[Federal Register: February 1, 2005 (Volume 70, Number 20)]
[Rules and Regulations]
[Page 5058-5061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe05-10]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 442
[OW-2004-11; FRL-7866-7]
RIN 2040-AE65
Effluent Limitations Guidelines, Pretreatment Standards, and New
Source Performance Standards for the Transportation Equipment Cleaning
Point Source Category
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to correct a typographical
error in the Effluent Limitations Guidelines, Pretreatment Standards,
and New Source Performance Standards for the Transportation Equipment
Cleaning Point Source Category. The regulatory language of the
Pretreatment Standards for New Sources in the existing regulation
refers to ``any existing source'' when it should say ``any new
source.'' EPA is amending the language to correct this error.
DATES: This rule is effective on May 2, 2005 without further notice,
unless EPA receives adverse comment by April 4, 2005. If we receive
such comment, we will publish a timely withdrawal in the Federal
Register informing the public that this rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. OW-2004-
11, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
Mail: Water Docket, Environmental Protection Agency,
Mailcode: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: Water Docket, EPA/DC, EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OW-2004-11.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.epa.gov/edocket
, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov Web sites are
``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through EDOCKET or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in EDOCKET or in hard
copy at the Water Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. This Docket Facility is open
from 8:30 to 4:30, Monday through Friday, excluding legal holidays. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Mr. Jesse W. Pritts, Engineering and
Analysis Division, Office of Water (4303T), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone
[[Page 5059]]
number: (202) 566-1038; fax number: (202) 566-1053; e-mail address:
pritts.jesse@epa.gov.
SUPPLEMENTARY INFORMATION:
General Information
A. What Entities Are Potentially Affected by This Final Rule?
Entities potentially affected by this action include facilities
that discharge wastewater from transportation equipment cleaning
activities and include the following types:
------------------------------------------------------------------------
Examples of
common North
American
Category Examples of regulated Industry
entities Classification
System (NAICS)
codes
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Industry...................... Facilities that 311613, 311711,
generate wastewater 311712, 311222,
from cleaning the 311223, 311225,
interior of tank 484121, 484122,
trucks, rail tank 484210, 484230,
cars, intermodal tank 488390, 488490.
containers, tank
barges, or ocean/sea
tankers used to
transport materials
or cargos that come
into direct contact
with tank or
container interior,
except where such
tank cleanings are
performed in
conjunction with
other industrial,
commercial, or POTW
operations.
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EPA does not intend the preceding table to be exhaustive, but
rather it provides a guide for readers regarding entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not listed in the table could also be affected. To
determine whether your facility is affected by this action, you should
carefully examine the applicability criteria listed at 40 CFR 442.1. If
you still have questions regarding the applicability of this action to
a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
B. What Process Governs Judicial Review for Today's Final Rule?
In accordance with 40 CFR 23.2, today's rule is considered
promulgated for the purposes of judicial review as of 1 p.m. Eastern
Daylight Time, February 15, 2005. Under section 509(b)(1) of the Clean
Water Act (CWA), judicial review of today's effluent limitations
guidelines and standards may be obtained by filing a petition in the
United States Circuit Court of Appeals for review within 120 days from
the date of promulgation of these guidelines and standards. Under
section 509(b)(2) of the CWA, the requirements of this regulation may
not be challenged later in civil or criminal proceedings brought by EPA
to enforce these requirements.
I. Legal Authority
The U.S. Environmental Protection Agency is promulgating these
regulations under the authority of sections 301, 304, 306, 307, 308,
402, and 501 of the Clean Water Act, 33 U.S.C. 1311, 1314, 1316, 1317,
1318, 1342, and 1361 and under authority of the Pollution Prevention
Act of 1990 (PPA), 42 U.S.C. 13101 et seq., Public Law 101-508,
November 5, 1990.
II. Summary of Direct Final Rule
On August 14, 2000 (65 FR 49666), EPA published effluent
limitations and standards for the transportation equipment cleaning
point source category. The rule contained a typographical error. The
regulatory language of the Pretreatment Standards for New Sources in 40
CFR 442.16(b) refers to ``any existing source'' when it should say
``any new source.'' In correcting this error, EPA is not substantively
altering the final rule or expanding any regulatory requirement.
