Document 939N0wKkN7zyD79Y71p0R8qJD

PROPOSED RULE MAKING 5431 Register of December 31, 1970 (35 Ftt. 20005). Public comment received on the proposed regulations is now being considered. ' The draft permit- set forth below is being considered for use In the permit program being instituted pursuant to 33 U.8.C. 407 and Executive Order 11574 <35 P.R. 10027 >. Commcnt/i, suggestions, or objections to the proposed permit form should be submitted in writing to the Olllce of Chief of Engineers. Washington, D.C. 20314, Attention: ENOOW-ON, within 30 days of publication of this notice in the Fed eral Register. Dated: March 18, 1971. P. P. Koisch, ; Major General, U.S. Army, Director of Civil 'Works. Department op the Army PERMIT ' (Discharge Only) Referring to written request Gated `____ upon the recommendation of the Chief of Engineers, and under the provisions of section 13 of the Act of Congress approved March 3, 18D9 (33 UJ3.C. 407). entitled "An act making appropriation* for the construe' tlon, repair, and preservation of certain pub lic works on rivers and harbors, and for other purposes," you are hereby authorized by the Secretary of the Army-- to Olrrn Identify the noture of the discharge or deposit approved, Including, if applicable, limitations with respect to chemical content, water temperature differentials, toxins, sew age, type and quantity of solids, amount and frequency of discharge.) at . (Here to be named the nearest well-known locality--preferably a town or city--and the distance In miles and lOths from some defi nite point In the same, stating whether above or below or giving direction by points of compass.) In accordance with the plans and drawings attached hereto DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers ( 33 CFR Part 209 1 PERMITS FOR DISCHARGES OR DEPOSITS INTO NAVIGABLE WATERS Proposed Policy, Practice and Procedure Proposed regulations prescribing the policy, practice, and procedure to be fol lowed by all Corps of Engineers installa tions and activities in connection with applications for permits authorizing dis charges or deposits Into navigable waters of the United States or into any tributary from which discharged matter shall float or be washed into a navigable water (33 U.S.C. 407) were published in the Federal (On drawings: give file number or other definite identification marks.) " subject to the following: I. General conditions, (a) That all dis charges or deposits shall be consistent with the terms and conditions of this permit; the discharge or deposit or any material or sub stance not specifically identified and author ized herein or the discharge or deposit of any material or substance more frequently than or at a level in excess of that identified and authorized herein shall constitute a violation of the terms and conditions of this permit; any violation of the terms and con ditions of this permit shall be unlawful and may result in the institution of such legal proceedings as the Government may consider appropriate, whether or not this permit has been previously modified, suspended or re voked; a violation of any of the terms and conditions of this permit may also lead to the modification, suspension or revocation of this permit. (b) That, except as provided in (c), below, the discharge or deposit authorized by this permit shall at all times be consistent with FEDERAL REGISTER, VOL 36, NO. 36--TUESDAY, MARCH 23, 1971 OS* S'91' STLCOPCB4076099 r.w2 . ' PROPOSED RULE MAKING applicable water quality standards (Including ImplementInp schedules adopted In conncctloti with water quality standards or nbntomeut proceedings! whether caiabUslied pnrMi.mt 111 scetinii lP(n 1-1 l he Federal Water Pollution Control Art. an umended, or pur : mill. In Htnte lnw. Jn the event that two -r :noru eels of MiniiiiirdH mo applicable to tlin iltrlmrpf- or dri>neU, the discharge or - lo| a -ill t must lie iiiirlsieni. Willi tin- more i t ii 111<> I ntniiiliiril in Thai If npptlrnhie water quality ntnndnrili mi- iipgniili-it ilininn Hip (urin ot ihi-i permit Hie discharge or deposit authorized l-y this permit will, within C months or the directive date of nny upgrading or water quality standards or within such other period of time ns the District Engineer, In consultaUon with the Regional Representative or EPA. may determine, be given additional .revmen*, cr will otherwise be modified, ir necessary, to be consistent with such up -graded water quality standards. id! That permittee shall promptly comply w'.ili any regulations, orders, or other direc tives affecting the discharge or deposit an t liorl.