[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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