[Federal Register Volume 60, Number 52 (Friday, March 17, 1995)]
[Proposed Rules]
[Pages 14588-14592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6676]
[[Page 14587]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 123
Amendment to Requirements for Authorized State Permit Programs Under
Section 402 of the Clean Water Act; Proposed Rule
Federal Register / Vol. 60, No. 52 / Friday, March 17, 1995 /
Proposed Rules
=======================================================================
-----------------------------------------------------------------------
[[Page 14588]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123
[FRL-5148-6]
Amendment to Requirements for Authorized State Permit Programs
Under Section 402 of the Clean Water Act
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to amend the regulations concerning the
minimum requirements for federally authorized State permitting programs
under section 402 of the Clean Water Act. The proposed rule would
explicitly require that State law must provide any interested person an
opportunity to challenge the approval or denial of 402 permits issued
by the State in State court. The intent of the proposed rule is to
ensure that any interested person has the opportunity to challenge
judicially the final action on State-issued permits, to the same extent
as if the permit were issued by EPA. Most States already have this
authority which allows for local resolution of issues. As a result, EPA
believes today's proposed rule will apply to a very small number of
States with authorization to administer the National Pollutant
Discharge Elimination System (NPDES) permit program. EPA is not
proposing at this time to establish this requirement for Tribal
permitting programs under section 402, but is soliciting comments on
various issues related to extending this requirement to Tribes. No
Tribes are currently authorized to operate the NPDES program.
DATES: Written comments on this proposed rule must be submitted on or
before June 15, 1995.
ADDRESSES: Commenters are requested to submit three copies of their
comments to the Comment Clerk for the section 402 Amendment; Water
Docket; MC-4101, Environmental Protection Agency, 401 M Street, SW.,
Washington DC 20460. Commenters who would like acknowledgement of
receipt of their comments should include a self-addressed, stamped
envelope. No facsimiles (faxes) will be accepted.
A copy of the supporting information for this proposal is available
for review at EPA's Water Docket, room L-102, 401 M Street, SW.,
Washington, DC 20460. For access to the docket materials, call (202)
260-3027 between 9 a.m. and 3:30 p.m. for an appointment.
FOR FURTHER INFORMATION CONTACT: Laura J. Phillips, Office of
Wastewater Management (OWM), Permits Division (4203), Environmental
Protection Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-
9541.
SUPPLEMENTARY INFORMATION: Information in this preamble is organized as
follows:
I. Summary and Explanation of Today's Action
1. Background
2. Rationale and Authority for Proposed Rule
3. Scope of Standing Requirement
4. Exhaustion of Administrative Remedies
5. Alternatives Under Consideration
6. Time Period for Compliance
II. Request for Comment
III. Supporting Documentation
1. Compliance With Executive Order 12866 (Regulatory Impact
Analysis)
2. Compliance With Executive Order 12875
3. Paperwork Reduction Act
4. Regulatory Flexibility Act
I. Summary and Explanation of Today's Action
1. Background
Congress enacted the Clean Water Act, 33 U.S.C. 1251 et seq.
(``CWA'' or ``the Act''), ``to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' Section
101(a), 33 U.S.C. 1251(a). To achieve this objective, the Act
authorizes EPA, or a State approved by EPA, to issue permits
controlling the discharge of pollutants to navigable waters. Section
402(a)(1), 33 U.S.C. 1342(a)(1). A State that wishes to administer its
own permit program for discharges of pollutants, other than dredged or
fill material, to navigable waters may submit a description of the
program it proposes to administer to EPA for approval according to
criteria set forth in the statute. Section 402(b), 33 U.S.C. 1342(b).
EPA is authorized to treat Indian Tribes in the same manner as
States for purposes of certain provisions of the CWA, including section
402. Section 518(e), 33 U.S.C. 1377(e).
EPA's regulations at 40 CFR part 123 establish minimum requirements
for federally authorized State permit programs under section 402 of the
CWA. These regulations include federally recognized Indian Tribes
within the definition of ``State.'' 40 CFR 122.2. EPA is proposing to
add language to part 123 that makes clear the intent that, to receive
or retain Federal authorization, a State must have laws that afford any
interested person the opportunity to challenge in State court the final
approval or denial of 402 permits by the State. The intent of this
proposal is to ensure that State programs provide the public with an
opportunity to challenge final action on 402 permits in State courts,
to the same extent as if the permit were federally-issued. EPA is
inviting comment on various issues related to extending this
requirement to Tribes.