-cil herein which may be issued by the Administrator of she Environmental Protec tion Agency and with the rcrommnndationa of any enforcement conference held pursuant to the Federal Water Pollution Control Act. <ol That the permittee shall permit au thorized representatives end designees of the Army Corps of Engineers to visit such plants or faeilliles ns may ho related to the dis charge or deposit ntuhorlr.ed by this permit lor the puriMvio or inspecting discharge or deposit records, taking samples of discharges or deposits or conducting such other onsite Inspection ns they may deem necessary to monitor compliance with tl-.e terms and con ditions ot this permit. Such visits as are con . tcmplatcd by this provision shall be at reasonable times and within reasonable lim its and shall follow the presentation of ap propriate credentials to the owner, operator or agent In charge of the plants or facilities. If a sample Is taken, the representative mak ing the Inspection shall, upon completion of the Inspection and before leaving the prem ises, give to the owner, operator, or agent In charge a receipt describing the sample obtained. Permittee shall provide such as sistance as may be necessary to effectively and safely conduct such sampling or Inspection. (f) That permittee shall maintain detailed records as in the uni uro and frequency of all discharges or deposits from the plant or other facility identified herein and shall pro vide the District Engineer and the Regional Representative of the Environmental Pro tection Agency with periodic reports con cerning such discharges or deposits. Such reports shall be provided annually unless the District Engineer. In consultation with the Regional Representative, determines that they should be provided at more fre quent Intervals. (g) That In Issuing this permit, the Oovernment has relied on the Information and data which the permittee has provided In connection with his permit application. If. subsequent to the issuance of this permit, such Information proves to be false or In accurate this permit may be modified, sus pended or revoked and/or the Government may Institute such legal proceedings as It considers to be appropriate. Attention Is di rected to the provisions of 18 TT.S.C. 1001 which provides for possible fines and lmprlsonment In the case of false statements. (h) Water quality certifications pursuant to section 31 lb) of the Federal Water Pol lution Control Act. the comments of all governmental agencies on a permit applica tion. and all Information and data provided by an applicant or a permittee Identifying the nature and frequency of a discharge or deposit shall be available to the public with out restriction. All other information or data which may 1 submitted by an applicant in connection with a permit application or Which may be furnished by a permittee In connection with required periodic reports sliMl also be available to the publlo unless the applicant or permittee specifically Iden tifies and lu able to domonetrate to the satls- fncMon of the Secretary of the Army or his authorized representative that the disclo sure of such Information or data to the gen eral public would divulge methods or pron- o aes entitled to protection as trade secrets. (I) That tho Federal Government shall not be precluded by the Issuance of this permit from Imposing In the future such taxes or other charges relating the discharge or deposit authorized herein as may be author ized or required by Federal law or regulation. (J) That this instrument does not convey any property rights either in real estate or material, or any exclusive privileges; and that it docs not authorize any Injury to private property or Invasion of rights, or any infringement of Federal, State, or local laws or regulations, nor docs It obviate the neces sity of obtaining State or local assent required by law-Xnr the discharge or deposit authorized. <k) That unless specifically provided heroin this permit does not authorize or approve the construction of physical struc tures or facilities or the undertaking of any work in nny navigable waters of the United .States or tributaries thoreof. (l) That this permit may not be trans ferred to a third party without the prior writ ten approval of the District Engineer. (m) That this permit may be modified, suspended or revoked if the Secretary oT the Army or his authorized representative, after consultation with the Environmental Pro tection Agency, determines that discharges or deposits undertaken pursuant to the terms of this permit may pose an Imminent hazard to public health or safety. Such modification, suspension, or revocation shall be effective upon receipt by the permittee of a notice indicating the action which has been taken and the permittee shall take Immediate steps to comply with directives contained In the notlco received. Following receipt of the notice and after complying with its terms, tho permittee may submit to the Secretary of the Army or his authorized representa tive a request for a public hearing at which the (H-rmlttee and other Interested persons shall be afforded an opportunity to present oral and written evidence on the basis for the modification, suspension, or revocation. Following the public bearing to be held before authorized representatives of the Secretary of the Army and the Administrator of the Environmental Protection Agency, the Secretary or his authorized representative shall, after considering the record developed at the public hearing and the recommenda tions of the presiding officials, and