulations at 40 CFR part 403 that will allow
the current and future selected Local Pilot Pretreatment Programs to be
implemented. The flexibility provided by this rule revision is limited
to 15 POTWs that meet the Project XL criteria. POTWs must submit
revised pretreatment programs for approval and obtain modified permits
to authorize the POTW to implement its pilot program instead of its
currently Approved POTW Pretreatment Program. However, please note that
the affected States may first need to revise their own regulations or
statutes to authorize the pilot programs for pretreatment XL project
sponsors before this rule can be implemented in their jurisdictions.
C. Stakeholder Involvement in the Project XL Process
EPA believes stakeholder involvement in developing Local Pilot
Pretreatment Programs is crucial to the success of the programs;
therefore, as part of the Project XL proposal, a POTW must clearly
explain its process for involving stakeholders in the design of the
pilot program. This process should be based upon the guidance entitled,
Regulatory Reinvention (XL) Pilot Projects, set out in the April 23,
1997, Federal Register notice (62 FR 19872). The support of parties
that have a stake in the program is very important. Once EPA has
accepted a candidate based on its detailed proposal, the POTW, EPA, the
State and local stakeholders typically develop a Final Project
Agreement (FPA). The FPA is a non-binding agreement that describes the
intentions and commitments of the implementing parties. Stakeholders
may include communities near the project, local or State governments,
businesses, environmental and other public interest groups, or other
similar entities. Stakeholders will also have formal opportunities to
comment on provisions of the FPA that are incorporated in the POTW's
revised pretreatment program under the procedures established at 40 CFR
403.18 and this rule.
D. Summary of Public Comments
EPA proposed this regulation on October 6, 2000 (65 FR 59791). The
preamble to the proposed rule explains the changes in the regulations.
The public comment period was open for a period of 30 days and closed
on November 6, 2000.
EPA received a total of three comments regarding this rule. The
commenters included two States and a trade group that represents
municipalities. Two of the commenters fully support the revised
regulation which will allow the Project XL process to move forward and
provide a means to test new ways to streamline the pretreatment program
and provide greater environmental benefits. The other commenter
believes that both major and minor modifications to expired NPDES
permits are prohibited and requests that 40 CFR 403.20 be clarified to
allow approved Pretreatment Program Modifications that may be processed
as minor NPDES Permit modifications in accordance with 40 CFR
122.63(g), to be also processed in cases when the associated NPDES
Permits are expired. In response to this comment, EPA agrees that the
Federal NPDES regulations do not contemplate modifications to expired
NPDES permits and EPA understands that many States have permitting
backlogs. However, EPA does not believe that an exception to the NPDES
permitting regulations is appropriate in this narrowly tailored
rulemaking amending the pretreatment regulations. Rather, EPA believes
that States with NPDES permit backlogs would make POTWs that qualify
under this rule a high priority and reissue those permits promptly so
that those
[[Page 50336]]
facilities can implement the changes to their permits allowed under
this rule.
E. What Is the National Pretreatment Program?
The National Pretreatment Program is part of the Clean Water Act's
(CWA's) water pollution control program. The program is a joint
regulatory effort by local, State, and Federal authorities that
requires the control of industrial and commercial sources of pollutants
discharged to municipal wastewater plants (called ``publicly owned
treatment works'' or ``POTWs''). Control of pollutants prior to
discharge of wastewater to the municipal sewer system minimizes the
possibility of pollutants interfering with the operation of the POTW
and reduces the levels of toxic pollutants in wastewater discharges
from the POTW and in the sludge resulting from municipal wastewater
treatment.
F. What Are the Current Pretreatment Program Requirements?
The minimum requirements for an approved POTW Pretreatment Program
currently are published at 40 CFR 403.8(f). POTWs with approved
Pretreatment Programs must maintain adequate legal authority, identify
industrial users, designate which industrial users (IUs) are
``Significant Industrial Users'' (SIUs) (under 40 CFR 403.3(t)) and
perform required monitoring, permitting and enforcement. Other sections
of part 403 require POTWs with Approved Pretreatment Programs to sample
and apply nationally applicable pretreatment standards to the
industrial users discharging pollutants to the POTW collection system.
POTWs are also required to develop local limits in accordance with 40
CFR 403.5. As announced today, EPA will allow Approval Authorities to
require a POTW to meet requirements in an environmental performance-
based pilot program instead of certain administrative programmatic
requirements currently required in a POTW's Approved Pretreatment
Program under 40 CFR part 403.