2. Rationale and Authority for Proposed Rule
EPA has become aware of instances in which citizens are barred from
challenging State-issued permits because of restrictive standing
requirements in State law. EPA believes this is a gap in the
regulations setting minimum requirements for State 402 permit programs
that needs to be addressed.
A coalition of environmental groups has filed two petitions
requesting that EPA withdraw the Virginia State 402 permit program,
citing a limitation on citizen standing, among other alleged
deficiencies. In particular, they allege that recent changes in the law
in the State of Virginia have significantly narrowed the public's
opportunity to challenge State-issued 402 permits. Virginia's State
Water Control Law, the State law under which Virginia's authorized
program is administered, authorizes only an ``owner aggrieved'' to
challenge permits in court. VA Code 62.1-44.29. In 1990, the Virginia
legislature amended and narrowed the statutory definition of ``owner.''
The environmental groups allege that under three opinions of the
Virginia Court of Appeals and the State Water Control Law, only a
permittee has standing to challenge the issuance or denial of a 402
permit in State court. Environmental Defense Fund v. State Water
Control Board, 12 Va. App. 456, 404 SE.2d 728 (1991), reh'g en banc
denied, 1991 Va. App. LEXIS 129; Town of Fries v. State Water Control
Board, 13 Va. App. 213, 409 SE.2d 634 (1991). See Citizens for Clean
Air v. State Air Pollution Control Board, 13 Va. App. 430, 412 SE.2d
715 (1991)(interpreting similar language in Virginia Air Pollution
Control Law). They allege that under these three decisions, riparian
landowners, local governments that wish to draw drinking water from the
waters in question, downstream permittees, local business and property
owners associations, local civic associations and environmental
organizations whose members use the waters in question may not
challenge a State-issued permit in State court.
The Agency is committed to moving away from permit-by-permit
oversight. At the same time, it is critical that EPA continue in its
partnership role to support effective State implementation. It is also
essential to provide for meaningful local participation and
[[Page 14589]] resolution of permit specific issues. An important
component of effective public participation is that the public have
access to judicial forums to challenge State-issued permits to the same
extent as would be the case were EPA the permitting authority. This
approach ensures that as EPA reduces its oversight, both EPA and the
States remain directly accountable on a permit-by-permit basis to the
public. To this end, EPA believes the purposes of the CWA can best be
accomplished by providing an opportunity for review in State court of
the final approval or denial of 402 permits by all interested persons,
as well as permittees and permit applicants, in order to ensure an
adequate and meaningful opportunity for public review and comment on
issues addressed by the permit. The same concerns arise when the
program is federally administered; that is why Congress provided for
judicial review of Federal permit actions in Federal court.
When citizens are denied the opportunity to challenge executive
agency decisions in court, their ability to influence permitting
decisions through other required elements of public participation, such
as through public comments and public hearings on proposed permits, may
be seriously compromised. If citizens perceive that a State is not
addressing their concerns about 402 permits because the citizens have
no recourse to an impartial judiciary, that perception also has a
chilling effect on all the remaining forms of public participation in
the permitting process. EPA believes that in order to effectuate the
policies and purposes of the CWA, States must address the legitimate
concerns of citizens about 402 permits. Accordingly, EPA is proposing
to add language to part 123 explicitly requiring that all interested
persons must have an opportunity to challenge the final approval or
denial of 402 permits in State court. In the judgment of EPA, this
effectively balances the CWA's strong policy favoring public
participation in the development of water pollution controls with the
policy to ``recognize, preserve and protect the primary
responsibilities and rights of the States to prevent, reduce and
eliminate pollution...'' Section 101(b), 33 U.S.C. 1251(b). It
effectuates EPA's strong policy interest in deferring to State
administration of authorized NPDES programs while ensuring that
citizens will be able to influence permitting decisions through public
participation and will have access to the courts to challenge State-
issued permits to the same extent as if the program were federally
administered.
