[Federal Register Volume 69, Number 156 (Friday, August 13, 2004)]
[Notices]
[Pages 50199-50203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18578]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7800-9]


State Program Requirements; Revisions to the National Pollutant 
Discharge Elimination System (NPDES) Program; LA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposal to Approve Revisions to the Louisiana Pollutant 
Discharge Elimination System Program.

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SUMMARY: Pursuant to a request by the Environmental Protection Agency 
(EPA) and as required by the regulations, the State of Louisiana has 
submitted a request for approval of revisions to the Louisiana 
Pollutant Discharge Elimination System (LPDES) program, which was 
originally approved on August 26, 1996. Through the submission of the 
revised program authorization documents, including a complete program 
description, a Memorandum of Agreement (MOA) with EPA Region 6, and an 
Attorney General's Statement, the Louisiana Department of Environmental 
Quality (LDEQ) seeks approval of the proposed revisions to the LPDES 
program. Today, EPA Region 6 is providing public notice of its intent 
to approve the proposed revisions to the LPDES program and announcing a 
30-day public comment period on the proposed revisions accompanied by 
an opportunity for a public hearing, if requested. EPA will either 
approve or disapprove the State's request based upon the requirements 
after considering all comments received. EPA and LDEQ want the citizens 
of Louisiana to understand the proposed revisions to the LPDES program 
and encourage public participation in the decision making process. 
Therefore, EPA requests that the public review the revised program 
documents and provide any appropriate comments.

DATES: The public comment period on the revised LPDES program will be 
from the date of publication until September 13, 2004. Comments must be 
received or post-marked by no later than midnight on September 13, 
2004. A public hearing will be held if there is significant public 
interest based upon requests received prior to the end of the 30-day 
public comment period.

ADDRESSES: Send all paper copy comments to: Diane Smith, Water Quality 
Protection Division, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 
75202. Comments may also be submitted electronically to the following 
e-mail address:

[[Page 50200]]

``[email protected]''. For those without regular access to an e-mail 
system, electronic comments on this notice may be filed online at many 
public libraries.
    All public comments should reference the LPDES Program Revision and 
may be in either paper or electronic format. If submitting comments in 
paper format, please submit the original and three copies of your 
comments and enclosures (including references). To ensure that EPA can 
read, understand, and properly respond to comments, EPA would prefer 
that comments be typed or legibly written and that commentors cite the 
paragraph(s) or section(s) in the notice or supporting documents to 
which each comment refers. Commentors who want EPA to acknowledge 
receipt of their comments should enclose a self-addressed, stamped 
envelope.
    Electronic comments must be submitted as an ASCII file or in 
WordPerfect 6/7/8/9.0 format, avoiding the use of special characters 
and forms of encryption. Electronic comments should be identified as 
pertaining to the LPDES Program Revision. EPA requests that electronic 
comments also include the commentor's postal mailing address. No 
Confidential Business Information (CBI) should be submitted through e-
mail. Comments and data will also be accepted on disks in WordPerfect 
67/8/9.0 format or ASCII file format.

FOR FURTHER INFORMATION CONTACT: Diane Smith at the EPA address listed 
above or by calling (214) 665-2145 or FAX (214) 665-7373.

