National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates, 3324-3338 [2019-01339]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Rules and Regulations]
[Pages 3324-3338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01339]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122, 124 and 125

[EPA-HQ-OW-2016-0145; FRL9988-87-OW]
RIN 2040-AF25


National Pollutant Discharge Elimination System (NPDES): 
Applications and Program Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
certain revisions to the National Pollutant Discharge Elimination 
System permitting regulations proposed on May 18, 2016. The final 
regulatory changes are minor and will improve and clarify the 
regulations in the following major categories: Regulatory definitions 
(``new discharger'' and two definitions related to the discharge of 
pesticides from pesticides application); permit applications; and 
public notice. This final rule also updates the EPA contact information 
and web addresses for electronic databases, updates outdated references 
to best management practices guidance documents, and deletes a 
provision relating to best practicable waste treatment technology for 
publicly owned treatment works that is no longer applicable. The final 
revisions modernize the NPDES regulations, promote submission of 
complete permit applications, and clarify regulatory requirements to 
allow more timely development of NPDES permits that protect human 
health and the environment.

DATES: This final rule is effective on June 12, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-2016-0145. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Frank Sylvester, Water Permits 
Division, Office of Wastewater Management, Mail Code 4203M, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: (202) 564-1279; email address: 
sylvester.francis@epa.gov; or Janita Aguirre, Water Permits Division, 
Office of Wastewater Management, Mail Code 4203M, Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; 
telephone number: (202) 566-1149; email address: 
aguirre.janita@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What action is the Agency taking and why?
    C. What is the Agency's authority for taking this action?
    D. What are the incremental costs and benefits of this action?
    E. How was the final rule developed?
II. Rule Revisions Finalized in This Action
    A. Revisions to Part 122
    B. Revisions to Part 124

[[Page 3325]]

    C. Revisions to Part 125
III. Rule Revisions Not Finalized in This Action
IV. Impacts
V. Compliance Dates
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low Income 
Populations
    L. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action are: The EPA; 
authorized state, territorial, and tribal programs; and the regulated 
community. This table is not intended to be exhaustive, rather, it 
provides a guide for readers regarding entities that this action is 
likely to regulate.

       Table I-1--Entities Potentially Affected by This Final Rule
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                                             Examples of potentially
                Category                        affected entities
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State, Territorial, and Indian Tribal    States and Territories
 Governments.                             authorized to administer the
                                          NPDES permitting program;
                                          States, Territories, and
                                          Indian Tribes that provide
                                          certification under section
                                          401 of the CWA; States,
                                          Territories, and Indian Tribes
                                          that own or operate treatment
                                          works.
Municipalities.........................  Publicly Owned Treatment Works
                                          (POTWs), municipal separate
                                          storm sewer systems (MS4s), or
                                          other municipal entities
                                          required to apply for or seek
                                          coverage under an NPDES
                                          individual or general permit
                                          and to perform routine
                                          monitoring as a condition of
                                          an NPDES permit.
Industry...............................  Facilities required to apply
                                          for or seek coverage under an
                                          NPDES individual or general
                                          permit and to perform routine
                                          monitoring as a condition of
                                          an NPDES permit.
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    If you have any questions regarding the applicability of this 
action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

B. What action is the Agency taking and why?

    The EPA is finalizing certain minor, generally clarifying revisions 
to the NPDES regulations initially proposed on May 18, 2016.\1\ The 
final regulatory changes improve and clarify regulations in the 
following major categories: Regulatory definitions (``new discharger'' 
and two definitions related to the discharge of pesticides from 
pesticides application); permit applications; and public notice. The 
final regulatory changes also update the EPA's contact information and 
web addresses for electronic databases and outdated references to best 
management practices, and delete a provision that is no longer 
applicable (40 CFR 125.3(a)(1)(ii), relating to best practicable waste 
treatment technology for publicly owned treatment works). As a result 
of this final rule, the NPDES regulations will promote submission of 
complete permit applications, contain modernized regulatory 
requirements to allow more timely development of NPDES permits that 
protect human health and the environment, and be more clear and 
effective.
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    \1\ 81 FR 31343.
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C. What is the Agency's authority for taking this action?

    These regulations are promulgated pursuant to the Clean Water Act, 
33 U.S.C. 1251 et seq., in particular, CWA sections 301, 304(i), 308, 
402 and 501.

D. What are the incremental costs and benefits of this action?

    This final rule promulgates minor, generally clarifying revisions 
to the NPDES regulations. The EPA has estimated that the revisions 
finalized in this action will result in an overall burden decrease to 
permitting authorities and the regulated community of approximately 
$2,389,889 and 17,912 hours annually.

E. How was the final rule developed?

    In developing this final rule, the EPA considered the public 
comments and feedback received from stakeholders on the May 18, 2016 
proposal (hereafter referred to as the Proposed Rule). The EPA provided 
a 75-day public comment period after the Proposed Rule was published in 
the Federal Register.
    Over 450 organizations and individuals submitted comments on a 
range of issues. The EPA received an additional 14,438 letters from 
individuals associated with mass letter writing campaigns. Some 
comments addressed issues beyond the scope of the proposed rulemaking; 
however, the EPA did not contemplate expanding the scope of the 
rulemaking or making regulatory changes to address the substance of 
these comments. In each section of this preamble, the EPA discusses 
significant public comments so that the public is fully aware of the 
Agency's basis for the final rule. For a full response to these and all 
other comments, see the EPA's Response to Comments document in the 
official public docket for this rulemaking.
    In addition, the EPA met with all stakeholders who requested time 
to discuss the contents of the proposed rule. Records of each meeting 
are included in the official public docket.

II. Rule Revisions Finalized in This Action

    The EPA has created a comparison document showing the revisions to 
the current NPDES regulations made by this final rule, and a second 
document showing the revisions made between the proposed and final 
rule. The EPA has posted both documents at: https://www.epa.gov/npdes/npdes-application-and-program-updates, and placed them in the docket 
for today's rule.

A. Revisions to Part 122

1. Purpose and Scope (Note to 40 CFR 122.1)--NPDES Contact Information
    The EPA is finalizing the correction to the Note to 40 CFR 122.1, 
NPDES contact information, to delete outdated references to program 
contact information that are no longer accurate. The final Note also 
includes the updated website address for the NPDES homepage, https://www.epa.gov/npdes/.
    The EPA received one public comment associated with this revision. 
The comment expressed support for the effort to remove the outdated 
information and questioned whether the EPA could remove the Note 
entirely or

[[Page 3326]]

provide a more generic approach than including specific contact 
information that requires a rulemaking to update. While it is true that 
the Note to 40 CFR 122.1 could be deleted entirely or generically 
updated, the EPA's view is that providing up-to-date contact 
information in the Code of Federal Regulations (CFR) will save the 
permitting authorities and the public time when they seek to contact 
the EPA about these regulations. For instance, if the Note were deleted 
entirely, an interested party who is used to the information appearing 
in the regulatory text may spend unnecessary time searching the 
internet and navigating the EPA's website for NPDES information. 
Instead, the EPA is retaining the Note and including the up-to-date 
NPDES homepage to provide a direct link for interested parties to find 
the EPA's NPDES-related information about a particular issue or program 
area.
2. NPDES Program Definitions (40 CFR 122.2)
(a) Pesticide Discharges to Waters of the United States From Pesticide 
Application
    In 2009, the Court of Appeals in National Cotton Council, et al. v. 
EPA, 553 F.3d 927 (6th Cir. 2009) found that point source discharges of 
biological pesticides and chemical pesticides that leave a residue to 
waters of the United States (U.S.) are pollutants under the CWA and 
therefore require NPDES permits. In response, the EPA issued the first 
Pesticide General Permit on October 31, 2011 and reissued the permit on 
October 24, 2016.\2\ The Proposed Rule added a definition of 
``pesticide applications to waters of the United States'' to ensure the 
NPDES regulations are consistent with the 6th Circuit decision as 
implemented by the Agency's Pesticide General Permit. In this action, 
the EPA includes a final definition for ``Pesticide discharges to 
waters of the United States from pesticide application,'' as well as a 
regulatory definition for ``pesticide residue.''
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    \2\ See https://www.epa.gov/npdes/pesticide-permitting. The 
EPA's Pesticide General Permit applies only to areas and activities 
where states are not authorized to administer the NPDES program. 
Authorized states develop and issue their own permits for pesticide 
discharges to waters of the United States from pesticide 
application.
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    The comments received on the proposal were mixed. Many comments 
requested additional language clarifications in order to be consistent 
with the court decision and to avoid confusion regarding the issue of 
whether or not pesticides must leave a residue to qualify as pollutants 
requiring permit coverage under the NPDES program. One comment 
requested that the EPA include definitions for ``biological 
pesticides,'' ``chemical pesticides,'' and ``pesticide residue.''
    In response to the comments received, this final rule includes 
minor wording changes from the proposal to use NPDES regulatory 
terminology such as ``discharge'' and to change ``pesticide 
application'' to ``discharges to waters of the United States from 
pesticide application'' to better reflect current NPDES terminology, 
which is used in both the 6th Circuit decision and the EPA's Pesticide 
General Permit. Based on the comments received, this final rule also 
includes a regulatory definition of the term ``pesticide residue'' for 
purposes of clarifying which discharges to waters of the U.S. from the 
application of pesticides require NPDES permits. The EPA is not adding 
a regulatory definition for ``biological pesticide'' \3\ in 40 CFR 
122.2 because this concept and relevant regulatory definitions are 
already included in 40 CFR 174.3, 40 CFR 158.2000(a)(1), and 40 CFR 
158.2100(b).
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    \3\ This term, also called biopesticides, includes microbial 
pesticides, biochemical pesticides, and plant-incorporated 
protectants.
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    This definition in the final rule provides that the term 
``pesticide residue'' in 40 CFR 122.2 includes the portion of a 
pesticides application that is discharged from a point source to waters 
of the U.S. and no longer provides pesticidal benefits. It also 
includes any degradates of the pesticide. This definition is identical 
to the definition of ``pesticide residue'' already used in the EPA's 
Pesticide General Permit.
    By including the final definitions related to pesticide discharges 
to waters of the U.S. in the comprehensive NPDES definitions at 40 CFR 
122.2, the regulations have increased clarity and consistency regarding 
discharges regulated under the CWA and therefore require NPDES permits. 
The final definitions do not change which pesticide discharges are 
subject to NPDES permitting.
(b) New Discharger
    The EPA is finalizing the proposed correction of a typographical 
error in paragraph (d) of the New Discharger definition to change 
``NDPES'' to ``NPDES.'' The EPA received no public comments associated 
with this revision.
3. Changes to Existing NPDES Permit Application Requirements (40 CFR 
122.21)
    The CWA directs the Administrator to ``promulgate guidelines for 
the purpose of establishing uniform application forms,'' and minimum 
requirements for the acquisition of information from owners and 
operators of point-sources of discharge. 33 U.S.C. 1314(i). The EPA 
regulations at 40 CFR part 122 implement this requirement. The EPA 
proposed specific revisions to clarify and update the permit 
application requirements in 40 CFR 122.21. In this action, the EPA is 
finalizing the revisions to the permit application requirements, as 
described in the following sections, to update and improve application 
consistency, accuracy, and usability.
    The EPA regulations establish permit application requirements and 
corresponding forms for use by all applicants for EPA-issued individual 
permits. Accordingly, the EPA has updated the eight application forms 
consistent with the final requirements addressed in this final rule.\4\ 
An authorized state program may choose to use the EPA's forms or 
develop its own application forms; however, an authorized program's 
forms must collect all of the information that the Agency's regulations 
require.\5\
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    \4\ For more information about the NPDES application forms and 
their history, see the preamble to the proposed rule: 81 FR 31345-
31346 (May 18, 2016) and 81 FR 31349 (May 18, 2016).
    \5\ 40 CFR 122.21(a)(2)(iv).
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    In the Proposed Rule, the EPA indicated that it had established a 
separate docket (EPA-HQ-OW-2016-0146) to receive comments on potential 
future changes to the application forms and information requests. 
Specifically, the EPA solicited comment on whether and how a separate 
future action should address the utility and clarity of the information 
requests and on how to minimize the information collection burden on 
respondents, including the use of appropriate automated, electronic, 
mechanical, or other forms of information technology (see 81 FR 31367, 
May 18, 2016). The EPA did not receive any substantive comments that 
identified duplication, redundancy or other ways to reduce burden 
associated with the forms that have not been otherwise discussed and/or 
addressed in this rulemaking.
(a) NPDES Contact Information (40 CFR 122.21(a)(2))
    The EPA is finalizing the correction to 40 CFR 122.21(a)(2) to 
update contact information for obtaining application