G. How Do the Current Requirements Relate to Environmental Objectives?
As described in 40 CFR 403.2, the general pretreatment regulations
promote three objectives:
(a) To prevent the introduction of pollutants into POTWs which will
interfere with the operation of POTWs, including interference with the
use or disposal of municipal sludge;
(b) To prevent the introduction of pollutants into POTWs which will
pass through the treatment works or otherwise be incompatible with such
works; and
(c) To improve opportunities to recycle and reclaim municipal and
industrial wastewaters and sludges.
These objectives require local programs to be designed so they are
preventative in nature, and therefore, any pilot program also would
need to maintain this preventative approach. The specific requirements
for an Approved POTW Pretreatment Program are intended to achieve these
objectives. Individual pretreatment programs, however, are not
routinely required to report on the achievement of environmental
measures.
The 1991 National Pretreatment Program Report to Congress provides
extensive data related to the sources and amounts of pollutants
discharged to POTWs, the removal of pollutants by secondary treatment
technology, and the general effectiveness of the pretreatment program.
The 1991 Report did, however, point to a serious lack of comprehensive
environmental data with which to fully assess the effectiveness of both
the national and local pretreatment programs. These Project XL pilots
will help to provide data for this purpose.
H. Why Is EPA Allowing POTW Local Pilot Pretreatment Programs at this
Time?
Some POTWs have mastered the administrative aspects of the
pretreatment program (identifying industrial users, permitting,
monitoring, etc.) and want to move into more environmental performance-
based processes. These POTWs have expressed an interest in focusing
their resources on activities that they believe would provide greater
environmental benefit than is achieved by complying with the current
requirements. Some POTWs want to be able to make decisions on
allocating resources based on the risk associated with the industrial
contributions they receive or other factors. Others want to be able to
focus more resources on ambient monitoring in their receiving waters
and/or to integrate their pretreatment programs with their storm water
monitoring programs. In general, these POTWs want the opportunity to
redirect limited resources away from currently required activities that
they do not believe are benefitting the environment and toward
activities that may achieve measurable improvements in the environment.
EPA developed the Project XL program to provide regulated entities
the flexibility to conduct innovative pilot projects. Today's rule
represents an attempt to spur innovation in the pretreatment program,
to increase environmental benefits and, in conjunction with the
streamlining proposal (see 64 FR 39564), to determine, if further
streamlining of the program is needed, how streamlining can achieve
environmental improvements and in what direction those future
streamlining efforts should be directed.
I. Are There Any POTWs Currently Going Through Project XL Approval
Process?
In order to implement the pretreatment XL projects, EPA is
promulgating this rule to provide regulatory flexibility under the
Clean Water Act. Currently, five (5) POTWs have requested flexibility
through the Project XL FPA approval process. The POTWs are: The
Narragansett Bay Commission (NBC) in Rhode Island; the Jeffersontown
Wastewater Treatment Plant (WWTP), owned and operated by the Louisville
and Jefferson County Metropolitan Sewer District (MSD) in Kentucky; the
Metropolitan Water Reclamation District of Greater Chicago (Chicago) in
Illinois; the City of Albuquerque (Albuquerque), New Mexico; and the
City of Denton (Denton), Texas. The FPA for NBC lays out the following
flexibilities: (1) Reduced self-monitoring requirements for ten (10)
categorical industrial users (CIUs) for tier 1 facilities, (2) reduced
inspection frequency for ten (10) CIUs tier 1 facilities from once
every year to once every two years, and (3) allow participating CIUs
tier 1 facilities to not sample for pollutants not expected to be
present. Under the FPA for MSD, the POTW is requesting flexibility to
(1) use an alternative definition for significant industrial user
(SIU), (2) allow participating CIUs to not sample for pollutants not
expected to be present and (3) use an alternative definition of
significant noncompliance (SNC). The Chicago FPA describes flexibility
that includes (1) use of an alternative definition for de minimis
categorical industrial user (CIU), and (2) reduced self-monitoring and
self-reporting requirements for participating CIUs and (3) use of
alternative monitoring methods. The Albuquerque FPA lays out
flexibility to (1) use an alternative definition of SIU, (2) use an
alternative definition of SNC, (3) reduce permitting requirements for
participating IUs, (4) use alternative monitoring methods and (5)
reduce reporting requirements for participating IUs. The Denton FPA
lays out flexibility to (1) reduce its monitoring of participating IUs
and (2) reduce its inspection of participating
[[Page 50337]]
IUs. In exchange for these flexibilities, each individual POTW has
committed to produce certain proportional amounts of superior
environment performance as laid out in the FPA and maintain all legal
and preventative environmental health and safety standards. Complete
project site-specific descriptions can be found on the web at: http://www.epa.gov/projectxl/.