SUPPLEMENTARY INFORMATION: Pursuant to an October 9, 2001, petition 
from numerous environmental groups in Louisiana requesting EPA withdraw 
LDEQ's authorization to administer the LPDES program and EPA program 
reviews of the water permitting and enforcement programs, EPA 
delineated seven performance measures for LDEQ in a letter dated 
February 14, 2003, from Tracy Mehan, former EPA Assistant Administrator 
for Water, and John Peter Suarez, former EPA Assistant Administrator 
for Enforcement and Compliance Assurance, to former Governor M. J. 
Foster. Former Governor Foster replied in a letter dated March 27, 
2003, with the commitment of LDEQ and the State of Louisiana to 
complete the seven performance measures. With the submission of the 
revision to the LPDES program, LDEQ completed the last of the seven 
performance measures. Regional Administrator Richard Greene notified 
Governor Kathleen Blanco of the completion of the performance measures 
in a letter dated May 13, 2004. After evaluation of the comments and 
other information related to this Federal Register notice regarding the 
revision to the LPDES program authorization, EPA will make a 
determination on the petition.
    Section 402 of the Clean Water Act (CWA) created the National 
Pollutant Discharge Elimination System (NPDES) program under which EPA 
may issue permits for the point source discharge of pollutants to 
waters of the United States under conditions required by the Act. 
Section 402(b) requires EPA to authorize a state to administer an 
equivalent state program, upon the Governor's request, provided the 
state has appropriate legal authority and a program sufficient to meet 
the Act's requirements.
    The regulatory requirements for state program approval are set 
forth in 40 CFR Part 123. This Federal Register notice only addresses 
issues raised in the performance measures previously discussed and the 
revisions to the program made by LDEQ since its initial program 
approval on August 26, 1996. EPA will not make a final decision on the 
LPDES program revision until all public comments provided during the 
public comment period and at any public hearing have been considered or 
responded to. When EPA takes final action on the proposed revisions to 
the LPDES program, the Regional Administrator will notify the State, 
sign the final MOA, and publish notice of the action in the Federal 
Register.

Addresses for Viewing/Obtaining Copies of Documents

    Copies of Louisiana's LPDES program documents (referred to 
throughout this notice as ``the revised program documents'') and all 
other documents in the official record are available for inspection 
from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays, 
at EPA Region 6, 12th Floor Library, 1445 Ross Ave., Dallas, Texas 
75202.
    Copies of the revised program documents are also available for 
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding 
state holidays, at LDEQ, Galvez Building, 602 North Fifth Street, Baton 
Rouge, Louisiana, 70802, LDEQ Public Records Center, Room 127.
    The revised program documents can also be found at http://www.epa.gov/region6/water/lpdes. Part or all of the revised program 
documents (which comprises approximately 2096 pages) may be copied at 
the LDEQ office in Baton Rouge, or EPA's office in Dallas, at a minimal 
cost per page or in electronic format. The revised documents include 
the following:

MOA Between LDEQ and EPA
LPDES Program Description and Appendices
    Appendix A--List of Acronyms and Abbreviations
    Appendix B--LDEQ Organizational Structure
    Appendix C--Deadlines for Rulemaking Activities
    Appendix D--Policy Number 0003-88, Rule Development Procedure
    Appendix E--LPDES Permit Applications
    Appendix F--Policy Number 0005-90, Public Records Requests 
Procedures
    Appendix G--Standard Operating Procedures (SOPs) for the Office 
of Environmental Compliance, Surveillance Division Supporting LPDES
    Appendix H--SOPs for the Office of Environmental Compliance, 
Enforcement Division Supporting LPDES
    Appendix I--SOPs for the Office of Environmental Services, 
Assistance Division Supporting LPDES
    Appendix J--SOPs for the Office of Environmental Services, 
Permits Division Attorney General's Statements

Summary of the Proposed Revisions to the LPDES Program

Memorandum of Agreement

Section II. Program Responsibilities

II.A. LDEQ Program Responsibilities
    II.A.4. This section has been amended to include a reference to the 
Enforcement SOPs as the documents that outline the process for 
maintaining the enforcement program in addition to State laws and 
regulations.
    II.A.5. This section has been amended to list the following 
additional documents that are maintained for public access: appeals and 
stay of enforcement actions, penalty worksheets for penalty actions, 
and justification memos for settlement agreements. The section has been 
also revised to include language to address the accessibility of LPDES 
documents based on new legislation relating to data security due to 
terrorism concerns.
    II.A.9. This section has been revised to clarify that in addition 
to penalties being assessed and collected in accordance with State 
laws, regulations and CWA, penalties will also be assessed and 
collected in accordance with federal NPDES requirements.
    II.A.10. This section has been revised to clarify that Water 
Enforcement National Database (WENDB) data will be entered into the 
National Permit Compliance System (PCS) for majors, 92-500 minors and 
Significant Minor facilities and that the Significant Minor universe 
will be identified and mutually agreed upon by EPA and LDEQ and 
included in the Annual State Program Grant.
    II.A.13. This section has been added to clarify that LDEQ will bear 
in mind EPA policies and guidance documents

[[Page 50201]]

and draw on those policies and guidance documents in its operation of 
all aspects of the LPDES program.
II.B. EPA Responsibilities
    II.B.2.e. Language has been added to this section to include 
managers in the LDEQ staff for which training will be provided by EPA.
II.C. Jurisdiction Over Permits
    II.C.1.b. Language has been revised to clarify the circumstances 
under which enforcement lead over permittees will be retained by EPA 
and the process and time frame requirements for transfer of this lead 
to LDEQ.

