96-8458. State Program Requirements; Application to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Louisiana

[Federal Register Volume 61, Number 67 (Friday, April 5, 1996)]
[Notices]
[Pages 15258-15261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8458]



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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5454-3]


State Program Requirements; Application to Administer the 
National Pollutant Discharge Elimination System (NPDES) Program; 
Louisiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed approval of the Louisiana Pollutant Discharge 
Elimination System.

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SUMMARY: The State of Louisiana has submitted a request for approval of 
the Louisiana Pollutant Discharge Elimination System (LPDES) Program 
pursuant to Section 402 of the Clean Water Act. If EPA approves the 
LPDES program, the State will administer that program in lieu of the 
National Pollutant Discharge Elimination System (NPDES) program now 
administered by EPA in Louisiana. Today, EPA proposes to approve the 
State's request and provides notice of a public hearing and comment 
period on that proposal. EPA will either approve or disapprove the 
State's request after considering all comments it receives.

DATES: EPA Region 6 will hold a public hearing on May 9, 1996 beginning 
at 7:00 p.m. for submission of verbal or written comments on EPA's 
program approval proposal. A public discussion for questions and 
answers will be held prior to the hearing from 3:00 p.m. until 5:00 
p.m. To ensure issues brought up during the meeting from 3:00 to 5:00 
are considered in EPA's decision, they should be made in writing to 
EPA, or on record during the public hearing later that evening. EPA 
Region 6 will continue to accept written comments through May 20, 1996 
at its office in Dallas, Texas. Copies of such written comments should 
also be provided to LDEQ.

ADDRESSES: The May 9, 1996, public hearing will be held at the Maynard 
Ketcham Building, 7310 Bluebonnet, Jimmy Swaggart Bible College Campus, 
Baton Rouge, Louisiana. Specific directions will be posted on the LDEQ 
headquarters building at 7290 Bluebonnet, adjacent to the Maynard 
Ketcham Building.
    Written comments must be submitted to: Ms. Ellen Caldwell (6WQ-O), 
Water Quality Protection Division, EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202.
    A copy of each comment should be submitted to: Ms. Barbara Bevis, 
Office of Water Resources, LDEQ, P.O. Box 82215, Baton Rouge, 
Louisiana, 70884-2215.
    Copies of documents Louisiana has submitted in support of its 
program approval request may be reviewed during normal business hours, 
Monday through Friday, excluding holidays, at:

EPA Region 6
12th Floor Library
1446 Ross Avenue
Dallas, Texas 75202
[phone]

LDEQ Headquarters
7290 Bluebonnet
Baton Rouge, LA 70884-2215
[phone]

LDEQ Acadianna Regional Office
100 Asma Blvd., Suite 151
Lafayette, LA 70508
[phone]

LDEQ Bayou Lafourche Regional Office
104 Lococo Drive
Raceland, LA 70394
[phone]

LDEQ Capitol Regional Office
11720 Airline Highway
Baton Rouge, LA 70817-1720
[phone]

LDEQ Kisatchie Central Regional Office
402 Rainbow Drive, Bldg. 402
Pineville, LA 71360
[phone]

LDEQ Northeast Regional Office
804 31st Street, Suite D
Monroe, LA 71211-4967
[phone]

LDEQ Northwest Regional Office
1525 Fairfield, Room 11
Shreveport, LA 71101-4388
[phone]

LDEQ Southeast Regional Office
3501 Chateau Boulevard-West Wing
Kenner, LA 70065
[phone]

LDEQ Southwest Regional Office
3519 Patrick Street, Room 265A
Lake Charles, LA 70605
318 475-8644

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at the address 
listed above or by calling [phone] or Ms. Barbara Bevis at the 
address listed above or by calling [phone].
    Part or all of the State's submission (which comprises 
approximately 1930 pages) may be copied at the LDEQ office in Baton 
Rouge, or EPA office in Dallas, at a minimal cost per page. A copy of 
the entire submission may be obtained from the LDEQ office in Baton 
Rouge for a $108.36 fee.
    Part of the State's program submission and supporting documentation 
should be available electronically within two weeks of this notice at 
the following internet address: http://WWW.DEQ.STATE.LA.US--select 
Office of Water Resources.