[[Page 3327]]

forms, as proposed. The final provision deletes outdated references to 
program contact information, and includes the updated website address 
for the NPDES homepage, https://www.epa.gov/npdes. The EPA received no 
public comments associated with this revision. In general, it is the 
EPA's view that providing up-to-date contact information in the CFR 
will save the permitting authorities and the public time when they seek 
to contact the EPA about these regulations. For instance, if this 
information were not provided in the regulation, an interested party 
may spend unnecessary time searching the internet and navigating the 
EPA's website for NPDES information. Instead, the EPA is providing 
updated contact information for parties interested in obtaining the 
NPDES application forms.
(b) Industrial Classification Codes (40 CFR 122.21(f)(3))
    The EPA is finalizing the revisions to the requirements at 40 CFR 
122.21(f)(3), for all facilities except POTWs and treatment works 
treating domestic sewage (TWTDSs), to include North American Industry 
Classification System (NAICS) codes,\6\ in addition to Standard 
Industrial Classification (SIC) codes,\7\ that reflect the products or 
services provided by the facility.
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    \6\ NAICS code numbers and descriptions in the North American 
Industrial Classification System Manual prepared by the Executive 
Office of the President, Office of Management and Budget can be 
found online at: https://www.census.gov/eos/www/naics/.
    \7\ SIC code numbers and descriptions in the 1987 Standard 
Industrial Classification Manual prepared by the Executive Office of 
the President, Office of Management and Budget can be found online 
at: https://www.osha.gov/pls/imis/sic_manual.html.
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    Most comments received either supported or did not oppose the 
proposed requirement to include NAICS codes. While generally supporting 
the revision, several comments questioned why the EPA proposed to 
require submission of both SIC and NAICS codes, suggesting instead that 
the Agency should require one or the other, or provide flexibility to 
choose which code to submit. Some comments also expressed concern and 
requested clarification about the overall timing and transition process 
from SIC codes to NAICS codes.
    The EPA's intent with the proposed rulemaking was to require both 
SIC and NAICS codes, as both codes provide useful information. For 
example, SIC codes are referenced in several Effluent Limitations 
Guidelines regulations that serve as the basis for effluent limitations 
in NPDES permits. While the EPA may elect to replace those SIC codes 
with NAICS codes at some point in the future, the SIC code is currently 
a critical piece of information needed for NPDES permitting 
purposes.\8\ While the older SIC codes are still referenced in other 
regulations, NAICS codes are now the federal data standard typically 
used to identify and classify industrial operations.\9\ Although the 
NAICS codes are not directly linked to most CWA implementing 
regulations, they are the recommended industry classification system in 
OMB's Statistical Policy Directive No. 8, and NAICS codes have 
effectively replaced SIC codes, which have not been updated since 1987. 
Use of the NAICS codes as the data standard across all federal data 
systems ensures consistency in assessments conducted across multiple 
federal databases. Use of the NAICS codes also allows the NPDES permit 
program to reflect the evolution of industries to which dischargers 
belong.
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    \8\ For example, see 40 CFR 414.11(a) which establishes effluent 
limitations guidelines subcategories using the 1987 SIC categories.
    \9\ See ``North American Industry Classification System United 
States, 2017'' Executive Office of the President, Office of 
Management and Budget, 2017.
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    In many cases there is a one-to-one crosswalk between the SIC and 
NAICS codes; however, this is not always true. [Note: The United States 
Census Bureau provides online resources connecting SIC and NAICS codes: 
https://www.census.gov/eos/www/naics/concordances/concordances.html.]
    Given that some CWA regulations use SIC codes, both codes remain 
important for permitting and data tracking purposes. Therefore, the 
final rule will require an applicant to provide both SIC and NAICS 
codes on application forms. After changes are made in the future to 
replace SIC code references in other CWA regulations, the EPA will 
evaluate revisiting the application forms to remove or revise the SIC 
code requirements.
(c) New Discharger Data Submission (40 CFR 122.21(k)(5)(vi), 40 CFR 
122.21(j)(4)(i), and 40 CFR 122.21(j)(5)(i))
    Because they have not commenced discharge, applications for new 
dischargers require submission of estimates of the types and quantities 
of pollutants discharged. The regulations for non-POTWs require 
submission of actual effluent data (consistent with the effluent 
characterization data required in the applications for existing 
dischargers) no later than 24 months after the discharge has commenced. 
In the EPA's Proposed Rule, the Agency sought to revise application 
requirements for new dischargers, both POTWs and non-POTWs, to require 
the submission of effluent data that is required in the application for 
an existing discharger within 18 months from the commencement of 
discharge. For non-POTWs, the proposal shortened the period from 24 
months to 18 months, and for POTWs, the proposal created the 
requirement for the first time. The revision sought to ensure that 
dischargers submit the required effluent data in a manner that is 
timely and consistent. Providing follow-up effluent data allows the 
permit writer to evaluate any discrepancies between estimated or 
anticipated effluent characteristics estimated and reported by the 
applicant prior to the commencement of discharge, and the effluent 
characteristics based on actual effluent data after the commencement of 
discharge.
    In the proposed rulemaking, the EPA envisioned three months for a 
facility's treatment system to be operating efficiently, one year of 
sampling, and another three months to report data. The EPA received 
mixed comments on the proposed revisions to 40 CFR 122.21(k)(5)(vi), 40 
CFR 122.21(j)(4)(i), and 40 CFR 122.21(j)(5)(i). Multiple comments 
generally supported the proposed revisions and one comment suggested 
that the timeframe should be shortened from the proposed 18 months to 
16 months by reducing the time to report data from three months to one 
month. On the other hand, several comments objected to shortening the 
timeframe from 24 months to 18 months for new industrial (non-POTW) 
dischargers. They argued that 24 months is necessary for optimizing 
facility operation and gathering and reporting representative data. One 
commenter pointed to examples in other rulemakings, such as the EPA's 
steam electric power sector effluent limitation standards and 
guidelines,\10\ where the need for significant facility startup and 
optimization time is documented. Additionally, one comment suggested 
that many treatment systems are affected by rainfall or are dependent 
on biological treatment that takes longer than three months to 
establish and optimize. Another commenter suggested that 24 months is a 
more suitable timeframe for new POTWs as well, suggesting that it 
provides a more complete data set, representing close to two full 
annual cycles that account for potential seasonal fluctuations and 
their impacts on effluent quality and flow variability.
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    \10\ Effluent Limitations Guidelines and Standards for the Steam 
Electric Power Generating Point Source Category, 80 FR 67837 
(November 3, 2015).