EPA's direct authority to specify this requirement is found at
sections 101(e), 304(i), 402(b) and (c), and 501(a) of the CWA.
Section 501(a), 33 U.S.C. 1361(a), confers general authority on the
Administrator to prescribe such regulations as are necessary to carry
out her functions under the CWA. Section 304(i), 33 U.S.C. 1314(i),
provides that EPA shall promulgate guidelines establishing the minimum
procedural and other elements of any State program under section 402.
Section 101(e) provides that ``[p]ublic participation in the
development, revision, and enforcement of any regulation, standard,
effluent limitation, plan, or program established by the Administrator
or any State under this chapter shall be provided for, encouraged, and
assisted by the Administrator and the States . . . .'' 33 U.S.C.
1251(e). To establish minimum public participation requirements
consistent with these statutory goals, section 101(e) directs the
Administrator, in cooperation with the States, to establish minimum
guidelines for public participation. Id.
Congress included the provisions relating to public participation
in section 101(e) because it recognized that ``[a] high degree of
informed public participation in the control process is essential to
the accomplishment of the objectives we seek--a restored and protected
natural environment.'' S. Rep. 414, 92d Cong., 2d Sess. 12 (1972),
reprinted in A Legislative History of the Water Pollution Control Act
Amendments of 1972, Cong. Research Service, Comm. Print No. 1, 93d
Cong., 1st Sess. 108 (1973)(hereinafter cited as 1972 Legis. Hist.) at
1430. The Senate Conference Report observed further that implementation
of water pollution control measures would depend, ``to a great extent,
upon the pressures and persistence which an interested public can exert
upon the governmental process. The Environmental Protection Agency and
the State should actively seek, encourage and assist the involvement
and participation of the public in the process of setting water quality
requirements and in their subsequent implementation and enforcement.''
Id. See also Senate Conference Report at 72, 1972 Legis. Hist. at 1490
(``The scrutiny of the public... is extremely important in insuring
expeditious implementation of the authority [conferred by section 402]
and a high level of performance by all levels of government and
discharge sources.'') Similarly, the House directed EPA and the States
``to encourage and assist the public so that it may fully participate
in the administrative process.'' H. Rep. 911, 92d Cong., 2d Sess. 79,
1972 Legis. Hist. at 766. Congressman Dingell, a leading sponsor of the
CWA, characterized section 101(e) as applying ``across the board.'' Id.
at 108. See also id. at 249.
Section 402(b) establishes the statutory standards applicable to
the approval of State 402 permitting programs. These standards also
reflect the importance that Congress attached to effective public
participation in establishing controls on water pollution. States
wishing to administer a 402 permit program must establish to the
satisfaction of the Administrator that they have enacted laws that
provide adequate authority to carry out the State program. Section
402(b), 33 U.S.C. 1342(b). Section 402(b)(3) contains an explicit
requirement for public participation in the development of State
permits. Subsection (3) allows disapproval upon a finding of inadequate
authority ``[t]o insure that the public, and any other State the waters
of which may be affected, receive notice of each application for a
permit and to provide an opportunity for public hearing before a ruling
on each such application.'' Id. Section 402(c), 33 U.S.C. 1342(c),
authorizes EPA to withdraw a State program if it is not being
administered in accordance with applicable requirements.
The courts have also recognized that meaningful and adequate public
participation is an essential part of a State program under section
402. See Natural Resources Defense Council v. EPA, 859 F.2d 156, 175-78
(D.C. Cir. 1988)(approving part 123 regulations regarding citizen
intervention in State enforcement actions); Citizens for a Better
Environment v. EPA, 596 F.2d 720, reh'g denied, 596 F.2d 725 (7th Cir.
1979)(invalidating EPA approval of a State program in the absence of
prior promulgation of guidelines regarding citizen participation in
State enforcement actions).
Thus, the CWA vests considerable discretion in the Administrator to
set minimum requirements applicable to authorized 402 programs,
particularly with respect to public participation and the rights of
citizens to influence the permitting process. See Natural Resources
Defense Council v. EPA, 859 F.2d at 175-178.
