FR Doc 03-29177

[Federal Register: November 21, 2003 (Volume 68, Number 225)]
[Proposed Rules]
[Page 65663-65665]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no03-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 123 and 501

[FRL-7589-7]

Water Pollution Control; State Program Requirements; Program
Modification Application by Arizona To Administer the Sewage Sludge
Management (Biosolids) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of application and public comment period.

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SUMMARY: The State of Arizona has submitted a program modification
application to EPA, Region 9 to administer the sewage sludge
(biosolids) management program. According to the State's application,
this program would be administered by the Arizona Department of
Environmental Quality (ADEQ). The application from Arizona is complete
and is available for inspection and copying.

DATES: The public comment period on the State's request for approval to
administer the proposed AZPDES biosolids program will be from the date
of publication until January 5, 2004. Comments postmarked after this
date may not be considered.

ADDRESSES: Viewing/Obtaining Copies of Documents. You can view
Arizona's application for modification from 8 a.m. until 5 p.m. Monday
through Friday, excluding holidays, at the Arizona Department of
Environment Quality, Records Management Center, 1110 W. Washington St.,
Phoenix, AZ 85007. Please call (602) 771-4378 to set up an appointment.
A copy of Arizona's application is also available for viewing from 9 am
to 4 pm, Monday through Friday, excluding legal holidays, at EPA Region
9, 12th floor, Water Division, 75 Hawthorne St., San Francisco, CA.
Part or all of the State's application may be copied, for a minimal
cost per page, at ADEQ's office in Phoenix or EPA's office in San
Francisco. ADEQ's submission documents are also available on the
Internet at: http://www.adeq.state.az.us/environ/water/compliance/assurance.html#bio
.
Comments. Electronic comments are encouraged and should be submitted to mitchell.matthew@epa.gov. Please send a copy to varga.chris@ev.state.az.us. Written comments may be sent to Matthew
Mitchell (WTR-5), EPA, Region 9, 75 Hawthorne Street, San Francisco, CA
94105. Please send an additional copy to Chris Varga, Surface Water
Permits Unit, Arizona Department of Environmental Quality, 1110 W.
Washington, Phoenix, AZ 85007. Public comments may be sent in either
electronic or paper format. EPA requests that electronic comments
include the commentor's postal mailing address. No Confidential
Business Information (CBI) should be submitted through e-mail. Comments
and data will also be accepted on disks in WordPerfect 8.0 format or
ASCII file format. If submitting comments in paper format, please
submit the original and three copies of your comments and enclosures.
Commentors who want EPA to acknowledge receipt of their comments should
enclose a self-addressed stamped envelope.

FOR FURTHER INFORMATION CONTACT: Matthew Mitchell at the above address by phone at (415) 972-3508, or by e-mail at mitchell.matthew@epa.gov.

SUPPLEMENTARY INFORMATION:

Background

Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, the
EPA may issue permits allowing discharges of pollutants from point
sources into waters of the United States, subject to various
requirements of the CWA. These permits are known as National Pollutant
Discharge Elimination System (NPDES) permits. Section 402(b) of the
CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for
authorization to administer their own NPDES permit programs.
Section 405 of the Clean Water Act (CWA), 33 U.S.C. 1345, created
the sewage sludge management program, requiring EPA to set standards
for the use and disposal of sewage sludge and requiring EPA to include
sewage sludge conditions in some of the NPDES permits which it issues.
The rules developed under section 405(d) are also self-implementing,
and the standards are enforceable whether or not a permit has been
issued. Section 405(c) of the CWA provides that a state may submit an
application to EPA for administering its own sewage sludge program
within its jurisdiction. EPA is required to approve each such submitted
state program unless EPA determines that the program does not meet the
requirements of sections 304(i) and/or 402(b) and 405 of the CWA or the
EPA regulations implementing those sections.
On June 11, 2002, Arizona submitted an application to EPA for
approval of a state-administered NPDES permit program pursuant to CWA
section 402(b). The Arizona NPDES program (known as AZPDES) was
approved by EPA on December 5, 2002. Prior to its submission of the
AZPDES program application, Arizona determined that it would submit a
separate application for the CWA Section 405 biosolids program at a
later date. EPA received the biosolids program submittal from Arizona
on November 29, 2002. Arizona's application for the biosolids
management program approval contains a letter from the Governor
requesting program approval, an Attorney General's Statement, copies of
pertinent State statutes and regulations, a Program Description, and a
Memorandum of Agreement (MOA) to be executed by the Regional
Administrator of EPA, Region 9 and the Director of ADEQ. The State
submitted a modification of its Attorney General's Statement, which EPA
received on October 10, 2003.