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[[Page 3328]]

    When the EPA first established \11\ the non-POTW requirement at 40 
CFR 122.21(k)(5)(vi) and the corresponding requirements in application 
Form 2D (for new sources and new dischargers), the Agency considered a 
range of options for the submission of ``follow-up data.'' The range of 
options the EPA considered included requiring no additional information 
at all to requiring the submission of Form 2C (applicable to existing 
dischargers) after commencement of the discharge. When the EPA first 
established the requirement to provide follow-up data no later than two 
years after commencement of discharge, the Agency received no negative 
comments and the provision was generally supported. At that time, some 
commenters suggested that a ``steady state'' or optimized operations 
for non-POTWs may not be reached within one year's time and 24 months 
was therefore more appropriate.
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    \11\ The EPA first proposed 40 CFR 122.21(k)(5)(vi) on October 
1, 1984 (49 FR 38812) and first finalized the 24-month requirement 
on July 28, 1986 (51 FR 26982).
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    As the Agency did in 1984 and 1986, the EPA continues to take into 
consideration the needs of industry for regulatory certainty and the 
possible necessity for adjusting permit limits after operation 
commences to protect human health and the environment. As a result, 
after evaluating the comments received, the EPA is retaining the 24-
month requirement for non-POTWs to submit effluent data after the 
commencement of discharge and is not finalizing the proposed revision 
to 40 CFR 122.21(k)(5)(vi) to reduce the requirement to 18 months. As 
suggested by commenters, the additional six months could strengthen the 
quality of information submitted to the Agency.
    The EPA is finalizing, in this action, the editorial changes to 40 
CFR 122.21(k)(5)(vi) to remove the reference to a permit holder's 
presumed gender, as well as correcting the reference to the correct 
application form--Form 2C. In addition, after evaluating the comments 
received, and for the reasons discussed above in the context of new 
non-POTW dischargers, the EPA is finalizing revisions to 40 CFR 
122.21(j)(4)(i) and 40 CFR 122.21(j)(5)(i) with modifications to 
require submission of follow-up data for new POTWs no later than 24 
months after commencement of the discharge. Further details regarding 
the Agency's basis for these actions may be found in the Response to 
Comment document.
(d) Data Age for Permit Renewal (40 CFR 122.21(g)(7)(ix))
    The EPA proposed a new paragraph (ix) to 40 CFR 122.21(g)(7), to 
mirror the existing language of 40 CFR 122.21(j)(4)(vi) and (vii), 
which is applicable to POTWs, and corresponding Form 2A. Proposed 
paragraph 40 CFR 122.21(g)(7)(ix) would have been applicable to 
industrial applicants and incorporated into Form 2C. The existing 
regulation for POTWs at 40 CFR 122.21(j)(4)(vi) provides that existing 
data may be used, if available, in lieu of sampling done solely for the 
purpose of the application. Additionally, 40 CFR 122.21(j)(4)(vii) 
provides that for POTWs, existing data for specified pollutants 
collected within four and one-half years of the application must be 
included in the pollutant data summary by the applicant. It also 
provides that if sampling for a specific pollutant is done monthly or 
more frequently, it is only necessary to summarize all data collected 
within one year of the application. For the purpose of consistency, the 
EPA sought to adopt the same conditions on the use of existing data in 
lieu of sampling data collected solely for the purposes of the 
application for industrial applicants through the proposed 40 CFR 
122.21(g)(7)(ix). The proposed requirement would have superseded the 
instructions to current Form 2C, applicable to industrial applicants, 
which provide flexibility to use existing data, but subject to 
different conditions. The Form 2C instructions provide that data from 
samples taken in the past may be used in lieu of the otherwise required 
sampling for application purposes if the samples meet all data 
requirements, all samples were taken no more than three years before 
application submission, and all data are representative of the present 
discharge.
    The EPA received several comments on the proposed addition of 40 
CFR 122.21(g)(7)(ix) (and conforming changes to the substance of Form 
2C). Comments focused on the three years versus four and one-half years 
for acceptable data age, whether the one-year of summary data provision 
should be allowed, what constitutes representative samples, and general 
suggestions attempting to make the rule clearer.
    After reviewing public comment, the EPA has decided to finalize its 
proposal to allow the use of data collected up to four and one-half 
years prior to the date of permit application, but has decided not to 
finalize other proposed elements in 40 CFR 122.21(g)(7)(ix) due to 
differences in data reporting requirements for POTWs in Form 2A and 
non-POTWs in Form 2C
    Specifically, commenters noted that the proposed revisions to 40 
CFR 122.21(g)(7)(ix) required that ``All existing data . . . that is 
collected within four and one-half years of the application must be 
included in the pollutant data summary submitted by the applicant.'' 
Commenters noted that this requirement was not consistent with the 
NPDES recordkeeping requirement at 40 CFR 122.41(j)(2), which requires 
that most effluent monitoring data be retained for three years. 
Further, commenters noted that the use of the term ``summary data'' 
that was appropriate in the context of reporting under the POTW 
application requirements, was confusing with respect to the data 
reporting format required for non-POTWs in Form 2C.
    With respect to the proposed revision that non-POTW applicants 
``must'' provide all data from the past four and one-half years, the 
EPA agrees that the proposed requirement is inconsistent with the 
existing recordkeeping requirements, and has revised the provision to 
track the long-standing language in the instructions to Form C. The 
final data age provision at 40 CFR 122.21(g)(7)(ix) allows applicants 
to use data up to four and one-half years, but does not require four 
and one-half years of data. As discussed in the preamble to the 
proposed rule, the EPA has determined that the four and one-half year 
data age allowance, rather than the three-year allowance mentioned only 
in the existing Form 2C instructions, provides applicants with 
additional flexibility and a more practical timeframe (i.e., their 
previous five-year permit term minus the 180-day application period) 
for collection of effluent characterization data. This four and one-
half year timeframe has been in place for POTWs since the revisions to 
Form 2A were promulgated in 1999, and the EPA has seen no problems 
associated with this existing POTW requirement.
    Consistent with the language from the existing Form 2C application 
instructions, the final provision at 40 CFR 122.21(g)(7)(ix) also 
clarifies that existing data may only be used where they remain 
representative of the current discharge characteristics. With respect 
to comments regarding whether data are ``representative'' of the 
discharge, the EPA considers the discussion and examples included in 
the existing and revised instructions to the application forms to 
provide the appropriate level of detail.

[[Page 3329]]

    The final regulatory provision at 40 CFR 122.21(g)(7)(ix) also 
removes the term ``summary data'' which the EPA agrees is unnecessary 
and confusing with respect to the data reporting format in Form 2C.
(e) Reporting Electronic Mail Address
    The EPA is finalizing revisions to the following paragraphs in 40 
CFR 122.21 to request the applicant's electronic mailing address 
(email) as proposed: 40 CFR 122.21(c)(2)(ii)(B), 40 CFR 122.21(f)(4), 
40 CFR 122.21(j)(1)(ii), 40 CFR 122.21(j)(1)(viii)(2) and (3), 40 CFR 
122.21(j)(9), 40 CFR 122.21(q)(1)(i), 40 CFR 122.21(q)(2)(i), 40 CFR 
122.21(q)(8)(vi)(A), 40 CFR 122.21(q)(9)(iii)(D) and (E), 40 CFR 
122.21(q)(9)(iv)(A), 40 CFR 122.21(q)(10)(ii)(A), 40 CFR 
122.21(q)(10)(iii)(K)(1), 40 CFR 122.21(q)(11)(ii)(A), 40 CFR 
122.21(q)(12)(i), and 40 CFR 122.21(q)(13). The EPA received one public 
comment associated with these revisions. The comment expressed general 
support for these revisions, and did not contain any substantive 
comments requiring the EPA's response.
(f) Reporting Numbers of Significant Industrial Users (SIUs) and Non-
Significant Categorical Industrial Users (NSCIUs)
    The CWA directs the EPA to publish ``regulations establishing 
pretreatment standards for introduction of pollutants into treatment 
works'' (33 U.S.C. 1317). Under the NPDES regulations at 40 CFR 
122.21(j)(6), POTW permit applicants must provide certain information 
for SIUs that discharge to the treatment works (33 U.S.C. 1314(i) and 
1317). SIUs are either industrial dischargers that: Deliver either 
large volumes (daily average of 25,000 gallons or more) of wastewater 
to the POTW for final treatment, are subject to Categorical 
Pretreatment Standards (known as categorical industrial users or 
``CIUs''), or both. The wastewater from these facilities may affect the 
operation and performance of the POTW, and may contain pollutants that 
are otherwise uncharacteristic of domestic sewage. In the Proposed 
Rule, the EPA proposed revisions to 40 CFR 122.21(j)(6)(i) and (ii) of 
the NPDES application regulations to reflect changes in the definition 
of SIU in the general pretreatment regulations at 40 CFR 403.3(v). 
Before a 2005 regulation which streamlined the pretreatment regulations 
for existing and new sources (70 FR 60191), all CIUs were defined as 
SIUs.\12\ The 2005 regulation changed the definition to authorize the 
POTW Control Authority \13\ to determine that certain CIUs meeting 
prescribed conditions could be classified as non-significant CIUs 
(NSCIUs) as opposed to SIUs. The ability to designate a CIU as an NSCIU 
resulted in reduced reporting requirements for the facility as well as 
the control authority because permittees are not required to report 
information about NSCIUs as often.\14\
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    \12\ 70 FR 60134, October 14, 2005.
    \13\ ``Control authority,'' defined at 403.3(f), means a POTW 
with an approved POTW pretreatment program; or, in the absence of a 
POTW pretreatment program, the authorized state pretreatment 
program; or the EPA in the absence of an authorized state 
pretreatment program.
    \14\ CIUs must report in June and December each year (or more 
frequently) on their continued compliance with categorical 
pretreatment standards and submit those reports to the 
(pretreatment) Control Authority. 40 CFR 403.12(e)(1). Significant 
non-CIUs (SIUs not subject to categorical pretreatment standards) 
must also report similar information every 6 months to the Control 
Authority (403.12(h). Where, however, a facility is designated as an 
NSCIU, it need only submit annual reports certifying that it never 
discharges more than 100 gallons of total categorical wastewater on 
any given day, and information to support that certification. 40 CFR 
403.12(q).
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    In this action, the EPA is finalizing some of the changes to 40 CFR 
122.21(j)(6)(i) identified in the Proposed Rule. Prior to this final 
rule, the EPA's regulations and application Form 2A asked for the 
number of CIUs and the number of SIUs. By changing the requirement to 
report only the number of SIUs and NSCIUs, instead of CIUs, the 
permitting authority will gain a clearer picture in Form 2A of the 
number of CIUs that are designated as NSCIUs since all CIUs are 
categorized as either SIUs or NSCIUs.
    While the EPA did not receive any comments in opposition to this 
proposed revision to 40 CFR 122.21(j)(6)(i), the EPA received comments 
and questions regarding the inclusion of the phrase ``trucked or hauled 
wastes'' in its definition of SIU to 40 CFR 122.21(j)(6)(i). By 
including this phrase, the EPA intended to clarify that the reported 
number should include not only those SIUs and NSCIUs directly connected 
to the POTW, but also those SIUs and NSCIUs that truck or haul their 
wastes to the POTW. This rule does not change how trucked or hauled 
wastes are defined or regulated under the pretreatment program. Based 
on the comments received, the EPA has modified the final version of the 
provision from what was proposed to clarify that the number of SIUs and 
NSCIUs reported on application forms pursuant to 40 CFR 122.21(j)(6)(i) 
includes the number of SIUs and NSCIUs that deliver their waste to the 
POTW through means other than direct connection (e.g., pipe), including 
delivery via truck or haul.
    The EPA received additional comments regarding the proposed 
revisions to 40 CFR 122.21(j)(6)(ii). Multiple comments raised the 
concern that, as proposed, 40 CFR 122.21(j)(6)(ii) would require POTWs 
to report detailed information on a potentially significant number of 
CIUs which the control authority determined to be NSCIUs. Commenters 
suggested that this would increase the reporting burden for the POTW 
and would run counter to the flexibility provided by 40 CFR 403.3(v).
    The EPA agrees and is not finalizing the proposed revision to 40 
CFR 122.21(j)(6)(ii) so that the changes in this final rule carry 
forward the burden reduction established by previous changes to 40 CFR 
403.3(v) and 403.12(q). In accordance with 40 CFR 403.3(v) and 
403.12(q), the pretreatment control authority determines that NSCIUs 
consistently comply with all applicable categorical pretreatment 
standards, annually submit a certification and data necessary to 
support the certification, and never discharge any untreated 
concentrated wastewater. Additionally, in determining whether a CIU is 
an NSCIU, the control authority must find that the NSCIU has no 
reasonable potential for adversely affecting the POTW's operation. 
Annual reports and supporting data submitted to the control authority 
contain the information sought in 40 CFR 122.21(j)(6)(ii)(A) through 
(G). As a result, requiring POTWs to submit detailed information for 
all NSCIUs, as proposed in 40 CFR 122.21(j)(6)(ii), would negate the 
burden reduction provided by 403.3(v) and 403.12(q). Therefore, the EPA 
is not finalizing the proposed revision to 40 CFR 122.21(j)(6)(ii) and 
is instead retaining the previous requirements applicable only to SIUs 
to provide specific information. The requirements in 40 CFR 
122.21(j)(6)(ii)(A)-(G) to provide specific information do not apply to 
NSCIUs.
(g) Cooling Water Intake Structure Indication (40 CFR 122.21(f)(9))
    The EPA is finalizing the proposed revision to add paragraph 40 CFR 
122.21(f)(9), with modification. The final rule requires the applicant 
to indicate whether the facility uses cooling water and to specify the 
source of the cooling water. The EPA is not finalizing the 
parenthetical note provided in the proposed version of 40 CFR 
122.21(f)(9). The EPA has determined that the explanation about the 
applicability of application requirements under 40 CFR 122.21(r) is