EPA's proposal is further supported by the statutory provisions
governing challenges to 402 permits issued by EPA. Section 509(b)(1) of
the CWA, 33 U.S.C. 1369(b)(1), provides that ``any interested person''
may obtain judicial review in the United States Court of
[[Page 14590]] Appeals of the Administrator's action in issuing or
denying any permit under section 402. There is no indication that
Congress intended that the public's rights to challenge permit actions
would be diminished, upon EPA's approval of a State 402 program, to the
point that the goal of adequate and effective public participation in
the permit issuance process would be compromised. (Similarly, Congress
has provided citizens the ability, except in defined circumstances, to
commence a civil action in the United States District Court against any
person who is alleged to be in violation of any effluent standard or
limitation under the CWA, regardless of whether the permitting
authority is EPA or the State. Section 505(a), 33 U.S.C. 1365(a)).
The regulations setting minimum requirements for authorized State
402 permit programs, 40 CFR part 123, do not explicitly address
requirements for citizen standing to challenge the approval or denial
of permits in State court. The current part 123 regulations were
originally issued on May 19, 1980. 45 FR 33290. When EPA issued those
regulations, the Agency did not contemplate that State law might limit
the opportunity for interested citizens to challenge final permit
decisions in State court to such a degree that it is substantially
narrower than the opportunity afforded under section 509 to challenge
federally-issued permits. Accordingly, EPA believes it needs to specify
standing requirements in part 123. EPA seeks to add language to part
123 that would explicitly require that in order to receive or retain
authorization, a State must afford any interested person the
opportunity to challenge the final approval or denial of 402 permits in
State court. The proposal would codify the Agency's interpretation of
the CWA, as set forth above. EPA believes the Clean Water Act
authorizes the Agency to specify this requirement as a precondition to
the assumption and continued operation of a 402 permitting program by a
State.
The proposed rule would apply to final actions with respect to
modification, revocation and reissuance and termination of permits as
well as the approval or denial of permits in the first instance.
3. Scope of Standing Requirement
EPA's proposal makes it clear that ``any interested person'' must
be afforded standing to challenge final action by a State in issuing or
denying a 402 permit; this proposal would ensure consistency with the
standing afforded the public to challenge federally-issued permits in
Federal court. The legislative history of the CWA states explicitly
that the term ``interested person'' in section 509(b) is intended to
embody the injury in fact rule of the Administrative Procedure Act, as
set forth by the Supreme Court in T3Sierra Club v. Morton, 405 U.S. 727
(1972). S. Conference Rep. No. 1236, 92d Cong, 2d Sess. 146 (1972),
1972 Legis. Hist. at 281, 329. Montgomery Environmental Coalition v.
Costle, 646 F.2d 568, 576-78 (D.C. Cir. 1980). See Trustees for Alaska
v. EPA, 749 F.2d 549, 554-55 (9th Cir. 1984). EPA intends that the term
``interested person'' as used in the proposed rule have the same
meaning that it has in section 509(b). Today's proposal would ensure
that citizen standing to challenge the issuance or denial of State-
issued 402 permits is similarly expansive where the State is authorized
to administer 402 permit programs.
As interpreted by the United States Supreme Court, the standing
requirement of Article III of the Constitution contains three key
elements:
[A]t an irreducible minimum, Art. III requires the party who
invokes the court's authority to ``show that he personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant,''... and that the
injury ``fairly can be traced to the challenged action'' and ``is
likely to be redressed by a favorable decision.''
Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982)(citations omitted. See
also Lujan v. Defenders of Wildlife, 504 U.S. ______, 119 L.Ed.2d 351,
364 (1992).
With respect to the nature of the injury that an ``interested
person'' must show to obtain standing, the Supreme Court held in Sierra
Club v. Morton, 405 U.S. at 734-35, that harm to an economic interest
is not necessary to confer standing. Harm to an aesthetic,
environmental, or recreational interest is sufficient, provided that
the party seeking judicial review is among the injured. This holding
was most recently reaffirmed by the Supreme Court in Lujan v. Defenders
of Wildlife, 504 U.S. ______, 119 L.Ed.2d at 365 (``[o]f course, the
desire to use or observe an animal species, even for purely aesthetic
purposes, is undeniably a cognizable interest for purposes of
standing.''). See also Japan Whaling Ass'n v. American Cetacean
Society, 478 U.S. 221, 231 n. 4 (1986); Middlesex County Sewerage Auth.
v. National Sea Clammers Ass'n, 453 U.S. 1, 16-17. This low threshold
for sufficiency of injury has been applied in many decisions. See,
e.g., Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir.