after consulting with the Administrator or his authorized representative, make a final decision, either affirming, rescinding, or modifying the action previously taken. (n) That this permit may be either sus pended or revoked If the Secretary of the Army or his authorized representative deter mines that there has been a violation of any of the terms or conditions of this permit. Any such suspension or revocation will become effective 30 days after receipt by the permittee of written notice Issued by the Secretary of the Army or his authorized representative unless, within the 80-day period (1) the permittee Is able to demon strate to the satisfaction of the Secretary or his authorized representative either (a) that the alleged violation of permit condi tions did not. In fact, occur or that (b) the violation was accldentlal, that the permittee has been operating in compliance with the terms and conditions of the permit and pro vides assurances satisfactory to the Secretary or his authorized representative that future operations will be In full compliance with the terms and conditions of the permit, or (3) the permittee request* the holding of a public hearing at which the permittee and other Interested persons will be afforded the opportunity to present oral and written evi dence on the busts for suspension or revoca tion. Following the public hearing to be held lxifore authorized representatives of ties Secretary of tile Army and the Administrator of the Environmental Protection Agency, the Secretary or his authorized representative shall, after considering the record developed at the public bearing and the recommenda tions of the presiding officials, and after con sulting with the Administrator of bis author ized representative, make findings of fact n<t a final determination as to whether the per mit Is or Is not to be suspended or revoked. If tbe final determination is made that the per mits should be suspended or revoked, such suspension or revocation will bo effective upon receipt by the permittee of an appro priate notice signed by the Secretary or bis authorized representative. (o) That any modification, suspension, or revocation of this permit shall not be the bade for any claim for damages against (tie United Htntes. II. Special condition!. Tills permit expiresyears from the date of the permittee's signature unless revalidated or specifically extended. By authority oT the Secretary of the Arnjy. (District Engineer) (Date) Permittee hereby accepts the terms and conditions of this permit. ' (Permittee) (Date) (FR Doc.71--3038 Filed 3-22-71 ;8:48 am) Copied by MCA March 26, 1971 FEDERAL REGISTER, VOL. 36, NO. 56--TUESDAY, MARCH 23, 1971 0S\N 329392 STLCOPCB4076100 3674 Notices DEPARTMENT OF DEFENSE Department of the Army ADMINISTRATOR OF THE ENVIRON MENTAL PROTECTION AGENCY AND THE SECRETARY OF THE ARMY Notice of a Memorandum of Under standing Providing for Cooperation in the Investigation of Violations of the Refuse Act February 10, 1971. Executive Order 11574 (35 F.R. 19G27) Announced the establishment of a permit program under the Refuse Act, 33 TT.S.C. 407, Proposed Corps of Engineers regula tions governing the permit program (35 F.R. 20005) and a proposed memorandum of understanding concerning the imple mentation of the program <36 F.R. 903) have been previously published in the Federal Register. The following mem orandum of understanding which per tains to enforcement of and investiga tions under the Refuse Act rather than to the permit program itself has been executed by both the Administrator of the Environmental Protection Agency and the Secretary of the Army: Memorandum of Understanding Between the Administrator op the Environmental i Protection Agency and the Secretary of theArmy The Administrator of the Environmental Protection Agency and the Secretary of the Army, recognizing the Interrelationship be tween section l;i of the Act of March 3. 1809 (33 U.S.C. 407) (the `'Refuse Act") adminis tered by the Department of the Army and the statutory responsibilities of the Environ mental Protection Agency under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 ct seq.), and further recognizing their responsibilities under the Nationnl En vironmental Policy Act of 19G9 (42 U.S.C. 4321-4347), and tlicir responsibilities under Executive Order 11574 dated December 23. 1070. which directs the Federal Government to Implement a permit program under the Refuse Act to control the discharge of pol lutants Into navigable waters and their tribu taries, have entered into this memorandum of understanding to delineate more fully the respective responsibilities of said Agency and Department for water pollution abatement and control, and to establish policies and procedures for interagency cooperation in the enforcement of the Refuse Act. X. Responsibilities /or water pollution abatement and control. A. At the Federal level, the Environmental Protection Agency lias primary responsibility, pursuant to the Federal Water Pollution Control Act. for the abatement and control of pollution of inter state and navigable waters of the United States. 