SUPPLEMENTARY INFORMATION: Section 402 of the Clean Water Act (Act) 
created

[[Page 15259]]
the NPDES program under which EPA may issue permits for the discharge 
of pollutants to waters of the United States under conditions required 
by the Act. Section 402 also provides that EPA may authorize a State to 
administer an equivalent state program upon a showing the State has 
authority and a program sufficient to meet the Act's requirements.
    The basic requirements for state program approval are listed in 40 
CFR Part 123. EPA Region 6 considers the documents submitted by the 
State of Louisiana complete at the time of this notice and believes 
they comply with the regulations found at 40 CFR 123. It thus proposes 
to approve the LPDES program as described by the Louisiana Department 
of Environmental Quality. EPA will consider final approval after all 
public comments have been considered.
    On November 2, 1995, the Governor of Louisiana requested NPDES 
program approval and submitted a program description (including 
funding, personnel requirements and organization, and enforcement 
procedures), an Attorney General's statement, copies of applicable 
State statutes and regulations, and a Memorandum of Agreement (MOA) to 
be executed by the Regional Administrator or EPA Region and the 
Secretary of LDEQ. As a result of discussions between EPA and LDEQ 
staff, minor changes and additions have been made to some of those 
documents for the sake of clarity. Supplemental documents and 
consultation agreements under the Endangered Species Act and National 
Historic Preservation Act were added to the record on March 21, 25, 26, 
and April 1, 1996.
    EPA's Regional Administrator is required to approve the submitted 
program within 90 days of submittal unless it does not meet the 
requirements of section 402(b) of the Act and EPA regulations. To 
obtain such approval, the State must show, among other things, that it 
has authority to issue permits which comply with the Act, authority to 
impose civil and criminal penalties for permit violations, and 
authority to ensure that the public is given notice and opportunity for 
a hearing on each proposed permit. The 90 day time frame has been 
extended by mutual agreement between EPA Region 6 and LDEQ (40 CFR 
123.21) to allow for contemporaneous notice of consultation agreements 
under the Endangered Species Act and National Historic Preservation 
Act. After close of the comment period, EPA's Regional Administrator 
will decide to approve or disapprove the LPDES program for 
implementation in lieu of the federal NPDES program.
    EPA's final decision to approve or disapprove the LPDES program 
will be based on the requirements of section 402 of the CWA and 40 CFR 
Part 123. If she approves the Louisiana program, the Regional 
Administrator will so notify the State. Notice will be published in the 
Federal Register and, as of the date of program approval, EPA will 
suspend issuance of NPDES permits in Louisiana (except for: sewage 
sludge permits under CWA Sec. 405 and 40 CFR 503). The State's LPDES 
program will implement federal law and operate in lieu of the EPA-
administered NPDES program. EPA will, however, retain the right to 
object to LPDES permits proposed by LDEQ, and if the objections are not 
resolved, issue the permit itself. If EPA's Regional Administrator 
disapproves the LPDES program, she will notify LDEQ of the reasons for 
disapproval and of any revisions or modifications to the program which 
are necessary to obtain approval.

PUBLIC HEARING PROCEDURES: The following procedures will be used at the 
May 9, 1996 public hearing:
    1. The Presiding Officer shall conduct the hearing in a manner 
which will allow all interested persons wishing to make oral statements 
an opportunity to do so; however, the Presiding Officer may inform 
attendees of any time limits during the opening statement of the 
hearings.
    2. Any person may submit written statements or documents for the 
record.
    3. The Presiding Officer may, in his discretion, exclude oral 
testimony if such testimony is overly repetitious of previous testimony 
or is not relevant to the decision to approve or require revision of 
the submitted State program.
    4. The transcript taken at the hearing, together with copies of all 
submitted statements and documents, shall become a part of the record 
submitted to the Regional Administrator.
    5. The hearing record shall be left open until the deadline for 
receipt of comments specified at the beginning of this Notice to allow 
any person time to submit additional written statements or to present 
views or evidence tending to rebut testimony presented at the public 
hearing.
    Hearing statements may be oral or written. Written copies of oral 
statements are urged for accuracy of the record and for use of the 
Hearing Panel and other interested persons. Statements should summarize 
any extensive written materials. All comments received by EPA Region 6 
by the deadline for receipt of comments, or presented at the public 
hearing, will be considered by EPA before taking final action on the 
Louisiana request for NPDES program approval.

