Revisions to the National Pollutant Discharge Elimination System Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
4O CFR Parts 122, 123, 124, and 131
Revisions to the National Pollutant Discharge Elimination System Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
SUMMARY: Today's action revises, clarifies and strengthens the Environmental Protection Agency's (EPA's) National Pollutant Discharge Elimination System (NPDES) Program and Water Quality Standards (WQS) Regulation under the Clean Water Act (CWA). Today's proposed rule is intended to achieve two objectives. The first objective is to achieve reasonable further progress toward attaining water quality standards in impaired waterbodies prior to EPA approval or establishment of a Total Maximum Daily Load (TMDL). To achieve this objective, EPA is proposing explicit language describing the Agency's discretionary authority to object to, and reissue, if necessary, State-issued expired and administratively-continued permits authorizing discharges into impaired waterbodies in the absence of an EPA approved or established TMDL. EPA would exercise this authority to ensure that those permits are consistent with water quality standards. Also to achieve this objective, EPA is proposing to require that selected dischargers offset any increase in mass loadings of a pollutant(s) causing the nonattainment of water quality standards in an amount that would result in reasonable further progress toward attainment of water quality standards.
The second objective is to achieve reasonable assurance that an established TMDL will be implemented. To achieve this objective, EPA is proposing explicit language describing EPA's discretionary authority to object to, and reissue, if necessary, State-issued expired and administratively-continued permits authorizing discharges into impaired waterbodies with established and approved TMDLs. EPA would exercise this authority to ensure that those permits are consistent with applicable wasteload allocations in a TMDL. Also to achieve this objective, EPA is proposing explicit language describing the authority of both EPA and States with approved NPDES programs, to designate certain currently unregulated sources as sources that would require an NPDES permit.
DATES: Comments on this proposal must be received, postmarked or delivered by hand on or before October 22, 1999.
ADDRESSES: Send written comments on the proposed rule to W-99-04, NPDES/WQS, Comment Clerk, Water Docket, Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460. Comments can also be submitted electronically to OW-Docket@epa.gov (see ``DOCKET'' section below). A copy of the supporting documents cited in this proposal is available for review at EPA's Water Docket; 401 M Street, SW, Mail code: EB57, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Kim Kramer, Office of Wastewater Management, 401 M St., SW, Washington, DC 20640, Mail Code 4203, e- mail: Kramer.Kim@epa.gov, telephone: (202) 260-9541 for information regarding the NPDES provisions, or Susan Gilbertson, Office of Science and Technology, 401 M St., SW, Washington, DC 20460, Mail Code 4305, e- mail: Gilbertson.Sue@epa.gov, telephone: (202) 260-7301 for information regarding the water quality standards provisions.
SUPPLEMENTARY INFORMATION:
A. Table of Contents of This Preamble
I. Purposes and Objectives of Today's Proposed Rules
II. Proposed Requirements for New and Significantly Expanding Dischargers Located on Impaired Waters
A. Who Would Be Subject to This Proposal?
1. Which Sources Discharge New Pollutant Loads to a Waterbody?
2. Would Dischargers Who are Currently Discharging but Move Their Outfall(s) to Another Waterbody Be Subject to This Proposal?
3. Will The Proposed Changes to the Definitions of a New Discharger and an Existing Source Affect Their Application Elsewhere in the Regulations?
4. Would Any Existing Dischargers Be Subject to This Proposal?
5. How is EPA Proposing to Define A ``Significant Expansion'' of an Existing Discharger?
B. What are the Proposed Changes to the Federal Antidegradation Policy?
1. What is the Current Federal Antidegradation Policy?
2. What Were the Recommendations of the TMDL Federal Advisory Committee?
3. What Revisions is EPA Proposing Today?
i. Why is EPA Proposing to Require Dischargers Subject to This Proposal to Achieve Reasonable Further Progress Toward Attaining Water Quality Standards?
a. How Does This Relate to the TMDL FACA Committee's Recommendations?
b. Has This Approach Been Used in Other Statutes?
ii. How is EPA Proposing to Define Reasonable Further Progress?
a. Has Reasonable Further Progress Been Defined Under Other Statutes?
iii. What Offsets Would Affected Dischargers Need to Obtain to Ensure Reasonable Further Progress?
a. Could Offsets be Obtained From Existing Nonpoint Sources?
b. Could the Director Vary the Amount of the Offset?
iv. Would the Reasonable Further Progress Requirements Apply to Affected Dischargers Proposing to Discharge to All Waters of the U.S.?
v. Why is EPA Proposing to Subject Only New Dischargers and Existing Dischargers Undergoing a Significant Expansion to These Requirements?
vi. Would All New Dischargers and Existing Dischargers Undergoing a Significant Expansion Be Subject to These Proposed Requirements?
a. How Would This Proposal Facilitate the Establishment of Trading Markets?