13. The Department of the Army lias pri mary responsibility for the enforcement of the Refuse Act. C. Under Executive Order 11574, the Secre tary Is directed to develop regulations and procedures In consultation with the Admlnls- trator governing the Issuance of discharge permits under the Refuse Act, and, in con nection with the grant, denial, conditioning, revocation and suspension of such permits, to adopt determinations and Interpretations of the Administrator respecting water qual ity standards and compliance therewith. D. The Department of the Army and the Environmental Protection Agency have In co operation undertaken to Implement the per mit authority of the Refuse Act pursuant to a memorandum of understanding dated Janu ary, the terms of which are incorporated herein and made a part hereof. II. The Refuse Act. A. The Refuse Act, 33 U.S.C. 407, provides that: It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged or deposited either from or out ol any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or de scription whatever other than that flowing from streets and sewers and passing there from in a liquid state, into any navigable water of the United States, or into any tribu tary of the navigable water from which the same shall float or be washed Into such navigable water; and It shall not be lawful to deposit, or cause, sutler, or procure to be deposited material of any kind In any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed Into such navigable water, cither by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be Impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to. or prohibit the operations in con nection with the Improvement of navigable waters or construction of public works, con sidered necessary and proper by the U.S. offi cers supervising such Improvement or public work: And, provided further, That the Sec retary of the Army whenever in the Judg ment of the Chief ol Engineers anchorage and navigation will not be Injured thereby, may permit the deposit of any material above mentioned In navigable waters, within limits to be defined and under conditions to be pre scribed by him. provided application Is made to him prior to depositing such material; and whenever any permit is so granted the con ditions thereof shall be strictly complied with, and any violation thereof shall be un lawful. March 3.1899, c. 425. B. Criminal sanctions may be imposed against persons or corporations found guilty of violating provisions of the Refuse Act. As prescribed in 33 U.S.C. 411, the peigilty upon conviction Is "a fine not exceeding $2,500 nor less than $500, or * * Impris onment (In the case of a natural person) for not less than 30 days nor more than 1 year, or both such fine and Imprisonment, In the discretion of the court, onc-half of said fine to be paid to the person or per sons giving Information which shall lead to conviction." C. Civil proceedings may also be Instituted to enjoin conduct which would violate pro visions of the Refuse Act. United States V. Republic Steel Corp., 362 U.S. 482 (1960) and Wyandotte Transportation Co. v. United States, 389 U.S. 191 (19G7). III. Policy with respect to enforcement of Refuse Act. The policy of the Environmental Protection Agency and the Department of the Army Is to utilize the Refuse Act and the authorities contained therein to the full est extent possible and In a manner con sistent with the provisions of the Federal Water Pollution Control Act to Insure com pliance with applicable water quality stand ards and otherwise to carry out >thc pur poses of the Federal Water Pollution Control Act. Persons wishing to discharge Into or place deposits In navigable waters or tribu taries thereof will be required to apply for ami obinln a permit from the Department of the Army. Persons without an appropriate permit who discharge Into navigable waters or tributaries thereof or who discharge into such waters m violation of the terms of a valid permit may be subjected to legal pro ceedings under the Refuse Act. IV. Inter-ayency cooperation. A. In recog nition of the expertise of the Department of the Army and the Corps of Engineers In mat ters pertaining to the navigability of a waterway, it Is agreed that the Department of the Army, acting through the Corps of Engineers, has primary Federal responsibility for Identifying and investigating violations of the Refuse Act which have an adverse Impact on the navigable capacity of a water way, Whenever a District Engineer has rea son to believe that a discharge has or may have occurred having an adverse impact on water quality, he shall so notify the appro priate Regional Representative of 'the En vironmental Protection Agency and shall provide him with all information, Including, If the discharger is the holder of a Refuse Act permit, a copy of said permit and all of the conditions attached thereto. The said Regional Representative shall make such in vestigation as he deems appropriate and shall advise the District Engineer in a timely manner whether in his opinion a violation of the Refuse Act having an adverse impact on water quality lias or may have occurred. If the Regional Representative Is of such opinion, he shall make a report to the Dis trict Engineer as to the following: 1. The nature and seriousness of the ap parent violation (Including, If the discharger is the holder of a Refuse Act permit. Infor mation as to the conditions of such permit which appear to have been violated). 