[[Page 3330]]

best placed in the application form instructions. The parenthetical 
note to 40 CFR 122.21(f)(9) in the proposed rulemaking was not a 
proposed new requirement and would have imposed no new additional 
requirements.
    Most of the public comments received on this revision were 
supportive; however, one comment questioned the purpose and need for 
this revision, and suggested the requirement would create additional 
burden and costs on facilities that use cooling water, but are not 
subject to the requirements at 40 CFR 122.21(r). No specific costs or 
burdens were shared or suggested by the commenter.
    The EPA agrees that all facilities, not just those subject to 40 
CFR 122.21(r), would be subject to the requirement to indicate the use 
and source of cooling water; however, the EPA has determined that this 
requirement would not cause undue burden or impose any significant 
costs. By requiring indication of the use and source of cooling water, 
a permitting authority will receive key information necessary to 
effectively and efficiently develop an NPDES permit for the facility. 
For facilities already covered by 40 CFR 122.21(r), the final provision 
would notify the permitting authority that the application information 
under 40 CFR 122.21(r) is forthcoming. For facilities that are not 
already covered by 40 CFR 122.21(r), the final provision would provide 
valuable information on cooling water intake structures at minimal 
burden to the applicant. The final rule revision does not alter any 
existing requirements in 40 CFR 122.21(r) or 40 CFR 125.91.
h. Indication of Requests for Technology-Based Variances (40 CFR 
122.21(f) and 122.21(j))
    The EPA is finalizing revisions, as proposed, to 40 CFR 122.21(f) 
and 122.21(j) to require applicants to indicate whether they are 
requesting any of the technology-based variances allowed under 40 CFR 
122.21(m) for non-POTWs and 40 CFR 122.21(n) for POTWs.
    While some public comments received on this revision expressed 
support, other comments suggested that there may be instances where it 
would not be known whether a technology-based variance would be 
requested at the time of application.
    The final rule ensures the permitting authority is aware of a 
technology-based variance request, if known, at the time of permit 
application, which will enable the permitting authority to more 
effectively and efficiently coordinate with the applicant and 
appropriate regulators on the technology-based variance request. The 
EPA acknowledges that there may be some instances where an applicant 
will not yet know at the time of application whether they will request 
a technology-based variance. The final rule does not and is not 
intended to limit an applicant's ability to request a technology-based 
variance only to the time of application. The final rule does not alter 
any existing requirements in 40 CFR 122.21(m) or 40 CFR 122.21(n), and 
an applicant continues to be able to request a technology-based 
variance consistent with existing statutory and regulatory 
requirements.
4. Best Management Practices (BMPs) (40 CFR 122.44(k)(4))
    The EPA is finalizing the correction to the Note to 40 CFR 
122.44(k)(4), Best Management Practices (BMPs), as proposed to delete 
outdated references to information sources that are no longer 
available. The final Note also includes the website address where 
updated BMP information is contained to ensure that the most current 
BMP guidance is provided.
    The EPA received several comments on the proposed correction, 
including those from a municipality, trade associations, an authorized 
state NPDES program, and a state association. Several of the comments 
recommended that the listed BMP guidance documents be replaced by a 
general reference to the website where updated BMP guidance documents 
are contained to ensure that the most current BMP guidance is provided. 
One commenter also felt that listing some but not all documents in the 
note could imply that the included documents are preferred by the EPA, 
when others may be just or more appropriate for use by states. While 
the EPA agrees that the list of documents is not exhaustive, the Agency 
has maintained the list of existing guidance document titles and 
associated EPA publication numbers because it will save permitting 
authorities, regulated entities, and the public time when they seek 
these documents by using the EPA National Service Center for 
Environmental Publications (NSCEP) website (https://www.epa.gov/nscep). 
Additionally, existing text in the Note to 40 CFR 122.44(k)(4) makes 
clear that updates to the listed documents may also be available and 
all guidance documents are available to the public through the NSCEP 
website.

B. Revisions to Part 124

1. Public Notice Requirements (40 CFR 124.10(c))
    The CWA requires that a ``copy of each permit application and each 
permit issued [under 402 of the Act] shall be available to the public'' 
(33 U.S.C. 1342(j)). The CWA also requires that notice be provided to 
the public, as well as any other state whose waters may be affected, of 
each NPDES permit application and that an opportunity be provided for a 
public hearing before ruling on each permit application. 33 U.S.C. 
1342(a)(2) and (b)(3). The EPA is finalizing 40 CFR 124.10(c)(2)(iv) to 
allow permitting authorities to provide public notice of permitting 
actions for NPDES major individual and general permits on the 
permitting authority's publicly available website in lieu of the 
newspaper publication requirement in 40 CFR 124.10(c)(2)(i). In 
addition, the EPA is finalizing the requirement to post the draft 
permit and fact sheet on the permitting authority's publicly available 
website for the duration of the public comment period where the 
permitting authority chooses to use online public notice for a draft 
permit. However, the EPA is not finalizing the proposed requirement for 
a permitting authority that chooses the option to use website public 
notice to additionally post the final permit, fact sheet and response 
to comments on the website for the entire term of the permit. The final 
rule meets the objectives of the EPA's proposal, although the EPA made 
some changes to the regulatory language in response to public comments 
and after further consideration of the Agency's policy objectives and 
existing regulatory language. The EPA's objectives in the proposal were 
to provide permitting authorities with an alternative method of 
providing notice of permit applications and hearings, and affirm 
flexibility in reaching the public through a variety of methods that 
would greatly expand public access to applications and draft permits. 
In addition to the substantive changes described in the following 
section, the final rule also includes editorial changes that are not 
substantive in nature.
    Most of the public comments received on providing the option for 
online posting of public notice via the permitting authority's website 
in lieu of newspaper publication were supportive. Some comments urged 
the EPA to retain the option of, or require, public notice in local 
daily and weekly publications (e.g., newspapers), citing environmental 
justice (EJ) concerns, lack of access to the internet for certain 
populations and communities who do not use the

[[Page 3331]]

internet for religious or other reasons (e.g., Amish, Mennonite, and 
Hutterite) as the need for public notice in printed publications. While 
some comments suggested that only members of the public already aware 
of where to seek information about permits would have easy access to 
the public notice and permit documents, many comments also stated that 
allowing public notice online in lieu of printed publications would 
result in notice to the broadest possible audience as well as modernize 
public notice options and potentially allow the permitting authority to 
save time and money. After consideration of these comments, the EPA is 
finalizing the option for online public notice for the NPDES actions 
described in 40 CFR 124.10(a)(1), as well as the regulatory note 
reminding the permitting authority to ensure that the method(s) of 
public notice used effectively informs all interested communities and 
allows access to the permitting process for those seeking to 
participate. The EPA expects that this would include newspaper notices 
in areas that continue to be best served by printed publications with 
NPDES-regulated entities owned or operated by identifiable populations 
(e.g., Amish, Mennonite, and Hutterite) who do not use certain 
technologies (e.g., computers or electricity) and areas known or likely 
to include members of identifiable populations who do not have access 
to or use certain technologies. The EPA also expects that this would 
include newspaper notices in areas known or likely to have limited 
broadband internet access, areas with underserved or economically 
disadvantaged communities, areas with prolonged electrical system 
outrages, and during large-scale disasters (e.g., hurricanes).
    As noted in the preamble to the Proposed Rule,\15\ the EPA has 
carefully evaluated the potential effect of this revision on 
underserved communities with EJ concerns. In formulating the proposal, 
the EPA consulted a study conducted by Native Public Media that found 
that the primary source for national and international news among 
Native American tribes is the internet.\16\ Newspapers were listed as 
only the third most commonly used source for news. The EPA also 
consulted the final National Environmental Justice Advisory Council 
(NEJAC), EJ in Permitting Subgroup Report.\17\ The report states that 
``[n]otification of the public by publishing in the legal section of 
regional newspapers is antiquated and ineffective. This method should 
not be counted on to communicate, even if legally required.'' 
\18\[thinsp]The NEJAC specifically listed website postings as a method 
to ensure meaningful public participation. Given, among other things, 
the wide availability of the internet and based on the EJ in Permitting 
Subgroup Report's results, the EPA concludes that notice via the 
internet would be a viable and effective method of informing the public 
of the NPDES actions listed in 40 CFR 124.10(a)(1). Mandating 
publication of public notice in newspapers in all cases was appropriate 
when 40 CFR 124.10(c)(2)(i) was promulgated in 1982, 12 years before 
the internet became widely available for public and commercial use. 
Now, however, websites, along with tailored methods to ensure they are 
consulted, are often more appropriate avenues for widely disseminating 
information to the public, and many states currently supplement the 
required newspaper publication by posting NPDES actions on their 
websites.
---------------------------------------------------------------------------