Summary of the Louisiana Pollution Discharge Elimination System (LPDES) 
Permitting Program

    Louisiana's LPDES program generally covers all discharges of 
pollutants subject to the federal NPDES program, but does not regulate 
the disposal of sewage sludge. If it approves the State program, EPA 
will thus continue to regulate sewage sludge disposal in Louisiana in 
accordance with Section 405 of the Act and 40 CFR Part 503.
    The LPDES program is fully described in documents the State has 
submitted in accordance with 40 CFR 123.21, i.e., a Memorandum of 
Agreement (MOA) for execution by LDEQ and EPA; a Program Description 
outlining the procedures, personnel and protocols that will be relied 
on to run the state's permitting program; a Statement signed by the 
Attorney General that describes the legal authority which the state has 
adopted to administer a program equivalent to the federal NPDES 
program; and several agreements under which LDEQ will coordinate with 
the State Historic Preservation Officer and the U.S. Fish and Wildlife 
Service for the protection of antiquities and endangered species. The 
content of those documents is summarized below.

I. The EPA/LDEQ MOA

    The requirements for MOAs are found in 40 CFR 123.24. A Memorandum 
of Agreement is a document signed by each agency, committing them to 
specific responsibilities. A MOA specifies these responsibilities and 
provides structure for the State's program management and EPA's program 
oversight.
    The MOA submitted by the State of Louisiana has been signed by The 
Secretary of the Department of Environmental Quality. The Regional 
Administrator of U.S. EPA Region 6 will sign the document after the 
program has been determined approvable and all comments received during 
the comment period (including comments received at the public hearing) 
have been considered. The MOA submitted by LDEQ includes the following 
items:
    Section 1 contains general statements describing the purpose of the 
MOA, partnership and responsibilities of LDEQ and EPA Region 6, and the 
scope of the LPDES program.
    Section II describes the alternate responsibilities of the two 
agencies and agency jurisdiction over permits.

[[Page 15260]]

    Section III describes all agreements on the review and issuance of 
LPDES permits. It covers LDEQ's responsibilities to issue permits, the 
transfer of EPA files to the State, and the State's application review 
and permit development process. Included are such things as procedures 
for permit modification or reissuance, and EPA's review of LPDES 
drafted individual and general permits. This section includes the 
State's commitment for responding to public concerns and providing 
public participation in connection with public hearings, evidentiary 
hearing, and administrative and judicial enforcement actions.
    Section IV describes summary agreements between EPA and LDEQ that 
provide EPA with oversight of the LPDES enforcement program. These 
include those commitments on LDEQ's compliance monitoring, reviews, and 
inspections. LDEQ agrees to take penalty actions in accordance with the 
spirit of the EPA Penalty Policy.
    Section V Describes how LDEQ will implement a pretreatment program. 
Specific implementation features include categorical determinations, 
removal credits, and variances from categorical standards.
    Additional sections address such matters as submitting information 
from one agency to the other, performing program reviews, calculating 
time under the MOA, and EPA's independent powers.

II. Program Description

    A program description submitted by a state seeking program approval 
must meet the minimum requirements of 40 CFR 123.22. It must provide a 
narrative description of the scope, structure, coverage and processes 
of the state program; a description of the organization, staffing and 
position descriptions for the lead state agency; and itemized costs and 
funding sources for the program. It must describe all applicable state 
procedures (including administrative procedures for the issuance of 
permits and administrative or judicial procedures for their review) and 
include copies of forms used in the program. It must further contain a 
complete description of the State's compliance and enforcement tracking 
program.
    Parts I through IV describe the organization and structure of LDEQ, 
and list the qualification and duties of LDEQ staff.
    Part V describes the legal authority for the LPDES system, the 
legal representation, and permitting processes for both individual 
permitting and general permitting. This part of the Program Description 
contains a flow chart of the permit processes from application to 
issuance, including EPA's review of the draft.
    Part VI describes the program costs for two years, the resource 
needs and staffing requirements. It analyzes the program workload by 
major and minor permits, the pretreatment unit, the application 
verification unit, enforcement and surveillance inspections.
    Part VII describes general administrative procedures for permitting 
and the administrative and judicial procedures for their review. It 
describes the procedures for the publication of rules, the procedures 
for holding public hearings and information requests and availability. 
It lists considerations for permitting prioritization. This part also 
describes many of the State's water quality planning procedures. 
Procedures for reviewing, revising, and updating the State program are 
listed, as well as requirements for annual report submission to EPA.
    Part VIII describes specific procedures for permitting, and permit 
review. Descriptions include the application forms, permit writer 
review of application information, permit drafting, notice of permits, 
EPA review of draft permits, and public notice, comment and hearing 
procedures associated with EPA objections. It outlines the procedures 
which apply to administrative and judicial review of permit decisions, 
including District Court review, appellate court review, and citizen 
suits. This part also describes citizen notification and hotline 
availability.
    Part IX describes compliance tracking and enforcement procedures 
for monitoring, inspections, and sampling. It describes pretreatment 
compliance inspection processes and all compliance tracking processes. 
This part of the Program Description is supplemented by the Enforcement 
Management System, which is a separate document prepared by the State 
containing the actual process details of permit enforcement and 
compliance tracking.
    Part X describes LDEQ's pretreatment program procedures. The 
pretreatment program applies to those municipal wastewater treatment 
plants which receive industrial wastewater, and those industries which 
discharge to Publicly Owned Treatment Works. This part describes how 
municipalities are assessed for pretreatment requirements and 
pretreatment program approvals by the State.
    Part XI describes LDEQ general permitting procedures; how and when 
a Notice of Intent will be required for coverage under LPDES general 
permits. While LDEQ and EPA do not follow the same procedures in 
issuing general permits, EPA regards the State's general permitting 
program functionally equivalent to its own. If the State determines to 
amend its LPDES program to issue permits by rule, these revisions will 
be made in accordance with 40 CFR 123.62(b).