Biosolids and the State Biosolids Management Program

Biosolids, or sewage sludge, are the solids separated from liquids
during treatment at a domestic or municipal wastewater treatment plant
and treated to stabilize and reduce pathogens. EPA in 1993 adopted
standards for management of biosolids generated during the process of
treating municipal wastewater. 40 CFR part 503. The part 503 rules
establishes standards under which biosolids may be land applied as a
soil amendment, disposed in a surface disposal site, or incinerated,
and requirements for compliance with 40 CFR part 258 if placed in a
municipal landfill. The standards, designed to protect public health
and the environment, include pollutant limits, pathogen reduction
requirements, vector attraction reduction requirements, and management
practices specific to the use or disposal option selected.
The Arizona biosolids management program imposes requirements on
wastewater treatment plants, biosolids appliers, and surface disposal
site operators. It also provides for the issuance of permits under
certain conditions, enforcing the standards as necessary, and providing
guidance and technical assistance to members of the regulated
community. The program also includes a state-specific feature requiring
a land applier to register an application site with ADEQ before
biosolids is applied to the site.

Indian Country

Arizona is not authorized to carry out its biosolids management
program in Indian Country, as defined in 18 U.S.C. 1151.

[[Page 65664]]

Public Notice and Comment Procedures

Copies of all submitted statements and documents shall become a
part of the record submitted to EPA. All comments or objections
presented in writing to EPA, Region 9 and postmarked within 45 days of
this document will be considered by EPA before it takes final action on
Arizona's request for program modification approval. All written
comments and questions regarding the biosolids management program
should be addressed to Matthew Mitchell at the above address. The
public is also encouraged to notify anyone who may be interested in
this matter.

Public Hearing Procedures

At the time of this notice, a decision has not been made as to
whether a public hearing will be held on Arizona's request for program
modification. During the comment period, any interested person may
request a public hearing by filing a written request which must state
the issues to be raised to EPA, Region 9. The last day for filing a
request for a public hearing is 45 days from the date of this notice;
the request should be submitted to Matthew Mitchell at the above
address. In appropriate cases, including those where there is
significant public interest, EPA may hold a public hearing. Public
notice of such a hearing will occur in the Federal Register and in
enough of the largest newspapers in Arizona to provide statewide
coverage and will be mailed to interested persons at least 30 days
prior to the hearing.

EPA's Decision

After the close of the public comment period, EPA will decide
whether to approve or disapprove Arizona's application for approval of
its biosolids management program. EPA will consider and respond to all
significant comments received before taking final action on Arizona's
request for the biosolids program approval. The decision will be based
on the requirements of sections 405, 402 and 304(i) of the CWA and EPA
regulations promulgated thereunder. If the Arizona biosolids management
program is approved, EPA will so notify the State. Notice will be
published in the Federal Register and, as of the date of program
approval, EPA will no longer serve as the primary program and
enforcement authority for biosolids use and disposal within Arizona.
EPA will remain the authority for biosolids use and disposal in Indian
Country within Arizona. The State's program will operate in lieu of the
EPA-administered program. However, EPA will retain the right, among
other things, to object to AZPDES permits proposed by Arizona and to
take enforcement actions for violations, as allowed by the CWA. If EPA
disapproves Arizona's biosolids management program, EPA will notify the
State of the reasons for disapproval and of any revisions or
modifications to the State program that are necessary to obtain
approval.