    \15\ 81 FR 31359 (May 18, 2016).
    \16\ Morris, Traci L, and Sascha D. Meinrath. ``New Media, 
Technology and internet Use in Indian Country'' Native Public Media, 
available at https://www.atalm.org/sites/default/files/NPM-NAF_New_Media_Study_2009_small.pdf.
    \17\ See, ``Enhancing Environmental Justice in EPA Permitting 
Program.'' National Environmental Justice Advisory Council. April 
2011, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.
    \18\ Id., p.20.
---------------------------------------------------------------------------

    Further, the purpose of this revision is to provide permitting 
authorities with flexibility in reaching their public in a way that is 
most effective for their communities (e.g., newspaper publication, 
internet notice, or a combination of these methods). Although neither 
the CWA nor its implementing regulations specify the best or preferred 
method for providing notice to the public, 40 CFR 25.3(c)(7) 
specifically emphasizes that agencies should ``use all feasible means 
to create opportunities for public participation, and to stimulate and 
support participation.'' Additionally, 40 CFR 124.10(c)(4) states that 
public notice of NPDES actions listed in 40 CFR 124.10(a)(1) shall be 
given by ``[a]ny other method reasonably calculated to give actual 
notice of the action in question to the persons potentially affected by 
it, including press releases or any other forum or medium to elicit 
public participation.'' Therefore, permitting authorities are required 
to consider the appropriate method or methods to best inform and engage 
with their public.
    Permitting authorities continue to have the option to publish 
public notices in local daily and weekly newspaper publications. The 
EPA's decision to allow an option for online public notice does not 
alter the existing requirements of 40 CFR 124.10(c)(2)(i) if a 
permitting authority chooses to continue the traditional method of 
providing notice of an NPDES permit action in a newspaper publication. 
To ensure all interested parties are aware of permitting authorities' 
intended method(s) of public notification, the EPA expects permitting 
authorities to make their public aware of whether public notices will 
be made available online, both online and in local newspapers, or 
solely in local newspaper publications. In addition, the EPA's decision 
to allow an option for online public notice does not in any way affect 
the requirements of 40 CFR 124.10(c)(1) which require that a copy of 
the notice must be mailed directly to persons who have joined the 
appropriate mailing list. 40 CFR 124.10(c)(1)(ix)(C) requires 
notification of the public of the opportunity to be put on the mailing 
list through periodic publication in the public press and in such 
publications as regional and state funded newsletters, environmental 
bulletins, or state law journals. In addition, permitting authorities 
could clearly advertise on the website or in print the ability to sign 
up for notifications of draft permits via paper mail or email to ensure 
that all interested parties are aware of and receive effective 
notification of permitting actions. Further, the EPA's revisions to the 
public notice requirements for certain enumerated actions in 40 CFR 
124.10 do not affect the notice requirements for ``issuance'' of final 
permit decisions, and the EPA is in no way suggesting that internet 
posting fulfills the separate final permit decision notice requirements 
of 40 CFR 124.15.
    Public comments received on the proposed requirement to post permit 
documentation (e.g., final permit, fact sheet, response to comments) 
online for the term of the permit were mixed. Opposing comments 
suggested that maintaining permit documentation online for the duration 
of the permit term would further strain the limited resources of 
permitting authorities, especially related to creating and maintaining 
a website and increasing server storage for archived materials. Some 
comments suggested that these related capital and operating costs would 
exceed any cost savings from foregoing printing the public notice in 
local newspaper publications. The EPA is aware of state and EPA 
permitting

[[Page 3332]]

authorities that already post final permits and fact sheets on their 
websites for the duration of the permit. The EPA supports and 
encourages the continuation of this additional transparency; however, 
based on the comments received from permitting authorities concerned 
with the most effective use of their resources, the Agency is not 
finalizing the requirement to maintain the permit documentation on the 
website for the term of the permit. Instead, where the permitting 
authority opts for online public notice of a draft permit, as defined 
in 40 CFR 122.2,\19\ the draft permit and fact sheet must be posted on 
the permitting authority's website for the duration of the public 
comment period, when the public's need for timely access to permitting 
documents is the greatest. This posting is in addition to meeting the 
existing requirements in 40 CFR 124.10(d), which outline the required 
contents of public notices for all NPDES actions described in 40 CFR 
124.10(a)(1). This additional requirement for posting draft permits and 
fact sheets will ensure that interested members of the public are not 
only aware of the information contained in the public notice document, 
but are able to view the contents of the draft permit and fact sheet 
online, as well. Typically, permitting authorities provide copies of 
final permits upon request.
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    \19\ Draft permit means a document prepared under 40 CFR 124.6 
indicating the Director's tentative decision to issue or deny, 
modify, revoke and reissue, terminate, or reissue a ``permit.'' A 
notice of intent to terminate a permit, and a notice of intent to 
deny a permit, as discussed in 40 CFR 124.5, are types of ``draft 
permits.'' A denial of a request for modification, revocation and 
reissuance, or termination, as discussed in 40 CFR 124.5, is not a 
``draft permit.'' A ``proposed permit'' is not a ``draft permit.''
---------------------------------------------------------------------------

    To be clear, online public notice is an option for all NPDES 
actions described in 40 CFR 124.10(a)(1), which includes more than 
draft permits. However, for the NPDES actions described in 40 CFR 
124.10(a)(1) other than draft permits, there would not be a draft 
permit or fact sheet to post on the permitting authority's publicly 
available website for the duration of the public comment period. 
Therefore, the EPA is specifying in the final rule that the requirement 
to post the draft permit and fact sheet on the website for the duration 
of the public comment period applies only for public notice of draft 
permits as defined in 122.2. The EPA expects permitting authorities 
using the option for online public notices to publish the information 
in a prominent, clear, and easily accessible location on their public 
website. The EPA notes that in meeting the requirement to make the 
draft permit and fact sheet available for the duration of the public 
comment period, the permitting authority's website must clearly include 
a link to access these documents, while the actual document could be 
hosted elsewhere, such as in a repository of permit documents.
    In the Proposed Rule, the EPA also requested comments on, but did 
not propose specific regulatory text for, three additional topics 
related to the public notice regulations: (1) Revising 40 CFR 124.10(c) 
to require NPDES permitting authorities to public notice all NPDES 
permits and hearings on the permitting authority's publicly available 
website; (2) whether proposed revisions to public notice requirements 
in 40 CFR 124.10(c) should be expanded to include NPDES non-major 
individual and general permits; and (3) ways in which NPDES permits and 
fact sheets could be posted electronically to make it easier for the 
Agency's Enforcement and Compliance History Online (ECHO) information 
system to link to the permit fact sheets. The comments received on 
these three additional topics generally expressed confusion or 
requested clarification about what the EPA intended. Based on these 
comments, the EPA has decided not to make changes to the public notice 
regulations to address these issues at this time.
    The EPA's decision to allow public notice of permitting actions for 
NPDES major individual and general permits on the permitting 
authority's publicly available website, in lieu of the newspaper 
publication requirement, increases transparency and promotes 
opportunities for public involvement. It also preserves states' 
flexibility to notice in a way that best ensures their public will be 
given a meaningful opportunity to participate in the NPDES permitting 
process. While mandating public notice of permitting activities in 
newspapers was appropriate when 40 CFR 124.10(c)(2)(i) was promulgated 
in 1982, the EPA recognizes that websites, along with other tailored 
means for ensuring the public consults the website, are often more 
appropriate avenues for widely disseminating information to the public.

C. Revisions to Part 125

1. Deletion of 40 CFR 125.3(a)(1)(ii))
    The EPA is finalizing, as proposed, the deletion of 40 CFR 
125.3(a)(1)(ii) to remove an outdated regulation that is no longer 
applicable. The regulation was derived from statutory authority that 
was repealed in 1981. The removal of this provision from the 
regulations will avoid confusion regarding its applicability.

III. Rule Revisions Not Finalized in This Action

    The EPA is not finalizing the proposed changes to 40 CFR 122.3(a) 
due to the recent enactment of the Vessel Incidental Discharge Act, 
which exempts discharges incidental to the normal operations of a 
vessel from NPDES permitting requirements consistent with the existing 
regulatory language at 40 CFR 122.3(a).
    In addition, the EPA received numerous comments on proposed 
revisions to the following eleven regulatory sections. The Agency 
requires additional time to analyze these comments and deliberate on 
appropriate next steps and thus is not taking final action on the 
proposed revisions to these at this time. The EPA has not made any 
final substantive decisions with respect to the proposed revisions to 
these sections.
    At this time, the EPA is deferring final action on the proposed 
revisions to:

1. Definition of Proposed Permit (40 CFR 122.2)
2. Definition of Whole Effluent Toxicity (WET) (40 CFR 122.2)
3. Application Requirements--Latitude and Longitude (40 CFR 
122.21(f)(2); (g)(1); (h)(1); (i)(1)(iii); (j)(1)(i); (j)(3)(i)(C); 
(j)(8)(ii)(A)(3); (k)(1); (q)(1)(i); (q)(8)(ii)(A); (q)(9)(iii)(B); 
(q)(10)(iii)(B); (q)(11)(iii)(B); (q)(12)(i); (r)(3)(ii))
4. Reasonable Potential Determinations for New Discharges (40 CFR 
122.44(d))
5. Dilution Allowances (40 CFR 122.44(d))
6. Antidegradation Reference (40 CFR 122.44(d))
7. Anti-backsliding (40 CFR 122.44(l))
8. Design Flows for POTWs (40 CFR 122.45(b))
9. Objection to Administratively Continued Permits (40 CFR 123.44)
10. CWA Section 401 Certification Process (40 CFR 124.55(b))
11. Fact Sheet Requirements (40 CFR 124.56)

IV. Impacts

    This final rule involves minor, mostly clarifying revisions to the 
NPDES regulations. It is the EPA's view that many of these revisions 
will generally not result in new or increased impacts or information 
collection by authorized states or the regulated community. It is also 
the EPA's view that in some cases, the revisions finalized in this 
action, including deleting outdated information, modernizing public 
notice options, and clarifying requirements,

[[Page 3333]]

will reduce burden. As the EPA modifies the NPDES application forms to 
conform with the regulatory changes in this rule, it is also 
modernizing the instructions and format of the application forms. As 
discussed below, the changes to the instructions and format of the 
application forms will also reduce burdens. A summary of the impacts 
assessment is provided in this section for each topic.