2. The nature and seriousness of the Im pact on water quality. . . 3. The measures. If any, taken or being taken by the discharger to comply with ap plicable water quality standards or the con ditions of a Refuse Act permit. If any. 4. The existence and adequacy of State or local pollution abatement proceedings. 5. The applicability of the Federal Water Pollution Control Act, whether any admin istrative or Judicial proceedings are being taken or contemplated thereunder, and the status of any such proceedings. 6. His recommendations as to the action. If any. which should be taken under the Ref use Act and his reasons therefor. If the discharger is the holder of a Refuse Act per mit. such recommended action may Include In addition to or In lieu of prosecution under the Refuse Act for one or more of the reme dies available thereunder, the suspension or revocation of the permit. A recommendation to suspend shall Include a recommendation as to the period and conditions of the suspension. B. In recognition of the expertise of the Environmental Protection Agency In matters pertaining to water quality. It Is agreed that FEDF.RAl REGISTER, VOl. 36, NO. 32--WEDNESDAY, FEBRUARY 17, 1971 DSW 329393 <--fwasiii1 leiCWie- *it,r ^9 ^7. - STLCOPCB4076101 *> aid Agency has primary Fedoral responsi bility tor Identifying and Investigating cases Involving discharges Into Interstate or navi gable waters which have an adverse Impact on water quality. District Engineers shall assist Regional Representatives of the Envlronmental Protection Agency b7 providing them with such Information as may become available concerning known or suspected dtscharges which may adversely affect water quality (Including, If the discharger is the holder of a Refuse Act permit, a copy of said permit and all of the conditions attached thereto), and, to the extent of available re sources. shall assist in the conduct of Investi gations concerning such discharges. Regional Representatives shall be responsible lor noti fying District Engineers of known or sus pected violations of the Refuse Act and for providing District Engineers with timely re ports of investigations conducted. Whenever in the opinion of the Regional Representa tive a violation of the Refuse Act having an adverse Impact on water quality has or may have occurred, such report shall Include all of the same information and recommen dations- called for In subparagraphs 1 through 6 of paragraph A with respect to reports submitted under that paragraph; C. In connection with any remedial action recommended or taken pursuant to this memorandum of understanding, due regard shall be given to the provisions of section 21 (b) of the Federal Water Pollution Control Act, and In particular the provisions of sectlons 21(b)(4), 21(b)(5), and 21(b)(9)(B) relating to the revocation on suspension of permits. D. In any case in which a Refuse Act permit is suspended, If the District Engineer has reason to believe that the permittee has or may have violated the terms of the suspen sion, he shall notiiy the appropriate Regional Representative of tiic Environmental Protec tion Agency and provide him with all avail able Information. The Regional Represent.-!tlve shall make such Investigation os he deems apjiropriate and shall make a report to the District Engineer, such report to include, to the extent relevant, the information and recommendations called for in subparagraphs 1 through 6 of paragraph A with respect to reports submitted under that paragraph. E. If upon review of idl reports and infor mation prepared pursuant to this memoran dum of understanding and any other aynllable evidence, it is determined by the District Engineer of the Corps or the Regional Representative of EPA to request legal proceedings under the Refuse Act, such District Engineer or Regional Representative shall, In consultation with each other, forward all available evidence and Informa tion, Including recommendations. If any, of botli the Regional Representative and the District Engineer, to the appropriate TJ.S. attorney. A copy of nny covering letter forwarding Information and evidence to the appropriate U.S. attorney should be mailed, together with a brief summary of the factual background of the case, to the Assistant Attorney General for Lands and Natural Resources, Department of Justice, Washlng- ' ton, D.C. 20530. WlLI.IAM D. Rut'KyXSIIAUS, Administrator, 'Environmental Protection Agency. Etanmct R. Itra.on, Secretary o/ Die Army. Dated: January 12, 1971. For the Adjutant General. It. IJ. BkLNAP, Special Advisor to TAG. [FR Doc.71-3194 Filed 2-lC-7l;0:49 am) dS>N 329394 STLCOPCB4076102