III. Enforcement Management System (EMS)

    States seeking authorization of their permitting and enforcement 
program under NPDES have the option of adopting EPA's enforcement 
policies, procedures, and guidance; or provide in their program package 
a complete description of their enforcement authority and compliance 
evaluation program (40 CFR 123.26 and 123.27). Louisiana elected to 
develop its own enforcement management system. An EMS outlines the ways 
the State systematically and efficiently identifies instances of 
noncompliance and provides timely and appropriate enforcement actions 
to achieve the final objective of full compliance by the permittee with 
the Clean Water Act. An EPA memo dated October 2, 1989, titled ``Final 
Version of the Revised Enforcement Management System,'' describes seven 
basic principals that are common to an effective EMS:

--Maintain a source inventory that is complete and accurate;
--Handle and assess the flow of information available in a systematic 
and timely basis;
--Accomplish a pre-enforcement screening by reviewing the flow of 
information as soon as possible after it is received;
--Perform a more formal enforcement evaluation where appropriate, using 
systematic evaluation screening criteria;
--Institute a formal enforcement action and follow-up whenever 
necessary;
--Initiate field investigations based on a systematic plan; and,
--Use internal management controls to provide adequate enforcement 
information to all levels of organization.

    The LDEQ's Enforcement Management System (EMS) is a written outline 
or guide which discusses the procedures that will be followed to ensure 
that both federal and state regulatory requirements and goals are 
accomplished in a timely and appropriate manner.
    The inspection and enforcement functions of the Office of Water

[[Page 15261]]
Resources reside in the Water Quality Management Division's 
Surveillance and Enforcement Sections. The Surveillance Section is 
headed by an Environmental Quality Program Manager and along with its 
administrative support is headquartered in Baton Rouge. It has field 
staff in each of the eight regional offices strategically located 
throughout the state (listed with addresses in this notice). Each 
Regional Surveillance Office is supervised by an Environmental Quality 
Coordinator.
    The Surveillance Section is responsible for inspecting all 
permitted and unpermitted facilities which have or are believed to have 
a surface water discharge. The Surveillance Section is also responsible 
for the investigation of all citizen complaints involving waters of the 
State.
    At this time LDEQ does not have a civil penalty policy for deriving 
administrative penalty amounts or reaching compromises. However, the 
State has committed to the development and implementation of a penalty 
policy. LDEQ will propose their policy by October 31, 1996, with 
finalization targeted for April 1, 1997. While the adoption of a 
penalty policy is highly recommended, it is not mandatory [40 CFR 
123.27(c)], and is therefore not required prior to EPA authorization of 
the LPDES program. LDEQ is adopting a penalty policy to ensure the 
consistent assessment and collection of administrative penalties in 
their state.
    In contrast to the compliance orders EPA issues under CWA 
Sec. 309(a)(3), LDEQ's Compliance Orders (COs) are subject to appeal, a 
factor which has the potential to delay compliance.