Section III. Permit Review and Issuance

III.C. Application Review and Permit Development
    III.C.1. Language has been added to clarify that LDEQ will enter 
WENDB data elements identified in the Permit Compliance Unit (PCU) SOP.
III.D. Permit Reissuance
    This section has been revised to state that LDEQ will reissue all 
expiring permits as close as possible to their expiration date and to 
reiterate that in no event will permits that have been administratively 
continued beyond their expiration date be modified. The section further 
states that LDEQ will utilize EPA's August 15, 2003, Permitting for 
Environmental Results Initiative and yearly updated Permit Issuance 
Strategy to account for and prioritize backlogged facilities and to 
reflect ongoing permit issuance goals.
III.E.1. Consultation With Federal and State Agencies
    To eliminate possible confusion concerning whether an Endangered 
Species Act consultation is required for permit issuance and to clarify 
both the required and non-mandatory actions for which LDEQ coordinates 
with other federal and State agencies, new sections III.E.1.b and 
III.E.1.d. were added. The remaining parts of this section were either 
renumbered or struck from the document.
III.E.2.a. Transmittal of Preliminary Draft
    III.E.2.a.iii. The term ``master general permit'', along with a 
definition of that term, has been added.
III.H. EPA Public Hearings
    Language has been added to this section to specify the time frame 
in which LDEQ may request a public hearing be held by EPA after EPA has 
sent an objection to a draft or proposed permit.
III. M. Issuance of Permit or Notice of Intent To Deny
    III.M.2. The substance of this section is covered in Section VI 
and, therefore, this section has been removed.

Section IV. Enforcement

IV.B. Compliance Monitoring
    Language has been added to specify that LDEQ will enter WENDB data 
elements identified in the Enforcement Division's PCU SOP and in 
accordance with EPA's letter of September 4, 2003.
IV.B.2. Compliance Inspection
    IV.B.2.a. This section has been revised to specify that LDEQ will 
submit the Louisiana Compliance Monitoring Strategy, which will be used 
to identify major and minor permits to be the subject of State 
compliance inspections, to EPA annually.

Section V. Pretreatment

V.A. General
    V.A.5. Language has been added as follows: LDEQ will propose a plan 
for establishing and evaluating the universe of significant industrial 
users (SIUs), outside of approved pretreatment programs, for which LDEQ 
is the Control Authority. As part of its plan, LDEQ will develop and 
implement a strategy for updating the list of categorical industrial 
users (CIUs) for which it is the Control Authority. LDEQ will pursue 
compliance through the appropriate control mechanisms in a timely and 
efficient manner. Details on implementation of this plan and strategy 
will be included in the Performance Partnership Grant (PPG) and/or 
SOPs.

Section VI. Reporting and Transmittal of Information

VI.A. LDEQ Reporting and Transmittals
    Portions of this section have been renumbered.
    VI.A.5. This section, requiring the submission of monthly 
productivity reports, has been added.
    VI.A.7. Language has been added to this section detailing what is 
included in a Compliance Monitoring Strategy.
    VI.A.11. Language has been added to this section stating that LDEQ 
will provide inspection reports and letters to EPA for significant 
minor dischargers.
    VI.A.17. This section has been revised to specify when comments on 
the draft of the consolidated EPA review of the LPDES program are due.
    VI.A.18. This section has been added to indicate that LDEQ will 
submit a list of all appealed LPDES enforcement actions and status 
during mid-year and end-of-year enforcement program reviews.
VI.B. EPA Reporting and Transmittals
    VI.B.6. This section has been revised to state that EPA will 
provide draft comments on its review of the LPDES program in a 
consolidated document when possible.