J. What Are the Environmental Benefits Anticipated Through Project XL?
These XL projects are expected to achieve superior environmental
performance beyond that which is achieved under the current CWA
regulatory system by allowing POTWs the ability to identify
environmental goals and allocate the necessary resources on a site
specific basis. Specifically, these projects are expected to produce
additional benefits by (i) reducing pollutant loadings to the
environment or some other environmental benefit beyond that currently
achieved through the existing pretreatment program (including
collecting environmental performance data and data related to
environmental impacts in order to measure the environmental benefit),
(ii) reducing or optimizing costs related to implementation of the
pretreatment program with the savings used to attain environmental
benefits elsewhere in the watershed in any media, and (iii) providing
EPA with information on how the pretreatment program might be better
oriented towards the achievement of measures of environmental
performance.
EPA's intent is to allow Local Pilot Pretreatment Programs to be
administered by those POTWs that best further those objectives. Each
pilot program's method of achieving the environmental benefit should be
transferable so that other POTWs may be able to implement the method
and also achieve increased environmental benefits.
K. What Is the Project Duration and Completion Date?
Under Project XL, local Pilot Pretreatment Programs may be approved
to operate for the term expressed in the FPA. Prior to the end of the
FPA approval period (at least 180 days), the POTW may apply for a
renewal or extension of the project period in accordance with the terms
of the FPA. If a POTW is not able to meet the performance goals of its
Local Pilot Pretreatment Program, the Pretreatment Approval Authority
(either EPA or the authorized State) could allow the performance
measures to be adjusted if the primary objectives of the Local Pilot
Pretreatment Program would be met. The revised Local Pilot Pretreatment
Program would need to be approved in accordance with the FPA and the
procedures in 40 CFR 403.18.
If the primary objectives of the proposal are not being met, the
Approval Authority would direct the POTW to discontinue implementing
the Local Pilot Pretreatment Program and resume implementation of its
previously approved pretreatment program. The Pretreatment
ApprovalAuthority would need to ensure that the POTW's NPDES permit
includes a ``reopener'' clause to implement this procedure.
The results of the pilots, including recommendations in POTW
reports, may be used to determine the direction of future Pretreatment
Program streamlining and/or reinvention.
L. How Could the Project Be Terminated?
Either the Approval Authority or the POTW may terminate a project
earlier than the final project agreement's (FPA) anticipated end date.
Parties will follow procedures for termination set out in the FPA. The
implementing permits will also reflect the possibility of early
termination. When the NPDES permitting agency modifies the POTW's NPDES
permit to incorporate the flexibility allowed by today's rule, it must
include a ``reopener'' provision that requires the POTW to return to
compliance with previously approved pretreatment program requirements
at the expiration or termination of the FPA, including an interim
compliance period, if needed. Additional details are available in the
site-specific FPAs.
III. Rule Description
Today's rule modifies 40 CFR part 403 to allow Pretreatment
Approval Authorities (EPA or State) to grant regulatory flexibility to
Project XL POTWs with approved FPAs. The regulatory flexibility would
allow such POTWs to implementPretreatment Programs that include legal
authorities and requirements that are different than the administrative
requirements in 40 CFR part 403. The POTW would need to submit any such
alternative requirements as a substantial program modification in
accordance with the procedures outlined in 40 CFR 403.18. The approved
modified program would need to be incorporated as an enforceable part
of the POTW's NPDES permit. The Approval Authority would approve or
disapprove the pilot program using the procedures in 40 CFR 403.18.
For example, the POTW would work through the Project XL process as
described above. The POTW either would or has already developed the
necessary FPA with stakeholder participation (local interest groups,
State representatives, EPA, any other interested parties). The POTW
would use the FPA as the blueprint when developing a revision of the
POTW's approved local pretreatment program. The POTW would submit the
revised program to its Approval Authority (State or EPA region)
requesting a substantial program modification using the procedures
outlined in 40 CFR 403.18. The Approval Authority would review the
program modification request to determine that it contains the
provisions of the blue-print FPA and make a determination to approve or
deny the request. The proposal for modification would be publicly
noticed following the procedures in 40 CFR 403.11 and 40 CFR 403.18.
After the close of the public comment period, the Approval Authority
would consider and respond to public comments and revise the POTW's
pretreatment program accordingly. Then the POTWs NPDES permit would be
modified by adding the modified pretreatment program as an enforceable
part of the permit.
IV. Additional Information
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866, and is
therefore not subject to OMB review.
[[Page 50338]]
B. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. This rule reduces the regulatory costs to
POTWs of complying with the pretreatment requirements and affects only
a small number of POTWs. It only affects those POTWs that elect to
participate in the voluntary Project XL Program. Therefore, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.
C. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
Sec. 804(2). This rule will be effective on October 3, 2001.