1988), cert. denied, 491 U.S. 904 (1989) (injury to aesthetic and
environmental interests is sufficient where pollution would affect a
river along which a single group member hiked); Friends of the Earth v.
Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985) (recreational
use of a river and offense to aesthetic values are sufficient to
demonstrate injury in fact).
4. Exhaustion of Administrative Remedies
A requirement that all interested persons have the opportunity to
challenge final permitting actions judicially should be distinguished
from a requirement that interested persons must exhaust administrative
remedies in order to preserve their opportunity to challenge permitting
actions judicially. For example, Federal regulations require that
interested persons must raise reasonably ascertainable issues during
the public comment period on a draft 402 permit (40 CFR 124.13) and
must request an evidentiary hearing on a permit decision they wish to
challenge (40 CFR 124.74). Today's proposal does not affect the
authority of States to adopt similar, reasonable requirements that
interested persons exhaust available administrative remedies in order
to preserve their opportunity to challenge final permitting actions in
State court.
5. Alternatives Under Consideration
EPA also considered amending part 123 to require that State law
must provide an opportunity for judicial review of a final State permit
action under section 402 by the permit applicant and any person who
participated in the public comment process. See section 502(b)(6) of
the Clean Air Act, 42 U.S.C. 7661a(b)(6). The Agency prefers the ``any
interested person'' language because it tracks section 509(b)(1) of the
CWA, which allows ``any interested person'' to challenge specified
final actions of the Administrator, including the issuance or denial of
any permit under section 402, in the United States Court of Appeals. It
is also consistent with existing regulations under the CWA which allow
``any interested person'' to request an evidentiary hearing on a
Regional Administrator's final permit decision. 40 CFR 124.74. As noted
above, States would be free under today's proposal to impose reasonable
requirements that interested persons must exhaust administrative
remedies, such as participation in the public comment process, in order
to preserve their opportunity to challenge a final permitting action in
State court. [[Page 14591]]
EPA solicits comment on whether it should adopt a requirement, in
lieu of the proposed regulatory language, that State law must provide
an opportunity for judicial review of a final permitting action under
section 402 by the permit applicant and any person who participated in
the public comment process.
6. Time Period for Compliance
Under EPA's existing regulations, any approved State 402 program
that requires revision to conform to today's proposal, when it is
finally promulgated, would need to be revised within one year of the
date of final promulgation of today's proposed rule, unless the State
must amend or enact a statute in order to make the required revision.
In that case, under EPA's existing regulations, the revision must take
place within two years. 40 CFR 123.62(e). EPA is considering amending
the regulations to require that States revise their programs sooner
than specified under 40 CFR 123.62(e) to bring the program into
compliance with today's proposed rule. For example, EPA is considering
requiring that if a State must amend or enact a statute to make the
necessary revisions to its law, this must be done during the first
legislative session that begins after the date of promulgation of
today's proposal as a final rule. EPA requests comment on whether it
should impose a requirement that States revise their programs sooner
than specified under 40 CFR 123.62(e) to bring the program into
compliance with today's proposed rule, and if so, what would be an
appropriate shortened time period for compliance.
II. Request for Comment
EPA solicits comment on all aspects of today's proposal. In
particular, EPA seeks comment on the appropriateness of the proposal
from a legal and a policy perspective; on the ``any interested person''
language as proposed; on the alternative that would require that State
law must provide an opportunity for judicial review of a final
permitting action under section 402 by the permit applicant and any
person who participated in the public comment process, as discussed
above; and on any alternative language that would specify appropriate
explicit standing requirements applicable to authorized State 402
programs.
EPA also requests comment on whether it should amend the
regulations to require States to revise their programs sooner than
would otherwise be required under 40 CFR 123.62(e) to bring the program
into compliance with today's proposed rule, when it is finally
promulgated.