Section VII. Program Review

    VII.A.2.a. This section has been separated into VII.A.2.a and VII 
A.2.b to delineate the different requirements for EPA Enforcement and 
EPA Permitting program reviews.
    VII.A.3. Language has been added to this section to include the 
commitment for LDEQ to respond within 45 days of receipt of a draft 
audit from EPA and for EPA to issue a final report on its review within 
120 days of the audit.
    VII.H. A new section has been added to clarify that LDEQ will 
provide EPA with the opportunity for meaningful involvement as a 
partner in program development activities and program initiatives, and 
with the opportunity for input into new or revised LPDES statutes, 
regulations, forms, procedures, or priorities.
    VII.I. A new section has been added to clarify the commitment that 
LDEQ will ensure that new federal NPDES regulations are incorporated 
into State regulations within one year of federal promulgation or 
within two years if a State statute must first be enacted.

Section X. Modification

    X.A. The language in this section has been revised to state that 
the MOA shall be reviewed jointly and revised as needed.

LPDES Program Description

    Changes in the LPDES Program Description are due mainly to changes 
in the organization structure of LDEQ and the change to the SOP 
structure. All SOPs contained in the LPDES program revision are new 
documents which outline specific procedures LDEQ uses in its 
implementation of the LPDES program and take the place of the 
Enforcement Management System document previously used.
5.1. Surveillance Division
    This section has been revised to include language stating that all 
inspections and/or investigations that result in findings of areas of 
concern are referred to the Enforcement Division within 30 working days 
after all inspection information is received. The language also states 
that inspection reports that are required for submission to EPA Region 
6 will be sent within 60 days of report completion.

[[Page 50202]]

5.2. Enforcement Division
    The section also includes language that clarifies additional 
responsibilities of the LDEQ PCU in updating PCS and for ensuring 
quality of the data, including providing information for reports.
5.2.1. Administrative and Judicial Review of Administrative Enforcement
    This section has been expanded to discuss in more detail the 
hearing and appeal processes and to specify the time frames and 
responsible parties.
5.2.2. Job Duties and Responsibilities of the Enforcement and PCU Staff
    This section has been expanded due to the changes in organizational 
structure to include detailed descriptions of the general duties of the 
personnel who perform the enforcement and data management activities.
9.6.3. Appellate Review
    This section has been revised to include a definition of 
``aggrieved person.''

10.0. Pretreatment Program

    Language has been added to this section to specify that LDEQ will 
propose a plan for establishing and evaluating the universe of SIUs, 
outside of approved pretreatment programs, for which LDEQ is the 
Control Authority. As part of its plan, LDEQ will develop and implement 
a strategy for updating the list of CIUs for which it is the Control 
Authority. LDEQ will pursue compliance through the appropriate control 
mechanisms in a timely and efficient manner. Details on implementation 
of this plan and strategy will be included in the PPG and/or SOPs.

Attorney General's Statement

1.a. Authority To Issue Permits
    Language has been added to this section to clarify that the 
definition of ``person'' under the State's Environmental Quality Act 
includes the United States and any agent or subdivision thereof.
1.b. Disposal Into Wells
    This section has been revised to include a discussion of subsection 
G to La. R.S. 30:2193, which was added to the statute pursuant to Acts 
1997, No. 548. New subsection G provides that La. R.S. 30:2193's 
general prohibition against the land disposal of hazardous waste does 
not apply to injection by well provided certain requirements are met, 
i.e., the land disposal has been exempted by EPA, a permit has been 
issued under the Safe Drinking Water Act, and LDEQ has determined there 
are no ``economically reasonable and environmentally sound 
alternatives.''

4. Authority To Limit Permit Duration

    This section has been revised to reflect changes to LAC 
33:IX.2301.D, which was amended subsequent to authorization of the 
LPDES program. The amendment to LAC 33:IX.2301.D clarifies that for 
facilities with both a valid NPDES permit and a valid LWDPS permit, the 
NPDES permit becomes the LPDES permit. However, the LWDPS also remains 
in effect and enforceable until it expires or is terminated. For 
facilities with valid LWDPS permits only, the LWDPS permits remains in 
effect and enforceable until it expires or is terminated and an LPDES 
permit is issued.