D. Paperwork Reduction Act
This rule does not impose any new information collection burden.
This rule merely changes the National Pretreatment Program regulations
to provide flexibility to allow POTWs that have completed the Project
XL selection process, including FPA development, to modify their
approved local Pretreatment Programs. The POTW must submit any such
alternative requirements as a substantial program modification in
accordance with the procedures outlined in 40 CFR 403.18. The Office of
Management and Budget (OMB) has previously approved the information
collection requirements for 40 CFR 403.18 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control numbers 2040-0009 (EPAICR No. 0002.09) and 2040-0170 (EPA ICR
No. 1680.02). In addition, OMB has approved the ICR entitled
``Regulatory Reinvention Pilot Projects Under Project XL: Pre-treatment
Program,'' and assigned OMB control number 2010-0026 (EPA ICR No.
1755.05).
Copies of the ICR document(s) may be obtained from Sandy Farmer, by
mail at the Office of Environmental Information Collection Strategies
Division; U.S. Environmental Protection Agency (2822); 1200
Pennsylvania Ave., NW., Washington, DC 20460, by email at
[email protected], or by calling (202) 260-2740. A copy may also be
downloaded off the internet at http://www.epa.gov/icr. Include the ICR
and/or OMB control number in any correspondence.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local or tribal governments or the private sector.
Further, UMRA generally excludes from the definition of ``Federal
intergovernmental mandate'' duties that arise from participation in a
voluntary Federal program. The Project XL Program is a voluntary
Federal program. Thus, today's rule is not subject to the requirements
of sections 202 and 205 of the UMRA. For the same reasons, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. Thus, today's
rule is not subject to UMRA section 203.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23,1997) applies to any rule that: (1) Is determined to be
``economically significant,'' as defined under Executive Order 12866;
and (2) concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria,
[[Page 50339]]
the Agency must evaluate the environmental health or safety effects of
the planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule, as defined by Executive Order 12866,
and because it does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children.
G. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132 because it provides flexibility
to participate in a voluntary program designed to reduce administrative
requirements for facilities that have negotiated agreements with, among
other parties, their State and local governments. Thus, Executive Order
13132 does not apply to this rule.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, or on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This rule provided flexibility to participate in a voluntary program
designed to reduce administrative requirements and provide superior
environmental performance for facilities that have negotiated
agreements with, among other parties, their State and local
governments. Thus Executive order 13175 does not apply to this rule.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standard. This rulemaking does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards. EPA requested comment on this aspect
of the rulemaking, but did not receive any such comments.
J. Administrative Procedure Act
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553,
generally requires that an Agency publish a rule at least 30 days prior
to its effective date. However, this requirement does not apply to
rules which grant an exemption from existing requirements or rules for
which the Agency finds ``good cause'' to make the rule effective within
30 days of publication. Because today's rule essentially provides a
variance procedure from existing administrative requirements for
certain POTWs, today's rule grants an exemption and is not subject to
the requirement to publish 30 days prior to the effective date of the
rule. EPA also believes that it is important to make this rule
effective as soon as possible so that the affected POTWs and their
State and local governments can begin to make the changes to permits
and undertake other necessary measures to allow the FPAs to be
implemented. As a result, this rule is effective on the date of
publication.
K. Executive Order 13211
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
List of Subjects in 40 CFR Part 403
Environmental protection, Confidential business information,
Reporting and recordkeeping requirements, Waste treatment and disposal,
Water pollution control.
Dated: September 27, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, part 403, title 40,
chapter I of the Code of Federal Regulations is amended as follows:
PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW
SOURCES OF POLLUTION
1. The authority for Part 403 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
2. Section 403.20 is added to read as follows:
Sec. 403.20 Pretreatment Program Reinvention Pilot Projects Under
Project XL.
The Approval Authority may allow any publicly owned treatment works
(POTW) that has a final ``Project XL'' agreement to implement a
Pretreatment Program that includes legal authorities and requirements
that are different than the administrative requirements otherwise
applicable under this part. The POTW must submit any such alternative
requirements as a substantial program modification in accordance with
the procedures outlined in Sec. 403.18. The approved modified program
must be incorporated as an enforceable part of the POTW's NPDES permit.
The Approval Authority must include a reopener clause in the POTW's
NPDES permit that directs the POTW to discontinue implementing the
approved alternative requirements and
[[Page 50340]]
resume implementation of its previously approved pretreatment program
if the Approval Authority determines that the primary objectives of the
Local Pilot Pretreatment Program are not being met or the ``Project
XL'' agreement expires or is otherwise terminated.
[FR Doc. 01-24713 Filed 10-2-01; 8:45 am]
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