EPA is not proposing at this time to establish this requirement for
Tribal permitting programs under section 402. Tribes are just beginning
the development of various Clean Water Act programs and the issues of
sovereign immunity and access to Tribal courts must be carefully
considered. No Tribes are currently authorized to operate the NPDES
program. EPA is soliciting comments on various issues, including the
issue of sovereign immunity, related to extending this requirement to
Tribes. Based upon the comments received on this proposal, EPA may
propose regulatory action in the future with respect to review of
Tribally-issued NPDES permits. EPA also invites comment about how it
could phase in such a requirement for Tribes, if the Agency moves
forward with such a proposal in the future.
EPA is aware that access to Tribal courts may not be as broad as
access to State courts. (EPA addressed some issues with regard to
Tribal regulation of nonmembers, as well as differences in Tribal
criminal enforcement programs, in the preamble to and/or the final
regulation on NPDES authority for Tribes, 58 FR 67966, December 22,
1993.) EPA specifically invites comment on (1) these differences with
regard to access to Tribal courts for appeal of NPDES permits (which
may be issued to nonmembers of the Tribe), (2) the basis of the
differences, (3) as well as any alternative procedures that may be used
to provide for an appeal of final Tribal NPDES permit actions, if a
Tribal court system is not available to a person.
III. Supporting Documentation
1. Compliance With 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 review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to lead to a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affecting 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; and
(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.
EPA believes that only a very few authorized States may be impacted
by this proposed rule. The proposed action is consistent with and
effectuates the public participation provisions of the CWA. As a
result, EPA has determined that the final rule does not meet the
definition of a significant regulation, and, therefore, the Agency is
not conducting a Regulatory Impact Analysis.
It has also been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.
2. Compliance With Executive Order 12875
Under Executive Order 12875, entitled Enhancing the
Intergovernmental Partnership, the Agency is required to develop an
effective process to permit elected officials and other representatives
of State and Tribal governments to provide meaningful and timely input
in the development of regulatory proposals.
EPA fully supports this objective and has initiated a consultation
process with both States and Tribes which will be continued through
proposal and the public comment period. The Agency will be contacting
each State individually for their views on this proposal. With regard
to Indian Tribes, EPA is aware of the complex issues associated with
applying this proposal to Tribes and is soliciting comments on those
issues. EPA will work both with representatives of Tribes as well as
through the Agency's American Indian Environmental Office to assure a
full opportunity for review and comment on today's proposal and also to
ensure an understanding of Tribal concerns or issues raised by today's
proposal rule.
EPA anticipates a reaction from the relatively few NPDES-authorized
States which restrict standing to challenge State-issued NPDES permits.
Businesses and municipalities in States which restrict standing may
argue that allowing standing will make it more difficult to obtain a
permit due to court challenges by citizens. However, based on EPA's
experience in States which already provide broad standing to challenge
permits, EPA does not expect that any significant portion of permits
will be challenged in State courts. [[Page 14592]]
EPA believes that it has developed an effective process for
receiving comments on this proposed rulemaking and has met the
consultation requirements for States, federally recognized Tribes and
localities under the terms of Executive Order 12875.
3. Paperwork Reduction Act
This proposed rule does not contain information requirements
subject to OMB review under the Paperwork Reduction Act, 44 U.S.C. 3501
et seq.
4. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
EPA must prepare a Regulatory Flexibility Analysis for regulations
having a significant impact on a substantial number of small entities.
This proposed rule applies only to States with authorization to
administer the NPDES permit program. States are not considered small
entities under the RFA. Therefore, pursuant to section 605(b) of the
Regulatory Flexibility Act, I certify that this proposed rule will not
have a significant impact on a substantial number of small entities.
List of Subjects in 40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Water pollution control.
Dated: March 9, 1995.
Carol M. Browner,
Administrator.
For the reasons set forth in this preamble, part 123, chapter I,
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 123--[AMENDED]
1. The authority citation for part 123 continues to read as
follows:
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
2. Section 123.30 is added to read as follows:
Sec. 123.30 Judicial review of approval or denial of permits.
All States that administer or seek to administer a program under
this part must provide any interested person an opportunity for
judicial review in State Court of the final approval or denial of
permits by the State. This requirement does not apply to Indian Tribes.
[FR Doc. 95-6676 Filed 3-16-95; 8:45 am]
BILLING CODE 6560-50-F