IV. Attorney General's Statement

    An Attorney General's Statement is required and described in 
regulations found at 40 CFR 123.23. Legal counsel representing the 
State must certify that the State has lawfully adopted statutes and 
regulations which provide the State agency with the legal authority to 
administer a permitting program in compliance with 40 CFR Part 123. The 
Attorney General's Statement from Louisiana certifies the State does 
indeed have the legal authority to administer the LPDES program in 
accordance with the regulations in 40 CFR 123; and correlates the State 
regulations and statutes to corresponding federal requirements.

Comments on the Described Program

    The program submitted by the State of Louisiana has been determined 
to be complete in accordance with the regulations found at 40 CFR 123. 
EPA and LDEQ want to encourage public participation in this 
authorization process so that the citizens of Louisiana will understand 
the program in their state. Therefore, EPA requests that the public 
review the program that LDEQ has submitted and provide any comments 
they feel are appropriate. EPA and the State want the public to be able 
to effectively coordinate with LDEQ on LPDES permitting and enforcement 
actions. EPA will consider all comments on the LPDES program and/or its 
authorization in its decision.

Other Federal Statutes

A. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act (NHPA) 
requires that all federal agencies must consult with the State Historic 
Preservation Officer (SHPO) and the Advisory Council on Historic 
Preservation (ACHP) on all federal undertakings which may affect 
historic properties or sites listed or eligible for listing in the 
National Register of Historic Places. Regulations outlining the 
requirements of a Section 106 consultation on a federal undertaking are 
found at 36 CFR Part 800. Approval of the State permitting program 
under section 402 of the Clean Water Act is a federal undertakings 
subject to this requirement, but the State's subsequent issuance of 
LPDES permits is not. EPA has thus consulted in accordance with Section 
106 of the NHPA to assure equivalent protection of eligible properties 
will be provided in connection with State permit actions. In that 
consultation, EPA, the SHPO and LDEQ outlined procedures by which LDEQ 
and the SHPO would confer on permit actions likely to affect historic 
properties. These processes are reflected in a Memorandum of 
Understanding between those two State agencies. In addition, an 
agreement was signed by EPA and the SHPO on EPA's oversight role and 
objection procedures when the two state agencies could not agree on the 
protection of antiquities in Louisiana. A statement in the EPA/LDEQ MOA 
for program approval provides EPA an additional opportunity to object 
to the issuance of a permit which would adversely affect a site on 
which the SHPO and LDEQ disagree. These consultation documents are 
available with the program package for public review and comment.

B. Endangered Species Act

    Section 7 of the Endangered Species Act (ESA) requires that all 
federal agencies consult on federal actions which may affect federally 
listed species to insure they are unlikely to jeopardize the continued 
existence of those species or adversely modify their critical habitat. 
Regulations controlling consultation under ESA Section 7 are codified 
at 50 CFR Part 402. The approval of the State permitting program under 
section 402 of the Clean Water Act is a federal action subject to this 
requirement, but the State's subsequent LPDES permit actions are not. 
EPA is in the process of informal consultation with both the U.S. Fish 
and Wildlife Service (FWS or the Service) and the National Marine 
Fisheries Service (NMFS or the Service). In the course of consultation, 
EPA, the Services, and LDEQ have outlined procedures by which LDEQ and 
FWS, and/or NMFS will confer on permits which are likely to affect 
listed species. These processes are reflected in draft Memoranda of 
Understanding between the State and those federal agencies. In 
addition, an agreement between EPA and both Services has been drafted 
on EPA's oversight role and objection procedures when LDEQ and FWS and/
or NMFS cannot agree on the protection of species in an individual 
State permit action. A statement in the EPA/LDEQ MOA for program 
approval provides EPA an additional opportunity to object to the 
issuance of a permit which would adversely effect a protected species 
or critical habitat when Services and LDEQ disagree. These draft 
documents are available with the program package for public review and 
comment.

C. Regulatory Flexibility Act

    After review of the facts presented in this document, I hereby 
certify, pursuant to the provisions of 5 U.S.C. 605(b), that this 
proposal will not have a significant impact on a substantial number of 
small entities. The approval of the Louisiana NPDES permit program 
would merely transfer responsibilities for administration of the NPDES 
permit program from Federal to State government.
    I hereby propose to authorize the LPDES program in accordance with 
40 CFR part 123.

    Dated: April 1, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-8458 Filed 4-4-96; 8:45 am]
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