Purpose and Scope of the NPDES Program (40 CFR 122.1)

    The revision to this note is being made to inform the public of 
ways to contact the NPDES program and will not result in changes to the 
existing program or program requirements. The note in the past 
regulation contained an outdated address and telephone number for the 
EPA's Office of Water. Providing updated information will save the 
permitting authorities and the public time when they seek to contact 
the EPA about these regulations.

NPDES Program Definitions: Pesticide Discharges to Waters of the United 
States From Pesticide Application, Pesticide Residue, and New 
Discharger (40 CFR 122.2)

    The final revisions to the NPDES program definitions at 40 CFR 
122.2 for ``pesticide discharges to waters of the United States from 
pesticide application,'' ``pesticide residue,'' and ``new discharger'' 
will not result in a change to the burden associated with this 
information collection. These revisions are being made to improve 
programmatic clarity and would not result in substantive changes to the 
existing program or program requirements.
    Adding definitions for ``pesticide discharges to waters of the 
United States from pesticide application'' and ``pesticide residue'' 
brings the NPDES definitions in concert with the way the EPA's 
Pesticide General Permit has been interpreting and regulating such 
applications since 2011. These definitions would not change burden and 
would not change the universe of permittees and activities that the 
Pesticide General Permit covers.
    The EPA is correcting a typographical error in paragraph (d) of the 
definition ``New discharger'' by correcting ``NDPES'' to ``NPDES.''

Application Requirements (40 CFR 122.21)

    The final revisions to 40 CFR 122.21 related to application 
requirements together with the modifications to the instructions and 
format of the existing application forms would result in a reduction in 
burden. In fact, the EPA estimates that the changes to various 
application requirements will result in a total reduction to permittees 
and permitting authorities of 17,912 hours and $1,023,042 in costs per 
year. These savings estimates consist of both specific changes to the 
information being collected on forms and general efforts to reformat 
forms for increased clarity. For more details, please refer to section 
12 of the ICR Supporting Statement in the docket of this rule (Docket 
ID No. EPA-HQ-OW-2016-0145) and the docket associated with this rule's 
ICR (Docket ID EPA-HQ-OW-2018-0629).

Changes to Information Previously Collected by the EPA

    The EPA is revising several data fields to refine the content and 
improve the consistency among the forms, to improve the consistency 
with the Agency's current data standards, and improve the clarity and 
usability of the forms. For example, for every question where it is 
applicable, the revised forms direct the applicant to ``stop'' or 
``skip'' to the next appropriate question depending on the applicant's 
response. As another example, the revisions to Form 2A create a 
consistent format with the other forms by reformatting the previous 
sections A, B, and C into six major sections with detailed 
instructions. Further, instructions are provided for Form 2B for the 
very first time.
    Revisions to the instructions and format of the application forms 
will make them easier to use and understand and is expected to result 
in a decrease in effort for permittees applying for coverage. The EPA 
also expects that the revisions will improve the quality of information 
being collected, which may reduce the need for follow-up questions and 
data requests, and the time necessary for the permitting authority to 
develop a permit. The EPA expects such efforts to reformat forms for 
increased clarity to result in a reduction of 25,426 hours and 
$1,534,937 in costs based on an estimated 20,663 responses or 
applications per year.

New Information To Be Collected by the EPA

    The estimated burden associated with the new requirement for 
permittees to report up to four NAICS codes on application Form 1 (40 
CFR 122.21(f)(3) is expected to result in a burden increase of 1,224 
hours and $73,893 in added costs based on an estimated 12,240 responses 
or applications per year. The estimated burden associated with the new 
requirement for permittees to provide an email address in Forms 1, 2A, 
2B, and 2S (multiple locations in 40 CFR 122.21) is expected to result 
in a burden increase of 11,526 hours and $695,839 in added costs based 
on an estimated 20,663 responses or applications per year. This 
increased burden is applicable to permittees only. Permitting 
authorities (authorized states and the EPA) are expected to experience 
reduced burden associated with more efficient communication. The 
estimated burden associated with this new requirement for permitting 
authorities is a reduction of 5,005 hours and savings of $247,235 per 
year for state permitting authorities based on 20,019 responses per 
year.
    The estimated burden associated with the change in reporting 
requirements for permittees reporting the number of SIUs and NSCIUs (40 
CFR 122.21(j)(6)(i)) is expected to result in a burden decrease of 77 
hours and $3,804 for state permitting authorities based on an estimated 
306 responses or applications per year. It is not estimated to result 
in a change of burden for permittees.
    The estimated burden associated with the revision that requires the 
applicant to indicate whether the facility uses cooling water and to 
specify the source of the cooling water (40 CFR 122.21(f)(9)) is 
expected to result in additional burden of 73 hours and $4,416 for 
power plants and manufacturers that use cooling water, based on an 
estimated 293 responses or applications per year. For permitting 
authorities, the revision is expected to result in more efficient 
permitting because the permitting authority can initiate data 
submissions and reviews earlier in the permitting process. The EPA 
estimates this will result in a burden decrease of 227 hours and 
$11,214 for state permitting authorities based on 227 responses or 
application per year.
    The revision that requests an applicant to indicate whether they 
are seeking a technology variance (40 CFR 122.21(f)(10) and 122.21(j)) 
is estimated to have such a small impact due to the small number of 
technology variance requests made per year that this impact is assumed 
to be 0 hours and no change in burden. Similarly, the revision that 
requires new POTW dischargers to provide data for specific analytes (40 
CFR 122.21(j)(4)(i) and whole effluent toxicity (40 CFR 
122.21(j)(5)(i)) within 24 months of commencement of discharge is 
estimated to incur no additional burden or costs. Permitting 
authorities typically require characterization data requirements for 
new dischargers in the initial NPDES permit, and the only variation 
made

[[Page 3334]]

pursuant to this rule is the timeframe (24 months) for collecting and 
reporting the data.

Best Management Practices (BMPs) (40 CFR 122.44(k)(4))

    The revision to this note is being made to ensure the public is 
aware of the most current BMP guidance because the note in the past 
regulation contained outdated references to information sources that 
are no longer available. This revision will not result in a change to 
the burden associated with this information collection.

Public Notice Requirements (40 CFR 124.10(c))

    The EPA is finalizing 40 CFR 124.10(c)(2)(iv) to allow permitting 
authorities to provide public notice of permitting actions for NPDES 
major individual and general permits on the permitting authority's 
publicly available website in lieu of the newspaper publication 
requirement in 40 CFR 124.10(c)(2)(i). In addition, where the 
permitting authority chooses to use online public notice for a draft 
permit, the EPA is finalizing the requirement to post the draft permit 
and fact sheet on the permitting authority's publicly available website 
for the duration of the public comment period. However, the EPA is not 
finalizing the proposed requirement for a permitting authority that 
chooses the option to use website public notice to additionally post 
all final permits, fact sheets, and response to comments on the website 
for the entire term of the permit. The purpose of this revision is to 
provide the permitting authority with an alternative method of 
providing notice of permit applications and hearings and provide 
flexibility to reach communities in a variety of methods. It is the 
EPA's understanding that the traditional approach to newspaper 
publication has become costly for permitting authorities to implement. 
The EPA's final revisions intend to alleviate those costs by allowing 
the permitting authority to use its publicly available website as an 
alternative to the traditional newspaper publication.
    At the time of the proposed rulemaking, the EPA estimated the cost 
of public notice of draft permits in newspapers for NPDES major 
facilities, sewage sludge facilities and general permits to be 
approximately $1.6 million per year, nationally.\20\ This estimate 
excluded the costs of preparing the content of the NPDES public notice, 
and the costs of the other methods to provide notice besides newspaper 
publication, such as direct mailing. Based on information provided in 
the public comments received on the proposed rulemaking, the cost to 
post a public notice online was estimated to be $113 per notice; 
whereas the cost to post a public notice in a newspaper was estimated 
to be $1,416 per notice.\21\ The EPA estimates that issuance of public 
notice via website in lieu of newspaper results in a burden reduction 
of $1,303 per NPDES action (a total reduction of $1,419,673 per 
year).\22\ The rule allows but does not require state and federal 
permitting authorities to use electronic public notice instead of 
newspaper publication. In developing burden estimates, the EPA assumed 
that states and the EPA would continue to publish at least some 
notifications in newspapers, and therefore the burden associated with 
public notice would not be reduced in those instances.
---------------------------------------------------------------------------

    \20\ In the preamble to the proposed rulemaking, the EPA used 
$1,000 (in 2010$) as the publication cost for a public notice in a 
newspaper and assumed that there are 1,600 NPDES permit actions that 
require public notice via newspaper publication each year; thus, we 
arrive at the $1.6 million per year estimate. (81 FR 31366, May 18, 
2016).
    \21\ See the EPA's ICR No. 0229.23, Animal Sector public notice 
burden estimates, adjusted for inflation using https://www.bls.gov/data/inflation_calculator.htm.
    \22\ The EPA based these estimates on authorized states 
providing public notice for 1,049 individual permits online per 
year, and the EPA providing public notice for 41 general permits 
online per year at a savings of $1,303 per notice. This is estimated 
to result in savings of $-1,366,847 and $-52,826 for states and the 
EPA, respectively.
---------------------------------------------------------------------------

Deletion of 40 CFR 125.3(a)(1)(ii)

    The deletion of 40 CFR 125.3 (a)(1)(ii) from the NPDES regulations 
will not result in change to the burden associated with this 
requirement. By deleting this outdated provision, the EPA clarifies 
that this provision no longer applies to regulated entities.

