[Federal Register: December 30, 2002 (Volume 67, Number 250)]
[Notices]
[Page 79629-79631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de02-86]
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ENVIRONMENTAL PROTECTION AGENCY
FRL-7432-2]
State Program Requirements; Approval of Application by Arizona To
Administer the National Pollutant Discharge Elimination System (NPDES)
Program; Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: On December 5, 2002, the Regional Administrator for the
Environmental Protection Agency, Region IX (EPA), approved the
application by the State of Arizona to administer and enforce the
Arizona Pollutant Discharge Elimination System (AZPDES) Program, for
all areas within the State, other than Indian country. The authority to
approve State programs is provided to EPA in section 402(b) of the
Clean Water Act (CWA). The State will administer the approved program
through the Arizona Department of Environmental Quality (ADEQ), subject
to continuing EPA oversight and enforcement authority, in place of the
National Pollutant Discharge Elimination System (NPDES) program
previously administered by EPA in Arizona. The program is a partial
program to the extent described in the section of this Notice entitled
National Pollutant Discharge Elimination System (NPDES) program ``Scope
of the AZPDES Program.'' In making its decision, EPA considered and
addressed all comments and issues raised during the public comment
period.
DATES: Pursuant to 40 CFR 123.61(c), the AZPDES program was approved
and became effective on December 5, 2002.
FOR FURTHER INFORMATION CONTACT: Matthew Mitchell, USEPA Region IX
(WTR-5), 75 Hawthorne Street, San Francisco, CA, 94105, (415) 972-3508
or Chris Varga, Federal Permits Unit, Arizona Department of
Environmental Quality, 1110 W. Washington St., Phoenix, AZ, 85007,
(602) 771-4665. Part of the State's program submission and supporting
documentation is available electronically at the following Internet
address: http://www.adeq.state.az.us/environ/water/ permits/
federal.html
SUPPLEMENTARY INFORMATION: Arizona's application was described in the
Federal Register (67 FR 49916) on August 1, 2002, in which EPA
requested comments. Notice of Arizona's application was published in
the Arizona Republic on August 13, 2002. A public hearing on the
application was held on September 4, 2002, in Phoenix, AZ.
Section 402 (c)(1) of the CWA provides that ninety days after a
State has submitted an application to administer the NPDES program,
EPA's authority to issue such permits is suspended unless EPA
disapproves or approves the State's application. 40 CFR 123.21(b)(1).
This ninety day statutory review period ended on October 8, 2002.
However, because of the many complex issues that were raised with
respect to the State's program and the need to address them in a
comprehensive manner, EPA was unable to make a final decision by
October 8, 2002. Thus, EPA suspended issuance of NPDES permits in
Arizona on October 8, 2002. However, failure to make a decision by the
October 8, 2002 deadline did not mean that the State automatically
gained NPDES authority. It is EPA's interpretation that a State agency
does not gain NPDES authority unless and until EPA approves the State
program, consistent with CWA section 402(b) and 40 CFR 123.1. As of
December 5, 2002, the ADEQ is now authorized to issue AZPDES permits
under the CWA in all areas within the State, except for in Indian
country.
[[Page 79630]]
A. Scope of the AZPDES Program
The AZPDES program is a partial program which conforms to the
requirements of section 402(n)(3) of the CWA. Specifically, Arizona is
being approved to administer both the NPDES permit program covering
point source dischargers to State waters and the pretreatment program
covering industrial sources discharging to publicly owned treatment
works.
Pursuant to CWA section 402(d), in specified circumstances EPA
retains the right to object to AZPDES permits proposed by ADEQ, and if
the objections are not resolved, to issue the permits itself. EPA also
will retain jurisdiction over all NPDES permits it has issued in
Arizona until ADEQ reissues them as AZPDES permits. Finally, EPA and
State have agreed that EPA may retain permitting authority in certain
limited circumstances, as set forth in the Memorandum of Agreement
between EPA and ADEQ.
As part of operating the approved program, ADEQ generally will have
the lead responsibility for enforcement. However, EPA will retains its
full statutory enforcement authorities under CWA sections 308, 309,
402(i) and 504. Thus, EPA may continue to bring federal enforcement
action under the CWA in response to any violation of the CWA, as
appropriate. In particular, if EPA determines that the State has not
taken timely and/or appropriate enforcement action against a violator
in Arizona, EPA may take its own enforcement action.
B. Public Comments
The EPA received numerous public comments concerning the Arizona
program.
Several commenters urged the EPA to approve the State's program.
The EPA agrees that the State program should be approved at this time
outside Indian country.
Several commenters were concerned about impacts on endangered
species and historic properties associated with EPA's approval of the
AZPDES program. In addition, a few commenters urged that the EPA reject
Arizona's program application on a variety of grounds.
