04-18578. 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.

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: “[e-mail]”. 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 [phone] or FAX [phone].

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 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.

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 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.