V. Compliance Dates

    With this final action, authorized states, territories, and tribes 
have up to one year to revise, as necessary, their NPDES regulations to 
adopt the requirements of this rule, or two years if statutory changes 
are needed, as provided at 40 CFR 123.62. At a minimum, the EPA 
anticipates any permitting authority using state-developed NPDES 
application forms would need to update their regulations and 
application forms, as needed, in order to be in compliance with the 
application requirements finalized in this rulemaking.
    The EPA recognizes that each authorized program has unique state 
statutes and regulations, and that many of the revisions finalized in 
this rule are clarifying in nature. As a result, the EPA anticipates 
that in most instances, the program revisions that will be occurring to 
conform to this rule will be nonsubstantial, as contemplated in 40 CFR 
123.62. For those instances where the EPA determines that an authorized 
program's conforming program revision is substantial, the process 
outlined in 40 CFR 123.62(b)(2) will be followed. In addition, 
authorized programs may have to update their NPDES program documents 
(e.g., program description, Attorney General statement) to reflect 
these revisions, whether they are substantial or nonsubstantial. See 40 
CFR 123.62(b)(1).

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any revisions 
made in response to interagency review have been documented in the 
docket for this action.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in the rule's economic analysis.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule has been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2575.01. It will be 
assigned an OMB control number upon approval by OMB. You can find a 
copy of the ICR submitted to OMB in the docket for this rule, and it is 
briefly summarized here. The information collection requirements are 
not enforceable--and EPA cannot collect any information set out in the 
ICR--until OMB approves them. In additional, the EPA will post a copy 
of the final ICR to the docket for this rule upon approval by OMB.
    CWA section 402 and the NPDES regulations require collection of 
information primarily used by permitting authorities, permittees, and 
the EPA to make NPDES permitting decisions. The burden and costs 
associated with the entire NPDES

[[Page 3335]]

program are accounted in an approved ICR (EPA ICR number 0229.23, OMB 
control no. 2040-0004). This final rule and the corresponding updated 
application forms require revisions to the ICR to reflect changes to 
the forms and other information collection requirements. EPA is 
reflecting the paperwork burden and costs associated with this rule in 
a separate ICR instead of revising the existing ICR for the entire 
program for administrative reasons. Eventually, EPA plans to 
consolidate the burden and costs in this ICR into that master ICR for 
the entire NPDES program and discontinue this separate collection. EPA 
expects the changes set out in this final rule along with changes to 
the instructions and format of the NPDES permit applications to result 
in an overall burden decrease to permitting authorities and the 
regulated community of approximately $2,389,889 and 17,912 hours 
annually.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden, or otherwise has a positive economic effect on the small 
entities subject to the rule. This rule eliminates inconsistencies 
between regulations and application forms, streamlines and updates 
application forms, provides clarification to existing regulations, 
deletes outdated regulatory provisions, updates Agency contact 
information, and provides for new programmatic flexibility in providing 
public notice on NPDES permitting actions. We have therefore concluded 
that this action would have no net regulatory burden for directly 
regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. This final rule 
eliminates inconsistencies between regulations and application forms, 
streamlines and updates application forms, provides clarification to 
existing regulations, deletes outdated regulatory provisions, updates 
Agency contact information, and provides for new programmatic 
flexibility in providing public notice on NPDES permitting actions. 
This final rule does not impose significant burden on the EPA, states, 
or the regulated community, or specifically, any significant burden on 
any small entity. With respect to any impacts on any authorized state 
programs, the costs involved in this action are imposed only by 
participation in a voluntary federal program. UMRA generally excludes 
from the definition of ``federal intergovernmental mandate'' duties 
that arise from participation in a voluntary federal program. Thus, 
this final rule is not subject to the requirements of section 202 and 
205 of the UMRA. For the same reason, the EPA has determined that this 
rule contains no regulatory requirements that will significantly affect 
small governments. Thus, this final rule is not subject to the 
requirements of section 203 of UMRA.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final rule does not have tribal implications, as specified in 
Executive Order 13175. The EPA considered the impacts on tribes, and 
concluded that there would be no substantial direct compliance costs or 
impact on tribes. Because the purpose of the final rule is to eliminate 
inconsistencies between regulations and application forms, streamline 
and update application forms, provide clarification to existing 
regulations, delete outdated regulatory provisions, update Agency 
contact information, and provide for new programmatic flexibility in 
providing public notice on NPDES permitting actions, it will not have 
substantial direct effects on: Tribal governments; the relationship 
between the federal government and Indian tribes; or the distribution 
of power and responsibilities between the federal government and Indian 
tribes, as specified in Executive Order 13175. Executive Order 13175 
does not apply to this action and the EPA determined that tribal 
consultation was not necessary for this action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because these changes to procedural requirements 
and forms do not address environmental health risk or safety risks.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
does not have a significant adverse effect on the supply, distribution 
or use of energy. This final rule eliminates inconsistencies between 
regulations and application forms, provides clarifications to existing 
regulations, deletes outdated provisions, and provides for new 
programmatic flexibility in providing public notice on NPDES permitting 
actions.

J. National Technology Transfer and Advancement Act

    This final rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    The EPA has determined that the human health or environmental risk 
addressed by this action will not have potential disproportionately 
high and adverse human health or environmental effects on minority, 
low-income or indigenous populations. This final rule eliminates 
inconsistencies between regulations and application forms, provides 
clarifications to existing regulations, deletes outdated provisions, 
and provides for new programmatic

[[Page 3336]]

flexibility in providing public notice on NPDES permitting actions.
    In addition, the EPA's final revision related to the option for 
online public notice, in lieu of newspaper publication, of NPDES 
actions considered potential effects on environmental justice 
communities. The final rule includes a regulatory note reminding the 
permitting authority to ensure that the method(s) of public notice used 
effectively informs all interested communities and allows access to the 
permitting process for those seeking to participate. This includes 
potentially utilizing newspaper notices in areas that continue to be 
best served by printed publications, such as in areas known or likely 
to have limited broadband internet access, areas with underserved or 
economically disadvantaged communities, areas with prolonged electrical 
system outrages, and during large-scale disasters (e.g., hurricanes).

L. Congressional Review Act (CRA)

    This action is subject to the CRA and the EPA will submit a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
U.S. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous waste, Indians--lands, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

40 CFR Part 125

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal, Water pollution control.

    Dated: December 21, 2018.
Andrew R. Wheeler,
Acting Administrator, Environmental Protection Agency.

    For the reasons set out in the preamble, EPA amends Chapter I of 
Title 40 of the Code of Federal Regulations as follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
1. The authority citation for part 122 continues to read as follows:

     Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

Subpart A--Definitions and General Program Requirements

0
2. Section 122.1 is amended by revising ``Note to Sec.  122.1'' to read 
as follows:


Sec.  122.1  Purpose and scope.

* * * * *
    [Note to Sec.  122.1: Information concerning the NPDES program and 
its regulations can be obtained by contacting the Water Permits 
Division (4203), Office of Wastewater Management, U.S. EPA, 1200 
Pennsylvania Avenue NW, Washington, DC 20460 and by visiting the 
homepage at https://www.epa.gov/npdes/.]

0
3. Section 122.2 is amended by:
0
a. Revising paragraph (d) of the definition of ``new discharger''; and
0
b. Adding in alphabetical order definitions for ``pesticide discharges 
to waters of the United States from pesticide application'' and 
``pesticide residue''.
    The revision and additions read as follows:


Sec.  122.2  Definitions.

* * * * *
    New discharger * * *
    (d) Which has never received a finally effective NPDES permit for 
discharges at that ``site.''
* * * * *
    Pesticide discharges to waters of the United States from pesticide 
application means the discharges that result from the application of 
biological pesticides, and the application of chemical pesticides that 
leave a residue, from point sources to waters of the United States. In 
the context of this definition of pesticide discharges to waters of the 
United States from pesticide application, this does not include 
agricultural storm water discharges and return flows from irrigated 
agriculture, which are excluded by law (33 U.S.C. 1342(l); 33 U.S.C. 
1362(14)).
    Pesticide residue for the purpose of determining whether an NPDES 
permit is needed for discharges to waters of the United States from 
pesticide application, means that portion of a pesticide application 
that is discharged from a point source to waters of the United States 
and no longer provides pesticidal benefits. It also includes any 
degradates of the pesticide.
* * * * *

Subpart B--Permit Application and Special NPDES Program 
Requirements

0
4. Section 122.21 is amended by:
0
a. Revising paragraphs (a)(2)(i) introductory text and (a)(2)(i)(A), 
(c)(2)(ii)(B), (f) introductory text, and (f)(3) and (4);
0
b. Adding paragraphs (f)(9) and (10);
0
c. Revising paragraph (g) introductory text;
0
d. Adding paragraph (g)(7)(ix);
0
e. Revising paragraphs (j)(1)(ii) and (j)(1)(viii)(D)(2) and (3);
0
f. Adding paragraph (j)(1)(ix); and
0
g. Revising paragraphs (j)(4)(i), (j)(5)(i), (j)(6)(i), (j)(9), (k) 
introductory text, (k)(5)(vi), (q)(2)(i), (q)(8)(vi) introductory text, 
(q)(8)(vi)(A), (q)(9)(iii)(D) and (E), (q)(9)(iv)(A), (q)(10)(ii)(A), 
(q)(10)(iii)(K)(1), (q)(11)(ii)(A), (q)(12)(i), and (q)(13).
    The revisions and additions read as follows:


Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

    (a) * * *
    (2) * * *
    (i) All applicants for EPA-issued permits must submit applications 
on EPA permit application forms. More than one application form may be 
required from a facility depending on the number and types of 
discharges or outfalls found there. Application forms may be obtained 
by contacting: U.S. EPA, Mail Code 4203M, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460 or by visiting https://www.epa.gov/npdes. 
Applications for EPA-issued permits must be submitted as follows:
    (A) All applicants, other than POTWs, TWTDS, vessels, and pesticide 
applicators must submit Form 1.
* * * * *
    (c) * * *
    (2) * * *
    (ii) * * *
    (B) The applicant's name, address, telephone number, electronic 
mail address and ownership status;
* * * * *
    (f) Information requirements. All applicants for NPDES permits, 
other than POTWs and other TWTDS, vessels, and pesticide applicators, 
must provide the information in paragraphs (f)(1) through (10) of this 
section to the Director, using the application form provided by the 
Director. Additional information required of applicants is set forth in 
paragraphs (g) through (k) and (q) through (r) of this section.
* * * * *

[[Page 3337]]

    (3) Up to four SIC and up to four NAICS codes that best reflect the 
principal products or services provided by the facility.
    (4) The operator's name, address, telephone number, electronic mail 
address, ownership status, and status as Federal, State, private, 
public, or other entity.
* * * * *
    (9) An indication of whether the facility uses cooling water and 
the source of the cooling water.
    (10) An indication of whether the facility is requesting any of the 
variances at 40 CFR 122.21(m), if known at the time of application.
    (g) Application requirements for existing manufacturing, 
commercial, mining, and silvicultural dischargers. Existing 
manufacturing, commercial, mining, and silvicultural dischargers 
applying for NPDES permits, except for those facilities subject to the 
requirements of Sec.  122.21(h), shall provide the following 
information to the Director, using application forms provided by the 
Director.
* * * * *
    (7) * * *
    (ix) Where quantitative data are required in paragraphs (g)(7)(i) 
through (viii) of this section, existing data may be used, if 
available, in lieu of sampling done solely for the purpose of the 
application, provided that: All data requirements are met; sampling was 
performed, collected, and analyzed no more than four and one-half years 
prior to submission; all data are representative of the discharge; and 
all available representative data are considered in the values 
reported.
* * * * *
    (j) * * *
    (1) * * *
    (ii) Applicant information. Name, mailing address, telephone 
number, and electronic mail address of the applicant, and indication as 
to whether the applicant is the facility's owner, operator, or both;
* * * * *
    (viii) * * *
    (D) * * *
    (2) The name, mailing address, contact person, phone number, and 
electronic mail address of the organization transporting the discharge, 
if the transport is provided by a party other than the applicant;
    (3) The name, mailing address, contact person, phone number, 
electronic mail address and NPDES permit number (if any) of the 
receiving facility; and
* * * * *
    (ix) An indication of whether applicant is operating under or 
requesting to operate under a variance as specified at 40 CFR 
122.21(n), if known at the time of application.
* * * * *
    (4) * * *
    (i) As provided in paragraphs (j)(4)(ii) through (x) of this 
section, all applicants must submit to the Director effluent monitoring 
information for samples taken from each outfall through which effluent 
is discharged to waters of the United States, except for CSOs. The 
Director may allow applicants to submit sampling data for only one 
outfall on a case-by-case basis, where the applicant has two or more 
outfalls with substantially identical effluent. The Director may also 
allow applicants to composite samples from one or more outfalls that 
discharge into the same mixing zone. For POTWs applying prior to 
commencement of discharge, data shall be submitted no later than 24 
months after the commencement of discharge;
* * * * *
    (5) * * *
    (i) All applicants must provide an identification of any whole 
effluent toxicity tests conducted during the four and one-half years 
prior to the date of the application on any of the applicant's 
discharges or on any receiving water near the discharge. For POTWs 
applying prior to commencement of discharge, data shall be submitted no 
later than 24 months after the commencement of discharge.
* * * * *
    (6) * * *
    (i) Number of significant industrial users (SIUs) and non-
significant categorical industrial users (NSCIUs), as defined at 40 CFR 
403.3(v), including SIUs and NSCIUs that truck or haul waste, 
discharging to the POTW; and
* * * * *
    (9) Contractors. All applicants must provide the name, mailing 
address, telephone number, electronic mail address and responsibilities 
of all contractors responsible for any operational or maintenance 
aspects of the facility; and
* * * * *
    (k) Application requirements for new sources and new discharges. 
New manufacturing, commercial, mining and silvicultural dischargers 
applying for NPDES permits (except for new discharges of facilities 
subject to the requirements of paragraph (h) of this section or new 
discharges of storm water associated with industrial activity which are 
subject to the requirements of Sec.  122.26(c)(1) and this section 
(except as provided by Sec.  122.26(c)(1)(ii)) shall provide the 
following information to the Director, using the application forms 
provided by the Director:
* * * * *
    (5) * * *
    (vi) No later than 24 months after the commencement of discharge 
from the proposed facility, the applicant is required to complete and 
submit items V and VI of NPDES application Form 2C (see Sec.  
122.21(g)). However, the applicant need not complete those portions of 
Item V requiring tests which have already been performed and reported 
under the discharge monitoring requirements of the NPDES permit.
* * * * *
    (q) * * *
    (2) * * *
    (i) The name, mailing address, telephone number, and electronic 
mail address of the applicant; and
* * * * *
    (8) * * *
    (vi) If sewage sludge from the applicant's facility is provided to 
another ``person who prepares,'' as defined at 40 CFR 503.9(r), and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information for each facility 
receiving the sewage sludge:
    (A) The name, mailing address, and electronic mail address of the 
receiving facility;
* * * * *
    (9) * * *
    (iii) * * *
    (D) The name, mailing address, telephone number, and electronic 
mail address of the site owner, if different from the applicant;
    (E) The name, mailing address, telephone number, and electronic 
mail address of the person who applies sewage sludge to the site, if 
different from the applicant;
* * * * *
    (iv) * * *
    (A) Whether the applicant has contacted the permitting authority in 
the State where the bulk sewage sludge subject to Sec.  503.13(b)(2) 
will be applied, to ascertain whether bulk sewage sludge subject to 
Sec.  503.13(b)(2) has been applied to the site on or since July 20, 
1993, and if so, the name of the permitting authority and the name, 
phone number, and electronic mail address if available, of a contact 
person at the permitting authority;
* * * * *
    (10) * * *
    (ii) * * *
    (A) The site name or number, contact person, mailing address, 
telephone

[[Page 3338]]

number, and electronic mail address for the surface disposal site; and
* * * * *
    (iii) * * *
    (K) * * *
    (1) The name, contact person, mailing address, and electronic mail 
address of the facility; and
* * * * *
    (11) * * *
    (ii) * * *
    (A) The name and/or number, contact person, mailing address, 
telephone number, and electronic mail address of the sewage sludge 
incinerator; and
* * * * *
    (12) * * *
    (i) The name, contact person, mailing address, electronic mail 
address, location, and all applicable permit numbers of the MSWLF;
* * * * *
    (13) Contractors. All applicants must provide the name, mailing 
address, telephone number, electronic mail address and responsibilities 
of all contractors responsible for any operational or maintenance 
aspects of the facility related to sewage sludge generation, treatment, 
use, or disposal;
* * * * *

Subpart C--Permit Conditions

0
5. Section 122.44 is amended by revising the ``Note to paragraph 
(k)(4)'' read as follows:


Sec.  122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec.  123.25).

* * * * *
    (k) * * *
    (4) * * *

    Note to Paragraph (k)(4): Additional technical information on 
BMPs and the elements of BMPs is contained in the following 
documents: Guidance Manual for Developing Best Management Practices 
(BMPs), October 1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, 
ERIC No. W498); Storm Water Management for Construction Activities: 
Developing Pollution Prevention Plans and Best Management Practices, 
September 1992, EPA No. 832/R-92-005, NTIS No. PB 92-235951, ERIC 
No. N482); Storm Water Management for Construction Activities, 
Developing Pollution Prevention Plans and Best Management Practices: 
Summary Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC 
No. W139; Storm Water Management for Industrial Activities, 
Developing Pollution Prevention Plans and Best Management Practices, 
September 1992; EPA 832/R-92-006, NTIS No. PB 92-235969, ERIC No. 
N477; Storm Water Management for Industrial Activities, Developing 
Pollution Prevention Plans and Best Management Practices: Summary 
Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492. 
These and other EPA guidance documents can be obtained through the 
National Service Center for Environmental Publications (NSCEP) at 
https://www.epa.gov/nscep. In addition, States may have BMP guidance 
documents. These EPA guidance documents are listed here only for 
informational purposes; they are not binding and EPA does not intend 
that these guidance documents have any mandatory, regulatory effect 
by virtue of their listing in this note.

* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
6. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. et 
seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water 
Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.

Subpart A--General Program Requirements

0
7. Section 124.10 is amended by revising (c) introductory text and 
adding paragraph (c)(2)(iv) to read as follows:


Sec.  124.10  Public notice of permit actions and public comment 
period.

* * * * *
    (c) Methods (applicable to State programs, see 40 CFR 123.25 
(NPDES), 145.11 (UIC), 233.26 (404), and 271.14 (RCRA)). Public notice 
of activities described in paragraph (a)(1) of this section shall be 
given by the following methods:
* * * * *
    (2) * * *
    (iv) For NPDES major permits and NPDES general permits, in lieu of 
the requirement for publication of a notice in a daily or weekly 
newspaper, as described in paragraph (c)(2)(i) of this section, the 
Director may publish all notices of activities described in paragraph 
(a)(1) of this section to the permitting authority's public website. If 
the Director selects this option for a draft permit, as defined in 
Sec.  122.2, in addition to meeting the requirements in paragraph (d) 
of this section, the Director must post the draft permit and fact sheet 
on the website for the duration of the public comment period.

    Note to paragraph (c)(2)(iv): The Director is encouraged to 
ensure that the method(s) of public notice effectively informs all 
interested communities and allows access to the permitting process 
for those seeking to participate.

* * * * *

PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
8. The authority citation for part 125 continues to read as follows:

    Authority: The Clean Water Act, 33 U.S.C., 1251 et seq., unless 
otherwise noted.

Subpart A--Criteria and Standards for Imposing Technology-Based 
Treatment Requirements Under Sections 301(b) and 402 of the Act


Sec.  125.3  [Amended]

0
9. Section 125.3 is amended by removing and reserving paragraph 
(a)(1)(ii).

[FR Doc. 2019-01339 Filed 2-11-19; 8:45 am]
BILLING CODE 6560-50-P