All public comments are addressed in EPA's Response to Comments
Document, dated December 5, 2002. In addition, EPA actions taken in
accordance with the requirements of the Endangered Species Act and the
National Historic Preservation Act are described below in Section C.
C. Other Federal Statutes
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C.
1536(a)(2), requires that federal agencies ensure, in consultation with
the United States Fish & Wildlife Service (FWS) that actions they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of listed threatened or endangered species (listed
species) or result in the destruction or adverse modification of
critical habitat designated for such listed species.
EPA consulted with the FWS under section 7(a)(2) of the ESA
regarding the effects of the AZPDES program approval on listed species
and designated critical habitat. On December 3, 2002, the Service
issued a biological opinion concluding that EPA's approval of Arizona's
NPDES application is not likely to jeopardize the continued existence
of listed threatened or endangered species or result in the destruction
or adverse modification of their critical habitat. In the opinion, the
FWS also stated that it does not anticipate that EPA's action will
result in the incidental take of listed species. Issuance of the
biological opinion with these findings concludes the consultation
process required by ESA section 7(a)(2) and reflects the Service's
agreement with EPA that the approval of the State program meets the
substantive requirements of the ESA.
National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA), 16
U.S.C. 470(f), requires Federal agencies to take into account the
effects of their undertakings on historic properties and to provide the
Advisory Council on Historic Preservation (ACHP) an opportunity to
comment on such undertakings. Under the ACHP's regulations (36 CFR part
800), the Agency consults with the appropriate State Historic
Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer
on federal undertakings that have the potential to affect historic
properties listed or eligible for listing in the National Register of
Historic Places. During EPA's review of the Arizona NPDES application,
EPA engaged in discussions with the Arizona SHPO regarding EPA's
determination that approval of the State permitting program would have
no effect on historic properties.
On August 23, 2002, EPA provided the Arizona SHPO's Office with
EPA's determination that approval of Arizona's application would have
no effect on historic properties in Arizona. As part of the
coordination process, the SHPO's Office raised certain issues regarding
approval of the Arizona program for further discussions. By letter
dated September 23, 2002, the SHPO withdrew these issues for
consideration and informed EPA that it was working with ADEQ to
coordinate its activities in the protection of Arizona's cultural
resources. On October 18, 2002, the SHPO and ADEQ entered into a
Memorandum of Understanding (MOU) assuring the SHPO that it would
receive notices of certain proposed permit actions. This MOU further
provides for coordination between ADEQ and the SHPO to resolve any
identified issues to ensure that AZPDES permits will comply with
Arizona water quality standards and Arizona laws protecting historic
properties. For those permits with the potential to adversely affect
historic properties, ADEQ and the SHPO agreed to seek ways to avoid,
minimize or mitigate any adverse effects to historic properties
stemming from the proposed permit. EPA believes that the agreement
between ADEQ and the SHPO is consistent with EPA's determination that
approval of the State permitting program would have no effect on
historic properties.
Regulatory Flexibility Act
Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has
long considered a determination to approve or deny a State NPDES
program submission to constitute an adjudication because an
``approval,'' within the meaning of the APA, constitutes a ``license,''
which, in turn, is the product of an ``adjudication.'' For this reason,
the statutes and Executive Orders that apply to rulemaking action are
not applicable here. Among these are provisions of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601 et seq. Under the RFA, whenever a
Federal agency proposes or promulgates a rule under section 553 of the
Administrative Procedure Act (APA), after being required by that
section or any other law to publish a general notice of proposed
rulemaking, the Agency must prepare a regulatory flexibility analysis
for the rule, unless the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
If the Agency does not certify the rule, the regulatory flexibility
analysis must describe and assess the impact of a rule on small
entities affected by the rule. Even if the NPDES program approval were
a rule subject to the RFA, the Agency would certify that approval of
the State's proposed AZPDES program would not
[[Page 79631]]
have a significant economic impact on a substantial number of small
entities. EPA's action to approve an NPDES program merely recognizes
that the necessary elements of an NPDES program have already been
enacted as a matter of State law; it would, therefore, impose no
additional obligations upon those subject to the State's program.
Accordingly, the Regional Administrator would certify that this
program, even if a rule, would not have a significant economic impact
on a substantial number of small entities.
E. Notice of Decision
I hereby provide public notice that EPA has taken final action
authorizing Arizona to implement the NPDES program in all areas of the
State except for Indian Country.
Authority: This action is taken under the authority of section
402 of the Clean Water Act as amended, 42 U.S.C. 1342.
Dated: December 5, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-32907 Filed 12-27-02; 8:45 am]
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