Other Federal Statutes

National Historic Preservation Act

Section 106 of the National Historic Preservation Act, 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),
agencies consult with the appropriate State Historic Preservation
Officer (SHPO) on federal undertakings that have the potential to
affect historic properties listed or eligible for listing in the
National Register of Historic Places. EPA, Region 9 is currently in
discussions with the Arizona State Parks Board (which includes the
SHPO) regarding its determination that approval of the State biosolids
management program would have no effect on historic properties within
the State of Arizona.

Endangered Species Act

Section 7(a)(2) of the Endangered Species Act (ESA) requires that
all federal agencies, in consultation with the U.S. Fish and Wildlife
Service, insure that any actions they authorize, fund, or carry out are
not likely to jeopardize the continued existence of any Federally-
listed threatened or endangered species or result in the destruction or
adverse modification of their designated critical habitat. Regulations
for consultation under ESA section 7 are codified at 50 CFR part 402.
EPA, Region 9 has initiated informal ESA section 7 consultation with
the U.S. Fish and Wildlife Service regarding Arizona's request for
approval of its biosolids management program.

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 Clean Water
Act (CWA) program submission to constitute an adjudication because an
``approval,'' within the meaning of the Administrative Procedure Act
(APA), constitutes a ``licence,'' which, in turn, is the project 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 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 CWA program approval were a rule
subject to the RFA, the Agency would certify that approval of the State
proposed CWA program would not have a significant economic impact on a
substantial number of small entities. EPA's action to approve a CWA
program merely recognizes that the necessary elements of the program
have already been enacted as a matter of State law; it would,
therefore, impose no additional obligation upon those subject to the
State's program. Accordingly, the Regional Administrator would certify
that this Arizona biosolids management program, even if a rule, would
not have significant economic impact on a substantial number of small
entities.

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 section 202 of the UMRA, 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, section 205 of the UMRA 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

[[Page 65665]]

or lease burdensome alternative if the Administrator publishes with the
final rule an explanation why that alternative was not adopted. Before
EPA establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
agency plan. 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 decision includes no Federal
mandates for State, local or tribal governments or the private sector.
The Act excludes from the definition of a ``Federal mandate'' duties
that arise from participation in a voluntary Federal program, except in
certain cases where a ``Federal intergovernmental mandate'' affects an
annual Federal entitlement program of $500 million or more which are
not applicable here. Arizona's request for approval of its biosolids
management program is voluntary and imposes no Federal mandate within
the meaning of the Act. Rather, by having its biosolids management
program approved, the State will gain the authority to implement the
program within its jurisdiction, in lieu of EPA, thereby eliminating
duplicative State and Federal requirements. If a State chooses not to
seek authorization for administration of a biosolids management
program, regulation is left to EPA. EPA's approval of state programs
generally may reduce compliance costs for the private sector, since the
State, by virtue of the approval, may now administer the program in
lieu of EPA and exercise primary enforcement. Hence, owners and
operators of biosolids management facilities or businesses generally no
longer face dual Federal and State compliance requirements, thereby
reducing overall compliance costs. Thus, today's decision is not
subject to the requirements of sections 202 and 205 of the UMRA. The
Agency recognizes that small governments may own and/or operate
biosolids management facilities that will become subject to the
requirements of an approved State biosolids management program.
However, small governments that own and/or operate biosolids management
facilities are already subject to the requirements in 40 CFR parts 123
and 503 and are not subject to any additional significant or unique
requirements by virtue of this program approval. Once EPA authorizes a
State to administer its own biosolids management program and any
revisions to that program, these same small governments will be able to
own and operate their biosolids management facilities or businesses
under the approved State program, in lieu of the Federal program.
Therefore, EPA has determined that this document contains no regulatory
requirements that might significantly or uniquely affect small
governments.

Dated: November 10, 2003.
Alexis Strauss,
Acting Regional Administrator, Region 9.
[FR Doc. 03-29177 Filed 11-20-03; 8:45 am]

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