7. Authority To Issue Notices, Transmit Data, and Provide Opportunity 
for Public Hearing

    A sentence has been added to this section stating that Acts 1995, 
No. 1007 added a provision to La. R.S. 30:2022(A) specifying LDEQ must 
provide notice of receipt of a permit application to those persons 
entitled to notice within 30 days of LDEQ's receipt of the application.
    This section has also been revised to add ``permits'' to the list 
of items submitted to LDEQ under the NPDES program for which no claim 
of confidentiality may be granted under the State's confidentiality 
statute, La. R.S. 30:2030(A).
    A sentence has also been added noting that pursuant to La. R.S. 
30:2018, when requested, public hearings must be held in connection 
with environmental assessment statements submitted by a permit 
applicant.
    The section has also been revised to clarify that, for public 
notice purposes, individual permits for major facilities and general 
permits are required to be published in a daily or weekly newspaper 
within the area affected by the facility or activity.

8. Authority To Provide Public Access to Information

    Language has been added to this section discussing recent State 
legislation exempting certain security related information, e.g., 
material containing security procedures, criminal intelligence 
information pertaining to terrorist-related activity, or threat or 
vulnerability assessments created, collected, or obtained in the 
prevention of terrorist-related activity, from disclosure under the 
Louisiana Public Records Law, La. R.S. 44:3.1. The new language 
confirms that LDEQ will remain in compliance with federal right to know 
statutes and the Clean Water Act.

10. Authority To Enforce the Permit and the Permit Program

    This section has been revised to clarify that when a request for 
adjudicatory hearing has been granted by LDEQ, written public comments 
regarding a proposed compliance order or penalty assessment may be 
filed with the agency prior to the hearing.
    The section has also been revised to include a discussion of Acts 
1995, No. 739, which created the Division of Administrative Law. If 
LDEQ grants a request for an adjudicatory hearing, the hearing is held 
by the Division of Administrative Law in accordance with the 
Administrative Procedure Act.

Supplemental Statement

    By letter dated September 3, 2003, the Louisiana Attorney General 
supplemented the Attorney General's Statement to provide a discussion 
of Article 12, Section 10 of the Louisiana Constitution, which provides 
in pertinent part that no public property or public funds shall be 
subject to seizure in a suit against the state, a state agency, or a 
political subdivision, and that ``no judgment against the state, a 
state agency, or a political subdivision shall be exigible, payable, or 
paid except from funds appropriated therefor by the legislature or by 
the political subdivision against which the judgement is rendered.'' 
The September 3rd letter from the Attorney General's Office attached a 
legal opinion from LDEQ's General Counsel, explaining that Article 12, 
Section 10 of the Louisiana Constitution imposes no legal impediment to 
the successful operation of the LPDES program. The Attorney General 
concurs in the reasoning and conclusion of the LDEQ opinion.

Attorney General's Statement for NPDES Pretreatment Program Authority

8. Authority To Issue Notices, Transmit Data, and Provide Opportunity 
for Public Hearings and Public Access to Information

    A sentence has been added to this section stating that Acts 1995, 
No. 1007 added a provision to La. R.S. 30:2022(A) specifying LDEQ must 
provide notice of receipt of a permit application to those persons 
entitled to notice within 30 days of LDEQ's receipt of the application.
    This section has also been revised to add ``permits'' to the list 
of items

[[Page 50203]]

submitted to LDEQ under the NPDES program for which no claim of 
confidentiality may be granted under the State's confidentiality 
statute, La. R.S. 30:2030(A).
    The section has also been revised to clarify that, for public 
notice purposes, individual permits for major facilities and general 
permits are required to be published in a daily or weekly newspaper 
within the area affected by the facility or activity.

9. Authority To Enforce Against Violations of Pretreatment Standards 
and Requirements

    This section has been revised to clarify that when a request for 
adjudicatory hearing has been granted by LDEQ, written public comments 
regarding a proposed compliance order or penalty assessment may be 
filed with the agency prior to the hearing.
    I hereby provide public notice of the update by the State of 
Louisiana for approval to administer, in accordance with 40 CFR part 
123, the LPDES program.

    Dated: August 5, 2004.
Richard E. Greene,
Regional Administrator, EPA Region 6.
[FR Doc. 04-18578 Filed 8-12-04; 8:45 am]
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