C. How Would EPA Ensure any Needed Changes to the Antidegradation Policies in State, Territorial and Tribal Water Quality Standards?
D. How Would These Changes Be Implemented Through NPDES Permits?
1. Must the New or Significantly Expanding Discharger Obtain an Offset of the Same Pollutant(s) the New or Significantly Expanding Discharger Would Be Required to Offset?
2. From What Geographic Area Would the Pollutant Load Reductions Need to Be Obtained?
3. Could the Pollutant Load Reductions Come From a Source With Existing Requirements to Reduce its Loads?
4. When Would the Pollutant Load Reductions Need to Be Obtained?
5. How Long Would the Pollutant Load Reductions Need to Be Maintained?
6. What Would Be Required When the Source of the Offset is an Existing Point Source?
7. What Would Be Required When the Source of the Offset is an Existing Nonpoint Source?
8. How Would Offsets Be Obtained From Sources Seeking Coverage Under a General Permit?
i. What Options is the Agency Considering?
ii. What If a Notice of Intent Form is Not Required?
iii. Who and Under What Circumstances Would Need to Submit a Supplemental Certification?
iv. How Would Offsets Be Determined for Dischargers Regulated Solely by BMPs?
E. Additional Proposed Modifications to Related NPDES Provisions
1. How is EPA Proposing to Modify the Water Quality-Based Permitting Regulations?
2. How is EPA Proposing to Modify the Regulations Pertaining to the Statement of Basis and Permit Fact Sheet?
III. Proposed Authority to Designate Additional Sources of Pollutants to the NPDES Program
A. How Would Animal Feeding Operations and Aquatic Animal Production Facilities Be Affected by Today's Proposal?
1. How Do These Sources Become Subject to the NPDES Program?
i. Under What Circumstances Are CAFOs Designated on a Case-By- Case Basis?
ii. Under What Circumstances are CAAPFs Designated on a Case-by- Case Basis?
2. Why is EPA Proposing Changes to the CAFO and CAAPFs Jurisdictional Regulations?
i. How Do Animal Feeding Operations Impact Water Quality?
ii. How Do Aquatic Animal Production Facilities Impact Water Quality?
3. What Changes is EPA Proposing to Make to the CAFO and CAAPFs Jurisdictional Regulations?
i. When Would EPA Designate These Sources?
ii. How Will This Proposal Affect States?
iii. Who Would Issue Permits to These Sources Once Designated?
4. How Would EPA Revise Regulatory Text?
B. How Would Silvicultural Activities Be Affected by Today's Proposal?
1. Which Sources Are Currently Excluded From the Definition of a ``Point Source?'
2. Are All Discharges From Silvicultural Activities Currently Excluded From the NPDES Program?
3. Which Silvicultural Discharges Would Be Designated Under Today's Proposal as Sources Subject to the NPDES Program?
4. Why is EPA Proposing to Remove the Regulatory Exclusion for These Silvicultural Discharges?
5. When Would Silviculture Sources Be Required to Obtain an NPDES Permit?
6. How Would States Be Affected by This Proposal? IV. Proposed EPA Authority to Reissue State-Issued Expired and Administratively-Continued NPDES Permits
A. Can EPA Object to State-Issued Expired and Administratively- Continued Permits?
B. How Would EPA Review and Object to a State-Issued Expired and Administratively-Continued Permit?
C. When Would EPA Withdraw its Objection?
D. When Could EPA Invoke This Authority?
E. Will EPA Work With the States Before Invoking This Authority?
F. What If a Permit Has Expired but the Permittee Has Not Submitted a Timely and Complete Application for Renewal to the State?
G. What Authority Supports Today's Proposed Changes?
H. Conclusion
V. Regulatory Assessment Requirements
A. Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996
B. Executive Order 12866
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Orders on Federalism
F. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act
I. Executive Order 12898: Environmental Justice