Section 442.16(b) clearly applies to pretreatment standards for new
sources, and therefore the use of the word ``existing'' instead of
``new'' in this paragraph was simply a typographical error.
EPA is publishing this rule without prior proposal because we view
this as a noncontroversial correction and anticipate no adverse
comment. This rule is noncontroversial because it does not change the
requirements of the rule, but merely corrects a typographical error. We
would expect no adverse comment on today's action. However, in the
``Proposed Rules'' section of today's Federal Register, we are
publishing a separate document that will serve as the proposal to
revise the Transportation Equipment Cleaning Effluent Limitations
Guidelines if adverse comments are filed. This rule will be effective
on May 2, 2005 without further notice unless we receive adverse comment
by April 4, 2005. If EPA receives adverse comment, we will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. We will address all public comments in a
subsequent final rule based on the proposed rule.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (see 58 FR 51735 (October 4, 1993))
the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule merely corrects technology-based discharge limitations and
standards. However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements contained
in the existing regulations (see 40 CFR 422 (August 14, 2000))
[[Page 5060]]
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2040-0235, EPA ICR number
2018.01. The information collection requirements are unchanged by
today's action. A copy of the OMB approved Information Collection
Request (ICR) may be obtained from Susan Auby, Collection Strategies
Division; U.S. Environmental Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
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 EPA's
regulations are listed at 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's direct final rule
on small entities, small entity is defined as: (1) A small business
according to the regulations of the Small Business Administration (SBA)
at 13 CFR 121.201; (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Today's
action only corrects a typographical error in the Pretreatment
Standards for New Sources and does not change the existing regulations.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under UMRA section 202, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, UMRA section 205 generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. EPA is required by UMRA section 203 to
develop a small government agency plan before it establishes any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. Since this action only corrects a
typographical error in an existing regulation, there are no costs
associated with this action. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
EPA also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Today's action does not establish any new regulatory
requirements, but merely corrects a typographical error in the existing
effluent limitations guidelines. Thus, today's rule is not subject to
the requirements of section 203 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This final rule does not have federalism implications. It will 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,
as specified in Executive Order 13132. The rule corrects a
typographical error to existing effluent limitations guidelines for the
transportation equipment cleaning industry. Thus, Executive Order 13132
does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (see 59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified in Executive Order 13175.
This rule does not establish any new regulatory requirements, but
merely
[[Page 5061]]
corrects a typographical error to the existing transportation equipment
cleaning effluent limitations guidelines. Thus, Executive Order 13175
does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (see 62 FR 19885, April 23, 1997)
applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866; and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate affect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This direct final rule is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (see 66 FR 28355 (May 22, 2001)) because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 requires that each Federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not exclude persons (including populations) from
participation in, deny persons (including populations) the benefits of,
or subject persons (including populations) to discrimination under,
such programs, policies, and activities because of their race, color,
or national origin.
Since this action does not establish any new regulatory
requirements but merely corrects a typographical error to the existing
transportation equipment cleaning effluent guidelines, there are no
environmental justice implications of today's action.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. 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 United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on May 2, 2005.
List of Subjects in 40 CFR Part 442
Environmental protection, Barge cleaning, Rail tank cleaning, Tank
cleaning, Transportation equipment cleaning, Waste treatment and
disposal, Water pollution control.
Dated: January 26, 2005.
Stephen L. Johnson,
Deputy Administrator.
0
40 CFR part 442 is amended as follows:
PART 442--AMENDED
0
1. The authority citation for part 442 continues to read as follows:
Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and
1361.
0
2. Section 442.16 is amended by revising paragraph (b) introductory
text to read as follows:
Sec. 442.16 Pretreatment standards for new sources (PSNS).
* * * * *
(b) As an alternative to achieving PSNS as defined in paragraph (a)
of this section, any new source subject to paragraph (a) of this
section may have a pollution prevention allowable discharge of
wastewater pollutants, as defined in Sec. 442.2, if the source agrees
to a control mechanism with the control authority as follows:
* * * * *
[FR Doc. 05-1862 Filed 1-31-05; 8:45 am]
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